Wash Park Prophet

10th Circuit Upholds and Narrowly Interprets Stolen Valor Act

2012-01-27T14:18:00.000-07:00

The United States Court of Appeals for the 10th Circuit, based in Denver, has upheld the constitutionality of the Stolen Valor Act, which makes it a misdemeanor to make false statements made about the military honors one has obtained.

It did so by first clarifying that the statute is being interpreted narrowly, in an effort to preserve its constitutionality. As construed, it applies only to statements made knowing that the statement is false with an intent to deceive, and only to statements that are actually meant to be actual statements of factual matter as opposed to statements not calculated to be taken literally such as "satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements." Thus, as interpreted by the 10th Circuit, "only outright lies—not ideas, opinions, artistic statements, or unwitting misstatements of fact—are punishable under the Act." But the Stolen Valor Act removes the requirement found in fraud or defamation statutes that have been previously upheld as constitutional in the face of First Amendment challenges that "the lie induced reliance or caused discrete harm."

The 10th Circuit reasoned that there is no general constitutional protection for knowingly made false statements of fact under the First Amendment, even though there are some instances where such statements are insulated from liability because they would have the effect of chilling some other form of protected speech. But, given their construction of the statute, the 10th Circuit concluded that this particular subset of knowingly false statements of fact made with an intent to deceive about their factual truth related to the military decorations that one has received does not chill legitimate protected speech and by its narrow content scope implicitly excluudes all sorts of false statements that would involve only immaterial statements of fact.

The 10th Circuit notes, quoting the brief of a law professor who blogs at a site in the sidebar:

Since New York Times, Garrison, and Gertz, courts have
extended the “false statements of fact” exception to cover many categories of false-speech statutes, including laws punishing fraud, false-light invasion of privacy, intentional infliction of emotional distress through false statements, trade libel, perjury, unsworn false statements of fact made to governmental officials, impersonation of a governmental official, false claims regarding university degrees and professional licenses, falsehoods in connection with political campaigns, falsehoods likely to provoke public panic, and falsehoods that are likely to lead to physical harm. See Brief for Eugene Volokh & James Weinstein Amici Curiae Supporting Petitioner at 3–11, United States v. Alvarez, No. 11-210 (U.S. Dec. 7, 2011); Brief for Eugene Volokh Amicus Curiae Supporting Plaintiff at 1, United States v. Strandlof, No. 09-cr-00497 (D. Colo. Jan. 15, 2010).

An even better set of constitutional laws to which the Stolen Valor Act is analogous, are those criminalizing certain kinds of trademark and servicemark violations. Military honors and decorations are essentially trademarks that designate the quality of a soldier just as a servicemark can be used to distinguish the quality of a particular individual's personal services, that belongs to the United States government. And, there is no good reason why it should be possible to sanction someone criminally for falsely using a private servicemark without an individualized showing of reliance or harm, but it should not be possible to do the same thing when the servicemark is granted by the U.S. government (the laws criminalizing claims that one has degrees that one does not have are also quite analogous in this regard when a state university is involved). The argument that the United States government has something in the nature of an intellectual property right in decorations and honors that it issues is a natural and reasonable one.

Coming close to this analysis, the 10th Circuit notes the line of cases establishing that "Congress has made it a crime to falsely purport to speak on behalf of the government" and that Congress has taken "steps to protect the intellectual property associated with medal designs[.]"

The 10th Circuit three judge panel ruling was made with one judge dissenting. The dissenting judge argued that an injury must exist to criminalize false statements of fact and unlike the majority (which also did not believe that injury was a constitutional requirement, citing many counterexamples) did not feel that this could be established on a generalized basis for this class of statements as the majority.

In my view, the 10th Circuit in this case has it exactly right on the merits, making a subtle, but easy to apply in practice rule that is not prone to slippery slope constructions that would erode free speech rights. Indeed, I wouldn't be at all surprised to see the U.S. Supreme Court affirm the 10th Circuit in this very case and use this case to overrule contrary federal court authority.

The 10th Circuit ruling creates a circuit split between it and the 9th Circuit, with several other cases going both ways in the appellate pipeline in other circuits. The final word will almost surely come from the U.S. Supreme Court sooner or later. And, the very clean facts of the underlying offense and careful reasoning of the 10th Circuit in its opinion in this particular case make it an attractive one for a U.S. Supreme Court interested in affirming that 10th Circuit position that the Stolen Valor Act is constitutional and quite possibly doing so in a unanimous ruling.

Defense Budget Cuts Philosophy Announced

2012-01-27T09:41:00.002-07:00

Defense Tech provides some key source documents outlining planned defense budget cuts.

In a nutshell, the Obama Administration gets it backward, cutting almost 100,000 ground troops when the last decade has clearly illustrated that we have far too few to mount even modest scale, low intensity ground operations, while preserving or enhancing resources for "high end" conflicts by preserving a large blue sea navy, funding the Air Force as much as possible including adding a new long range bomber, encouraging a renewed focus on combat with tanks, and restoring resources for training for large scale amphibious operations.

This is the opposite of what our nation needs from multiple perspectives, and it misapprehends our realistic military options in dealing with the only two high end military powers left (Russia and China), misapprehends the kinds of engagements we are likely to have with midrange powers which also happen to be a higher risk because they are less predictable (North Korea, Iran, Pakistan, Saudi Arabia), and abandons critical military resources for dealing with low capability conflicts with poor third world countries, pirates and insurgents that been the dominant military issue for the U.S. and most of its allies for the last forty or fifty years.

This approach squanders irreplacable combat veteran experience, while failing to recognize that advances in technology have decreased the utility of existing classes of surface ships and made military aircraft capable of doing far more with far fewer planes. The plan is also backwards in terms of the extent to which it provides the kinds of boosts to our economy that our military spending has the capacity to provide, and fails to recognize that in areas like the naval we need major adjustments to the mix of forces rather than mere attention to total force sizes. It leaves us with a very expensive military that is ill equipped to handle basic military missions in an efficient way with a force tailored to have ways to handle these basic military missions which are most likely to come up. This plan does more to advance the interests of our country's big defense contractors than it does to advance our actual military needs.

President Obama praised the military in his state of the union address for its good work. He should be holding the parts of the military that did that good work harmless, while cutting the parts that were less relevant to the military accomplishments that he was praising, instead of the other way around.

Selected K-12 Education Ideas

2012-01-27T09:29:00.000-07:00

A few K-12 education reforms that seem like they would work:

1. Start foreign language instruction much earlier. The norm should be 3rd grade, not 9th grade. Younger students inherently have more of a capacity to learn foreign languages.

2. Include a period of immersion of at least a month in a student's foreign language at least three times from third grade through high school graduation. Immersion is profoundly more effective than a single less than an hour class in a classroom in an otherwise English language context.

3. Strong preference should be given to native speakers and people who gained fluency by prolonged immersion at a relatively young age in teaching foreign languages. Formal teaching credentials are much less relevant in this field.

4. Be ruthless in always assigning children to math and foreign language classes by proven ability level even if this is inconvenient to administer. These are classes were a student taught something he or she has already learned is wasting precious time when he or she is most able to learn it, and students in over their head are going to see substantially reduced benefit. Probably a third or more of students in any given grade should be taking a math class at something other than their grade level.

5. Most large school districts, due to a need to make efficient use of transportation resources, run on two shifts, an earlier one for middle school and high school students and a later one for elementary school students. This should be reversed. Elementary school students tend to be more often at their peak in the morning. Tween and teens tend to naturally shift towards becoming night owls.

6. The standard 180 school days in a year is too short, and the average school day is too short. Another twenty week days per year and another hour a day would be a good start. Schools that consistently see higher than average student academic growth have students spend more hours per year in school, the long ago agricultural considerations for summer harvest time no longer apply, and if this means buying air conditioners for summer school sessions, so be it. It might make sense to used additional school days during the summer for programs that benefit from large blocks of time for instruction like foreign language immersion (in part, so students with parents who aren't married to each other in separate cities can do their block time in one parent's city, and the rest of their year in another). Some of the extra time can from by including extracurricular activities as a mandatory, but ungraded, element of every kid's day. Longer days and more school days also better respects the reality that a large share of students come from families where both parents have full or nearly full time jobs.

7. The concept of "physical education" should go. School children should get physical activity in the day, but the point should be the current benefit that flows from being physically active, not the knowledge that students learn from the activity. Also, almost all "physical education" classes are taught year after year as survey courses. There may be a place for a "survey course" format for small elementary schools where kids haven't been exposed to different possibilities and the school can't feasably offer multiple choices with its staff limitations, but this doesn't make sense in middle school and high school. Again, this is unnecessary and counterproduct when it comes to the real goal of providing physical activity. Few parts the school curriculum are better suited to offering students choices - let them take a yoga or dance class, or join an intramural or intermural sports team, or join a running group, none of which should figure into a student's GPA, instead of plain old "physical education." To the extent that there is an "education" component, it should focus on establishing specific life skills like learning to swim, learning to ski, and learning to ride a bike.

8. Preschool and full day kindergarten should be publicly funds and staffed with teachers paid what experienced high school teachers are paid. Studies have established that this part of educatioon has more impact than any other and that these teachers are currently the least bright. Also, full time schooling has been demonstrated to be highly effective at increasing family income and reducing child abuse and neglect.

9. More frequently advance academically high performing kids to a higher grade level and more frequently hold academically low performing kids back a grade level. Curriculums are designed to provide maximum benefit to kids who are a little about grade level. The closer kids are to that target in the majority of their classes in school, the better they'll learn. If enough kids finish twelve years of K-12 level work a year or two early, add a special college level program for them.

10. Decrease emphasis in teacher hiring on classroom education classes in training teachers, and increase emphasis on recruiting the teachers with personalities that are good fit for teaching and who are as smart as possible. The evidence that additional instruction improves teaching quality is quite weak.

11. Provide quick and honorable outs for teachers who learn in the first few years that teaching is not for them, and for teachers who start to burn out. Teachers who aren't thriving often want to get out and make room for better qualified teachers, but find it hard to find an acceptable way of negotiating that switch. Pension systems structured to create strong economic incentives to stay in the system for a certain number of years, no more and no less, discouarge that. There is also undue emphasis in teacher compensation on degrees earned and continuing education classes taken.

12. Students should receive more instruction at a fairly high level of rigor on negotiating the health care system and mental health care system from a patient's perspective (and self-care when possible), on basic accounting concepts and tax law compliance, and on interacting with the legal system (e.g. as a criminal defendant, if sued, if injured, as a tenant) as part of the high school curriculum. Almost everyone has to deal with these things in life, and these things are more demanding of academically teachable knowledge than almost anything else a typical person does in life. These are at least as important as sex education, don't use drugs propaganda, driver's education and civics that are all part of the curriculum.

13. Adjust the A, B, C, D and F grading system, perhaps by adding a new grade "E" above "A" and discarding the "D". The level of work that qualifies for a "D" is so bad that it is as if a student had never taken the class or worse, that kind of performance is unacceptable and shouldn't be given credit at all. But, the current GPA system also errs by focusing too much on across the board competence at a solid but unexceptional level (i.e. on not making mistakes), rather than accepting that truly excellent above and beyond performance in one area should at least balance out mere average performance in some other area. The "A" grade should have a similar lower cutoff to what it does not, while an "E" grade should entail "A" grade quality work in normal assignments plus work well beyond the scope of the curriculum for the grade level being taught and major "extra credit" projects such as a quality science fair or history day project, "an honors thesis," or extra beyond grade level curriculum level work. The fact that someone can't do better than "B" grade work in social studies, shouldn't count against someone who is doing "E" grade work in creative writing.

14. Developed a systemic way of screening, tracking and addressing learning difficulties, mental health issues, and disciplinary problems. These issues frequently are apparent by late elementary school. Almost everybody who has serious disciplinary problems or learning difficulties that are a big problem in high school and lead people to drop out have had clear yellow and red flags apparent to anyone who is paying attention by the time that they were in fifth grade. The system needs a way to proactively address these issues, rather than seeing incidents as isolated, seeing individualized learning plans as a pro forma paperwork chore (the emphasis should be on having a plan for a particular kind of problem, not on the individualized nature of that plan), and to devote intensive resources that may need to go beyond the school itself to address them starting as soon as the issues are identified. The longer these situations go unaddressed, the worse they will become. Letting things slide while given a student an opportunity to try to turn things around by himself or herself possibly with family help until they can't be ignored is not the right approach. Issues not to be addressed immediately when they start to appear because the older the student gets and the longer the problem persists without being addressed in a non-punitive constructive way that will help the student in the long run, the more likely it is to become harder to address.

15. Recognize that some degree of very personal intervention in habits and behavior, rather than just knowledge transfer, may be necessary to facilitate student learning growth and devise ways to do this that do so without inappropriately imposing religious or ethnic biases. This isn't an easy task, but seems to be a common thread in those schools that consistently show exceptional student growth.

16. Increase the weight given to growth measures in evaluating teachers and schools and decrease the weight given to absolute performance measures.

17. For choice options to work best, information about school performance needs to be conveyed to choosing parents on specific programs that students will be involved in, not obscured in a blend of different programs that happen to be co-located.

18. High schools should be evaluated based on post-graduate employment results as well as graduation rates, college matriculation rates, college graduates produced, and remedial instruction for students who go to college. The system should invest enough to allow high schools to have career searching assistance and college advising assistance that help them to maximize their performance on these measures, should track these outcomes, and should publicize the results.

19. At some point in middle school or high school, students who are unlikely to graduate from college should be identified and provided with multiple curricular choices that permit them to decide what they and their parents think will provide the maximum benefit to the student from the student's remaining years of taxpayer funded education. The current watered down college preparatory curriculum for these students undermines interest in school because it seems irrelevant and wastes the time of teachers and students alike.

20. Increase the mandatory school attendance age to eighteen for kids who have not graduated from high school. This policy increases graduate rates, reduces juvenile crime, and surprisingly, also doesn't reduce outcomes for kids who wouldn't have dropped out anyway.

UK Economy Is Worse Off Than During Great Depression

2012-01-26T22:43:00.003-07:00

In the United States, there is no doubt that the "Great Recession" we experienced in the wake of the financial crisis, while serious, was not as deep as the Great Depression of the 1930s.

In the United Kingdom, this is not the case. Their Great Recession is by some GDP measures worse than the one that they experienced during the Great Depression in the 1930s.

Fourth Circuit Creates More Horrific Law In Jose Padilla Civil Rights Case

2012-01-26T22:19:00.002-07:00

Jose Padilla is an American citizen with a long criminal record who converted to Islam in prison who was plucked from a civilian jail by President George W. Bush as basically a test case for his new legal theory, and held there for years on that theory that he was an enemy combatant not entitled to due process. Padilla was then transferred to a non-military criminal court after the 4th Circuit had upheld the legality of the detention and before the U.S. Supreme Court's pending review of the case could take place, causing the U.S. Supreme Court to find the case to be moot while upholding the 4th Circuit precedent. Despite various arguments made by his lawyers in the criminal case at trial and on appeal, and some right out of a John Grisham novel instances of weird behavior by the jury, Padilla was convicted of trying to join a murderous terrorist group (separate from the dubious dirty bomb allegations made to support his enemy combatant detention) in which it was not alleged that he personally was involved in any terrorist acts. On appeal, prosecutors won a determination that the seventeen year sentence that he received was too short.

Padilla brought a civil rights suit thereafter, alleging that he was unlawfully tortured while detained as an enemy combatant, while he, a U.S. citizen, was detained in a facility in the territorial United States in a place not under martial law. The trial court dismissed the suit and its ruling was affirmed by the United States Court of Appeals for the Fourth Circuit, which reasoned that even if all allegations of the civil rights claim were true and that Padilla was tortured in violation of his constitutional rights while being held as an enemy combatant, that the President and all persons who carry out executive branch orders when acting under color of a Congressional authorization to use military force are absolutely immune from civil liability or court orders providing for injunctive relief for any violation past, continuing, or in the imminent future, of a person's constitutional rights no matter how egregious, even if the constitutional right established is a clear violation of a well established constitutional right, and even if the litigation of the case does not in any way implicate a state secrets privilege.

The two precedents together basically stand for the proposition that the President may ignore the constitution to imprison and torture any U.S. citizen anywhere in the world, when acting under color of a Congressional grant of permission to use military force, subject only to the ever present possibility that his actions will get him impeached and removed from office.

It is also appropriate to recall that while President George W. Bush initiated this policy, that it is President Obama's administration that is now continuing to defend and assert the legally validity this exaggerated claim of Presidential authority, despite assertions on the campaign trail in 2008 that seemed to suggest that President Obama would reverse this policy.

It is fair to say that this is not the vision that the Founders embraced when the drafted the United States Constitution, and is also horrifically bad as a matter of policy.

State Of The Union Address 2012 Policy Proposals Annotated

2012-01-25T16:43:00.000-07:00

The State of the Union address typically includes all of the major policy proposals on an administration's agenda for the year. What proposals did President Obama make this year?

I've stripped out the atmospherics and justifications for the agenda and stripped it down the policy proposals, with some commentary intertwined.

Underlying Principles

* "These achievements are a testament to the courage, selflessness and teamwork of America’s Armed Forces. . . . They’re not consumed with personal ambition. They don’t obsess over their differences. They focus on the mission at hand. They work together."

* "They understood they were part of something larger; that they were contributing to a story of success that every American had a chance to share — the basic American promise that if you worked hard, you could do well enough to raise a family, own a home, send your kids to college, and put a little away for retirement. . . . The defining issue of our time is how to keep that promise alive."

These themes are vintage Obama rhetoric that defined his 2008 Presidential campaign, which was about hope, and about the mutual responsibilities of individuals and government to each other.

* "Long before the recession, jobs and manufacturing began leaving our shores. Technology . . . made some jobs obsolete. Folks at the top saw their incomes rise like never before, but most hardworking Americans struggled with costs that were growing, paychecks that weren’t, and personal debt that kept piling up. In 2008, the house of cards collapsed. We learned that mortgages had been sold to people who couldn’t afford or understand them. Banks had made huge bets and bonuses with other people’s money. Regulators had looked the other way, or didn’t have the authority to stop the bad behavior. It was wrong. It was irresponsible. And it plunged our economy into a crisis that put millions out of work, saddled us with more debt, and left innocent, hardworking Americans holding the bag."

President Obama has adopted, in a more sophisticated form, the basic narrative that those on the left from the Occupy movement, to the bright minds in the punditocracy, to explain why the financial crisis happened. This narrative puts offshored jobs, selfish plutocrats, and an underregulated financial industry front and center as the causes of our economic woes, and implies solutions that address those issues.

Tax Incentives

Tax Progressivity

* "If you make more than $1 million a year, you should not pay less than 30 percent in taxes. . . . In fact, if you’re earning a million dollars a year, you shouldn’t get special tax subsidies or deductions. On the other hand, if you make under $250,000 a year, like 98 percent of American families, your taxes shouldn’t go up."

* "Pass the payroll tax cut without delay."

These proposals reflect a basis observation that the rich pay too little in taxes due to tax breaks for unearned incomes, while working people are under pressure in the current weak economy and can't afford to pay more in taxes right now. These proposals also flow naturally from an observation that a failure of the one percenters to share the gains of economic growth is one of the important problems with our economy.

Tax Incentives For Job Creation

* "if you’re a business that wants to outsource jobs, you shouldn’t get a tax deduction for doing it. That money should be used to cover moving expenses for companies like Master Lock that decide to bring jobs home."

U.S. trade treaty obligations, which the U.S. has been found to have violated in the past, greatly restrict how much the tax code can discourage offshoring. This particular proposal is a trivial, mostly symbolic message that may still violate those treaty obligations but is worth proposing to send a message to big business.

* "every multinational company should have to pay a basic minimum tax. And every penny should go towards lowering taxes for companies that choose to stay here and hire here in America."

The devil is in the details in this case. What would the basic minimum tax be based upon? What tax breaks for domestic employers would be funded?

* "if you’re an American manufacturer, you should get a bigger tax cut. If you’re a high-tech manufacturer, we should double the tax deduction you get for making your products here. And if you want to relocate in a community that was hit hard when a factory left town, you should get help financing a new plant, equipment, or training for new workers."

This sounds like expansions of the benefits of the Section 197 domestic production deduction and enterprise zone funding, both of which are absurdly complex and not championed by many economists, but attempt to implement industrial policy goals. It also makes clear that the Obama Administration is not ideologically committed to lassiez faire, or even microeconomically neutral economic policies. The administration is not afraid to make judgments about how our economy needs to be tweaked and put forward policies to encourage the economic to transform in that direction. Given the bipartisan admiration that is emerging for China's ability to secure immense and seemingly never ending large GDP growth rates with these kinds of policies, it isn't too hard to see why a hand's off approach has lost favor in the White House.

Also, does it make any sense to provide so many tax benefits for manufacturing that conceivably even businesses that have before tax losses could have after tax gains? And, almost all of these tax goodies benefit big businesses, rather than small ones. The idea is to benefit the "real economy" relative to "phoney financial profits", but phoney real economy profits aren't necessarily sustainable either.

* "Expand tax relief to small businesses that are raising wages and creating good jobs."

* "we’re providing new tax credits to companies that hire vets."

These sounds like some expansion of complex existing tax credits for hiring new employees. I have yet to see any solid empirical evidence evaluating how much impact they have on hiring relative to their tax expenditure cost.

Energy

* "It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising. Pass clean energy tax credits."

Again, this administration is not uncomfortable with using the tax code to favor one industry over another with blatant subsidies. Fossil fuel industries run the last round of energy tax breaks, decades ago, and the Obama administration wasn't to strip out its subsidies and give them to Bill Ritter's New Energy Economy instead, in the hope that these subsidies will start businesses that will eventually be self-sufficient and will help the nation meet environmental and energy independence goals in the long run. For Colorado, this may be a wash, we have both a significant fossil fuel economy and a significant clean energy economy, so Colorado will have both winners and losers.

International Trade

* "It’s not right when another country lets our movies, music, and software be pirated. . . . There will be more inspections to prevent counterfeit or unsafe goods from crossing our borders."

The Obama adminstration remains committed to the questionable policy of taking a hard line on the enforcement of intellectual property rights abroad, even though this often plays into the hands of repressive regimes, and may be unstoppable as a practical matter with current technology and current copyright owner business models. Anyway, economically, most of the losses copyright owners claim to suffer from foreign copyright violations come from foreign use of unlicensed publication of their works, not from imports of counterfeits to the U.S.

* "It’s not fair when foreign manufacturers have a leg up on ours only because they’re heavily subsidized. . . . I’m announcing the creation of a Trade Enforcement Unit that will be charged with investigating unfair trading practices in countries like China. . . . And this Congress should make sure that no foreign company has an advantage over American manufacturing when it comes to accessing financing or new markets like Russia."

This seems somewhat hypocritical coming from someone who has just gone on at length about how he intends to subsidize American manufacturers. And, it relies on the somewhat questionable assumption that foreign governments are patient and strategically minded enough to use their tax money to make goods cheaper for Americans to buy in order to steal global manufacturing market share from the American economy. I don't doubt that there are subsidies, or that American manufacturers have lost global manufacturing market share. But, I am deeply skeptical that foreign taxpayer subsidies are a particularly important source of our loss of global manufacturing market share. Economic fundamentals like low wages, a workforce that has a surplus of newly minted skilled workers without domestic ventures who have jobs for them, declining costs of delivering goods to U.S. markets, reduced tariffs, cheap technological advancement that is possible by simply by copying innovations made in more developed nations, and increasing returns to scale and from interchange of knowledge in economic hot spots as urban manufacturing centers emerge are probably all more important and unlike taxpayer funded subsidies, are sustainable in the long run.

Unions and economically squeezed U.S. manufacturers may appreciate this quasi-protectionist approach, and Democratic party policy has always talked about "fair trade" rather than "free trade." But, I have real doubts about how much can be accomplished practically to benefit the U.S. economy with international trade diplomacy.

Education, Training and Basic Research

* "a national commitment to train 2 million Americans with skills that will lead directly to a job. . . . give more community colleges the resources they need to become community career centers. . . . cut through the maze of confusing training programs, so that from now on, people like Jackie have one program, one website, and one place to go for all the information and help that they need. It is time to turn our unemployment system into a reemployment system that puts people to work."

This has been tried many times before, and was the signature issue of Dan Quayle. It is an alluring idea, but it has repeatedly failed to make much of a difference. The case that unemployment has as an important source a disconnect between the available skills of unemployed workers and available jobs isn't very solid. This clearly isn't the case with cyclical unemployment, and there are pretty good indications that a lack of general intellectual and social competencies are more important than a lack of specific job related skills for individuals who have persistant difficulty finding employment even during economic booms (i.e. the non-cyclical component of unemployment above the rate of unemployment that economists conceptually call "full employment" because there are always some people who are briefly in transition from one job to their next job for non-economic reasons or because they are re-entering the work force and can't be hired absolutely instantly). The United States has one of the highest high school graduation rates in the world and one of the highest college graduation rates in the world. One of the reasons that we haven't seen much effort to successfully institutionalize training programs for non-college jobs is because existing backlogs of people with the right skills in these stagnant job categories and on the job training for people with the right general intellectual and social skills have been sufficient to meet the economy's needs. In developing countries there are lots of undereducated and undertrained bright, socially functional people. In the U.S., in contrast, we have lots of overeducated or overtrained people who aren't terribly bright or have problems playing well with others.

* "Give them the resources to keep good teachers on the job, and reward the best ones. And in return, grant schools flexibility: to teach with creativity and passion; to stop teaching to the test; and to replace teachers who just aren’t helping kids learn."

The Obama administration has given up on the standards based, testing oriented, "best practices" driven education policy of the "No Child Left Behind Act" in favor of support for local control and processes that operate at the level of teachers rather than curriculums. The old approach didn't work. It isn't clear that the federal government can offer guidance to the states on what will work, even as modestly as it does in this new approach, with much authoritative credibility. At best, programs like these simply encourage innovators at the state and local level and give them a symbolic credibility boost that the grants that they have won or could win carry, that stir up local decision makers to be open to changing practices that are only the status quo now by virtue of interia.

* "I am proposing that every state — every state — requires that all students stay in high school until they graduate or turn 18."

The evidence in Colorado and quite a few other states, contrary to a social scientist's intuition, is that increasing the mandatory school attendance age improves the educational and juvenile justice outcomes for kids not permitted to drop out by them, without causing the problems associated with having academically low achieving kids who are often disciplinary problems in school against their will that you would expect. So empirically, this seems to be a good policy with large returns that reduces crime and improves long term socio-economic outcomes that it is a no brainer to strongly encourage all states to implement, even though there are lots of plausible reasons why it should work as well as it actually does.

* "Extend the tuition tax credit . . . doubling the number of work-study jobs in the next five years."

This is good as far as it goes, but doesn't seriously address the dire status quo problem that well off people have much more access to higher education than less well off people with more academic ability, and it doesn't target the funds very finely. A dramatic increase in funding for scholarships based on both academic ability and financial need would be money better spent. Also, more work study jobs mean most students who have to balance both a job and being a student at the same time, while reducing the number of good jobs available to people who aren't in school in college towns.

* "If you can’t stop tuition from going up, the funding you get from taxpayers will go down."

I'll believe it when it happens. In Colorado, tuition increases are being driven by state level revenue shortfalls, and no amount of federal policy incentives are going to materially influence that decision making process. Also, college students so often come from affluent families, that it may be more efficient and fair to increase tuition and to use the increased revenue to provide targetted financial aid to only those students who can't afford the higher tuition.

* "Innovation also demands basic research. . . . Don’t gut these investments in our budget."

The returns on basic research are routinely underestimated so this is a good investment, and if we are going to try to stimulate the economy by pumping more money into it, we may as well direct that spending towards ends that are good long term investments in addition to being sources of short term stimulus. The payoffs may be decades off, but those payoffs won't ever materialize if we don't invest in basic research now, so we need to keep investing to stave off long term economic stagnation as much as we possibly can. This also isn't a particularly big line item in the federal budget, so it is a priority we can indulge without doing undue harm to the size of the federal deficit.

Immigration

* "We should be working on comprehensive immigration reform right now. . . . stop expelling responsible young people who want to staff our labs, start new businesses, defend this country. Send me a law that gives them the chance to earn their citizenship."

Absence a shift in control in Congress, comprehensive immigration reform is DOA politically, regardless of its substantive merits. The DREAM Act which the President describes as a stopgap rule, is extremely good policy from the perspectives of both justice and fairness and from an economic perspective. It doesn't hurt to push hard for this bill and stiff Republican opposition to it looks mean spirited and heartless.

Entitlements

* "I’m prepared to make more reforms that rein in the long-term costs of Medicare and Medicaid, and strengthen Social Security, so long as those programs remain a guarantee of security for seniors."

Medicare and Medicaid cost control are central components of the health care reform act and more cost controls cement and expand that achievement (and there is little room to dispute that the long-term costs of these programs really do drive the deficit). Social Security isn't materially broken, so offering to strengthen it doesn't cost much.

* "we’ve increased annual VA spending every year I’ve been President."

A decade of overdeploying ground troops creates a community of veterans who need more VA spending simply to receive the same level of VA support that their predecessors did on a need adjusted basis.

Stimulus Spending

* "Help manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings."

Reducing energy waste is good, but it is a bit hard to figure out why businesses need government incentives to take steps that reduce their expenses and make them more profitable. One hopes that the government isn't spending too much on this program. Still, to the extent that you want to throw money at the economy to provide short term economic stimulus, you may as well spend it on purposes to provide some sort of long term economic benefit which short sighted firm managers might be undervaluing with unreasonably great discount rates for evaluating the benefit conferred by future profits.

* "We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world. . . . you need to fund these projects. Take the money we’re no longer spending at war, use half of it to pay down our debt, and use the rest to do some nation-building right here at home."

* "I’m proposing a Veterans Jobs Corps that will help our communities hire veterans as cops and firefighters."

Both of these proposals are classic Keynesian/New Deal economic policies. Empirical evidence shows that they work in the short term. And, we are a nation with a deferred infrastructure maintance problem, which is best to address when the economy is slow and government demand isn't getting in the way of highly profitable private sector demand that firms are struggling to satisfy. It is a sensible way to use idle economic capacity for something worthwhile.

Regulatory Proposals

General Regulation

* "No bailouts, no handouts, and no copouts. An America built to last insists on responsibility from everybody."

* "I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage, or charge women differently than men."

President Obama opened his State of the Union Address with the argument that the housing bubble and the financial crisis and Great Recession that followed were a product of underregulation, rather than overregulation, and his analysis of the causes of this crisis are credible as a matter of substance. So, his refusal to cave to knee jerk Republican calls for deregulation across the board as a solution to every problem is a good tactical move that is politically defensible once one starts talking about particular regulations rather than "regulations" as an abstract aggregate concept.

* "[W]omen should earn equal pay for equal work."

This could either be a throw away line, designed to accentuate the gender gap in the 2012 election without changing policy in any way, or it could be the sleeper policy initiative of this administration. The administration has broad authority to enforce sex discrimination laws as it sees fit without new Congressional authorization and doesn't need much funding to do that. But, there is considerable room to interpret sex discrimination laws in a way that gives more content and bite to the comparable pay for comparable work concept. More aggressive interpretations of and enforcement of comparable pay laws could greatly change the culture and functioning of the American economy, and administrative action could have a meaningful impact on how employers act, even if more expansive interpretations of existing laws are ultimately shot down by the still quite conservative federal courts. The statement in this speech is too brief to discern whether this represents a real change in policy, or merely a commitment to a narrow conception of this principle that is already widely accepted in the American workplace even without regulatory enforcement.

* "I’ve ordered every federal agency to eliminate rules that don’t make sense. We’ve already announced over 500 reforms[.]"

* "I’ve asked this Congress to grant me the authority to consolidate the federal bureaucracy."

* "I will sign an executive order clearing away the red tape that slows down too many [infrastructure] construction projects."

* "Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow."

The task of updating regulations and organizing the federal bureacracy in the most streamlined and sensible manner is like weeding a garden, it never ends and takes constant vigilance. There are always regulations that were poorly written in the first place or have ceased to be useful in the modern regulatory climate that need to be repealed, rewritten or revised, and federal bureacratic subdivisions have a remarkable propensity to survive even when other parts of the bureacracy have been created or evolved into agencies that have overlapping or contrary responsibilities. The Obama administration believes in good government and the ideas behind the federal regulatory and administrative state enough to be trusted to carry out these tasks in good faith in a way that isn't simply calculated to undermine the underlying policies that the agencies and rules were invented to carry out. And, tidying up these matters does improve the business climate as well, while better protecting the interests that federal law set out to protect when these agencies were created and these regulations were adopted.

Energy and Environmental Regulation

* "I’m directing my administration to open more than 75 percent of our potential offshore oil and gas resources. . . I will not back down from making sure an oil company can contain the kind of oil spill we saw in the Gulf two years ago."

Where? Have the concerns from offshore oil drilling raised by the last major spill been adequately addressed? What are we doing now that we weren't doing then?

* "I’m requiring all companies that drill for gas on public lands to disclose the chemicals they use."

This is nice, but disclosure is only a first step that doesn't substantive prevent environmentally harmful activity from being conducted.

* "I will not back down from protecting our kids from mercury poisoning, or making sure that our food is safe and our water is clean."

Good. I wonder what achieving this goal means from a practical perspective.

* "set a clean energy standard that creates a market for innovation."

Good. I wonder what mechanism (e.g. markets in rights to pollute, carbon taxes, emissions standards made without reference to the technologies use to achieve them, will be used to accomplish this end.

* "the Department of Defense, working with us, the world’s largest consumer of energy, will make one of the largest commitments to clean energy in history."

This can't hurt, and there is no better way to learn what clean energy steps are or are not practicable to impose on industry than to try to implement them yourself in a situation where there are also important non-environmental priorities to be considered.

Financial Regulation

* "I’m sending this Congress a plan that gives every responsible homeowner the chance to save about $3,000 a year on their mortgage, by refinancing at historically low rates. No more red tape. No more runaround from the banks. A small fee on the largest financial institutions will ensure that it won’t add to the deficit[.]"

Hurray for everybody who has a mortgage and hasn't refinanced lately. Also, framing this as a sort of reparations or restorative justice measure that is being imposes on banks because it is something that they are capable of doing that compensates the general public for the harm that the mortgage lending industry did to the U.S. economy helps ground a pretty intrusive and economically costly imposition of the profitability of this business sector while not offering anything to people that banks weren't offering most people who were willing to put together the paperwork anyway.

* "I’m asking my Attorney General to create a special unit of federal prosecutors and leading state attorney general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis."

Long overdue.

* "if you are a big bank or financial institution, you’re no longer allowed to make risky bets with your customers’ deposits. You’re required to write out a “living will” that details exactly how you’ll pay the bills if you fail –- because the rest of us are not bailing you out ever again. And if you’re a mortgage lender or a payday lender or a credit card company, the days of signing people up for products they can’t afford with confusing forms and deceptive practices — those days are over."

We've imposed lots of new regulations on banks and some of them are probably improvements, but it is hard to know what really matters, and what was overkill or was counterproductive when the entirely collection of new regulations are taken as a whole. Regulations don't have to be a complex as these regulations were to be effective.

* "We’ll also establish a Financial Crimes Unit[.]"

You honestly mean that we didn't have several of these already? No wonder banks were ignoring regulations.

* "Some financial firms violate major anti-fraud laws because there’s no real penalty for being a repeat offender. . . . pass legislation that makes the penalties for fraud count."

From a practical perspective the federal government has more than enough power already to put any company that doesn't play ball out of business in a flash. See, e.g., Arthur Anderson and Lehman Brothers. The gap that this proposal is filling, that the speech doesn't really make clear, is the capacity of the federal government to impose sanctions that fill middle ground between slaps on the wrist and putting someone entirely out of business.

Political Process Reform

* "Send me a bill that bans insider trading by members of Congress; I will sign it tomorrow. Let’s limit any elected official from owning stocks in industries they impact."

The idea is a good one, but the usual enforcement mechanism of the Congressional ethics committees, which the U.S. Constitution doesn't leave a lot of alternatives to, has some built in instiutional limitations, so I'm not hopeful that this will make a huge difference.

* "Let’s make sure people who bundle campaign contributions for Congress can’t lobby Congress, and vice versa[.]"

This is basically a bad idea, whose only redeeming feature is that it isn't terribly likely to be passed into law or to survive judicial scrutiny. What is so bad about giving influence to people who have a proven capacity to encourage large numbers of modest sized individual donors to contribute funds to political campaigns? The right to petition Congress, which is what you are doing when you lobby Congress, is constitutionally protected. And, why do we need to prevent Congress from lobbying people who bundle campaign contributions?

* "I ask the Senate to pass a simple rule that all judicial and public service nominations receive a simple up or down vote within 90 days."

This would be a great reform to adopt from a public policy and political theory perspective. But, the Senate isn't going to do it simply because the President asks them to change the balance in power between the President and the U.S. Senate because he asks them to, and similar reform efforts have failed in the past. What can President Obama offer the Senate that will convince two-thirds of sitting Senators to adopt this rule that weakens their individual power and the power of their political party when they are out of office, particularly in the case of lifetime appointments to the federal courts?

Military and Foreign Affairs

* "[W]e’ve begun to wind down the war in Afghanistan. Ten thousand of our troops have come home. Twenty-three thousand more will leave by the end of this summer. This transition to Afghan lead will continue[.]"

Finally, President Obama has started to acknowledge that the time has come to start disengaging from our last currently active foreign war, the longest in all of U.S. history which was begun by George W. Bush immediately following 9-11 but was only ramped up to a larger scale, not necessary with much improved results, recently. It is somewhat troubling that President Obama did not mention that current nominal 2014 deadline for withdrawing from Afghanistan.

* "[W]e will advocate for those values that have served our own country so well. We will stand against violence and intimidation. We will stand for the rights and dignity of all human beings –- men and women; Christians, Muslims and Jews. We will support policies that lead to strong and stable democracies and open markets, because tyranny is no match for liberty."

* "From the coalitions we’ve built to secure nuclear materials, to the missions we’ve led against hunger and disease; from the blows we’ve dealt to our enemies, to the enduring power of our moral example, America is back."

It is nice to see President Obama back away from a purely real politic narrow self-interest approach to foreign policy in favor of a more principled and soft power driven approach. Hillary Clinton's push to get us involved in Libya proved the desirability of this approach and has brought President Obama around to this view quite nicely.

* "America is determined to prevent Iran from getting a nuclear weapon, and I will take no options off the table to achieve that goal. But a peaceful resolution of this issue is still possible, and far better, and if Iran changes course and meets its obligations, it can rejoin the community of nations."

This is a decent, middle ground position on the issue.

* "I’ve proposed a new defense strategy that ensures we maintain the finest military in the world, while saving nearly half a trillion dollars in our budget."

Cutting the Defense budget is long overdue. I'm not convinced that President Obama is making those cuts in the right places, but some big cuts in the Defense budget are absolutely necessary if we are to make progress in reducing the deficit before interest rates rise again and make that deficit far more expensive.

* "I’ve already sent this Congress legislation that will secure our country from the growing dangers of cyber-threats."

Too much paranoia about cyber-threats can do a great deal of harm to the functioning of the Internet if done poorly, although there is a genuine need to address these threats. I'm concerned that this will not be handled well, given the missteps that the administration has made so far with SOPA and PIPA. And, the descriptions of the problems that I've seen from advocates of greater cyber security have all been too vague to convince me that the advocates really understand which threats really matter as opposed to just jumping on a trendy band wagon of proposals that they don't really understand. Most members of Congress are old enough to have used slide rules and manual typewriters as young men and women.

* "When you put on that uniform, it doesn’t matter if you’re black or white; Asian, Latino, Native American; conservative, liberal; rich, poor; gay, straight."

It is nice to see a public statement showing commitment to the recently secured repeal of "Don't Ask, Don't Tell," although an absence of any affirmative new gay rights advancing policies, and in particular a glaring silence on the issue of DOMA isn't terribly reassuring.

What's Missing?

As important as what a President says in a State of the Union address is what he omits. Silence in the State of the Union address on an issue means that an issue has failed to make it to the top of the administration's policy agenda and that major administration sponsored legislation in that area is unlikely to be introduced.

President Obama has made a decision to stay far away from the culture wars. Don't ask, don't tell repeal is a done deal and doesn't call for new policy initiatives in and of itself, dispte the very hair splitting position he his adminstration has taken on DOMA. He said nothing about the administrations conflicted stance on medical marijuana. He make an effort to launch a pre-emptive counterstrike to GOP Presidential candidate Santorum's opposition to birth control with some initative or statement. His support for the DREAM Act is about as tepid and narrow a position as one can take while still calling for some liberalization of immigration laws now. He said nothing whatsoever about federal criminal justice policies apart from a commitment to going after a very narrow set of perpetrators of financial crimes who still haven't been caught almost four years after the financial crisis revealed their wrongdoing.

He has not asked for a mandate to pursue any major new initiatives in foreign affairs or to initiate any new military initatives more ambitious than beefing up our cyber-warfare resources. There was no mention of a stance on missile defense. The cuts he proposed to make in the military budget weren't specified, denying him a clearly stated mandate in those budget wars. No specific steps to take in dealing with Syria were outlined. His move to send special forces to help local military forces deal with the Lord's Resistance Army in Uganda, or his steps to confront Somolian pirates, wasn't mentioned. He mentioned that we talked to the government of Burma, but not any measure that he plans to take in dealing with them. He made no mention of the ongoing near crisis situation in the Eurozone economies or of what strategy he plans to take to prevent that crisis from dampening our own economy. He limited his statements about China to trade disputes (and even then, did not mention the trade disputes, such as China's exchange rate policies, that are really the most contentious), not addressing its increased investment in major military resources or its human rights and democracy record beyond an overall commitment to those vague ideals in our overall foreign policy agenda.

Not mentioning major foreign policy or military initiatives may weaken his mandate in Congress over the next year by less tightly pushing Democrats to rally around the top items on his agenda. It may also be a political misstep, going into the 2012 election, because foreign policy is an area where the President has immense unilateral power, the Democratic party controlled Senate is more relevant than the Republican controlled House, and none of his political opponents is in a position to challenge him. Mitt Romney has never gotten closer to military and foreign affairs in his political life than directing the natural disaster relief efforts of the National Guard and courting potential foreign investors in his state. Ron Paul's extreme isolationist position has little support in his own party, isn't a very effective counterpoint to President Obama now that he has disengaged us in Iraq and Libya and made a point of emphasizing his plan to end out involvement in Afghanistan in his most definitive foreign policy position in his entire speech. Newt Gingrich and Rick Santorum were strongly domestic policy oriented when they were in Congress and neither man has that reassuring gravitas Americans would like to see in someone who has the power to launch nuclear missiles without anyone else's say so. And, President Obama has far more personal experience being in and interacting with people in the rest of the world than any of the Republican candidates. He could really shine here with an insightful and bold initative, and instead chose to keep these issues on the back burner or held in reserve for later.

He proposed a number of wonkish and modest initatives on the domestic policy front, and these followed the Clintonian pattern of being incremental, of not adhering to some big picture theoretical vision for economic policy, and of what can be perhaps best described as a merchantalist economic agenda.

The only really bold policy stance that he took in the entire speech was his proposal to increase taxes on millionaires dramatically while holding the least affluent 98% of American taxpayers harmless, and this was perfectly timed to make the income tax returns made by Republican front runners Newt Gingrich and Mitt Romney that show both men to be millionaires living in economic worlds that average Americans have trouble even dreaming about. How many people do you know who get paid $25,000 a month to give advice to a obscure government chartered oligarchical wholesale mortgage company's lobbyist and who make millions of dollars a year trading on their past political glory? How many people do you know who make more than twenty million dollars a year without even having to show up to work at a day job and yet paid less than 15% of that amount in federal taxes? These are not the tax returns of people whom average voters can related to themselves.

President Obama earns a government salary as President, was a law professor before he was a full time politician, and earns royalties from a couple of books he wrote that have sold well. He got there from a starting point of a black boy being raised by a single mother. His wife was a senior hospital administrator. He and his wife may have made more money than the average American do (we would worry about the accumen of a President for whom that wasn't true), but they have made that money in a way that is far close to the range of experience of the average voter, have never been members of the ranks of the superwealthy in the way that Romney has as a private equity fund manager, and have not secured their wealth by selling their political influence to special interests. As a result, President can be far more credible when he claims to speak for the average American on what is fair when it comes to taxes than his likely Republican opposition.

This is class warfare that he can win, since the vast majority of Americans are on his side of the debate when it comes to their personal self-interest and their intuitive sense of right and wrong. It is one thing to say that you want to soak the rich, and another to say that you expect millionaires to pay somewhat higher tax rates than their secretaries.

There Are Almost No Non-White Republicans In South Carolina

2012-01-24T21:04:00.001-07:00

As the Seth at Enik Rising reminds us with exit poll results, there were almost no non-white Republicans voting the in South Carolina primary election. About 99% of exit poll respondents were white, while the number of black and other non-white Republican primary voters in South Carolina rounded to 1% each. Overall in South Carolina, as of "the 2010 census, the racial make up of the state is 66.2% White, 5.1% Hispanic, 27.9% Black or African American, 1.3% Asian, and 0.4% Native American."

There are places in the United States where the Republican party is not so monolithic racially, such as Florida which hosts the next Republican primary of the 2012 election a week from today, and California, but South Carolina is not one of them.

The fact that South Carolina Republican primary voters are disproportionately white is not in the least bit surprising. The fact that the Republican party can't claim even 4% of the African American electorate or even 15% of the electorate belonging to other races in South Carolina, or more than 3% of all non-white voters in South Carolina, is more notable. For example, an African American adult is about twice as likely to be incarcerated as he or she is to be a Republican in South Carolina.

This is particularly ironic given the fact that Lincoln, who is still hated by many South Carolina Republicans, was the original Republican President, and that almost all blacks in the Reconstruction South, about one hundred and fifty years ago and for many decades thereafter, were Republicans.

Washington State To Enact Bill Authorizing Gay Marriage

2012-01-24T15:59:00.000-07:00

Public proclaimations of support for a gay marriage bill by a sufficient number of relevant state legislators and the state's Governor makes passage of a bill authorizing same sex marriage in Washington State into law a near certainty.

Washington would then become the seventh state to legalize same-sex marriage along with New York, Massachusetts, New Hampshire, Iowa, Connecticut and Vermont. The District of Columbia also recognizes same-sex marriage.

The decision on gay marriage is notable for being legislative, rather than the product of a citizen initiative or court ruling.

The situation seems to be evolving into one where there is will be a block of states in the Northeast and on the Pacific Coast where gay marriage is recognized, while other large blocks of states where it is not recognized. If I recall correctly, in Maine, which is one of the last holdouts not recognizing gay marriage in a block of Northeastern states together with Rhode Island, the state legislature passed a gay marriage bill, but a citizen referendum repealed the bill by a fairly narrow margin.

Overall the state by state situation on legal recognition for same sex couples is quite complicated.

The California Situation

A pending appeal in the United States Court of Appeals for the 9th Circuit will determine the fate of gay marriage in California. A citizen's initiative there, Proposition 8, prohibited gay marriage, which was briefly the status quo in California and a federal trial court held that Proposition 8 was unconstitutional. The State of California did not appeal, but the Proposition' sponsors purported to appeal the ruling and the 9th Circuit, deferring to the opinion of the California Supreme Court on a certified question, determiend that they did indeed have standing to bring that appeal, so the case is now being briefed on the merits in that federal appellate court.

The 9th Circuit is likely to uphold the trial court ruling finding Proposition 8 to be unconstitutional, given the judges on the panel and their initial analysis of the standing issue in the case. The U.S. Supreme Court would have been unlikely to consider an appeal of a ruling that the supporters of the bill lacked standing to appeal. But, the U.S. Supreme Court is quite likely to consider on appeal on the merits from the 9th Circuit, if it does affirm the trial court ruling, and is quite likely to reverse its ruling, which would close the door to a federal constitutional right to same sex marriage entirely.

However, there is still a real possibility that California could join Washington State in having legalized same sex marriage as a result of this litigation.

California's community property laws have also provided a back door way to secure de facto recognition of same sex couples for federal tax purposes.

The Colorado Situation

A number of other states recognize civil unions that afford the same state law rights as marriage, but without the formal marriage status and description.

Colorado's legislature is considering a bill to do that this session (the state constitution prohibits a gay marriage bill in the state without a state constitutional amendment), and Governor Hickenlooper supports that bill. Pat Steadman, my state senator, who is an openly gay man, is the prime sponsor of the legislation. Colorado had taken a number of steps short of a full civil unions bill in support of gay rights already, firming up the political coalition to pass a civil unions bill, and a number of prominent Republicans have expressed support for a civil unions bill even though many Republicans disfavor taking the final symbolic (and possibly significant for federal law purposes) step of describing civil unions as marriages, so the bill has a chance of clearing Colorado's state house which has a one vote Republican majority, as well as its Democratic party controlled state senate.

Calling It Marriage Matters

The symbolic element of the distinction between marriage and civil unions may be more than symbolic, now that the Obama administration has decided to cease defending the provision of the Defense of Marriage Act (DOMA) that provided that same sex couples validly recognized as married under state law will not be recognized as married for purposes of federal law. (The other part of DOMA, which permits one state to refuse to give full faith and credit to another state's same sex marriage has more constitutional vitality at this point.)

Without federal DOMA, same sex couples that are married are entitled to a wide array of federal legal benefits available only to married couples, but couples with civil unions are argument not entitled to the same benefits, although choice of law issues are acute, because it is possible for the same couple to have both a civil union (or simply a relationship unrecognized by law) under the law of the state where they reside, and to be married legally under the laws of another state. It is unclear how federal officials in the absence of the federal law portion of DOMA are to interpret this situation, although the more logical view would be to assume that a marriage valid under the laws of any state is valid for federal law purposes, even if it is not valid under the state where the couple current resides.

Denver Public Schools Ratings

2012-01-22T19:32:00.002-07:00

There is a rating system for schools in the Denver Public Schools system (including charter schools).

The top ranking "distinguished" goes to schools that manage to produce excellent academic performance without being meaningfully selective in admissions. This ranking was awarded to West Denver Prep at Highland, Lake, Federal and Harvey Park locations, and to the Denver School of Science and Technology (DSST) at Stapleton and Green Valley Ranch locations.

The vast majority of schools in the DPS system are rated either "meets expectations", a notch below distinguished, or "watch", a notch below that rating. These ratings are muddied, however, because a large share of all Denver schools have multiple programs. If a school has one program that is very good (either in student growth or student academic performance) and another that isn't, the average of the multiple programs becomes uninformative. Also many schools are near the boundary line between the two rankings. Schools that have high academic performance but achieve it through selectivity tend to end up in a "meets expectations" category, since they can't compete with the "distinguished" school for student growth. Schools that have satisfactory academic growth but medicore performance also tend to end up in one of these categories.

The two bottom ranking in the system are "priority watch" and below it, "probation."

But, at this end of the scale, the inclusion of academic performance as a factor in the ranking, apart from student growth, penalizes the schools that specializing in serving students who are selectived particularly for their poor academic performance or other challenges. Among schools specially designed to meet the needs of students with special challenges, the rankings are as follows:
* Meets Expectations: Emily Griffith, Ace Community Challenge School, and Denver Justice.
* Watch: Academy of Urban Learning, Contemporary Learning Academy, and Kepner.
* Priority Watch: P.R.E.P. Academy, Colorado High School Charter, and Florence Crittenton High School (pregnant students and teen parents).
* Probation: Life Skills of Denver.

Of greater concern are the schools not specifically targeted at poor performing students that do less well.

On priority watch are Escuela Tlatelolco (while this is not formally a school targeted at challenged students, it is designed to be especially friendly to Hispanic ESL students and this effect may help explain its poor performance), and Henry World School (which is trying to be a high performing, middle school level International Bachelorate program).

Three schools serving a general population of students are on probation: Noel Middle School (not to be confused with Noel Community Arts School), Venture Prep and West High School.

West High School is arguably the worst high school targeted at a general population of students in the entire State of Colorado and has hovered at the bottom of statewide academic standards for a long time. It doesn't have the lowest high school graduation rate in the district or the state, but its performance, given the group of students who start there, is dismal.

Colorado Child Neglect Law Broken

2012-01-21T19:58:00.000-07:00

We shouldn't be sending parents who cause a child's death through a mere moment of neglect, even gross neglect, to thirty years in prison. But, that is what Colorado law provides. This kind of hard time, which will cost Colorado taxpayers almost a million dollars and which wastes a mother's life, is grossly excessive for a death resulting from unintentional conduct. Is the woman had set out to get herself stone cold drunk and killed someone in her vehicle, she would not have faced nearly so long a sentence as she did for misjudging the ability of two young children in a bath to avoid drowning as she ran a quick convenience store errand.

The excessive penalties for unintentional deaths of children was born of a moment of hysteria in the Colorado legislature and produces a steady stream of criminal justice tragedies in its wake.

538 Predicts Gingrich Win In SC Tomorrow

2012-01-20T17:32:00.003-07:00

Nate Silver at 538, which is affiliated with the New York Times, has predicted that Newt Gingrich will come in first place in the South Carolina, followed closely by Romney, followed distantly by Ron Paul, with Rick Santorum in a distant fourth (and last) place.

Silver is very data based, so his results are no doubt based on surveys and other solid data.

If he's right, there is a good chance that Santorum would drop out of the race before Florida's primary on January 31, and that Gingrich could consolidate the conservative vote at that point if it is not too late for GOP conservatives to unite around one not Romney candidate. Still, if Santorum and Gingrich combined are only predicted to win half the primary vote in conservative South Carolina, a Gingrich win is going to be a long shot.

Seth at Enik Rising has noted that the three superdelegates who had committed to Perry have been released, one defecting to Romney despite Perry's endorsement of Gingrich in an attempt to consolidate the conservative vote, and the other two not taking sides. This leaves the superdelegate count at 13 for Romney and 1 for Santorum (whose candidacy does not look like it will last past this weekend). Gingrich doesn't have any superdelegates supporting him and neither does Ron Paul. In a close race, that could be decisive, although the vast majority of superdelegates are uncommitted at this point.

UPDATE: Seth's source now says that Romney has 15 superdelegates and that Gingrich has 1, but cites an AP story that claims that Paul and Santorum each have one superdelegate and that Gingrich has two. Still each of them is in a worse position, supedelegate wise, than Perry was before he dropped out.

Gingrich is also far, far behind Romney in campaign fundraising and did very poorly in Iowa and New Hampshire. A first place finish in South Carolina by a mere three percentage points or so, would keep Gingrich's campaign alive, but by itself, it doesn't displace his strong negatives and the fact that his campaign has already come close to collapse twice during this campaign.

Gingrich hasn't necessarily given himself much credibility with the anti-plutocrat populist wing of his party by admitting to a 31% tax rate in disclosed tax returns on a $3 million income.

At any rate, a Gingrich nominee would clearly be weaker than Romney in the general election, so any improvement in the likelihood that Gingrich will be the nominee improves Obama's chances in November.

PE, Special Ed and Elementary Ed Teachers Had Low SATs

2012-01-20T12:22:00.002-07:00

Essentially all certified K-12 teachers have to earn a four year college degree and go through some sort of certification process that in some cases involves a basic academic skills test. A large portion of them took the SAT as part of the college admissions process.

A new study has compared the SAT verbal scores of teachers certified in various areas to the average SAT verbal scores of college graduates who took the SAT (543) in a state where there is a requirement to take a basic academic skills test as part of the certification process.

The SAT verbal test (and non-subject area SAT scores in general) are fairly closely correlated with IQ, and the IQ of people who take the SAT is just as likely to be above an expected value for those SAT scors as they are to be below it, so for reasonably large samples, average SAT scores for the group are provide a decent approximation of the average IQ scores of people in the group.

The good news is that after the basic academic skills tests, for most fields of education certification people certified had either modestly better SAT scores than those before the tests were imposed (for English, Science, Social Studies, Math, Art and Music, Elementary Education, Physical Education) or there was a statistically insignificant decline in a field with a lower than average number of certifcations in it (Special Education and Foreign Language).

Before and after the basic academic skills test was imposed, teachers in all high school level certification areas (Mathematic, Science, Social Studies, Foreign Languages and English) were above average relative to all college graduates, althougn not by a lot (certified teachers in English, with an average SAT verbal of 575 were the highest scoring kind of certification). This is good news because education majors in colleges, generally, have some of the weakest admissions statistics of students of any major at colleges and universities. After the basic skills test was imposed, certified teachers in art and music were also above average when they had been below average before then.

Teachers certified in elementary education, special education and physical education all had verbal SAT scores significantly below the average for college graduates, although the basic academic skills test significantly boosted the SAT verbal scores of new certified teachers in physical education and elementary education. Newly certified teachers in physical education had by far the lowest SAT verbal scores of any of the certification types at about 470 after the basic academic skills test requirement was imposed and perhaps 460 before it was imposed.

Unsurprisingly, teachers certified in mathematics had the highest math SAT scores followed by teachers certified in science, and both of these groups had math SAT scores well above the average for college graduates (542). The average for math teachers was just short of 600.

The teachers certified after the basic academic skills test had higher math SAT scores in every single discipline, with particularly significant improvements in physical education teachers, elementary education teachers and art and music teachers, for whom high school level mathematics is unimportant in their daily work. Disappointingly, newly certified teachers in every certification type other than math and science had SAT math scores that were below average for college graduates. Physical education, special education and elementary education, just as was the case for SAT verbal scores, were the lowest, although while pre-skills test PE teachers were the lowest category, after the skills test was required, special education teachers lagged below PE teachers (PE teachers had an average math SAT score of about 495 after the skills test was imposed v. perhaps 490 for special education teachers).

Since the SATs and IQ generally, are very close proxies for aptitude in traditional academic pursuits, and don't measure either personality traits that may be pertinent to teaching, or physical ability, and since physical education is not a traditional academic pursuit, surely it is less troubling that physical education teachers had lower SAT verbal scores than it would have been if teachers in some academic areas had such low SAT verbal scores. People smart enough to graduate from college who happen to be less smart than the average college graduate have to do something, and teaching physical education is probably as good a thing to do as anything.

But, with that possible caveat, I think that it is likely to be generally the case that the score a teacher got on their SATs is likely to be a better predictor of their teaching performance than the content of any education courses that they took prior to being certified. Indeed, it is my recollection that there have been some studies showing that students who were certified in a program that didn't require many education classes faired better than those who were education majors in traditional education programs.

Likewise, one can argue that outside of physical education, that the most important thing is for a teacher to have significantly more verbal mastery than their students, and even college graduates who have SAT verbal and math scores below the average for college graduates certainly should be able to meet that standard in elementary education and special education, because elementary school students are still developing basic language skills and many special education students have some sort of language deficits or math deficits in the subjects where they are receiving special education assistance.

On the other hand, it isn't unreasonable to argue that teaching special education students actually calls for higher IQ than teacher students who have no impediment to their ability to learn in the subjects taught, because for other students learning these subjects comes relatively naturally, and that it may be more important to have high IQ elementary education teachers than to have high IQ high school teachers, because to the extent that student learning is not largely determined by personal IQ and family and geographic circumstances (i.e. the availablity of good schools), it seems to be the case that academic performance ossifies fairly young so that exposure to the smartest teachers as soon as possible is more likely to have a lasting impact than exposure to the smartest teachers after one has already spent eight or more years in the K-12 education system.

Teacher pay by specialty seems to be fairly signficantly correlated with the SAT scores of teachers certified in a particular specialty. High school teachers generally earn more than elementary school teachers. Indeed, early childhood education and kindergarten level instruction seems to be the point at which the quality of educational environments has the most significant impact and some good studies have shown that the benefits of early childhood education are still statistically discernable by the time those kids are leaving the K-12 education system.

Making it easier for smart people who didn't major in education in college (and perhaps didn't even go to college) to become teachers, and improving teacher pay in a way that credibly convinces people choosing majors and career paths in college that the higher pay for teachers will be sustained in the long term, are probably the two best ways to attract the most qualified people to become teachers. Basic academic skills tests for potential teachers has some impact, particularly in weeding out the least smart teachers in certifications that have a record of attracting less academically bright college students. But, they do little to improve the average or to attract people at the high end of academic ability range to the field.

Record Company Economics

2012-01-20T11:23:00.001-07:00

Morning Edition, in a segment borrowed from sister program Planet Money, explored the revenues, expenses and profit margins that went into Katy Perry's 2011 alblum, the best selling title last year.

About $4.5 million of expenses probably went into making the record and in house marketing costs - a good share of this would have gone into advances to Katy Perry and big name guest artists and to producers who would mix the alblum (the best of the best producers charge about $100,000 a track for the twelve tracks on an alblum).

The record company earned about $8 million from the U.S. sales of about 8 million CDs and 25 million digital downloads. The balance of the gross revenue from those sales (which would be about $25,000,000 of gross sales for digital downloads and something like $75,000,000-$100,000,000 of gross sales for CDs once discounting and special rates are figured in and before the cost of actually manufacturing the CDs and their packaging themselves) would have gone folks in the CD distribution chain, Apple's percentage of digital download sales and something on the order of 20 cents per track of artist royalty.

So, the record company makes a roughly $3.5 million profit from these sources.

The record company also makes profits from CD sales and digital downloads in future years, foreign sales, licensing to radio stations and Internet radio stations, licensing for specific uses of the songs in movies, commercials, and merchandise related to the song (e.g. alblum T-shirts).

There are transaction costs that go into the deals that provide additional revenue, like fees paid to licensing agreement lawyers, fees and expenses paid to executives who negotiate these deals, creative involvement to make artistic judgments on licensing for specific uses and merchandise, accounting and collecting payments for licensees and record stores, etc., as well as overhead for the record company as a whole (somebody has to pay for the record company's downtown Manhattan rent, H.R. department payroll, janitors, etc.).

This is pretty much as good as it gets for a record company. Every single other artist is going to produce fewer gross sales. The "cost of goods sold" marketing and manufacturing and royalty costs after the initial creative production and in house marketing effort costs are pretty much a fixed percentage of gross sales that aren't going to very much without regard to the artist in question.

It is possible to make a commercial grade alblum for much, much less money than was spent on this bankable star. Katy Perry's advance was on the order of $1 million to $2 million, but B list musicians or musicians with less of a recor of commercial success would happily do it for 10% of the advance or less, and anybody else would be happy to get paid 1% of this amount or less as an advance. Similarly, there are plenty of perfectly decent producers who would charge less than $100,000 a track. One could record a record while paying everyone involves a living wage for their time and a premium that reflects long term investments by the artists in developing their talents and unique styles for $35,000, and even if this has in house marketing costs as much as half of the $250,000 that went into promoting a sure thing bankable big star like Katy Perry, it is probably possible to put together and promote a credible alblum from a debut band for something on the order of $150,000, if it generally uses a similar business model for that kind of artist.

Also, notably, a lot of the costs of making an alblum, like advances to creative talent, recording studio time, producers, and so on, scale very well. Pretty much, the production costs for a given grade of artists and producers are a certain amount per song, so you can make a single for perhaps 10% of the cost of making an entire alblum. And, the widespread popularity of digital downloads have improved the economics of trying to sell singles v. trying to sell alblums although the costs of marketing a single to radio stations v. marketing an alblum are similar. One can imagine producing a professional quality single for an unknown band with competent but not famous producers and running a credible but not very fancy marketing campaign to radio stations for a single for perhaps $50,000 total.

This analysis of the economics of a big time star suggests that a sales figure necessary to make the effort worthwhile for a very bones alblum at a record coming is going to be something on the order of 5% of Katy's Perry's sales, i.e. about 400,000 CDs and about 1 million digital downloads. With a single produced at bare bone costs, you might get buy with 800,000 digital downloads and a 200,000 CD singles in the U.S. as a target that would cover the $50,000 of up front cost and make the effort worth the record company's while. Throw in radio and Internet radio licensing fees, future year sales, foreign sales, a few minor league commercials, and a few T-shirts and maybe you can reduce the first year sales a bare bones single needs to have been worth the effort to make down to 150,000 CD singles and 500,000 digital downloads in the first year in the U.S.

As the radio segment noted, the problem in the record industy isn't that it can't make a profit from A list stars who have top hits. The problem is that the industry is struggling to have a high enough percentage of alblums and singles that are profitable, some of which have to be big hits to make the venture as whole profitable.

Record company profits are extremely front loaded. The percentage of all of the revenues from a song that come in the first year is huge, and almost all of the revenue from all but a tiny percentage of songs will come in the first decade.

We care about an example like this one out of curiousity about how the world works, and because it is pertinent to the policy implications of intellectual property laws, particular intellectual property law rules regarding the duration of a copyright, and intellectual property law provisions regarding the proportionality of money damages and criminal penalties for copyright violations.

Copyrights are easily ten times as long as the need to be for the duration of a copyright to have any material impact on the economic viability of the record industry. And, it would also be possible to dramatically increase the size of the public domain at trivial cost to the industry, by requiring that copyrights be renewed after a much shorter time period. As Bill Patry recently explained:

In 2002, Jason Schultz did a study of books still in print that were first published during the period of 1927–1946. He found that of the 187,280 books published during that period, only 2.3% were still available in 2002. Thus, the 1998 term extension kept under copyright 97.7 percent of books that were no longer in print, but which could nevertheless not be used. . . . Mandatory formalities, such as affixing a copyright notice and filing a statement of a continued interest in the work can help here. There was a requirement of filing a timely renewal application with the U.S Copyright Office from 1790 to 1992 (the latter date for only some works). Failure to renew meant that copyright owners only got one term of protection, originally that was 14 years, and later it was expanded to 28 years.

The failure to renew was an empirical, market signal about the value copyright owners themselves placed on copyright. The renewal rates also showed a consistent difference in renewal rates for classes of works. The lowest renewal rates (0.4 percent) were for technical drawings, lectures, sermons, and other oral works. The highest renewal rate was for motion pictures (74 percent). Music was 48 percent and books only 7 percent. Our current one-size– fits-all approach ignores this significant data about how copyright owners have themselves valued copyright.

The amount of money that an illegal download deprives artists and record companies of is also highly pertinent to the issue of the appropriate amount of statutory damages for copyright violations. A song on iTunes can be downloaded in most cases for a dollar, of which a substantial proportion of that cost is avoided in the case of an illegal download because no IT expertise or server infrastructure or bandwidth at the iTunes store is utilized in an illegal download. The economic harm for a single illegal song download is less than a dollar and roughly comparable to the theft of a candy bar. It may be illegal, but it is petty theft at best. Few states would authorize a criminal fine or more than $1,000 for a petty theft, and many would typically impose a criminal fine closer to $100 to $500 on a typical person who shoplifts a candy bar.

The U.S. Supreme Court has held that the constitutional boundary on punitive damages is generally on the order of three times the compensatory damages in a case, although higher ratios may be permissible when the compensatory damage amount is nominal. Copyright violation statutory damages imposed without regard to the economic value of the work appropriated involving illegal downloads are immense relative to the economic harm involved, for an offense that is quintessentially non-violent, never puts the victim at any apprehension of physical harm, doesn't breach the peace, and in general, causes are harm that is almost entirely economic harm to large publicly held companies and very wealthy individual artists, as opposed to non-economic emotional distress or economic harm to widows and orphans that deprives economically struggling people of the necessities of life. From a harm perspective, the harm associated with illegal downloading is quite comparable, for example, to the harm that credit card companies suffer from people who fail to pay their credit card companies as agreed. It is illegal to do so and unjustly enriches the person who has done so, but copyright enforcement in illegal download cases is a purely economic harm that is a cost of doing business and makes some kind of percentage dent in the profitability of the company selling it.

Keep in mind that in the typical illegal download case, the copyright owner is already entitled to reasonable attorneys' fees, costs of collection and that there is the option of awarding compensatory damages. Would it be so horrible to deny the availability of statutory damages that are not calculated with reference to the fair market price of the illegally downloaded work in cases where it is possible to establish from a fair market with many recent transactions in an identical work, in much the same way that contract provisions that establish liquidated damages in lieu of actual compensatory damage awards are disallowed as against public policy in cases where the amount of damages is not difficult to determine after the fact with reasonable certainty?

Sure, if someone has been involved in 100,000 illegal downloads of songs, a hefty non-economic damages award, perhaps $300,000, might be appropriate. But, in the case of someone who illegal downloads 100 songs, it is hard to see why non-economic damages of much more than $300 or perhaps $1,000 make any sense. Intellectual property laws should not encourage record companies to make mountains out of mole hills.

Big Picture Perspectives On Higher Education

2012-01-19T15:41:00.000-07:00

What is wrong with higher education in the United States today?

Admissions, Financial Aid and Student Loans

1. The status quo creates far too great of a material barrier to access to higher education for academically talented students who are less affluent.

2. State colleges and universities unnecessarily subsidize students from affluent families, particular students who have only modest academic merit.

3. Colleges and universities admit too many students whose medicore high school academic performance and need for remedial classes makes clear that they are not ready for college level academic work and face very high risks of failure from the outset. Admitting students who have a high probability of dropping out early in their academic careers does a disservice to students who have to pay loans for education that provides them with little value, is a poor use of public funds used to subsidize higher education, and when it is permitted should be restricted to institutions that can provide higher education at a low cost to reduce the stakes for all involved. While a policy that sets admission standards so high that nearly all people admitted graduate is probably not taking enough risks, a policy that allows people with a much greater than fifty percent chance of dropping out early in their studied to be admitted is probably too lenient.

4. The practice of admitting students with a high probability of failing in a high cost setting that is subsidized by government funds is particularly severe in most of the for profit higher education field. Institutional incentives to engage in this kind of behavior need to be removed from these programs.

5. The common practice of imposing higher de facto academic standards of admission for Asian-American students than for white students is troubling.

6. Affirmative action provided to Hispanic and African-American students ought to be also extended to first generation college students who come from families that are poor and working class, and should generally be very modest for Hispanic and African-American students who are upper middle class. In general, affirmative action should pay greater attention to race neutral socio-economic considerations which have the effect of disproportionately providing relaxed standards of admission for students from economically disadvantaged backgrounds, and in the case of some institutions less consideration of race per se than is used today. Devoting more of the resources available to subsidize higher education to students with significant financial need who are ready for college, rather than to affluent students and rather than to students who are not ready for college, and providing more financial aid in the form of grants rather than loans and subsidized work study, would also reinforce this goal.

7. The strong barrier to discharge of student loan debt in bankruptcy, ever, should be relaxed at some point in time when student loan debt amortized at a reasonable rate would have been paid in ordinary circumstances, either through changes in the bankruptcy code, or changes in the loan program itself, or both. Particularly to students who have incurred large student loan debts at high cost for profit institutions of higher education that are either not completed because the student shouldn't have been admitted in the first place, or because the programs were of low quality that conferred little economic benefit, non-dischargability of these debts in bankruptcy is an unreasonable hardship contrary to the need for a fresh start that ends liabilities for expenditures that are no longer providing a material benefit to the debtor.

Credentialism, Staffing and Excessive Low Salience Research

8. Higher educational degrees in many fields are an excessively time consuming and expensive de facto required credential for entering many professions in which the kind of information used by colleges and universities to admit new students accounts for substantially all of the economic value added associated with the degree in the occupations that student ultimately pursued that is inferior to the benefit that would have accrued from starting in that profession at a younger date. In particular, mechanisms should be developed to encourage occupations where higher education is used as a signal of intellectual capacity but the occupation itself requires little formal academic training, such as journalism and many forms of direct and middle management, for example, by encouraging some form of graduation with distinction from high school as an alternative credential.

9. Excessive credentialism is particularly harmful to women who plan on spending some time out of the workforce to have children and be stay at home parents to those children, because accentuates conflicts between biological fertility clocks and the time needed to establish oneself in a career, and because interrupting one's education to start a family makes it much harder to continue to pursue higher education.

10. Excessive credentialism drives up the cost of professional services across the board for consumers by creating a barrier to entry into professions that have excessive credential requirements and by creating an addition cost that must be recovered by members of those professions.

11. An important instance of excessive credentialism exists within higher education itself. The de facto requirement that one have a PhD to be a professor in institutions of higher education imposes a large unjustified barrier to entry to the college teaching profession, probably has a net effect of reducing the overall quality of teaching in colleges and universities whose primary mission is teaching since research ability and teaching ability are imperfectly linked, and drives up the cost of higher education by limiting the pool of people qualitifed to provide it.

12. The heavy prioritization of published scholarly work in the tenure and promotion criteria for professors at colleges and universities encourages the generation of large quantities of low salience research, and draws an excessive amount of faculty time and career incentives towards research and away from teaching at the lion's share of institutions (and the lion's share of faculty positions within even elite research oriented institutions) whose primary mission is teaching.

13. To be clear, some amount of allowance of time for scholarship and development of new teaching materials is appropriate for all faculty, and there are some faculty positions at some institutions for which a strong research orientation is appropriate. But, for the large majority of faculty at the large majority of colleges and universities, teaching rather than research should be the primary mission and academia is deluding itself when is pretends that every professor at almost every four years or graduate degree granting institution should be regular and substantial contributors of important new scholarship in their field. Plenty of people with the capacity to be excellent college instructor don't meet this standard, and plenty of people who are excellent scholars are poor teachers, even though there is some overlap between the two functions, particularly at the elite end of the professoriate.

14. While there is nothing inherently wrong with the fact that well educated members of the general public are often willing to teach a single class in a given term as an adjunct professor at a low salary because it is personally satisfying, provides a public service, and conveys prestige, applying the same salary structure to part-time instructors who teach more classes and creates significant discriminatory impacts for women who are disproportionately more likely to be part-time college instructors or full time adjunct instructors.

15. Since a large share of scholarly academic research is conducted with direct or indirect public and charitable support, access to academic papers should be made available to the members of the general public who paid for it at a price that approximates the journal's marginal cost of providing that access. If necessary, it may be appropriate to simply endow funds to be administered by institutions like the National Academy of Sciences to support these high value, low cost of production media for making academic research available to the public.

16. While tenure is an important principle, it is institutionally important that a steady stream of newly minted scholars are integrated into academia, so that it can receive new ideas and so institutions can avoid booms and busts in hiring. An approach to shifting tenured faculty to emeritus status similar to that used to shift federal judges to senior judge status would be an appropriate tool to use more actively to stabilize the flow of new openings for would be professors.

17. It is worth examining why higher education has seen a dramatic increase in their non-faculty employment over the last half century and to examine what options are available to pare down these non-core missions of institutions of higher education.

18. Big money and pre-professional sports programs should either be decoupled from institutions of higher education, or in the alternative, recognized as semi-professional endeavors and treated accordingly. There is no good reason that we should expect all professional football players to earn college degrees, while allowing professional baseball players to work their way up through the minor leagues.

Degree Producing Capacity And Career Services

19. The United States has neglected the need to create new medical schools or increase the capacity of existing medical schools for far too long. The U.S. would benefit in many respects by doubling the number of new medical student slots in U.S. medical schools each year and could do so without unnecessarily compromising the ability of medical doctors to learn their profession and to practice it competently.

20. The United States produces far too many PhDs in fields that have few job prospects outside academia, particular in non-STEM fields.

21. The practice of structuring continuing education programs for school teachers as two to three layers of graduate degrees, none of which has the equivalent of a dissertation requirement, is not a very helpful practice and unduly elevates a credential oriented approach to compensation in K-12 teaching.

22. There is an economic need for legal professionals who are less expensive than today's lawyers who could have a narrower field of practice in imitation of independent medical professionals such as pharmacists, nurse practioners, emergency medical technicians, and independently operating physician's assistants. Criminal law, child custody, and immigration law are among the areas of law that would be particularly well suited to the establishment of these kind of allied legal professions.

23. High schools should take a role similar to the role taken by colleges and universities in assisting their graduates who are not college bound in obtaining employment, internships and apprenticeships after graduation.

24. More attention should be devoted to establishing viable vocational and continuing education options in high schools and community colleges that provide value added rather than mere credentials to students who are not, and are not likely to be capable of earning a college degree in which work of college level rigor is expected, and this should be clearly identified as an educational track distinct from the conventional academic college and university track. There is nothing wrong with admitting that a college prepatory curriculum watered down to what students with weaker academic abilities can handle followed admission to a liberal arts programs at a college or university with very lenient admissions standards is not an appropriate education trajectory for most high school graduates, which is the stated and implicit goal of a very large share of all high school programs and the open admissions institutions of higher education that they feed. Indeed, the recognition should happen as soon as the probabilistic likelihood of that track not being optimal is great (probably no later than the 11th grade and perhaps two to five years before then to some extent) so that students in the K-12 program can maximize the utility of the opportunities that the public is paying to make available to them, and so students do not bang their heads against the wall trying to master curriculums that are inconsistent with their goals and inappropriate for their stage of educational development. A one size fits all set of standards for all students, in general, is a bad paradigm. While tracking shouldn't inappropriately prejudge students by limiting their options before their academic abilities are established, academic ability turns out to be very stable longitudinally and to vary considerably over the universe of all students, and there are qualitative differences in addition to differences in degree in what is sensible to set as objectives for student learning in different tracks, rather than providing carefully considered standards tailored only to the minority of students who are likely have the academic ability to go to college, do undiluted college level work, and earn a degree.

25. We should consciously consider ways to replace the skill training and life training elements of military service and apprenticeship style training that reflects the realities that we have a shrinking military in an era of relative peace, that conscription hasn't existed for several decades, that the young women disproportionately find the military to not be an attactive option for skill training and life training, and that more or less formal apprenticeship arrangements are much less common now than they once were for a variety of occupations.

Rick Perry Officially Out

2012-01-19T12:22:00.000-07:00

Two days before the South Carolina primary, Rick Perry, who was polling in fifth place in the GOP Presidential nomination race in the state with 4% of likely Republican primary voters has dropped out of the race and endorsed Newt Gingrich.

This leaves clear front runner Mitt Romney, and three underdog candidates: Ron Paul, Rick Santorum and Newt Gingrich, still in the running for the GOP nomination in Saturday's first primary test with a conservative Southern group of voters. Romney is the moderate establishment Republican, Ron Paul is a libertarian who appeals as much to non-Republicans as to the libertarian faction in the Republican party, and Santorum and Gingrich are splitting the conservative vote. As I've noted previously at this blog, all have flaws. Some of the recent revelations are that Romney pays only about 15% of his income in federal income taxes and that Gingrich's ex-wife says that he asked her for an "open marriage."

Unless either Santorum or Gingrich drop out of the race in the next forty-eight hours, neither is likely to finish the South Carolina primary in first place.

Not Going Dark But SOPA and PIPA Still Deserve To Die

2012-01-17T17:51:00.001-07:00

Wikipedia and Colorado Pols are going dark all day on Wednesday in support of causes on which I wholeheartedly agree with them. Colorado Pols explains their decision:

Colorado Pols will go offline as a protest against proposed federal legislation: the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives, and the PROTECT IP Act (PIPA) in the U.S. Senate.

It is the majority opinion of the Colorado Pols community that this legislation, if passed, would directly threaten the free and open internet that allowed our blog to grow into the largest forum for discussion of local politics in the state of Colorado. We do not as general policy engage in direct advocacy for or against legislation, but the potential consequences of SOPA/PIPA for the very existence of public forums like our own obligates an extraordinary response. We hope to be joined in this action tomorrow by blogs and websites from across the political spectrum.

To sum up the single biggest problem with these laws, that they make merely linking to another web page illegal under certain circumstances, is a draconian imposition on the free exchange of ideas over the Internet.

The threats posed by so called "online piracy", which arguably dilutes the profits of movie studies and record companies and publishing houses a little, but also generates a lot of income for those same industries and a lot of public good, bears little resemblance whatsoever to the brutal violent crimes committed by real pirates who shoot people dead and hold them hostage in fear of their lives for months. It calls for a different sort of response. Mostly, the problem is that companies relying on old business models for turning content into money are trying to hold back inevitable revolutions in how content is turned into money for the foreseeable future without regard to a balanced way to secure the part of their interests that are legitimate. Intellectual property holders have won too many battles and we are paying the price for that with reduced vitality in our economy and culture. While some legal restraint on profiting for others new cultural contributions without paying the creators is appropriate, the current system is out of balance and SOPA/PIPA has gone several steps too far beyond a system that already needs adjustment in the other direction.

Collective action has its place, and in consideration of this movement to try to stop these bills in Congress, I will not be posting at either Wash Park Prophet or Dispatches From Turtle Island tomorrow. But, I'm not technologically savvy enough to attempt to actually go dark without putting myself at serious risk of screwing up one or both blogs, and the Internet is forever and has multiple caches of already posted material, so it would serve no great purposes to do so.

Internet users cast informed votes. So, members of Congress, if you support SOPA or PIPA, you may be committing political suicide and should promptly kill these bills instead.

Lessons From Amanda Hocking

2012-01-16T16:58:00.000-07:00

The shorter Amanda Hocking story: wrote seventeen books in nine years and had all repeated rejected by the intermediaries of the conventional publishing world, put the books up for sale at competive prices in e-book marketplaces, and in a few months had sold a million and a half books and made herself a multi-million dollar pile of royalties.

As a quick money scheme. It isn't one. A two and a half million dollar reward for a decade of work is respectable (in the ballpark of what high end professionals in law, accounting, banking, medicine, dentistry, insurance sales, and car sales earn), but hardly the stuff dreams of unimaginable wealth are made of, and it came with an extreme risk of getting no reward from a huge up front investment compared to more traditional career paths.

Presumably, she is selling lots of books because lots of people think her books are worth spending $1 for the first in a series and $3 for subsequent books in a series, of which she receives a pretty big chunk as royalties. Price competition and low production costs help. But, if your work is crap, you can't sell a million and a half copies at any price.

So, the bigger question is really, why did the publishing world intermediaries fail to take her on until she had so phenomenonally proven herself? Of course, maybe they were all correct and made the right business decision. Maybe, while her work is O.K., it wouldn't have sold a million and a half copies, even at paperback pricing, without the wide expose she received from e-books.

Maybe, e-books will become the new minor league of book publishing in which the top performers get their ticket to the big leagues of hardcopy publishing, because predicting the next "it" author is inherently unpredictable. Maybe a big part of what adds value to established authors is buzz and timing, rather than the quality of their writing, and as a newbie whose timing previously hadn't been right, she had neither until her low price point and some buzz in the online community at just the right moments let her take off. Good reviews from early adopters can make or break any book.

Then again, it may very well be that the publishing industry intermediaries just screwed up with her, and maybe they screw up a lot, but nobody notices it because everyone in the industry has the same blind spots that systemically overlook some important and potentially profitable class of writers. There are only so many books that get published each years, there are far more submissions from wanna be authors with first published novels they are trying to sell, and the risk-reward matrix of publishing world gatekeepers may not match the optimal set of incentives to publish best selling profitable books. For example, there may be a systemic bias against all but the best genre fiction, in favor of "serious fiction" with less sales prospects, because serious fiction carries with it more prestige in the industry. Or, it may be something else.

It will be interesting to see how the e-book model changes the publishing world in the long run and whether they will learn lessons from the Amanda Hocking's of the world.

Huntsman Out

2012-01-16T15:53:00.006-07:00

Jon Huntsman is out of the race for the GOP Presidential nomination and has endorsed Mitt Romney. Going into Saturday's race in South Carolina, that leaves Mitt Romney, Ron Paul, Newt Gingrich, Rick Santorum, and Rick Perry with campaigns that are still in progress, and consolidates the moderate vote in the GOP nomination race.

Recent polls have shown Gingrich and Santorum splitting support from South Carolina's conservative primary voters fairly evenly, with Perry far behind but still registering an appreciable share of the primary vote, leaving conservatives divided and Romney with a plurality that is strengthened just a bit by Huntsman's departure from the race. A poll released Saturday shows Gingrich slipping into fourth place in South Carolina, with Paul and Santorum tied for second place, but all of the other candidates running far behind front runner Mitt Romney.

Realistically, there is no way that Perry will stay in the running as a viable Republican candidate after a likely last place finish when the results of Saturday's primary are tallied. Of course, Romney, the front runner to date, won't drop out either, no matter what the results are on Saturday. Likewise, Ron Paul, who has an ideological reason for continuing even if he has no hope of actually cinching the nomination and has had respectable showings in Iowa and New Hampshire (and a spot on the Virginia ballot, which candidates other than he and Romney have been denied), is unlikely to fold after South Carolina and unlikely to come in last place in South Carolina either.

If both Perry and either Gingrich or Santorum were to drop out of the Republican primary this week before the primary voters in South Carolina cast their votes, there is a realistic chance that the other could finish in first place in that race and regain momentum. But, there isn't much sign that any of these three men plans to concede before Saturday. Hillary Clinton is the only candidate in modern history with a statistically significant poll lead after New Hampshire to fail to secure her party's nomination in the end, and her lead at that point (9 percentage points), was about half of Romney's current nineteen percentage point lead.

Simply put, Santorum is emerging as the conservative "not Romney" candidate. But, he has hit his stride just a little too late for it to matter.

A Romney who has won Iowa, New Hampshire and South Carolina will look unbeatable going into the rest of the primary season and develop a sense of inevitability to which GOP primary voters are likely to cleve in large numbers, even if after South Carolina, Republican conservatives can manage to rally around either Gingrich or Santorum, neither of whom are perceived as very electable in a general election (for good reason). A Romney win in Florida, which is a more favorable forum for Romney than South Carolina, due to its substantial component of Northern migrants in its electorate, on the momentum of three past wins, would pretty much cement the nomination for Romney this month, even before it reaches the very early Republican caucuses in Colorado. Romney has a twenty point lead in Florida right now, without having a South Carolina win to give him a boost in his fourth contest on Tuesday, January 31.

The odds that our next President will be either Obama or Romney are increasingly great, first because Romney is increasingly likely to win the GOP nomination, and second, because the only other people left who are in a position to win the GOP nomination would have a much weaker chance of defeating Obama in the general election than Romney, even in the unlikely event that they do win the GOP nomination. Paul, Gingrich and Santorum have each said too many things that are too far out of the mainstream to be more palatable to enough moderate general election voters than Obama.

Huntsman and Perry were the last men in the GOP nomination race, other than Romney, who had avoided staking out profoundly extremist views on some subject or another (Paul wants to legalize drugs, urges a return to the gold standard, and take an extreme isolationist position in foreign policy; Gingrich has a willingness to ignore the U.S. Supreme Court and arrest judges with whom he disagees; Santorum thinks banning birth control should be at the top of a new President's agenda).

While Romney is not so blatantly and obviously a flawed candidate, has had far better fundraising than any of his competitors, and is the only candidate still viably in the running to have secured a meaningful number of GOP superdelegate endorsements, he is also nothing for Republicans to write home about. He lacks charisma. He has a track record in New England as a moderate who offers little to excite the base or earn their trust that his born again conservative positions on a variety of issues will survive his election, he can't make much hay out of Obamacare, his state is one that Republicans love to hate, and an early conclusion of the primary season will interfere with his ability to hone his machine of grassroots supporters in critical states and deny him free media he would have received if he still had viable competitors. Who cares about primary debates when the primary has already been tied up? He will also go into this race with a significant early fundraising deficit against President Obama, without the benefits of incumbency, and fighting against the tide of unemployment numbers that are finally starting to return to normal. As a man with no foreign policy experience, at a time when the Iraq war and conflict in Libya have been successfully concluded, our involvement in Afghanistan is moderately scaling down, and Osama bin Laden is dead, he has few opportunities to build a winning coalition based on that issue.

More Republicans view Romney as an "acceptable" nominee and fewer view him as an "unacceptable" nominee than any other GOP candidate (59% v. 31%), by a long shot (Santorum is the only other candidate who even has more Republicans who view him as acceptable rather than unacceptable, 45% v. 39%), but 31% of Republicans still view Romney as "unacceptable" which isn't exactly a ringing endorsement and sign is widespread support at the grass roots.

Colorado's Modern Court Procedures and Laws

2012-01-13T16:13:00.000-07:00

Recent Innovations In Colorado Civil Procedure

Chief Justice Michael Bender of the Colorado Supreme Court has moved aggressively in his brief tenure at the top of Colorado's judicial system (he has been a Colorado Supreme Court justice for some time but was recently elevated to the Chief Justice post) to modernize court procedure in the state, one of the considerable administrative powers over the judicial branch that a Chief Justice wields in addition to his first among equals status in resolving appeals presented to Colorado's highest state court to resolve.

He has followed the lead of the federal court in replacing an arcane and convoluted, but deeply entrenched, system of calculating procedural deadlines to one in which a "day" almost always mean a calendar day, special rules related to the medium by which court papers are delivered have been jettisoned in an era of mandatory e-filing for lawyers in most courts, and deadlines generally come in multiples of seven days, dramatically reducing the need to resort to special rules that apply when deadlines fall on weekends.

He has also instituted a two year pilot program for "commercial cases" in the metropolitan Denver area that establishes a "rocket docket" that shortened deadlines and limits the availability of extensions of time, and also calls for the availability of "discovery" (e.g. document production, interrogatory questions and depositions) to be limited by a proportionality standard that considers the amount at stake in the controversy rather than allowing maximal discovery in all cases. The pilot program, rather than imposing a one size fits all solution to a problem that exists only in a small, but important class of cases that the court system handles, attempts to focus scarce resources for active case management by the courts on the subset of complex civil litigation cases that are most prone to lurching out of control with long and expensive pre-trial discovery and motion practice. I am not an unequivocal fan of all of the particular solutions proposed by these rules on the merits. But, the pilot project rules do quite accurately describe the set of cases for which the existing rules of civil procedure aren't working well.

Some of the innovations proposed for these cases, like requiring that an answer be filed even if a motion to dismiss the case on the face of the complaint is still pending, to prevent a motion to dismiss from unduly slowing down the litigation as a whole, are sensible. But, shortening some of the other deadlines and discouraging extensions of time even by mutual consent in these cases where both sides are typically represented by competent counsel seems problematic in a set of cases specically selected because of their intrinsic complexity. And, a judicially managed proportionality principle for pre-trial discovery, while a good idea in theory, has echos of multiple previous active case management civil procedure reforms that have appeared to owe more of their success (when they are successful) to the personal judicial style of judges charged with implementing them when they work than they do to the rule itself. Equally often, such mandates on judges are either complied with in form only with vague boilerplate case management orders, or are corrupted by laxity in enforcement.

The Colorado Supreme Court, during Chief Justice Bender's tenure, has also promulgated new and more uniform standards for when e-filed pleadings should be rejected by court clerks, and has adopted a public domain case citation rule that permits instant accurate citations to court decisions that do not yet appear in print and frees the state's lawyers and courts from dependency upon private sector legal publishers for an indexing and referencing system for public domain legal authority.

A Tradition Of Innovation

So much procedural innovation can lead to some bumps in the road, but it continues a long standing and bipartisan commitment in the state's legislative and legal culture to modernization and "good government" innovation.

Plain English and Uniform Laws

No state in the country more consistently uses "plain English" in court documents. There is less Latin in the Colorado courts, even in communications made almost exclusively to lawyers like appellate court opinion terminology, than in any other state that I am aware of. Indeed, there are a number of cases where Colorado arguably goes overboard, using plain English terms like "Personal Representative" rather than "Executor" and "Claim Preclusion" rather than "Res Judicata", or avoiding the term "Mandamus" when the legal terms of art are so widely understood that their plain English alternatives can be unfamiliar to people with any familiarity with the relevant areas of law.

In one notable multiple round tiff between the legislature and the courts in the past couple of decades, an appellate court decision to abandon the legalese terms and concepts of "licensees", "invitees," and "trespassers" was reversed by statute, which still followed a Colorado legal culture tradition of codifying a long legacy of muddy appellate law rulings with a clear statutory rule that reads like a law students outline of the common law rules on the subject.

Colorado adopts many well drafted, modern uniform and model laws that reflect current legal thinking in their subject areas and are drafted by committees of pre-eminent experts in the respective fields with input from affected parties and state legislators in a consensus building process that leaves controversial issues to custom local decision making.

State sanctioned forms for a variety of court documents and common transactional documents, whose effects are within safe harbor statutes or rules, together with statutorily implied rules that match standard boilerplate provisions previously included in legal documents, help cut through attorney caution driven legalese.

Court Procedure

Colorado was one of the first states to provide jurors with notebooks of pertinent materials during trials and to allow them to ask questions when the lawyers are finished with their questions for witnesses (something that judges have long had the right to do), and to impose common sense boundaries on the amount of jury duty service we demand of our citizens (generally, we limit jury service to either one day or one trial).

Colorado has widely adopted e-filing of court documents (the Colorado Court of Appeals, Colorado's general jurisdiction trial courts, and some of its limited jurisdiction trial courts all participate) which saves an immense amount of time and expense in copying time, mailing expense and delay, courier resources, and paper processing once the papers reach courts.

Colorado has adopted an innovative optional set of procedures for medium dollar value ($15,000-$100,000) civil disputes (Rule 16.1), that while it has been something of a flop, in part, because the witness testimony procedures and enforcement mechanisms designed to substitute for traditional discovery procedures don't work very well in practice. But, it still represents a genuine effort to craft a solution to a widely recognized problem.

Colorado's default standard case management standards, with special provisioons for common kinds of cases like personal injury lawsuits, have worked fairly functionally to prevent discovery from growing too expansive in medium sized civil litigation cases even when the courts have little time available for active case management.

Business Entity Law

Colorado's Secretary of State has been equally innovative, with legislative cooperation, in allowing e-filings of both business and elections related documents, and online record searches and the state's various clerk and recorder's offices are starting to catch up. Colorado has also worked hard to eliminate empty formalities and unnecessary boilerplate from its entity governance laws and to treat all forms of entities identically in areas like secretary of state filing proceedures, in all situations where there is no substantive law reason to treat them differently from each other.

Probate

Colorado has the simplest, more form driven, inexpensive and private probate administration system in the United States, and has been at the forefront of actively soliciting suggestions from the practicing bar to better address issues not even the state of the art uniform laws have addressed (e.g. Colorado recently adopted a very well drafted law to codify the issue of compensation for fiduciaries in probate cases).

Foreclosures

Our public trustee foreclosure system, while having probably gone too far in the direction of being too efficient even where more due process is called for, has at leat been recently overhauled to address deficencies for both lenders and borrowers in the previous version of the system (trading redemption rights that few borrowers could afford to exercise for cure rights that far more borrowers are capable of exercising). Administratively, the system also does do a good job of having the technical and detail oriented task of admimistering foreclosures of sometimes complicated sets of real property interests handled by officials with the skill set and procedures necessary to do it without making mistakes. The public trustee's system also does a good job of disentangling relatively straight forward time sensitive decisions (should a lender be entitled to force a foreclosure sale of property held as collateral for a loan) from more complicated and less time sensitive decisions (should a lender be entitled to a deficiency judgment after a foreclosure sale, and if so, in what dollar amount).

This said, the scope of the due process review of the narrow question of the right to foreclose at all has in the most recent rounds of reforms grown too narrow by prohibiting introduction of evidence related to the foreclosing party's ownership of the loan and oral forebearance agreements that go to the existence of current right to foreclose, the current means of obtaining review of an allegedly incorrect determination in that process by instituting a separate action requesting an injunction directed at the public trustee is unwieldly, and an extremely broadly interpreted credit agreement statute of frauds has made it possible for lenders to engage in unfair collection practices and deceptive trade pratices in areas like loan modification negotiations during the pendency of foreclosure proceedings that would be clearly illegal if conducted through third parties.

Domestic Relations and Protection Orders

Colorado has had more success with its innovations in domestic relations substance and procedure. Its adoption of standard court forms for financial disclosures and utilization of "facilitators" to make a meet and confer process for early case management work better in cases where one or both parties lack lawyers has been a tremendous success. So has the development of a specialized rule for case management and discovery rules in domestic relations cases (Rule 16.2), a system of court ordered parenting classes for divorcing couples (not intended to be taken together by the divorcing parents), and the substance of a statute that sets forth presumptive provisions for temporary maintenance in divorce cases.

Colorado procedures that impose presumptive, but mild, restraining orders during the pendency of domestic relations and criminal cases, have worked well, and the court system and law enforcement have shown real commitment to making a set of uniform state procedures and substantive standards for civil protection orders operate smoothly and live up to the spirit as well as the letter of the law providing for them.

Regulation Of Lawyers and Judges

Colorado's process for appointing judges, processing allegations of ethical misconduct by lawyers and judges, and publicly evaluating judicial performance, while some elements of it have been criticized, is vastly superior to the process used in the vast majority of states. Colorado's judicial appointment system almost never leads to the appointment of professional inadequate judges whose only recommendations are their connections and extreme partisanship. While our judicial discipline system very rarely results in public discipline of judge, its existence deters misconduct of kinds that can be common in states where judges can only be removed from office via impeachment or election, and has proven quite effective at quietly convincing judges suffering from the early onset of dementia prior to retirement age or otherwise melting down for some reason to retire from their posts without a fuss. Our attorney discipline system is friendly to unrepresented person, organizationally functional and efficient, highly proactive in the particularly sensitive area of attorney trust account fraud, and generous in offering meaningful restorative and rehabilitative options for attorneys who have violated ethical rules in particular instances but aren't fundamentally malfeasant.

Low Hanging Fruit: Obvious Reforms Still Left To Make In Colorado

There are still simple common sense civil procedure reforms left to be made in Colorado.

1. Establish e-filing for lawyers in all Colorado courts. It is a proven technology that provides immense administrative savings and we are most of the way there already.

2. Establish a user friendly way for people not represented by lawyers to e-file documents in court. We have done this for the Colorado Secretary of State and for the I.R.S. and Colorado Department of Revenue, we can do it in our courts. People not represented by lawyers should still have the option of filing documents in person, but it need not be mandatory for unrepresented people to hand file documents and deliver them to other parties in the case by mail that they send.

3. Eliminate the requirement for certificates of service on pleadings. In the good old days, the person who was in charge of putting documents in the mail had to sign a "certificate of service" at the bottom of every document after the initial complaint that was filed in a case reciting that it had been delivered to the other parties to the case at a specific addresss, usually by mail, in a particular day. This allowed for proof that documents were getting to everyone entitled to them without the cumbersome bother of sending everything via certified mail. But, in the e-filing era, this is redundant. The e-filing system provides an auditable record of exactly when which documents was delivered to whom and is much less prone to clerical error. It can even mail documents to people who don't have lawyers. And, it provides one more formality to trip up the unwary unrepresented individual. This half page addendum to every legal document other than a complaint is obsolete now.

4. Consolidate the several forms that must be filed out with a great deal of redundant information to commence an informal probate case into a single form, so it is easier to understand how to handle this part of a case that many non-lawyers handle themselves.

5. Provide a streamlined court form for financial disclosures cases that involve child support, but not property divisions or alimony. Right now we have a one size fits all financial disclosure form in domestic relations cases. But, while all of the information on the form is relevant in dissolution of marriage cases, in cases dealing only with child support, assets are irrelevant and only income and a few select kinds of expenses related to care for the children are relevant. A shorter form would reduce the paperwork burden and complexity of child support cases that are frequently handled by unrepresented parties. Both forms would also benefit from more complete instructions comparable to those found for tax forms.

6. Establish a stand alone set of domestic relations procedural rules. The Colorado Rules of Civil Procedure, which governs domestic relations cases, has a great many provisions that never apply in domestic relations cases. Putting the relevant rules all in one place would make it easier to provide the relevant information in its complete statutory form, free of irrelevant information that serves only to confuse people, to unrepresented parties in a manner less likely to lead to confusion. It would also make it possible for lawyers who frequently go to court in domestic relations practices to have a more compact set of guidelines to refer to.

7. Increase the availability of declarations that are not notarized in lawsuits. Generally speaking, when a document is presented to a court by a lawyer as a signed representation by an individual, the requirement that the statement be verified or supported by an affidavit (either of which must be notarized) adds little or nothing to the probability that a statement will be truthful or the reliability with which a court can discern the identity of the person signing it. But, it can add to the inconvenience of participating in the legal process in an era when clients and witnesses, as it is frequently inconvenient for a litigant or witness to spend time locating a notary before whom they will sign a document. At the very least, statements of parties to lawsuits and their lawyers, whom courts have considerable power to police, should be permitted to make declarations under penalty of perjury rather than provide affidavits that must be notarized.

8. Establish a system of automatic, court system generated, date certain, procedural deadline notices through the e-filing system. Why require lawyers and non-lawyer parties to calculate deadlines and sometimes make mistakes when it would be fairly elementary to have every filing automatically send out a notice of the applicable deadlines still in force in a case as a matter of course. In practice, the courts already have these systems for their own internal use anyway, and there is no reason that the value that is created by those systems shouldn't be shared with the bar and the public, at very little additional cost and with greater certainty for all. Parties or lawyers could still request that a deadline be calculated and that a new date certain be calculated by hand, just as courts do now when an extension of time motion is made under the rules, but this would be the default absent affirmative action by the court.

9. Permit telephone testimony of witnesses and attorneys in hearings unless otherwise ordered, rather than requiring advanced permission to authorize this form of participation in court. We have reached the point where telecommunication is the norm, and in person communication is the exception, and for most status conferences and for most minor witnesses in cases, the expense and time associated with requiring in person appearances is outweighs the benefits to be secured from an in person court appearance. The default rule matters more than the standard for deviating from it, which could have a low bar like "for good cause shown."

10. Reduce redundant information in standard form court document captions. In courts where all documents are e-filed, it is no longer necessary to include the mailing address of any of the parties or the Court on documents that don't require a pro se party to file something or set a matter for an in person hearing. We have also seen the rise and fall of the fax and there is no longer any good reason to include attorney fax numbers on pleadings. Furthermore, in the era of universal e-filing, it is no longer helpful for internal court purposes to include a division or courtroom number of a document e-filed with the court so that it gets to the right place and this too could be omitted from the standard form court document caption in favor of a mere case number that the e-filing system can automatically match to the judges and magistrates currently assigned to a case.

11. Discontinue the practice of requiring proposed orders for motions. Motions always have a "prayer for relief" that explains what the movant is asking for if the motion is granted, courts routinely use the e-filing system to enter orders on motions without regard to the proposed order form submitted by a party, since it is easier to do online than manually signing an order form submitted by a party when the decision doesn't call for a long explanation. This is just one more piece of busy work for lawyers and is a trap for the unwary unrepresented person. It is a rule that made sense ten years ago and no longer does given current technology.

Lutherans and Saints

2012-01-13T10:09:00.003-07:00

I'm a little fuzzy on the Lutheran church's doctrine on the concept of Saints, but I do know that the Lutheran's have a Calendar of Saints that high church Lutherans sometimes acknowledge.

Appropriately, for example, the Evangelical Lutheran Church in America honors Martin Luther King, Jr. day on January 15. MLK, Jr., while named after the man who started the Reformation whom the Lutheran church is named after, was actually a Baptist, rather than a Lutheran, but still surely deserves commemoration.

Martin Luther himself is recalled four days after Valentine's Day, around the time when we reflect on whether our previous romantic efforts were positive, or are at the top of a list of sins that Lutherans need to silently confess and publicly ask forgiveness for.

On April 6, some Lutherans honor artists, Albrecht Dürer, Lucas Cranach, W Matthias Grünewald, and Michelangelo among them.

But, May 24 is the best day of all in the Lutheran calendar of Saints, when some Lutherans commemorate Nicolaus Copernicus and Leonhard Euler.

Copernicus, of course, a childless and never married Catholic priest and polymath genius who is famous for his (more correct than the prevailing Sun rotates around the earth theory) helicentric theories in astronomy, but also made lasting contributions to the economic theories of inflation and monetary policy, wrote poety in Greek, was willing to consider radical ideas, and worked to cross the diplomatic divide between Lutherans and Catholics. He was a religious humanist and the "Copernian Revolution" named after him is synonomous with the concept of a paradigm shift. He also wrote a trigonometry textbook. If Copernicus had lived today, he would surely have been a Democrat.

Leonhard Euler was arguably the most brilliant mathematican who ever lived, who flouristed in the years just before the American Revolution, had thirteen children (eight of whom died before reaching adulthood, despite what was a decidedly upper middle class lifestyle for his day at a top drawer professor and royal advisor in Prussia) all children of the only woman he ever married (from 1734 until her death in 1773), and was something of a jerk when it came to discussing subjects that he knew nothing about, like religion. He was a strong believer in biblical inerrancy and militant campaigner against atheism (or more accurately, the Enlightenment Deism shares by a plurality of the United State's founding fathers and leading French and British intellectuals). If you've been in physics or mathematics long enough, you are sure to meet the type sooner or later. Much of his practical work has military applications (he won twelve awards for naval ship design), and was known for his unsophisticated tastes, although to his credit he did memorize Virgil's Epic Poem, the Aeneid, which served him well as he lost his vision late in life. In addition to his scholarly work, much of which is reserved for upper division mathematics majors and graduate students even today, he wrote textbooks on what would now be high school algebra and first year college calculus. If Euler had lived today, he would surely have been a conservative Republican.

Go Broncos!

2012-01-13T09:32:00.000-07:00

This weekend, the Denver Broncos, who came from behind with the help of our state hero, quarterback Tim Tebow, to make it into the playoffs, faces my brother's hometown team, the New England Patriots. Since, as my brother kindly explained to me, the Broncos can never face the Patriots in a Superbowl, because they are in the same same division, this is as good as it gets for grudge matches in my family.

Pirates, Hexaplanes and Procurement Priorities

2012-01-11T18:57:00.000-07:00

* I am not particularly bellicose in my view of the proper scope of the use of American military force abroad, but it is hard not to approve of a tough stance against pirates. Romantic fictional portrayals notwithstanding, pirates are bad news and deserve to be suppressed ruthlessly. Still, the U.S. policy of doing that with billion dollar destroyers designed to take on the Soviet Navy in the Reagan era, rather than sub-thousand ton anti-piracy craft used by most of the nations of the world (e.g. India) or helicopters based on Littoral Combat Ships, is an extremely expensive way to go about carrying out that mission.

* An inventor in the defense industry has patented a six engine, three wing verticle takeoff and landing tilt wing plane, a bit like the V-22 Osprey, but more tolerant of a single engines failure.

* The newly announced policy of the Obama Administration to guide military spending cuts appears to boil down to cutting the size of the Marine Corps a little, cutting the size of the Army a lot, and relatively speaking protecting the Navy and the Air Force with an eye towards potential conflicts with China, or secondarily, with Iran or North Korea.

This is mostly a bad idea. The Army has irreplaceable large quantities of seasoned counterinsurgency warfare veterans who will be laid off and lost from our nation's military capabilities. The Army has been a far more overutilized resource in the last decade than any of the other forces in the U.S. military, even with a policy that has plundered Army Reserve and Army National Guard capacity not intended for the purposes to which they have been put. The Army is also a very cost effective way to create entry level jobs where our economy needs them most that is the de facto higher educational program for hundreds of thousands of mostly working class young men that provides significant civilian dividends in human capital to our nation.

While technology has dramatically reduced the number of active duty military personnel needed to carry out of wide variety of Navy and Air Force missions, provided similar efficiencies for artillery forces in the Army, and made the heavy tank a niche tool instead of the core of the Army's offensive capabilities, technology has done little to change the number of infantry soldiers needed to take and hold territory in detail once an opponents heavy weapons have been depleted. A rifle isn't much more capable now than it was in Vietnam, and boots on the ground draw their effectiveness from the expertise of the people wearing them in managing situations that don't lead to firefights not their capacity to kill large numbers of people at once.

A nation that has a practical ability to field only about 120,000 or less combat soldiers in a genuine war at any one time is militarily crippled, even though it may have unparalleled air power and sea power.

In contrast, our Navy is incredibly bloated relative to the naval force of any other potential adversary in the world, continues to buy large numbers of extremely expensive ships that provide little marginal value in our defense capabilities, has a surplus of high experienced sailors, is on a natural path towards a reduction in force of about 50% even with the same number of ships because current technology ships require only about half as many sailors to operate them as comparable 1980s designs, and does few things that the Air Force can't at least as well or better with fleets that can more rapidly be shifted from one theater to another. Also, there are decades of evidence that indicate that were the U.S. to ever again enter a period of intense naval warfare (something that really hasn't happened since World War II), that our surface ships are sitting ducks that put hundreds of sailors lives at risk each, for a wide variety of threats from any near peer opponent (submarines, mines, swarm attacks of small craft missile boats, carrier killer ballistic missiles, large numbers of heavily armed fighter aircraft, drones, etc.) because they are slow and hard to hide and offense usually beats defense in the end with current technologies.

We have a navy that would have been brilliant to have in World War II and has been running on autopilot strategically for half century, with a few exceptions, like relative success on the part of the Navy in the area of antimissile defense systems.

Our Air Force likewise is unbalanced. It doesn't have enough logistics capability, which is its most heavily utilized resource. It purchases extremely expensive high technology, supercapable fighter aircraft when many of its military objectives can be achieved with far less expensive aircraft that are purpose built with only the capabilities needed and with drones. An F-16 or F-22 or F-35 is expensive overkill to patrol the skies over Chicago, provide fire support in conflicts with primative insurgent forces in Afghanistan who don't even have radar, or drop large payloads of conventional bombs once anti-aircraft capabilities have been dispatched by high tech strike aircraft in the first days or weeks of a conflict. The number of aircraft sorties needed to reliably hit a target has fallen by a factor of twenty to one hundred due to the advent of guided munitions, yet the Air Force is still committed to tryinig to replace the portion of its fleet originally designed to carry out bombing missions on a one-to-one basis.

Our Marines have proven to be vital components of our military force in multiple conflicts, but its internal allocation of resources is unbalanced. Too much of its capabilities are devoted to developing a large scale, D-Day style, amphibious assault scenario that hasn't made military sense for fifty years, to the detriment of other capabilities like counterinsurgency warfare, limited interventions in Third World conflicts, special operations type interventions, and rapid deployments of diversified medium weight forces, that remain vital to our national security.

Finally, a focus on China as a military threat, despite its increased investment in military technology, fails to reflect that China is become less rather than more of a threat because it is growing more dependent upon the global economy for its own well being. Realistically, the only close neighbors of China whom we would go to bat to defend are Japan, South Korea and Taiwan, each of which have substantial military capacities of their own. We will never invade China, it would be extremely imprudent to engage in full scale conventional hostilities with it given its ample nuclear arsenal, and the relatively non-catastrophic transfer of power over Hong Kong and warming relations between China and Taiwan make the menance of rising Chinese influence over some of its less functional neighbors seem less threatening.

Russia is also starting to restore its military might, but remains far less of a threat to our national security than it was during the Soviet era. Its control over natural gas lines to Europe is a more potent weapon for it than its tanks and submarines.

After New Hampshire

2012-01-10T21:22:00.000-07:00

So, we have Romney with 36% +/-, then Ron Paul, then Jon Huntsman, and then Newt Gingrich and Rick Santorum neck and neck with 9-10% each, and Rick Perry with a negligable showing in New Hampshire's Republican primary which is also open to independents. Jon Huntsman attracted voters more moderate than Romney. The three traditional candidates in the race combined (Gingrich, Santorum and Perry) combined garnered just 20% of the New Hampshire vote.

The next primary is in South Carolina on January 21, which is expected to be more conservative, both by virtue of the rules of the contest and the geography of the contest, than either Iowa or New Hampshire. The most recent polls from South Carolina have had Romney in first place, and Santorum in second place. Perry's polling there has not been promising.

I think that it is safe to expect that the voters of South Carolina will not give a first place finish to either Ron Paul or Jon Huntsman, and that neither man will finish ahead of Romney in South Carolina. I would honoestly be surprised if Huntsman finished in the top three in South Carolina. I think it is safe to expect that Perry will finish so poorly in South Carolina that he will drop out of the race, and that Huntsman might very well acknowledge that he is through after that contest as well. It is far too late, with the first two contests already over, for anyone new to get into the race. I don't think that Ron Paul will drop out after South Carolina, but it is almost impossible to imagine a scenario where he could win the GOP nomination as anything other than a Vice Presidential candidate.

In other words, the only candidates with a plausible chance of making real gains in South Carolina are Gingrich and Santorum. But, it is hard to see how either man can make a credible shot at the nomination without winning a plurality, at least, in South Carolina, and certainly not without being the number two finisher in South Carolina and then consolidating the conservative vote in Florida at the end of the month. Even then, neither Gingrich nor Santorum are attractive candidates in either the primary race or the general election. They are far out of the mainstream, prone to saying things that won't resonate with the general public in a general election, short on campaign funds, lacking in national organization, not on the ballot in Virginia, and in the case of Gingrich, wasn't in the top three in either Iowa or New Hampshire. If either man won the GOP nomination, the odds of a Republican victory in November in the general election would plummet.

The GOP nomination race isn't over, but it probably will be in two or three weeks, and the odds of someone other than President Obama or Mitt Romney winning the general election in November is probably on the order of 30-1, partially because Romney is the overwhelming favorite in the GOP nomination race (his odds there are probably 9-1 or better), and partially because another nominee is much less likely to win the general election. If and when Romney wins a plurality in South Carolina and Florida, the GOP nomination race really will be over, and the odds that either Obama or Romney will win the general election surge to something like 50-1 or 100-1 (with only a premature death or catastrophic scandal leading to a political death preventing the likelihood from reaching 100%).

Implications Of A Romney Nominee

So, the bottom line is that Romney is extremely likely to be the nominee and is extremely likely to wrap up the nomination sometime in the next three weeks. What implications does a Romney nominee have for the Republican party and the general election?

1. Even if, as it likely, Romney names a strong conservative as a running mate, Romney's primary season victory will mark a major setback for the Tea Party faction of the Republican party (and no doubt calls for the reform of a system that puts open contests in two states peripheral in the Republican landscape at the start of the Presidential primary race).

2. Romney will effectively lose seven months of free media and large numbers of opportunities to hone his national organization, because the press and the public will lose interest in election contests that are foregone conclusions.

3. The Republican party will be hard pressed to make health care reform repeal a major campaign issue.

4. The activist base of the Republican party will be unexcited and reduce their contributions in time and talent to Romney's campaign.

5. Romney may not have very long coattails, since he may be hard pressed to put together a national theme for the House and Senate elections that is a good fit to his own optimal campaign strategy, and the percentage of people willing to re-elect their own Representative is at a record low.

6. The debates between Romney and Obama will be breathtakingly erudite and quite possibly among the most boring ever.

7. The Republicans will have nominated a foil who makes President Obama look profoundly charismatic by comparison.

8. The rest of the Presidential election will be scandal free.

9. Romney is unlikely to actually lose any members of the Republican base to Obama and Obama is unlikely to lose members of the Democratic base to Romney, although he could lose some of it depending on issues stances taken in the campaign and the state of the economy. Basically, Romney will be a generic Republican candidate whose fate has more to do with the progress of the economy over the next ten months than anything else.

U.S. Still Near Top In Per Capita GDP

2012-01-10T14:48:00.006-07:00

The United States leads the world in per capita GDP in any apples to apples measure, despite our economic woes. But, the time has come after sixty years of a relentless consensus agreement on growing per capita GDP as the primary goal for U.S. economic policy to rethink our priorities.

The gap between per capita GDP and other measures of national affluence has grown sufficiently wide that per capita GDP is no longer a suitable central focus of U.S. economic policy. New metrics for national affluence that the U.S. should use to guide its economic policy going forward need to (1) consider the value that productive activity imparts, rather than merely the cost of what is produced, particularly in areas like health care and national defense spending, (2) recognize that leisure, in addition to goods and services, has economic value, (3) recognize that the distribution of wealth is not irrelevant to a nation's affluence, (4) recognize that intangibles like democracy, equality in the distribution of power, and freedom may have intrinsic economic value to people as well as serving as means to other ends. None of these factors is captured by per capita GDP, the longstanding, current, bipartisan pole star of U.S. economic policy.

I review the central role that the per capita GDP metric has in U.S. economic thought, how the U.S. compares on that measure to the rest of the world, and the limitations of that metric in measuring national affluence, in the post below.

Per Capita GDP As The Leading U.S. Policy Measure Of Affluence

If you asked U.S. economists and economic policy makers what single number they viewed as the single most important one for comparing the economic success and prosperity of different countries and subdivisions of countries, they would likely pick per capita gross domestic product or gross national product (the differences between the two are slight in all but exceptional cases). This measures the total output of country (GDP/GNP) over a year divided by its census population for that year and measures the amount of economic output in a country that is available to the average person in the country without favoring any particular distribution of income.

Economists use GDP growth and decline are the determinant of whether we are in an expansion or a recession. When economists and politicians talk about wanting to encourage economic growth, they are generally talking about GDP growth and if you probed a little further, they would generally agree that GDP per capita growth matters more than GDP growth in absolute terms. A country with population growth greater than GDP growth is suffering a Malthusian creep towards poverty.

The political consensus in favor of per capita GDP as the measure of economic success in the U.S. is a wide one, shared by the lion's share of Republicans and pretty much all Democratic elected officials more moderate in their liberalism than the members of the Progressive Caucus in Congress (where concerns about income distribution and skepticism of the validity of GDP as a true measure of prosperity heightens).

While the average American cares more about the interactions of the median personal income, the consumer price index, and unemployment rates, Wall Street and most of the powerful economic policy makers in Washington care more about per capita GDP.

For the last sixty years or so, the be all and end all of U.S. economic policy in almost every political administration at both the state and the federal level, and in academia evaluating economic policies, and in financial circles and among big business groups setting their economic policy objectives, has been to maximize GDP. For the most part, the economic policy making elite in elected official, among key government officials, in leading think tanks, in universities, in political party platforms, among most lobbyists, and in the punditocracy have crafted economic policies on international trade, regulations of the economy per se like minimum wage laws and antitrust laws (as opposed to regulation of the economy for non-economic reasons like national security or the environment), intellectual property, social welfare policy, and more to the goal of maximizing GDP.

These elites haven't necessarily always agreed on the best way of achieving this goal - conservatives have tended to be more skeptical that government can play a positive role through regulation, investment in the economy and redistribution of wealth than the evidence suggests and have unreasonably doubted the economic benefits of immigration; liberals have sometimes been unjustiably of the economic gains associated with international trade than is justified. But, the consensus view has been that GDP growth in the economy as a whole will generally provide less than 100% of the growth to a narrow elite that runs the enterprises that create it, thereby increasing the well being of the average American, that the best way to minimize unemployment over the long run is with long term GDP growth, and that apart from extreme situations like slavery, threats to U.S. health and safety, national security concerns, and humanitarian catastrophes, that economic policy show have GDP maximization as its goal.

More than half of century of consensus on the goal of maximizing GDP without regard to other priorities, the relatively moderate amount of harm suffered by the U.S. in World War II relative to countries in Europe and Asia that were devastated by the conflict, technological advancement, and the benefits of the immense economic scale made possible by an American empire have worked together to make great progress on that goal.

Mission Accomplished

In 2010, even near the bottom of the worst economic slump since the Great Depression that followed the financial crisis, the returns on our relentless pursuit of per capita GDP are apparent. In any really apples to apples comparison between the U.S. economy and other economies around the world, the U.S. leads the world in per capita GDP, even though eight small countries, which are compared in an apples to apples way to comparable parts of the U.S. economy, have higher per capita GDPs than the United States as a whole.

The U.S. ranks 9th in the world in per capita GDP at $47,200.

How do the other eight economies with higher per capita GDPs (and other countries with GDPs in the top twenty) do it?

Oil Rich Monarchy Microstates

Four of the nations with higher per capita GDPs (Qatar, Brunei, United Arab Emirates, and Kuwait), and one more of the countries in the top twenty for per capita GDP (Bahrain) are geographically tiny monarchies with small populations, vast oil reserves, and immense stockpiles of oil proceeds converted into sovereign wealth funds.

Spread over the entire population of the United States, the U.S. can't hope to match that model. But we do have U.S. states, like Alaska and Wyoming, with similar fossil fuel dominated economies with state per capita GDPs ($69,155 in Alaska and $68,262 in Wyoming) exceed the per capita GDPs of comparable oil rich economies in Brunei ($51,600), UAE ($49,600), Kuwait ($48,900), Bahrain ($40,300), and many modest population oil rich countries like Oman, Saudi Arabia and Libya that don't even make the top twenty for per capita GDP, although no U.S. state with a mineral based economy in the United States matches Qatar's $179,000 of per capita GDP for its 1,850,000 people that flows from crude oil reserves of 13,730 barrels of oil per capita and additional natural gas and other kinds of fossil fuel reserves, as well as the benefits it can secure from jurisdictional arbitrage as a tiny nation with the perks of sovereignty available to those willing to pay for them.

These economies are unsustainable, however. Their mineral reserves that they base their economy upon are dwindling, and a fair amount of the extracted wealth is used to sustain current consumption rather than long term investments in their nation's economic productivity. Their populations are growing (not nearly as much as they did a few decades ago, but still growing) without corresponding increases in economic productivity. These nations are benefiting from rising oil prices accruing from declining oil supplies relative to demand as the world approaches (or has entering into) a peak oil era. But, peak oil for these individual countries is in sight, and even if some technological fix in oil exploration or production can allow the world economy to come up with new oil resources that will avert peak oil in the global oil market (and unlikely, but not impossible scenario), those developments are unlikely to solve the problems these individual countries face when they run out of oil.

International Financial and Commercial Centers

In addition to the four economies with higher GDPs than the U.S. due to oil wealth (which, of course, is a non-sustainable source of wealth as their supplies will eventually run out), two more are tiny countries which owe their wealth to cherry picking affluent pockets of the European Union's financial sector into microstates and providing tax havens for hot assets.

Liechtenstein, with a population of just 36,000 people has a per capita GDP of $141,100 (not also that this is a 2008 figure, the most recent available, that may not fully reflect the effects of a recession and European sovereign debt crisis through 2010). This is the second highest per capita GDP in the world, but if confined to a country with a population which is a third of the population of a lower Manhattan city block, or a typical suburban city in an affluent U.S. metropolitan area.

Luxembourg's 503,000 people who enjoy the third highest per capita GDP (482,600) in the world after Qatar and Liechtenstein, has the population of a typical urban U.S. county or small U.S. state. This is indeed affluent, particularly given Luxembourg's lack of mineral wealth.

The United States has neighborhoods, cities and zip codes with similar populations that are at least as affluent, without the benefits of serving as tax shelters, but these pockets of great wealth are diluted statistically by less affluent neighboring areas. The per capita GDP of Washington D.C. (which is higher than that of any U.S. state) is $171,595, despite the large share of its population that lives in pretty deep poverty, and the special legal status it enjoys is in many ways comparable to the benefits that Liechtenstein and Luxembourg, Andorra (10th in per capita GDP at $46,700, just after the U.S., with population 85,000) and Switzerland (11th in per capita GDP at $42,600 with population 7,640,000).

Two other affluent counties in the U.S. have per capita GDPs a little bit greater than Washington D.C. (and hence greater than Liechtenstein, which is #2 in per capita GDP and Luxembourg which is #3 in per capita GDP) and populations on the same order of magnitude of Luxembourg or greater: New York County (i.e. Manhattan) in New York State, and Santa Clara, California (i.e. the epicenter of Silicon Valley). Santa Clara County and Manhattan rival Qatar in per capita GDP despite their absence of vast oil wealth or the perks of sovereignty that would permit them to craft laws that can be tailored to lure in outside "hot" investment.

The city-state of Singapore, which is fourth in the world in per capita GDP at $62,100 with a 5,250,000 people, relies on an international commerce based strategy similar to that of Luxembourg, Switzerland and Liechtenstein. This is less than the per capita GDPs of Delaware ($69,375, population 898,000) and Connecticut ($66,396, population 3,574,000), and probably less than the five county City of New York (exact per capita GDP unavailable, population about 7 million; New York state has a population of 19.4 million and a per capita GDP of $59,768, but New York City proper and the New York City metro area are both more affluent than upstate New York which drags down the average). A similar analysis would apply to Hong Kong if it was a nation-state instead of a dependency of China.

Colorado, with a per capita GDP of $51,213 and a population of 5,030,000 in 2010, is a bit more affluent than the national average by the per capita GDP measure in a result for a population large enough to representative. Colorado, considered on its own, has a higher per capita GDP than all but six countries (Qatar, Liechtenstein, Luxembourg, Singapore, Norway and Brunei). At least eight states and the District of Columbia have higher per capita GDPs than Colorado, while many other U.S. states are considerably less affluent than Colorado.

Modern Economies Which Also Have Oil Wealth

Two countries in the top twenty for per capita GDP, number five Norway ($54,600, population 4,690,000) and Canada ($39,400, population 34,000,000) have mixed economic production strategies. They have modern industrial/post-industrial economies shared with other affluent nations in the top twenty for per capita GDP like the USA, Canada, Australia, Austria, the Netherlands, Sweden, Iceland, Belgium and Ireland. But, both Norway and Canada also have considerable oil wealth.

Norway has about a third of the crude oil reserves per capita of Brunei, about a tenth that of Qatar and about fifteen times as much as the United States. Canada has about one and a half times as great crude oil reserves per capita as Brunei, about a third as much as Qatar, and about 79 times as much as the United States. Without oil wealth, the per capita GDP of Norway would be closer to that of its Nordic neighbors Sweden and Iceland, and probably less than that of the United States. Similarly, the per capita GDP of Canada, which is already about 1/6th lower than that of the United States, would be below that of Australia and Ireland and probably close to that of New Zealand.

Norway also benefits in per capita GDP comparisons with the U.S. from cherry picking (i.e. singling out an affluent subset of a larger European economic area for individualized statistical treatment). A number of U.S. states with populations greater than Norway's 4,690,000 people have per capita GDPs greater than that of Norway ($54,600). For example, New Jersey ($55,438, population 8,790,000), Massachusetts ($57,817, population 6,550,000), and New York State ($59,768, population 19,400,000).

Conversely, the only large political jurisdiction with a comparable population and level of affluence to the United States, which is the European Union (whether or not narrowed to the Eurozone or expanded to include the European Free Trade Area), as a whole, as a lower per capita GDP than the United States.

Data Source

This analysis is based on the latest year that consistent international statistics are easily available to me (2010) and is sourced mostly from the World Almanac 2012. The figures involved can have technical discrepencies, for example, related to international currency translations, but none of those considerations would materially impact this analysis or the analysis below, although it might slightly reshuffle some of the rankings on the per capita GDP chart.

Beyond Per Capita GDP

It would be easy to stop this analysis with the observation that the U.S. rocks and that we shouldn't change anything. And, it is correct to observe that despite widespread waning confidence about the prospects of the U.S. economy, that the small number of countries that exceed the U.S. in our own yardstick of choice for measuring economic success are outlier anomalies that don't withstand scrutiny when adjusted for the statistical limitations that arise when you compare economies of very different sizes created by gerrymandered international borders, and when you distinguish between unsustainable mineral wealth economies, vulnerable jurisdictional arbitrage economies, and more fundamentally sound broad based economies that include tens of millions and hundreds of millions of people.

The trouble is, that here at the top of the per capita GDP range in the world, it is clear that while per capita GDP is a pretty good crude indicator of national affluence, that within the high end of the per capita GDP range, that disconnects between true measures of affluence and crude per capita GDP are material.

Lots of our economic rivals are comparable to the United States in productivity per hour worked in a wide variety of industries, but have lower per capita GDP because they have made a societal choice to work less and as a result consume less, in exchange for more leisure time. The average American works longer hours each year than the average citizen of any other country in the world and our labor force participation rate is very high, particularly for those who are beyond college age. Yet, it is elementary and intuitively obvious, that at any given level of annual productivity, the individual who produces that amount while also having more leisure time, is the more affluent individual. Similarly, while few people would aggressively argue that a woman's place is in the home raising children, as Republican Presidential candidate Rick Santorum has argued, a per capita GDP measure that assigned considerable economic value to third party provision of child care in a day care center, but none to homemaking activities is clearly imperfectly accounting for the way we create value in our society. Yet, outside a few relatively obscure treatises in the simplicity movement and U.N. social welfare bodies that Americans tend to ignore, there isn't a great deal of consideration in academic economics, or U.S. economic policy, given to how we can strike the optimal balance of work and leisure as a society, and a never ending quest to maximize our nation's per capita GDP won't get us to that optimal balance.

Also, GDP turns out to be a quite inaccurate measure of the value created by economic activity in sectors like health care, where American per capita GDP values are artificially inflated because we pay more for the same or inferior health care services. Since GDP values goods and services at market cost, if prices are artificially inflated in the United States for locally provided services like health care, where prices cannot be equalized by international trade as easily as they can via trade in goods or "good-like" services like packaged software, GDP overvalues the amount of affluence that accrues to us from this spending.

In the same vein, in a classic guns v. butter conflict, the United States spends a larger share of its economy on the military than almost all of its first world neighbors, in exchange for a global security benefit upon which our allies (and even our enemies to some extent) can free ride upon, at a cost of reducing the benefit that our nation's high per capita GDP provides to us in the affluence sense.

There is also reason to question whether GDP does a very good job of capturing the costs and benefits found in other economic sectors where there is large government involvement for non-GDP related reasons, such as the criminal justice system. Americans are exceptional here as well, with the highest incarceration rate in the world, and spending on guards and prisons, on its face, increases GDP in an amount based on the amount paid for those activities, without regard to whether the benefits that accrue from that activity are good, bad or indifferent.

Finally, per capita GDP is indifferent to the distribution of wealth and income. Yet, it is widely known that the U.S. has distributions of wealth and income that are skewed to the affluent to degrees usually seen only in third world countries and on the eve of economic collapses, even after the financial crisis, while providing a much meaner existence to its less affluent citizens than almost any other first world country in the world.

The United States is clearly one of the very best places in the world to be rich. But, for those who are not in the 1%, the affluence edge that the United States has over other first world economies is not as clear. This problem, moreover, is not a temporary one. An extremely large share of our economic growth over the last few decades has accrued to the very affluent, breaking with the trend of shared gains from economic growth seen in the first half of the post-World War II economy in the United States.

And, the whole concept of an economy in which continual large amounts of economic growth on a percentage basis is necessary is itself unsustainable. At the top of the per capita GDP range, the only way to create economic growth is through original invention of more productive ways to generate economic value. Further down the rankings, for example, in developing economies in the processing of modernizing their means of production and economic structures like China, India and Latin America, it is possible to simply imitate and adapt what already developed economies have done, with capital provided by outside investors, which makes far higher and far more predictable economic growth possible.

Not entirely unrelated to the question of income distribution as it relates to national affluence is the issue of how we value democracy and freedom and distributions of power (for which distributions of income and wealth are to some extent merely a proxy), which are absent to a great extent in monarchies in oil rich microsates and also often lead to grossly unequal distributions of wealth.

So, while the United States has accomplished the economic mission which has been its top priority for the last sixty years and left us with a very worthwhile result in terms of our national affluence as a result, the time has come to pause and reassess the metrics we use to measure affluence and the quality of the economic goals we set for our nation with our revised metrics rather than continuing a blind effort to maximize per capita GDP without regard to the limitations inherent in that goal which has become apparent now that we have achieved it. We have reached a "be careful what you wish for" moment in our economic history and need to adjust our economic policies accordingly.

Paying Extra For Regular

2012-01-09T20:39:00.002-07:00

Both the marketers of the Kindle and Microsoft, now charge extra for advertising free products.

Denver Sheriff Routinely Misidentified And Wrongfully Jailed People

2012-01-09T12:57:00.002-07:00

The Denver Post, recounting cases compiled by the Colorado ACLU in a federal class action lawsuit, makes clear that the City and County of Denver, about six times a month and probably considerably more often, arrested obviously wrong people on warrants and sometimes makes people serve sentences for the wrong person.

Most of the cases involve people with similar names to people subject to outstanding warrants and convictions, but very different dates of birth, genders, races, height, weight, mug shot appearances or finger prints, despite the fact that the identifying information was easily available to the Sheriff's department.

The problem was excerbated by unconstitutional long delays in bringing people who were arrested before a court where the confusion could be cleared up: "One Denver sheriff's official, in sworn testimony attached as an exhibit, said he had seen many of those arrested go a week without an initial court appearance "many, many, many times." The constitution generally requires an initial court appearance to take place within a couple of business days. It isn't clear if the widespread unconstitutional delay in scheduling first appearances of incarcerated individuals in Denver is ongoing.

Five hundred and three cases from 2002 to 2009 were documented by the ACLU, and some were repeated with the same person. Most cases produced releases of the suspect after a few days to a few weeks. A few produced plea bargains for minor punishments to crimes committed by a clearly different suspect. A few cases involved someone being forced to serve someone else's misdemeanor sentence for as much as nine months.

Every single one of these cases would have been easily preventable if the Sheriff's office routinely matched identifying information accompanying warrants against the person actually arrested. For example:

Brad Braxton was arrested on July 19, 2007, on a warrant for David Eddie, right. In Braxton's lawsuit, he says deputies at the jail made statements such as, "He doesn't look like a white guy to me." Braxton spent nine days in jail. . . .

A white man was hauled in even when the suspect actually was an American Indian who was nearly a foot taller and 100 pounds heavier. He wasn't released until almost a month had passed and not until the victim of the crime alerted authorities at a court hearing that they had the wrong suspect.

The notes from the judges include the following: "Wrong defendant brought into court. Jamie Milner is a female. The defendant Jamie Sandoval is male."

This is a situation which involves not only deprivations of civil liberties, but also shows incredibly shoddy law enforcement work in the simplest of cases, those where the criminal justice system already knows who the suspect is and has identifying information to confirm that they have the right person.

These cases also represent a class of cases where the prevailing legal standard for a damages remedy against the city, "deliberate indifference" is far too high, and a strict liability "takings clause" type remedy like the one that requires the state to compensate you for a deprivation of property in eminent domain proceedings without regard to intent, would be more effective and appropriate, since the cost and practical difficulties of proving deliberate indifference is so great, and the intent of the government is so unrelated to the nature of the harm suffered.

The City consented to reforms in 2008, but a lack of record keeping by the City makes it hard to determine how much progress has been made towards addressing this problem.

A better remedy, in terms of harm prevention, would be a technological and procedural one, in which every single warrant was accompanied by a mug shot and full description of the suspect and was checked in every case when someone is arrested and detained on a warrant.

The Arrival of the Miami Indians In Ohio

2012-01-06T19:20:00.001-07:00

Growing up in Oxford, Ohio, home of Miami University of Ohio, I'd always assume that the Miami Indians after whom the university is named were longstanding ancestral populations of the area. But, it turns out that this isn't the case. The Miami Indians started to arrive in Ohio around 1720, (in a migration noted historically by French hunters and trapper and missionaries) less than ninety years before Miami University was founded in 1809. Their migration, driven by pressures from other Indian tribes drove them there from an earliest known point of origin in Wisconsin.

The Indian tribes who preceded them in Ohio and their languages, like the indigeneous residents of large swaths of the Eastern United States in both the Midwest and the Southeast, have been lost to history.

Good News Reminders

2012-01-06T11:36:00.001-07:00

Between 1991 and 2010, the homicide rate in the United States fell 51 percent, from 9.8 per 100,000 residents to 4.8 per 100,000. Property crimes such as burglary also fell sharply during that period; auto theft . . . dropped an astonishing 64 percent. . . the trends continued in the first half of 2011. . . . the United States could soon equal its lowest homicide rate of the modern era: 4.0 per 100,000, recorded in 1957. . . . the United States is still more violent than Europe or Canada. . . But . . . is far, far safer than it was as recently as the late 1980s. . . .

Crime’s continued decline during the Great Recession undercuts the . . . myth that hard times force people into illegal activity. . . . Yet recent history also refutes . . . [those] who predicted in the early 1990s that minority teenage “superpredators” would unleash a new crime wave. Government, through targeted social interventions and smarter policing, has helped bring down crime rates. . . . Yet solutions bubbled up from the states and municipalities. . . . [I]ncarcerating more criminals for longer periods probably helped reduce crime. . . . [But,] crime rates fell while Miranda warnings and other legal protections for defendants remained in place. . . . what’s most striking about the crime decline is how little we know about its precise causes. . . . state incarceration, which peaked at a national total of 1.4 million on Dec. 31, 2008. This phenomenon is probably a source of success in the war on crime — and its most troubling byproduct. But increased imprisonment cannot explain all, or most, of the decline: Crime rates kept going down the past two years, even as the prison population started to shrink.

From here.

Incarceration rates in the U.S. are still unrivaled in the world, despite falling slightly, but the U.S. has reduced its use of the death penalty by every measure: new death penalty convictions, executions carried out, and circumstances when its imposition is permitted. The single largest source of executions in the world, China, has greatly reduced its use of the death penalty in the last few years.

Disproportionate federal criminal sentences for crack cocaine use have been materially moderated. DNA testing has produced the exoneration of many wrongfully convicted individuals while producing convictions for suspects who could have been shown to be guilty of rapes in no other way. The use of DNA in burglary cases has produced convictions of individuals guilty of hundreds of burglaries each.

Teen consumption of hard drugs has fallen. Cocaine and meth are a lot less popular than they used to be. Criminal gangs are less powerful. The decriminalization of medical marijuana in a variety of states has turned would be criminals into tax paying small business owners filling a gap in the economy during hard economic times. More teens who need prescription drugs for mental health problems are getting them.

The decline in crime is not the only good news.

Accidental deaths have declined dramatically on an age and population adjusted basis (increasing population increases accidental deaths and some accidental death causes like falls have always been heavily geriatric), in every category except accidental deaths from prescription drugs (mostly a small subset of prescription painkillers often fraudulently obtained). It is now almost as safe to work in a factory as it is to work in an office or retail store, and for most kinds of workers, ordinary automobile accidents and homicides that happen to occur on the job are the most common causes of work related deaths (farming remains the least reformed in terms of worker safety). Drunken driving deaths, in particular, are way down, and traffic deaths generally are now less frequent than accidental deaths from prescription drugs.

Suicides are also down, although some of that can be attributed to deaths that might otherwise have been treated as suicides being classified as accidental prescription drug overdoses.

Dramatic reductions in smoking, early detection of cancers, and improved cancer therapies have reduced deaths from cancer dramatically. Improved treatment regimes like cholesterol control drugs, asprin therapy and moderate alcohol consumption, as well as reductions in smoking, have reduced deaths from cardiovascular diseases. The life expectency of people with HIV and AIDS has expanded greatly as treatment options have improved, and new infection rates are not increasing, although they aren't really falling either. Progress has been made in finding treatments for spinal injuries and in the way that trauma can be treated in specialized emergency room settings.

Births to pre-teens and teenagers are at record lows, and this is due to fewer teen pregnancies, not rising abortion rates, as abortion rates are also at record post-Roe v. Wade lows (for all ages). Births to poor women have fallen to rates similar to those of more affluent women, limiting excacerbation of their poverty. Infant mortality and pre-term births have also become less common. Emergency contraception has become more widely available, preventing unwanted pregnancies, and drugs like RU-486 have made early term abortions more widely available and less traumatic to obtain.

Divorce rates have fallen significantly for college educated couples.

Air pollution has declined somewhat, motor vehicle fuel efficiency has increased significiantly, lighting energy efficiency has made dramatic strides, renewable power production has surged, and exposures to lead and mercury are greatly reduced. Hybrid cars, plug in electric cars, and fuel efficient microcars have entered the mass market.

The percentage of people who are graduating from high school, and who are obtaining further education after high school, is rising.

Housing is more affordable than it has been for decades. Consumer debt is falling signficantly. Inflation is negligable. Federal tax rates are at near record lows. Customs duties, quotas and other barriers to international trade are far less common than they were several decades ago. Illegal immigrant populations have fallen, and the government facilitated part of that decline has disproportionately focused on convicted criminals. Government leaders in every political party at every level of government take seriously the need to facilitate a positive economic environment for business, even though they disagree about how to make that happen.

Streaming high quality video has become widespread and affordable. The cost of long distance calling within the United States has greatly declined. Mobile phones and mobile internet access are available to the masses. Electronic books have become feasible and widespread. While it once cost a considerable sum of money to buy an encyclopedia for home use, now, access to information sources just as vast, including full text scholarly journal articles in many disciplines, are now freely available. You can get a good summary of your genome for a couple of hundred dollars and a whole genome which was impossible to get at any cost a couple of decades ago can now be sequenced for a few thousand dollars.

Fast, relatively painless, modest risk surgical correction of nearsightedness is now possible for about the cost of ten pairs of glasses, and contact lens are now cheap, disposable and better in quality than they used to be.

Gay rights have made significant advances: several states permit gay marriage, more permit civil unions, gays can now serve openly in the military, and the U.S. Justice Department has decided to stop defending the constitutionality of the Defense of Marriage Act's decision to not recognize same sex marriages that are valid under state law. Many states, including Colorado, have adopted laws prohibiting discrimination on the basis of sexual orientation.

The percentage of people who identify as non-religious has grown dramatically, and with it so has the social acceptability of that religious self-identification. Fundamentalist evangelical sects have seen their growth plateau in favor of less politically minded non-denominational megachurches. We are seeing patterns of secularization in the United States similar to those seen in Europe a generation or two earlier.

The war in Iraq is over and no more U.S. troops remain stationed there. The practice of disregarding the legal rights of U.S. citizens and legal aliens suspected of terrorism in the United States, while remaining a threat, is no longer a matter of administration policy, the adminstration has ceased to rely on torture and widespread extraordinary rendition of prisoners aimed at facilitating human rights abuses, and the terrorism souced paranoia in the nation's airports has ebbed a bit. Osama bin Laden and a very large share of other senior al-Queda leaders have been killed or captured, including almsot everyone with direct involvement in the 9-11 attacks. The Taliban went from being on the very of ruling all of Afghanistan to being routed in Afghanistan where they have been replaced with a fragile new civilian regime, although a low level Taliban insurgency continues there and across the border in Northwest Pakistan.

Two decades after the end of Soviet style communism, many of the former Soviet and Warsaw Pact nations have significantly reformed themselves in a Western democratic capitalist model, and few are more totalitarian than they were in the Soviet era. China's path towards market based economic reforms has continued and its totalitarian limitations on personal freedom and political express have loosened somewhat. China and Taiwan are on a path towards more detente. Dictatorships have been ousted in Yemen, Egypt and Tunisia. The South Sudanese have secured independence from an oppressive regime in the North. Burma is taken steps towards restoring civilan rule and Nigeria has the most democratic civilian leadership it has had in decades. Kim Jong Il is death and there is some reason to think his son who has become his successor will be at least no worse and probably somewhat better in governing his nation than his father.

Less recently, but also notably, dictatorships in Indonesia and Iraq have been replaced with fragile emerging democracies, and democracy has made progress in Pakistan. East Timor has held onto its political independence and democratic government. Kosovo has been established as a functional independent nation. Most of the most prominent Serbian war criminals are dead or have been brought before international human rights tribunals. The humanitarian fallout from natural disasters in Haiti have begun to resolve itself without resulting in the ouster of a democratically elected civilian government that followed decades of totalitarian rule. Long civil wars in Sri Lanka and Mozambique and Ethiopia ended (giving birth to the sovereign nation of Eritrea in the last case). Long years of seemingly never ending suicide bombings in Israel have declined to a trickle, and the Palestinian Authority has more authority and is more democratic than it has been in many decades past. Civil wars in Bosnia, Ivory Coast and Liberia are over. Cuba is easing up slightly on its restrictions on private ownership of property and private enterprise. The struggle with near sovereign narcotics cartels in much of Columbia has grown far less intense. A campaign of genocide in Darfur, Sudan has been tamed, even though that regimes abuses of not ended. Violence related to disputed sovereignty in Kashmir has ebbed. Kate Middleton's marriage to Prince William has given the world a delightfully perfect new princess of the countries of the British Commonwealth to gossip over. Absolute monachs in Jordan and Morocco have adopted democratic reforms.

Democracy, freedom, peace and economic prosperity aren't universally making gains in the world. Mexico continues to be immersed in an orgy of drug related violence and political turmoil (in Veracruz it was so bad that the city recently fired every single employee of the police force and Navy sailors stepped in to patrol the city while it the civilian police force was rebuilt from the ground up). Unemployment in the U.S., much of it long term, remains high, and declining consumer debt is often rooted in foreclosures and bankruptcies. Europe faces a sovereign debt crisis that threaten the E.U. economies and eurozone as a whole. Iran is still sword rattling in the Persian Gulf. Syria is violently cracking down on dissent from its dictatorial regime. Sudan is indiscriminately dropping bombs on the communities of the Nuba Mountain area and bullying newly independent South Sudan over oil pipeline charges. Depots still reign in many of the "stans" of the former Soviet Union, an active and violent insurgency continues in Chechnyia, and Islamic terrorist violence in Northern Nigeria is surging. Belarus, Venezula and Hungary are at serious risk of becoming fully non-democratic regimes. But, on balance, there is actually more good news than bad out there.

Tachyonic Judges Found On Second Circuit Court of Appeals

2012-01-06T09:56:00.000-07:00

At How Appealing, we have a report of tachyonic appellate judges:

We all get some dates wrong when the year changes, and sometimes they lead to amusing results. Today's decision from the Second Circuit, for example, was argued December 13, 2012, and decided on January 6, 2012. Must be a new record! . . . Not surprisingly, this extreme example of judicial efficiency is attributed to Judge "Per Curiam."

("Per Curiam" is Latin for "by the Court" and is the default author of an opinion of a multi-judge panel when no one judge claims authorship of the opinion. This authorship is common used in brief, unanimous opinions that summarily dispose of a case that are written by law clerks, opinions that are so bare bones that nothing that distinguishes from judge's ideas or writing style from another's, or when there are substantial contributions from multiple judges in a more collaborative than usual process and it is desirable for the legitimacy of the courts to show a united front.)

NH and SC Polls Bad News For Perry and Huntsman

2012-01-05T16:44:00.001-07:00

According to a Suffolk University/7 News two day tracking poll, the former governor of neighboring Massachusetts has the support of 41% of likely Republican New Hampshire primary voters. Rep. Ron Paul of Texas is a distant second, at 18%.

The poll indicates that Santorum is at 8%, with former House Speaker Newt Gingrich and former Utah Gov. and former ambassador to China Jon Huntsman at 7%. According to the survey, a rather large 17% are undecided.

From here (sample size 500, polling half before and half after Iowa over two days, MOE +/- 4.4%).

Texas Governor Rick Perry isn't going to make any showing of consequence in New Hampshire, and Jon Huntsman is far too far back to launch his Presidential bid in New Hampshire with any success, having already failed to participate in Iowa either. Newt Gingrich also doesn't appear to be on the path to recovery. Santorum may yet get a boost in New Hampshire from his solid performance in Iowa, at least sufficient to put upwardly trending Santorum ahead of downwardly trending Gingrich, which would push Gingrich to fifth or sixth place in New Hampshire. But, if Santorum can't edge out Paul in New Hampshire, his ability to become the "not Romney" candidate in this race is increasingly called into question.

I'd have to check the history books, but I don't think anyone has every won a modern Presidential nomination without at least appearing somewhere in the middle or top in either Iowa or New Hampshire. Also, no one has ever become a President without having first been a Governor, U.S. Senator or Vice President. Paul and Gingrich fail this test.

The third in the nation, South Carolina race, puts Gingrich and Romney as the number one and number two candidates by a wide margin in the most recent two polls. Perry has been far back from these two candidates, garnering just 5% support in the most recent poll there. Even a solid number two finish for Romney in South Carolina, after finishing first in Iowa and New Hampshire, would be good news for Romney, who has less of a base in the South. Gingrich's strong performance in South Carolina polls, however, appears to pre-date his catastrophic fall in popularity that hit shortly before the Iowa caucuses and put him on track to a mediocre performance there and likely another mediocre performance in New Hampshire. Romney could easy fill the South Carolina vacuum with a first place finish, and if he does he will be the presumptive Republican nominee.

Masculine v. Feminine Personality Traits

2012-01-04T20:17:00.005-07:00

A new open access paper, Del Giudice M, Booth T, Irwing P, "The Distance Between Mars and Venus: Measuring Global Sex Differences in Personality." (2012) PLoS ONE 7(1): e29265. doi:10.1371/journal.pone.0029265, finds that looking at combinations of multiple personality traits as measured by a fifteen factor personality test of 10,000 roughly gender balanced subjects in the U.S. shows only a 10% overlap between the masculine and feminine sets.

The fifteen factor approach utilized is summarized as follows:

The 15 primary scales can be further organized into 5 global scales: Extraversion (Warmth, Liveliness, Social Boldness, Privateness, and Self-Reliance), Anxiety (Emotional Stability, Vigilance, Apprehension, and Tension), Tough-Mindedness (Warmth, Sensitivity, Abstractedness, and Openness to Change), Independence (Dominance, Social Boldness, Vigilance, and Openness to Change) and Self-Control (Liveliness, Rule-Consciousness, and Perfectionism). The global scales of the 16PF are similar to the 5 FFM domains; in particular, Extraversion overlaps considerably with FFM extraversion, Anxiety with Neuroticism, Self-Control with Conscientiousness, and Tough-Mindedness with (negative) Openness. The Independence scale, however, has no clear-cut analogue in the FFM.

(Agreeableness is the FFM without a clear 16PF analog.)

This is much larger than the the overlap that can be observed for individual personality traits analyzed one at a time, and by using less fine grained personality measurements such as "Big Five" personality traits (aka the Five Factors Model aka FFM). The authors provide some examples of the gender distinctions that are obscured in highly aggregated personality measurements:

For example, FFM extraversion has loadings on two narrower dimensions, warmth/affiliation (consistently higher in females) and dominance/venturesomeness (consistently higher in males). These two effects of opposite sign result in a small overall sex difference in extraversion, with females typically scoring (slightly) higher than males. A similar pattern of crossover sex differences has been found in openness to experience, with males scoring higher on the “ideas” dimension and females on the “aesthetics” dimension of this trait. Sex differences in Conscientiousness are also confined to just some of its components.

At the individual, fine grained personality trait level the study found that:

[T]he largest differences between the sexes were found in Sensitivity, Warmth, and Apprehension (higher in females), and Emotional stability, Dominance, Rule-consciousness, and Vigilance (higher in males). These effects subsume the classic sex differences in instrumentality/expressiveness or dominance/nurturance.

The statistical methods used in the latent variable analysis are basically the same ones used to discern patterns in large quantitites of genetic data is large population samples by breaking it down into dimensions of variable or hypothetical ancestral components. It also account for measurement error issues. From the perspective of someone familiar with linear algebra, the concepts used are kindred to eigenvector analysis. According to the study authors:

When observed scores were used and univariate effect sizes were aggregated by simply averaging them (the weakest methodology), the overall male-female difference was “small” and consistent with Hyde's meta-analytic results. However, when univariate effect sizes were estimated on latent variables and aggregated in a multvariate index (the strongest methodology), sex differences increased about tenfold and became extremely large.

The controversial conclusion of the study's authors in Italy and the U.K. is that the "idea that there are only minor differences between the personality profiles of males and females should be rejected as based on inadequate methodology." The leading meta-analysis of JS Hyde in 2005 found a 75% between men and women on a wide variety of personality traits.

Probably the most important potential issue with this analysis relative to other studies of gender difference in personality, which the authors appropriately identify is that:

Estimating group differences on latent variables is clearly preferable to relying on observed scores, but this methodology depends on the assumption of measurement invariance, i.e., the assumption that the construct being measured is actually the same in both groups. Booth and Irwing found that between-sex invariance was violated for the five global scales of the 16PF (analogous to the Big Five), but satisfied for the 15 primary factors of personality. There is evidence that the same may apply to FFM inventories. Measurement invariance is thus another reason to measure sex differences at the level of narrow traits, instead of focusing on broad traits like the Big Five.

In their conclusion they argue that there are measurement invariance issues, but that tend to underestimate rather than overestimate the gender differences because people who complete self-reported personality inventories tend to interpret questions with reference to others of the same gender, but the suggestive evidence that they offer on that point isn't a particularly rigorous refutation of the point.

The fact that a more fine grained set of personality traits and simultaneous multivariate analysis dramatically increases gender differences in the data analysis is strong support for their hypothesis. While even random noise in data will necessarily heighten gender differences when this kind of analysis is done, relative to a less fine grained set of personality traits and univariate analysis, the magnitude of the differences is dramatic enough to lend weight to their hypothesis that apparent male-female similarities in personality are to a significant degree products of methodologies that blur the differences like aggregation of subtraits with different gender biases and tendencies to ignore corrolations that are both statistically important and influence how the combination of personality traits present and interact as a whole.

The margins of error claimed in the main output of the study as compared to prior metastudies, which is the a measure "D" that can be equated to the percentage of overlap in personality space between men and women revealed by the analysis is about +/-5%. The margin of error in the old 75% overlap estimate isn't entirely clear, and appear to be greater since it was binned in three large categories that each spanned a magnitude difference of factors of two or three on an equivalent measure. But, by any measure, the effect was huge.

In the kind of language physicists like to use, there was a roughly 32 sigma difference between the global level gender differences seen in the new analysis and the differences found in the most disparate of the individual traits in the leading metastudy of personality differences between genders. Not a three point two sigma difference, a thirty-two sigma difference, in a study which does not suffer from common defects in behavioral science research like small sample sizes. Large sample sizes should greatly reduce the amount of statistical noise in the effects.

Physicists tend to insist on five sigma effects before they are considered significant, and social scientists tend to be quite a bit more lenient in their standards of statistical significance.

It is also worth noting that neither result (the old similarity hypothesis or their strong difference hypothesis) is congruent to a feminist or anti-feminist view. While some of the earlier notions of feminism that were pivotal in motivating an end to legal sex discrimination in most forms of education and employment focus on breaking down gender stereotypes and de-emphasizing gender differences, more modern feminist scholarship has had more of a different but equal character to it, recognizing strong differences in masculine and feminine ways of conceptualizing situations and moral issues and arguing for a perspective that gives greater weight than traditional social and legal arrangements to perspectives that are more feminine. Likewise, this research doesn't begin to probe the extent to which more complex than binary desconstruction of masculine-feminine differences impact their analysis or the extent to which atypical gender identities and sexual orientations could be driving some of the remaining overlap between gender and personality that they observe. Ten percent overlaps start to reach scales where bimodal continuums of sexual orientation and gender identity at reported levels could materially impact the result.

Quotes of the Day

2012-01-04T19:11:00.004-07:00

One of the things I will talk about, that no president has talked about before, is I think the dangers of contraception in this country. It’s not okay. It’s a license to do things in a sexual realm that is counter to how things are supposed to be.

- Rick Santorum, former Pennsylvania Senator and candidate for the Republican Presidential nomination in 2012.

From here.

On Monday, Santorum "reiterated his belief that states should have the right to outlaw contraception during an interview with ABC News yesterday:"

The state has a right to do that, I have never questioned that the state has a right to do that. It is not a constitutional right, the state has the right to pass whatever statues they have.

U.S. Constitutional law has taken the contrary position since 1965, although it is worth observing that Santorum, who has had seven children (one of whom died two hours after birth in a process that put the life of the mother, his wife, at risk) does appear to practice what he preaches and to have managed a level of fidelity to his spouse that Republican Presidential candidates espousing "family values" like Newt Gingrich, Herman Cain and John McCain have not.

After Iowa

2012-01-04T13:08:00.002-07:00

Forty-eight hours into the voting portion of the 2012 Presidential election, we have a Democratic Presidential nominee, incumbent President Barack Obama, and, five serious candidates in the Republican Presidential primary (in their order of their performances in the Iowa caucuses): (1) former Massachusetts Governor Mitt Romney, (2) former Pennsylvania Senator Rick Santorum, (3) Texas Congressman Ron Paul, (4) former Speaker of the House Newt Gingrich who served in Congress from Georgia, and (5) Texas Governor Rick Perry. Former Utah Governor Jon Huntsman running as a Republican moderate plans to campaign in New Hampshire, but ignored Iowa and has been irrelevant in the polls all along. Wisconsin Congresswoman Michele Bachman dropped out of the race this morning after finishing 6th in Iowa (where she was born) with just 5% of the partisan vote.

Romney and Santorum were within eight votes of each other with about 25% of the caucus vote each in a process which independents and even Democrats willing to change their registration on the day could join. Ron Paul brought far more people from outside the Republican party into the process than any of the other candidates and captured about 21% of the vote. Gingrich garnered 13% of the vote and Perry won just 10% of the vote.

Polls give Romney a safe lead in New Hampshire which holds its first in the nation primary on Tuesday, January 10th, where he owns a vacation home and in the same media market where he served as Governor. New Hampshire gives independents as well as Republicans a say and has a particularly low barrier to ballot access.

Perry hasn't dropped out of the race, but he has never campaigned hard in New Hampshire, effectively conceding the race, and has told supporters that he is setting his sights on the January 21st primary in South Carolina. The month will close out on January 31st with the Florida primary, a state rich in delegates that is a pivotal swing state and less "Southern" culturally than its fellow states of the American South.

It has long been clear that this race is between Romney and other candidates striving to be the "not Romney" candidate.

Some of this is a cultural aversion to Romney. He is a Yankee in a party that is dominated by the South and the Great Plains. Republicans rail against the cultural elitism, the political liberalism, the uptightness, the emotional guardedness, and what they see as the affected snobbery of New England culture. He is a Mormon, and while Mormons are an important and loyal Republican constituency with similar values on social issues in many respects to Evangelical Christians and strongly religious Roman Catholics who are predominant in the Republican base, many Evangelical Christians and Roman Catholics are uncomfortable with Mormons for doctrinal and cultural reasons (the Mormon culture, by the way, historically, was almost exclusively an outgrowth of pre-Civil War, Yankee culture). He is probably the least charismatic of the candidates, and his reputation as an intellectual doesn't sit will with the strong elements of anti-intellectualism that are a central part of modern Republican populism.

The other candidates are closer cultural fits to the Republican base. Santorum is a child of Catholic immigrant families who grew up in Appalachia. Paul, Gingrich and Perry hail from the South.

Opposition to Romney is also rooted in his politics. Romney's record as Governor is as a political moderate, a sin compounded by his recent flip flops to more conservative positions that bring him in line with national Republican norms that many Republicans doubt are sincere. The health care plan that was adopted with his consent and cooperation while he was Governor is extremely similar to that of President Obama's health care reform plan that was a central issue in the national Republican campaign against President Obama in 2010. Massachusetts is frequently cited by Republicans as a prime example of policies that they oppose like high taxation, opposition to the death penalty, overregulation, significant government intervention in the market to reduce the number of uninsured individuals, and a relatively generous welfare state.

Still, finding a non-Romney standard bearer from the other four candidates still seriously in the running is not an easy task.

Rick Santorum lost his U.S. Senate race in 2006 in Pennsylvania by a larger margin than any previous Republican incumbent, but has the virtue of taking positions close to the Republican platform more or cross the board, although he is more retrograde than most Republicans in his view on the proper place of women in society. He wants limitations on welfare, wants women to more often choose to stay at home instead of work, is opposed to the legalization of both abortion and contraception, favors an aggressive anti-Islamic foreign policy and military stance, and backs creationist positions on the No Child Left Behind Act. He is in his early 50s, and far surpasses Romeny, Paul and Gingrich in the charisma department. Santorum is a Fox News regular which gives him name recognition and credibility among Republican primary candidates that money can't buy.

Ron Paul, has run for President many times, largely as a protest candidate, to give himself a platform from which to espouse his libertarian views. But, many of those libertarian views, such as an isolationist foreign policy mindset and support for legalizing drugs, are heterdox for Republicans and viewed as being too liberal, while some of his other libertarian views, like a very strong pro-gun rights position and support for a radical reduction in the scope and scale of the federal government, may win cheers from Tea Party supporters, but make him vulnerable in a general election conduct where those views would be considered to extreme in the conservative direction. A history of tolerating racists in his campaign staff, even to the point of writing newsletter entries in his name, doesn't help either. Paul is more than a little weird.

Newt Gingrich was peaking just a few weeks ago, but relentless campaign ads in Iowa calculated to undermine support for him placed by Romney supporters, he insane willingness to go on the record in favor of arresting federal judges based on court ruling with which he disagreed and in favor of disregarding U.S. Supreme Court orders, and his failure to get on the ballot in Virigina, unlike Romney and Paul who succeeded in doing so, despite the fact that Gingrich actually lives mostly in Virginia, have all caused his star to dim and his support in Iowa to fade. New Hampshire's Union Leader paper endorsed him in the New Hampshire primary, but at this point it isn't clear that this will do much to cushion his fall from grace over the last few weeks.

Newt Gingrich also has a long record to run against. He was an advocate of shutting down the federal government, a tactic the backfired horribly against Congressional Republicans at the time and is very similar to the obstructionism Congressional Republicans have shown in the last couple of year that they have controlled in the House over issues like opposition to increasing the national debt limit that impaired the nation's credit rating. His ethical scandals and adulterous affair despite his sanctimonious support for "family values" forced him to resign from his post as Speaker of the House. As a lobbyist, he pushed for all of the key components of President Obama's health care reforms. He is a consumate Washington insider and instinctive social engineer, despite his conservative views, with roots in Georgia politics. He is prone to foot in mouth disease, is incautious, and listens more to his own big ideas than to the concerns raised by rank and file voters. Gingrich is a pre-Tea Party Republican whose Contact with America policy vision isn't necessary a match to the litmus tests of today's Republican activists.

Rick Perry, who is still a sitting Governor, hasn't suffered the catastrophic political defeats that Santorum and Gingrich have experienced. While he is in the mainstream of conservative ideology, he doesn't have the kind of intense conservative ideological guiding vision of Santorum, Paul and Gingrich. He is an affiable guy who'd probably win the "guy I want to have a beer with" vote over the other GOP Presidential candidates. But, a long season of debates made it painfully clear that he really isn't all that bright and may not be up to the task of the Presidency intellectually. The Governor of Texas is the weakest Governor in the nation, so he's had less of an opportunity to screw up, he's presided over hundreds of executions (that he had only very limited power to slow down), and his state's economy, for whatever the reason, is thriving. But, a 5th place finish in Iowa with just 10% of the vote, a likely back in the pack finish in New Hampshire, and sagging poll support relative to his peak this past fall, all position him poorly to make a good showing in South Carolina and Florida, and if he fails to shine there, his race is over.

Romney is on track to be the default winner of the Republican primary process if nothing changes. He was won (narrowly) in Iowa and is on track to win in New Hampshire. His opposition is divided. He has much more cash stockpiled than his opponents to campaign against them with and used it to good effect to bring Gingrich down a notch in Iowa. He has far more endorsements from Republican elected officials and party officers who are superdelegates and are instrumental in the process generally, than any of the remaining candidates. Measured in head to head polls against President Obama, he is the most electable of the GOP candidates.

But, it still isn't beyond the realm of possibility that the ascendant Tea Party faction of the Republican party won't unite around one of the four "not Romney" candidates in the Southern primaries and the primaries that follow, extending the fight for the nomination and possibily awarding it to someone other than Romney (or at least pushing a Tea Party favorite into the Vice Presidency).

Santorum seems like the most plausible "not Romney" candidate at this point. His issues aren't exactly those of the Tea Party, but he has always been a hard core conservative, is less of a loose canon than Paul or Gingrich, and is much smarter than Perry without having to come across as too intellectual as Romney does. Santorum is a politician in the mold of George W. Bush, who for better or for worse, was the Republican role model for a decade, but is smarter and wasn't a drunk, drug using screw up in his younger years the way that George W. Bush was in his day.

There is also another piece of the puzzle. Ron Paul is ready, able and willing to be annointed as the Libertarian party candidate (a post currently being sought by former New Mexico Governor Gary Johnson), on the ballot in all fifty states, if he fails to secure the nomination. There are fair arguments over whether a Ron Paul candidacy would hurt the Republican nominee or President Obama more in a 2012 general election race, although on balance, it would seem that he would hurt the Republican somewhat more given the legitimacy that his run to be the GOP nominee has given him this time around. But, at the very least, he would be a more viable third party candidate than Ralph Nader who ran on a Green Party ticket in the 2000 election, and realistically, Ron Paul might be the most viable third party candidate since Ross Perot in 1992 (18.9% of the vote) and 1996 (8% of the vote).

Ron Paul is not going to beat President Obama in the general election, either as a Republican nominee for President, or as a third party candidates. He could conceivably draw more votes from would be Obama voters than from Republican voters and tilt the balance in favor of the Republicans. He could cause another Republican nominee to name his as his running mate to defuse or even mobilize his enthusiastic supporters. But, he won't win in his own right.

A Newt Gingrich nominee would also crash and burn in the general election. The Republican may as well have nominated a post-resignation Nixon with a nominee like Gingrich.

Romney, Santorum and Perry, while each are flawed candidates in their own ways, are not nearly as certain to lose in a general election contest with President Obama.

Thus, there are really only four people with any plausible chance of being the President in 2013 absent a major calamity: President Obama, Governor Romney, Senator Santorum, or Governor Perry, in that order. I would put President Obama's current chances of re-election at 60%, Romney's chances of being our next President at 25%, Santorum's chances of being our next President at 9%, Perry's chances of being our next President at 4%, and other other possible candidates (of both parties) collective chances of being our next President at 2%.

Reasonable people could disagree with me over the exact percentages (indeed, I could disagree with me over that and it is an admittedly inexact matter), but I think that a great many well informed reasonable people who are looking at what is likely rather than a what they would prefer would agree with me on the ranking of the likelihoods. I have seen no one predict with serious reasoning that President Obama has less than a 45% chance of re-election and most estimates hover close to 50-50; but the Republican field must necessarily share the balance of the percentages of possibility. I've seen no serious dispute to the claim that Romney is the current front runner in the GOP race. The Iowa Caucus results, GOP primary voter polling trends, and Perry's near concession of New Hamphire all favor Santorum over Perry. Paul may have some non-negligable chance of winning his party's nomination, but I just can't see him winning the general election if he does - his views may be rising in credibility, a bit like the Progressive candidates of their day, but the late 19th century, early 20th century Progressives didn't get elected very often either, their ideas had far more impact as a result of being absorbed by major parties than they did from their direct implementation by candidates running solely on their ticket.

Perhaps I have gone out on a limb too far in my assessment of Gingrich, but Iowa voters put him in fourth place, far behind Romney, Santorum and Paul; his polling in GOP primary polls has deteriorated; his staffers have already left his sinking ship once; he is low on money and endorsements; and his prospects in New Hampshire are bleak. Of the four "not Romney" candidates, he seems least likely to be able to rebound in the South, because he has strayed so far from his Georgia origins in the path to becoming a consumate Washington insider. There is just too much mud to throw at him from all directions.

Housekeeping

2012-01-02T12:25:00.001-07:00

I've tweaked the blog template in a variety of minor ways (popular posts lists, rearranging design elements, front page post truncation in longer posts, adding a feed from sister blog Dispatches From Turtle Island, putting in a copyright line, etc.), some of which I may continue to tinker with for a day or two. Comments and design suggestions are welcome and may or may not be followed up upon as the mood suits me.

Recent Military Developments

2012-01-01T04:55:00.006-07:00

It has been a while since I've given military affairs extended coverage. There were two big developments in 2011. First, the military is finally coming to terms with the reality that its mission includes counterinsurgency missions and procuring technology accordingly. Secondly, drones are dramatically transforming the mix of U.S. military weapons systems squeezing out manned aircraft in particular, which have grown absurdly expensive.

Air Force Chooses COIN aircraft

[T]he Air Force has selected Embraer’s A-29 Super Tucano as the Light Air Support (LAS) aircraft, better known as a counterinsurgency (COIN) plane.

The air service is buying 20 Super Ts . . . for $355 million. . . a couple of years ago the Air Force planned to buy dozens of cheap, turboprop-driven COIN aircraft that could be used to provide light air support and ISR for troops fighting insurgents in places like Iraq and Afghanistan. The planes were supposed to take the burden for such unglamorous missions off of jet fighters like the F-16, which cost far more to operate. . . . shrinking defense budgets forced the air service to dramatically reduce the program. Now, the service will use the small fleet of turboprop planes to help build up the nascent Afghan air force, and “other nations.” . . . “The A-29 Super Tucano will be used to conduct advanced flight training, aerial reconnaissance and light air support operations,” . . . Hawker Becchcraft’s AT-6B, Embraer’s rival in the . . . contest, was booted from the competition . . . The only question was whether the service would even buy the little planes.

From here

At about $17 million each one can buy seven SuperTacanos for the cost of one F-35.

F-18 Claimed To Have Counterstealth Capability

China and Russia have both claimed that they are about to start producing stealth fighters similar to those of the U.S. military, and Japan is working on one to enter service in 2014-2015. But, the manufacturer of the F-18 claims that its F-18s "active electronically scanned array (AESA) radar — and it’s ability to jam enemy radars and electronic countermeasures — combined with the jet’s infrared search and track (IRST) system" can beat these stealth planes, a claim which has a whiff of credibility because "a Navy EA-18G Growler electronic attack jet did score a fake kill against a Raptor a couple of years ago." But, there is good reason to doubt that their claims related to planes that don't have full electronic warfare suites are more than marketing hype designed to try to convince Japan to buy these planes instead of F-22s or F-35s.

From here.

Japan, however, appears to have already decided to by F-35s instead to replace aging F-4s and F-15s. The F-18 and a European fighter design had competed for the contract.

China Launches A New Tank, But Who Cares?

China has unveiled its latest tank model. But, this development probably doesn't matter much. The tanks are no more capable of deploying rapidly to our allies in Japan or Taiwan or the Philippines. The tanks would have to cross North Korea and the DMZ (arguably no other border in the world has such effective man made anti-tank defenses) before they could arrive in South Korea. Would be insurgents in China are no more able to challenge the old tanks by force of arms than they will be able to challenge the new tanks. The small but contentious India-China border is too mountainous to use them, and even if China could seize some of Siberia from Russia with its tanks, it is hard to see how it could ever hold that territory for any length of time (or visa versa). The Vietnam War, if it proved anything, established that the jungles of Southeast Asia are ill suited for heavy tank warfare.

As a comment to the post at Defense Tech suitable asked:

The question here that begs asking is why?

Who are the potential foes that China expects to use there vehicles against?

These are not anti tank vehicles that could match up with Russian T-90's very well or even Vietnamese T-72's. China doesn't have the amphibious capacity to move them to Taiwan where they would me greeted by US M-60's.

It would see that the only place such a vehicle could be used is in civil unrest with in China's borders. These vehicles are a strong indicator that China still fears internal unrest more the any external threats. These vehicle would fit well into the TO&E of the PAP.

ALLONS,
Byron Skinner

Mongolia and North Korea probably have more to fear from this development than anyone else, and neither of them could have mounted a credible threat to China, which so towers over each of them in scale.

North Korea used to be a client state of China that saw China's military might as backup to its own military capabilities against Western threats, but in recent years, Kim Jong Il alienated himself from an increasingly reformed China as well and it isn't clear what will happen to North Korea's relations with China now that he's gone.

Mongolia had been more under the Soviet Union's wing than China's and has Westernized more than the various "'stans" in the post-Soviet era. Mongolia isn't a threat to China and would buy it a new and capable insurgency, but it isn't clear that there is any nation in the world, the United States included, that would be willing and able to enter into armed conflict with China to defend Mongolia's sovereign prerogatives.

China's first aircraft carrier has entered service, works, and is somewhat more of a concern. China has claimed it will be used mostly for disaster relief and aid missions, but military speculation

China may also have twice as many nuclear missiles as previously estimated in underground bunkers.

On the other hand, China's economy is gradually become a more market based one, its relations with Taiwan are thawing, it has liberalized its political system to allow for free non-partisan elections at the local level in many places, and it is significantly curtailing its use of the death penalty which it uses more heavily than any non-Islamic country in the world.

F-35s cost $130 million each in early phase mass production

he Pentagon just gave Lockheed Martin a $4 billion contract for 30 early production model F-35 Joint Strike Fighters. The batch of planes . . . was originally supposed to include 35 jets. However, the Pentagon cut the deal to 30 aircraft due to cost increases and delays in the fighter’s development program. The Air Force gets 21 F-35As, the Navy gets six F-35C carrier variant jets and the Marines will get three F-35B short take-off and vertical landing (STOVL) jets.

When Congress approved the F-35 program, the projected price was about $35 million a plane and the low cost of the proposed F-35 relative to the F-22 was one of its main selling points. Now, the F-35 will cost almost as much per plane as they F-22 did, particularly relative to its late phase production marginal costs.

At a full run of 187 planes the F-22 ended up costing $332 million each, including $153 million each in production costs as opposed to R&D costs, and they cost $44,000 per hour to fly compared to $30,000 per hour for an F-15 and nearly twice the cost of an F-16. A new round of upgrades for the six year old planes will cost $39 million each. No F-22s were used in Libya, despite the fact that the mission there was the one it was designed for, they have not been used in any meaningful frequency in Iraq or Afghanistan, and a few have crashed in non-combat operations, temporarily shutting down the fleet at times. The original plan had been to buy 750 of them. The F-35s will be cheaper to maintain than F-22s due to a different stealth technology, but the cost of maintaining F-35s is still unclear and it will clearly be much more than the cost of maintaining armed drone aircraft that are also more expendable.

From here

New Drones Enter The Ranks

The U.S. Army has three drone spy helicopters in Afghanistan. The U.S. Marine Corps is using drone cargo helicopters called K-MAX to resupply troops in Afghanistan. The U.S. Army is about to deploy four drone ground vehicles on a trial in Afghanistan as well:

Lockheed’s robo jeep, the Squad Mission Support System. The Army plans to test out how well the little trucks — that, like the K-MAX, can accommodate a human driver if needed — can haul troops heaviest gear for them on foot patrols. The 11-foot trucks can carry half a ton of supplies for 125-miles. They even fit inside a CH-53 and CH-47 helos, allowing them to be airlifted to the most remote patrol bases. This could be the first step toward a fleet of unmanned trucks that ferry supplies along dangerous routes.

They are better described as six wheeled drone ATVs than jeeps, and are a later version of the unmanned ground vehicle called the mule, which aptly captures its mission. Early reports are that noise problems have been a deal breaker for troops asked to deploy it for its intended use as a patrol support vehicle.

The U.S. Navy has come up with a way to launch an aerial Army drone from the trash chute of one of its submarines.

The U.S. Air Force is testing and new and improved armed drone aircraft similar to the ones that have been used by the CIA to launch missile strikes in Pakistan until several dozen Pakistani soldiers in Pakistan were recently killed by a U.S. airstrike.

Drones are not invulnerable, however, and Iran captured a U.S. flying wing model RQ-170 spy drone late last year. The development lacked the punch of a Russian capture of a U.S. U-2 spy plane during the early years of the Cold War, proof again, of the emotional and political benefits of drone warfare, in addition to any military capabilities that they might add. Drones don't give rise to hostage dramas.

The year 2011 was the year that armed drone warfare took off:

Two months ago, the U.S. MQ-1 Predator UAV fleet hit a million hours in the air. Over 20 percent of those hours were flown this year. The Predator replacement, the MQ-9 Reaper, has flown nearly 250,000 hours so far. America's large UAVs (MQ-1, MQ-1C, MQ-9, RQ-4, and RQ-170) flew some 400,000 hours this year. That's compared to 300,000 hours last year, 185,000 hours in 2009, and 151,000 hours in 2008. It took 12 years of service (1995-2007, including development) for the MQ-1 Predator alone to reach its first 250,000 hours. It took another two years (2007-2009) to fly an additional 250,000 hours (500,000 total). It took less than a year to reach another 250,000 hour milestone (Spring 2010).

So far, between the air force and CIA (a major operator of UAVs over Pakistan and other places) there are 500 MQ-1 and MQ-9s built or on order. Some 20 percent of these have been lost to accidents. Fourteen were lost that way this year. . . . The U.S. Air Force has ordered nearly fifty MQ-9 Reaper UAVs this year. Each of the new MQ-9s will cost about $6.2 million each. The price more than doubles as sensors, fire control, and communications gear is added. . . . The air force has over 70 MQ-9s in service and the new orders will take about a year to complete. The air force wants to buy another 200 before replacing the MQ-9 . . . The MQ-1 Predator is being replaced by the MQ-9 and the last USAF MQ-1 was built last year. The total USAF fleet of MQ-1s and MQ-9s consists of over 250 UAVs. By the end of the decade, the army and air force will have over a thousand of these large, armed, UAVs.

The MQ-1 Predator UAV has evolved into a family of three aircraft. The original Predator is a one ton aircraft that is 8.7 meters (27 feet) long with a wingspan of 15.8 meters (49 feet). It has a hard point under each wing, which usually carry one (47 kg/107 pound) Hellfire each. Each hard point can also carry a Stinger air-to-air missile. Max speed of the Predator is 215 kilometers an hour, max cruising speed is 160 kilometers an hour. Max altitude is 8,000 m (25,000 feet). Typical sorties are 12-20 hours each.

The MQ-9 Reaper is a 4.7 ton, 11.6 meters (36 foot) long aircraft with a 21.3 meters (66 foot) wingspan that looks like the MQ-1. It has six hard points and can carry 682 kg (1,500 pounds) of weapons. These include Hellfire missiles (up to eight), two Sidewinder or two AMRAAM air-to-air missiles, two Maverick missiles, two 227 kg (500 pound) smart bombs (laser or GPS guided). Max speed is 400 kilometers an hour and max endurance is 15 hours. . . .

The U.S. Army MQ-1C Gray Eagle weighs 1.5 tons, carries 136 kg (300 pounds) of sensors internally, and up to 227 kg of sensors or weapons externally. It has an endurance of up to 36 hours and a top speed of 270 kilometers an hour. Gray Eagle has a wingspan of 18 meters (56 feet) and is 9 meters (28 feet) long. The MQ-1C can land and take off automatically, and carry four Hellfire missiles (compared to two on the Predator).

The Navy is actively developing the X-47, an experimental flying wing stealth drone combat aircraft that can deploy from aircraft carriers and carrier takeoff landing and takeoff tests will continue in 2012. These would cost about $50 million each and could be financed with reduced buys of F-35s.

Israeli Covert Ops In Iran?

There were two massive explosions at Iranian nuclear facilities within two weeks of each other in Iran in late November and early December, and a leak from an Israeli intelligence officer to a British paper said that this was "no accident" and were, by implication, the work of saboteurs, either Israeli employed or simply saboteurs known to the Israelis via another intelligence agency. Then again, maybe Iran is just bad at maintain safety standards in its secret labs.

Missile Defense Tech

The U.S. is investing money in Israeli R&D efforts to build a successor anti-missile missile system to the Patriot anti-missile missile system used to dramatic effect in the Iraq War.

After sixteen years and $5 billion spent trying to develop a Boeing 747 based laser gun that could shoot down incoming ballistic missiles, the U.S. Air Force has shut down the project indefinitely because they couldn't make it work without technology that is too far off to make work right now. By default, this leaves the U.S. Navy, whose anti-missile missile tests have been more successful as the service responsible for developing a missile defense system for the United States.

Insurgency Persists In Russia

Insurgencies in Chechnya, Ingushetia, and Dagestan within Russia are alive in well, have considerable popular support and are produce a thousand deaths a year. "When the Soviet Union broke up in 1991 the population was over 25 percent larger and a third was" non-Muslim. "But two decades of violence, mainly in Chechnya, has driven the" non-Muslim "out." There are perhaps a thousand rebels in arms, but the insurgency has thus far managed to replace its losses with new recruits. Local autonomy provided after the break up of the Soviet Union was been largely revoked by the Russian government.

Larger M-4/M-16 Assault Rifle Bullet Developed

The U.S. is exploring the possibility of a 7.62mm bullet alternative to the current 5.56mm round used in the U.S. military's main assault rifle, the M-16, and its derivative carbine, the M-4. A previous experiment with a 6.8mm round didn't win enough support to be widely adopted and it isn't clear if this effort will go very far either despite widespread rank and file complaints that the current round doesn't pack enough punch.

Longer ranges in gun fights in Afghanistan where the Afghans use Soviet era AK-47 rifles with 7.62mm rounds, when this is the only hot military conflict in which the U.S. is a party, now that it has left Iraq and the Libyan conflict is over, may also be playing a part in the decision. At longer ranges, superior U.S. marksmanship training and firearms quality has given U.S. an edge in firefights there, as is a general doctrinal shift in the training of U.S. soldiers to focus more on marksmanship at long ranges by a larger proportion of the force than specialized snipers alone. The declining relevance of NATO with the end of the Cold War may also be a factor. One of the important consideration that went into the adoption of the 5.56mm was conformity with the NATO standard, and another important factor was research that disclosed that most firefights with assault rifles actually took place at ranges of 100 meters or less despite their much longer ranges, due to ambush situations and limitations on identifying opposing individuals as enemies. Also, at the time the 5.56mm round was implemented, more NATO troops were conscripts with little experience for whom a greater kickback from a heavier round was a greater concern than it is now when the U.S. has no conscripts and its allies are moving towards more heavily volunteer and professionalized armed forces.

Russia Upgrades Nuclear Missile Submarines; Indonesia Gets Subs

Russia has successfully put into service a new class of nuclear missile submarines symbolically ending decades of stagnation in Russian Naval Procurement and overcoming the blow the Russian navy took to its confidence from several high profile deadly R&D stage accidents in its development.

South Korea is selling three of its homemade coastal diesel submarines to Indonesia. This is one of South Korea's first big ticket military system sales to a foreign country.

Sea King Mostly Retired

The Australian and U.S. Navies have retired the 1950s era UH-3H Sea King helicopter from their fleets, although the U.S. Marines still have a few. Its main missions had been anti-submarine warfare and search and rescue. Most have been replaced by the UH-60 Blackhawk designed to replace the contemporaneous UH-1 Huey, and its Navy counterpart.

France Played A Big Role In Libya

Self-absorbed Americans weren't very aware of it, but France played a major role in the Western military intervention in Libya, largely via the aircraft carrier it deployed to the theater, the Charles de Gaulle.

Old Strykers Phased Out

The Army is sending MRAPS that carry have as many people as old flat bottomed Strykers, are similarly armed and more resistant to IEDs to Afghanistan, because Strykers are too vulnerable to IEDs. The Army sees it as a stopgap until a mine resistant V shaped hull version of the Stryker can be produced in large enough numbers.

The U.S. Army is sending a Stryker brigade to Afghanistan without their Stryker armored vehicles. Instead of their 19 ton Strykers, that carry 11 troops, they will be using 15 ton M-ATV armored trucks, which carry up to five troops each. The reason for this is that the M-ATV provides more protection from roadside bombs. . . .

[E]ach Stryker and M-RAP has a single remotely controlled machine-gun turret atop it. . .

The M-ATV (MRAP-All Terrain Vehicle) is a 15 ton, 4x4 (with independent wheel suspension) armored vehicle. Payload is 1.8 tons, and it can carry five passengers (including a gunner). Top speed is 105 kilometers an hour, and range on internal fuel is 515 kilometers [about the same as a Stryker]. The M-ATV is slightly larger than a hummer. . . .

[A]ll other MRAPs are, after all, just heavy trucks. . . prone to flipping over easily. They are also large vehicles, causing maneuverability problems when going through narrow streets. . . . [are] underpowered for their size. And . . . are not very good at cross country movement . . . The M-ATV was designed to deal with all of these problems. Each M-ATV costs $1.4 million.

Each Stryker brigade has 332 Stryker vehicles. . . . most are the infantry carrier version. The current model Stryker costs about two million dollars each. . . . Stryker has a crew of two, a turret with a remotely controlled 12.7mm machine-gun and can carry nine troops. A 7.62mm machine-gun is also carried, and often another 12.7mm one as well.

There is a new Stryker, with a V shaped hull. . . . to protect itself from bombs. Unfortunately there are only enough of the Stryker Vs for one brigade, and not enough for all the Stryker units needed in Afghanistan. There are about 20,000 MRAPs (including 6,500 M-ATVs) in Afghanistan.

From here.

The Stryker itself was a interim solution to the problem that the U.S. Army lacked adequate armored personnel carriers light enough and small enough to be carried by a C-130 transport plane. It is in some ways best viewed as a more mobile version of the M-2 Bradley Infantry Fighting Vehicle. A C-130 transportable lighter multiple rocket launcher (HIMARS) was also developed at about the same time and about a thousand guided missiles from that system have been used in Iraq and Afghanistan combined. This was necessary because the Air Force has many hundreds (if not a few thousand) C-130s, but fewer than a hundred C-17s, the only Air Force plane capable of carrying tanks and Bradleys that can land on a field air strip. As a result, most heavier vehicles have to be delivered by boat or rail, and many non-U.S. rail and road bridges collapse under the weight of the heavier vehicles which also consume immense amount of fuel relative to a Stryker (about five or ten times as much per mile) that have to be delivered to forward bases as part of the military supply line.

The other issue is overkill. In Iraq and Afghanistan, U.S. troops have faced troops with no tanks, no aircraft, no ships, no self-propelled artillery, no armored personnel carriers, no large howitzers, no drones, no purpose built anti-aircraft guns, no nuclear, biological or chemical weapons, few heavier anti-tank missiles, no man made bunkers, and in general, just about nothing so large that it can't be carried in a jeep and only a small proportion of insurgents who have high levels of military training. The capabilities of M-1 tanks and M-2 Bradleys that were designed to deal with "near peer" opponents like the Soviet Union that drive up their weight don't add much value against opponents who can't bring "near peer" capabilities to bear. U.S. troops mostly face assault rifles, larger scale machine guns, rocket propelled grenades, suicide bombers and IEDs, and can call in air support or guided artillery strikes in longer duration engagements. Almost nothing the Afghan insurgents have, other than IEDs, can pierce an armored vehicle of any kind with any frequency. In that environment, mobility is more important than the capabilities of heavier vehicles most of the time.

Weapons Sales To Saudis Continue

This winter, U.S. firms were authorized to sell $30 billion of F-15s to Saudi Arabia despite the fact that the Arab Spring has increasingly left it as a nation less aligned with American goals for the region than any other nation in the region. We also sell them many top of the line tanks and other advanced weapons, although not our latest and greatest weapons technologies like the F-22 and F-35 and armed drones and missile defense systems.

Saudi Arabia is an absolute and totalitarian theocratic leaning hereditary monarchy (although succession rules are not as strike as those of European monarchies) that barely has rule of law, has executed witches as recently as this fall, doesn't let women drive, banned dog ownership until a few years ago, has to import massive amounts of foreign labor to function, has immense numbers of Islamic theology trained wealthy unemployed young men who were pivotal in the rise of the Taliban in Afghanistan and the 9-11 attacks in the U.S., and maintains some levels of near slavery for servants. It has cooperated with U.S. officials in anti-terrorism efforts, and has assisted in brokering the departure of the Yemeni dictator.

Saudi Arabia provides a counterbalance to Iranian military power that could be deployed to keep the Persian Gulf oil tanker routes open. The value of a natural counterbalance to Iranian military forces in the Persian Gulf is more than hypothetical. There has been sword rattling from Iran about shutting down Gulf shipping as recently as this past week and they have missile boats, coastal submarines and land based missiles, as well as fighter aircraft that make that kind of threat credible, at least for a while. Iran has also managed to design a whole economy around evading international sanctions since 1979, so those are no longer very effective against it. For example, its nuclear program has involved a heavy contribution of North Korean scientists and engineers and technicians.

Of course, Saudi Arabia also has immense stockpiles of oil and sovereign wealth (although the oil production may start to decline before too long), has citizens who live lives far more luxurious than they earn due to immense welfare state spending who aren't materially taxed, and is home to the two most sacred cities of Islam which originated there as did the Arabic language.

This puts Israel and militarily weakened Iraq at greater risk, although the arms sales were initially calculated to buy Saudi Arabia's cooperation in Israeli-Arab peace together with Egypt which has also had strong ties to the U.S. military. The Saudis helped the local monarch put down Arab Spring uprisings in Bahrain despite the significant U.S. military basing in country there. Some of this policy is inertia, and some of it is a calculation that we have more influence by engaging with the Saudis than we would if we cut off relations with them and some other nation moved into that gap selling weapons and building diplomatic ties. U.S. policy makers are also concerned that the alternative to a monarchy with an immense royal family that has strong Western ties would be an extremely reactionary, aggressive, purely theocratic government that has no connections to the West.

Similar U.S. military ties with Egypt, which had a dictator for decades until last year, are similarly ambivalent. Buying their peace with Israel has a great deal of value militarily, and the U.S. encounters with the Egyptian military may have been decisive in convincing them to allow regime change to happen in the Arab Spring rather than putting down the rebellion brutally as Syria. A well functioning military has also arguably permitted the Egyptian state to continue to exist even in the face of regime change and a slow process of replacing the old regime, and the military is viewed as more secular and ethnically even-handed than some of the incipient political forces in the country. But, the Egyptian military has also been pivotal in maintaining a totalitarian dictatorship for decades, is deeply corrupt, and is dragging its feet on turning over power to elected civilians - it could easily depose a new civilian regime in a coup once democratic enthusiasm waned if it chose to do so, or to never turn over real power in the first place. Egypt is also much more deeply conservative on "social issues" than more democratic Islamic nations with which the U.S. has had sometimes fruitful diplomatic relations like Turkey, Pakistan, Kurdistan, Kosovo, Bosnia, Indonesia, Jordan and for that matter the Palestinian Authority.

Insurgency In Nigeria

A violent anti-Christian, radical Islamist terrorist group in Northern Nigeria killed dozens at a Christmas Eve service last year in just one of a long string of large scale ethnic cleansing oriented attacks on non-Muslims and their sympathizers in Northern Nigeria (and simply those who prefer a more secular political and legal system) where political leaders elected in many of these states that form a geographic block have attempted to large replace secular law with Islamic religious law. Increasing aridity and an expanding Sahara are also putting pressure on Northern Nigerians to expand to the South beyond their traditional homelands. There have also been less intense Christian counterattacks and violence, and some rather ineffectual government attempts to suppress the violence. Religion coincides strongly with ethnicity and language as well in many of these cases, as is so often the case, so calling it a purely religious conflict as it is often cast, misses some of the point.

Nigeria has already fought one East-West civil war at its birth as a multinational independent nation, so the rest of the country isn't precisely united on a nation-state basis, and is at the national level, politically, more democratic than it has been at any time in recent memory. This could blow up into a full fledged North-South civil war at any time, and poses a classic question of democratic theory. What should a democracy do when the people use their power to vote to ask for a less democratic system of government? Given long standing corruption in Nigeria, the desire isn't necessarily irrational, either. It also doesn't help that Nigeria itself is a colonially imposed agglomeration that only a few of its constituent ethnicities and linguistic groups welcomed outside their colonially trained somewhat Westernized elites. Social contract theories of legitimacy work less well in a context where nobody consented to the existence of the state in the first place, it doesn't align naturally with one macrogrouping of ethnicities, and democratic leadership has been present for only brief intermissions of the last half century. The influence of foreign interests in its oil resources without much regard for Nigeria's own well being just adds one more element to an unstable stew.

While Nigeria has been more stable and less war torn than many of its sub-Saharan African neighbors in West Africa, Central Africa and the Great Lakes region of Africa, and has even played an active positive role in trying to end conflicts in many of those places, it is hardly a success story of the Continent either. But, there is no good road map to a more stable situation that doesn't just make things worse, and oil and uranium wealth although far more modest than in the Middle East, still provides a reason for parts of Nigeria that aren't home to those resources to stay in its union.

Uganda

The U.S. has sent about a hundred special operations troops to Uganda to try to help that country neutralize the Lord's Resistance Army in October, 2011, a violent fundamentalist Christian insurgency group there.

Political Theory, Lochner And Health Care Reform

2012-01-01T00:48:00.007-07:00

The political science literature, as Seth at Enik Rising has pointed out once or twice, is clear on the point that in democracies the electorate will almost invariably throw the bums out when the economy goes bad acting as "referendum voters" without regard to whether the policies of those who were in power in the past, or for the future, were the best or the worst available under the circumstances. If a party with one agenda is in power in one place and is in opposition in another that experience the same tough recession to the same degree, at the next election they will find their places reversed in free and fair democracies.

President Obama's election and the unusually strong coat tails he secured in Congress in 2008 that it made it politically possible to pass health care reform, coming just as it had become clear that the financial crisis had thrust us in the worst recession since the Great Depression squarely fits this model. The setbacks Democrats suffered in Congress in 2010 likewise reflect to a great extent the fact that this economic downturn had not yet resolved itself.

This political reality, while it may seem sensible at first blush as a natural law of cause and effect that democracy is designed to secure, makes even less sense when we come to terms with the already established proposition that nobody within any power in economic policy circles of any partisan stripe in the world knows any politically palatable way to stop recessions from happening entirely. Even if those in power share some little amount of blame for an economic downturn, it is almost certainly not mostly the fault of the people who are in power when it happens. Nobody tries to screw up the economy knowing the clear political consequences of doing so, and nobody is smart enough to prevent recessions for long, even with all of their best efforts to do so.

This problem is not easily solved. It isn't something that can be cured with mere campaign finance rules or voting systems that more accurate represent public sentiment or reforms in the structure of the media that are anything short of draconian and massively undemocratic.

This dilemma, like many other in alleged flaws of the political system in political science, is also both a bug and a feature. While the way voters act in recessions and the policy positions of the people they displace in the elections that follow are not logically connected, the inevitability of recessions helps insure that any democracy that can manage to remain reasonably free and fair will see some rotation in political control even if substantial efforts are made, for example, as the ruling party in Hungary is trying to right now, to bias the scales of the electoral process in their own favor.

Even if the bums who were thrown out were mostly doing the best they could have done under the circumstances, it is unlikely that every part of their agenda was optimal, and it is likely that opposition parties who want to stay in power will devote a disproportionate share of their reform efforts to the things that the faction previously in power was doing worst and that was a result the most obvious. Thus, those parts of the old regime agenda that were most rotten are likely to be corrected as a result, as a happy coincidence of the recession, even if the recession itself had nothing to do the worst policies of the old regime that are subsequently reformed.

Health care reform fits this mold as well. No credible economist has seriously argued that flaws in the health care system were an important cause of the financial crisis or the recession that followed it. But, there is good reason to believe that long term and increasingly important problems in the health care system that the health care reform billed addressed were one of the worst Republican policies of the old regime that Democrats were newly empowered to address.

The trick, which the situation in Hungary has recalled to memory, is to figure out how to prevent a momentary referendum vote to give the new regime such expansive powers that the fix things that aren't broken willy nilly just because they can and perhaps to abandon democracy itself for an inferior alternative entirely.

The Lochner court (a name for a particular set of justices of the U.S. Supreme Court in the 1930s), which invalidated a great deal of New Deal legislation (for example, the Public Works Administration which my daughter is looking into as part of her National History Day project), until it became clear that FDR had entirely outflanked them politically (at a great political price), was probably dead wrong if you view their anti-progressive decisions from the point of view of their appropriateness on the merits as doctrines of constitutional law, despite current high profile libertarian and conservative legal efforts to restore some of the Lochner doctrines to respectability in the hope of creating an intellectual argument that conservative judges can used to restrain legal economic policies like the health care reform passed by President Obama and Congress, which as a matter of mainstream precedents in constitutional law for the last seventy years are obviously constitutional.

On the other hand, if you channel constitutional law professor Lawrence Tribe, whose constitutional law jurisprudence has focused on the role of constitutional law doctrines from the perspective of whether they enhance or detract from the larger systemic interests involved in maintaining the democratic order, there is room to look at the Lochner court conservative activism more charitably. In a Tribesque analysis, one can see the Lochner court as a device to prevent a political party in one of those rare moments when it had achieved supermajority status as a result of an economic crisis which supermajority status had no necessary political connection to the substantive merits of its laws it passed in response to the crisis, from enacting reforms because it could, rather than because they actually cured something that Hoover was doing wrong.

Indeed, in a Tribesque analysis, both the Lochner court's initial invalidation of the boldest New Deal reforms, and their subsequent decision to relent in response to a court packing threat from FDR that had made at considerable cost to his own popularity and political clout, fit this democracy oriented analysis. The full extent of the proposed New Deal reforms was effectively put on hold pending an opportunity for the electorate to evaluate the new administration's policies after they had revealed their true agenda to the voters while governing and campaigned for re-election on that basis in the face of an ongoing recession. The political price they extracted for their "switch in time" had the effect of forcing FDR to show that he was sincere and intense in his desire to enact the sweeping reforms to the scope of government that he enacted. And, the Lochner court and later Supreme Court rulings ultimate concession of the merits of the dispute on the scope of federal government power to tax, to spend and to regulate economic activity in a nearly plenary manner, acknowledged that ultimately, the United States Constitution creates a democratic system of government in which the public will, sufficiently persistently and clearly expressed in ways that are not a direct threat to democracy itself, is to be left to the direction of the representatives who are elected by the people and not to courts full of lifetime appointees establishing entrenched constitutional law doctrines.

In a sense, politically, one can fit the Lochner court's approach to the template of the role played by the British House of Lords and Canadian Senate whose conservative majorities slowed, but did not hold an ultimate veto over bold and controversial reforms by the regime currently in power. Delay matters when means that a legislative decision will have electoral consequences that it make have lacked if it had been elected quickly during a new ruling party's political honeymoon.

This analysis makes a few aspects of health care reform particular salient to the courts interpreting it now, as sympathetic conservatives who thinly control the federal judiciary, but also have respect for the institutions that they serve apart from partisan ones, are being urged to readopt Lochner-like doctrines to invalidate it.

First, the 2014 effective date of health care reform makes its considerably less troubling than the earliest bold New Deal reforms that the Lochner court invalidated. Two general elections for Congress, and one for the President will have intervened before the bulk of its provisions, including the most fervently contested ones, before it takes effect. Opponents will have had ample time to make their case to an electorate in a debate over a law about which the devils in the details have already been established before the law takes effect. The law will have been made an issue in both elections and according to Seth at Enik Rising, in part in reliance on his political science colleagues and in part from his own analysis, this one issue was the single most important issue in predicting voter behavior in the first of these elections. Doctrinally, if the case is viewed in a political process lens, the U.S. Supreme Court might be well advised to refrain from ruling on the constitutionality of the law on the theory that the parties complaining lack standing and that the issue is not yet ripe, thus allowing the political process to play out in the 2012 and 2014 elections before the bulk of the law takes full effect. Is there really a case or controversy concerning any provision of a law whose effective date has not yet arrived and is not imminent?

Second, while the Democrats briefly controlled the Presidency, the House of Representatives, and a near filibuster proof majority in the U.S. Senate, when they passed health care reform, they never managed to secure enough political power to entrench their actions in either constitutional amendments or laws that entrenched their political power. Indeed, they suffered setbacks that restored an effective Republican filibuster and Republican control of the House of Representatives in the very next election. Health care reform is a classic pure economic policy issue. It does not change the political process at all in the way that a law related to the conduct of federal elections, or campaign finance, or qualifications to hold public office, or a law that created federal offices will long terms of office appointed before the next Presidential election might.

Third, it is reasonable to conclude that GOP opposition to the underlying policies enacted, if you are informed enough to know what those policies actually involved when the bill was ultimately passed, is largely an insincere political tactic rather than a genuine objection to the merits of the law itself.

The fact that the opposition to the policy is largely partisan itself, is probably immaterial. Most policy disputes are partisan and some of those policy disputes have constitutional dimensions anyway.

But, the law was very close to proposals of two of the leading candidates for the GOP Presidential nomination right now, Mitt Romney and Newt Gingrich. Another GOP Presidential nominee candidate, Ron Paul, was a member of Congress at the time the bill was enacted who was personally and intimately involved in the political negotiations that gave rise to the bill ultimately enacted, even if the ultimate result was not to his liking, and the credibility he commanded as one of the only medical doctors in Congress gave him credibility on this issue at the level of details well beyond his formal political authority, despite his overall opposition to the bill.

If Romney wins the 2012 general election, and he is probably the only Republican Presidential nomination candidate with a plausible chance of doing so, it wouldn't be at all surprising to see him modify a few of the most controversial details of the health care reform law that so closely mirrors what he backed in his own state to save face (e.g. by modifying the "mandate" to buy health insurance in form and replacing it with some more palatable alternative), and to let the bulk of the law including most of substance of its most importance provisions take effect anyway.

Any constitutional challenge to a law must make a credible intellectual claim, at least in public discourse, to being not just sincerely held, but fundamental to our very system of governance. The more openly an idea has been tossed around by both parties in a two party system without strong concerns being voiced about their constitutionality from the outset, the harder it is to make the moral and intellectual claim that the interest allegedly infringed is really so fundamental that it takes on a constitutional dimension. Judicial modesty demands that the courts not resolve mere disputes of plain vanilla economic policy if that is really all that they amount to in the end.

Thus, if one evaluates the constitutional law decision that faces the U.S. Supreme Court when it rules on the constitutionality health care reform law passed by Congress after the 2008 election from the perspective of constitutional jurisprudence as a means of preserving democracy, the health care reform law is a law that the Supreme Court would be ill advised to strike down. And, indeed, it would be best if the U.S. Supreme Court could defer a decision on the constitutional merits of the law's validity as long as possible, to allow the democratic process to continue to play out.

The Art Of Prophecy And Its Broader Implications

2012-01-01T00:01:00.391-07:00

There are several basic ways to game the art of predicting the future.

* One is to be sufficiently vague to make your prediction a sure thing in a way that sounds meaningful anyway. Predicting that the singer with the most weeks at the top of the Billboard Top 40 charts in 2012 will be between 15 and 39 years old in a rock genre from an Anglophone country who is a tenor or a soprano sounds much more impressive than a prediction that the singer will be a human being who isn't mute, with only a slight degradation in certainty. Some of this is mere rhetoric and gamesmanship, but the more you know that more you can do to be meaningful while still being sufficiently vague.

* A second trick is to make lots of predictions. If you make enough of them, some of them will end up being right and you can truthfully say that your prediction was on the money while omitting all the times that you were wrong. In particle physics, they call this the look elsewhere effect but they fall victim to it just as much as anybody else anyway. Indeed, this potential makes it worthwhile to go out on a limb and be specific now and then, particularly when there are only a few options which are plausible if you've looked into the situation at any length. A corollary of this trick is to regularly update your predictions as new information becomes available with stated reasons that absolve your past predictions for being almost surely wrong and keep you in the running as a pundit.

* One of the other fine points is timing. Lots of predictions, for example, that there will be more than 100% inflation, or that the world population will increase by at least a billion, will almost certainly be true in some time frame. There are sweet spots when it comes to timing that are domain specific.

For example, when predicting the weather, it is possible to be quite accurate for two or three days out and to make quite reliable statements about seasonal variation. Throw in El Nino/La Nina effects and a few key indicators like rainfall in Africa and local rainfall in the last few years, and you can characterize the weather over a period on the order of a year relative to seasonal averages with meaningful accuracy, and climate models can also say meaningful things about probabilities of certain amounts of deviation from the norm in specific future time frames of five years to centuries.

On the other hand, there are also blind spots in weather prediction. For periods of more than a week and less than a month, it is virtually impossible to beat seasonal averages by much, which is unfortunate, because there are a host of situations when this would be a really useful trick.

The same holds true in geopolitics. It was necessarily true that Kim Jong Il would cease to be the Supreme Leader of North Korea at some point. A good actuary, informed by some individual specific details and a little data set of past head of state life expectancies and causes of death in history could have probably confined the date to plus or minus three or four years with a pretty high degree of accuracy. But, nobody outside of his closest inner circle could have predicted that this would have happened in December 2011 rather than, for example, January 2012. The person likely to take the helm when Kim Jong Il ceased to serve has likewise been clear for several years and been possible to narrow to no more than half a dozen or so candidates at any give point in the past decade, and the total group of plausible successors at all given times in the entire period of the last decade has probably never had more than ten or fifteen people in it. The outcomes, in other words, have been quite a bit more predictable than the timing of those outcomes.

Similarly, betting that the Dow and S&P stock indexes will be higher twelve years from now is a pretty sure bet, but predicting how those indexes will fare in the next six months is far more of a gamble.

On the other hand, sometimes, timing is easier to predict than outcomes. I can tell you to plus or minus an hour or two when we know who the President of the United States will be in 2013. I can even narrow the list of who that person will be to a list of people small enough to count on my fingers with something like 98% plus certainty that is broad enough to even throw in a candidate or two on the Democratic side in the highly improbable but not unprecedented event of a mishap that causes Barack Obama to be unable to serve and the possibility of a last minute white knight GOP candidate. But, I certainly wouldn't bet the house on whether or not President Obama will be re-elected. The probabilities this year are far too close to call. The best political science models and pundits have margins of error to large to call it with even crude accuracy at this point with the facts we have because the best models and pundits are predicting a close race due to a combination of a bad economy, a trend towards peace and recovery, a GOP opposition in Congress that has shot itself in the foot politically and ideologically, and a parade of nutcase GOP Presidential nomination contenders. Throw in predictions about the outcome of all of the pending U.S. House and U.S. Senate races and control of statehouses nationwide, and one has to be pretty vague indeed to make a prediction with much accuracy ten months out.

It is much easier to predict the Congress will pass an omnibus appropriations bill late a night near the end of the current fiscal year for the following fiscal year than it is to predict who the winners and losers in the budget process will be in the coming year.

* One easy way to chalk up a lot of accuracy predictions is to identify a small number of very likely outcomes upon which a large number of other outcomes are dependent. Economists, in particular, do their own discipline a disservice by failing to make clear enough just how good they are at this piece of the prediction business.

Timing business cycles and predicting their severity is very hard. But, there is actually a considerable consensus among economists who are true social scientists as opposed to politicians making political-economy suggestions with an air of respectability, regarding an immense number of outcomes that are associated with particular phases of the business cycle.

Foreclosures and bank failures are highly concentrated in busts. Employment is a lagging indicator - it recovers during booms, but more slowly than GDP. Busts shift consumption from luxury consumption to less expensive substitutes - they help Budweiser and PBR relative to premium beers.

Economic steps backward in the business cycle take at least as long as it does to recover from them, and as a first order approximation, the time it takes to get back where you started is a little longer than the time it took to hit bottom. This certainly isn't a firm rule, but it is at least as accurate empirically as far more sophisticated models. If you want to refine your model a bit more, you could opine that the shorter the time you spend going down, the closer the recovery time will be to the decline period. In contrast, the hypothesis of symmetry tends to break down in more severe recessions. The longer the fall, the more likely it is that the recovery will take significantly longer than the fall did. The financial crisis, which has continued to morph over time with the European sovereign debt struggles currently taking center stage, has also underlined the fact that nobody with power over economic policy anywhere knows how to prevent recessions from happening entirely over the medium term.

The practical implication of this fact is that if one has for whatever reason accurately called the business cycle, which leading indicators can help to do unless a collapse comes on very suddenly (or at any rate, not long after a downturn has begun) one can make a whole raft of other accurate predictions. One bet can generate a great many payoffs if you know what to bet upon.

Another practical implication of this fact, which is familiar to MBAs, hedge fund analysts, and the better financial planners and investment analysts, but not to most policy makers or educated lay people, is that we know a great deal about what kind of events will or will not happen at the same time with much more accuracy than we can predict when any one of them will happen.

For example, you simply aren't going to see high unemployment and homelessness for in tact families at the tail end of a long economic boom. Similarly, increased demand for social safety net programs from disability insurance to housing assistance to welfare to unemployment insurance to means based health care programs to the most heavily subsidized parts of the higher education system are generally going to coincide with reduced government revenue from cyclic sources like income taxes and even more so, sales taxes. Securities fraud suits are always going to be more common when stock prices have crashed than they are when the stock market has surged.

As an example, the Peak Oil hypothesis, that the world is going to hit a point where production starts falling despite increasing global demand due to economic development and improving technologies for oil extraction, is every bit as certain now (indeed, much more so) as it was when it first started to be widely discussed in the wake of the OPEC oil embargo in the 1970s. And, from the peak oil hypothesis, it doesn't take terribly sophisticated economic and technological analysis to figure out a great many consequences that will flow from that event as economies change their behavior in response to rising oil prices. But, timing the question of when exactly we will hit peak oil and how abrupt the need to transition away from oil as a result will be is a much more subtle venture, and overconfidence on the issue of timing greatly undermined the credibility of its advocates, despite the fact that they were basically right on everything else that they had to say.

Economists are not the sort to look for what they've lost under the streetlight. They insist on looking in the dark spot in the alley where the glory is most likely to lie, even if it is pitch black, they have earplugs in their ears, mittens on their hands, swampy mud under their feet, and dark sunglasses over their eyes. They are not alcoholics, and as a result, are not familiar with the Serenity prayer. They do routinely engage in the introspection necessary to conclude that there are some things that they can predict, some things that they cannot predict and do not aspire strongly enough to have the wisdom to know the difference.

The rare individuals who do engage in that kind of introspection, Schumpeter comes to mind among economists, and the founders of the index fund movement in the financial markets, often develop very powerful and profound insights about practical conclusions that can be reached in dealing with the economy.

* I'm inclined to think that Keynesian macroeconomists would be considerably more effective in the world of public policy if they abandoned the pretense that their conclusions are necessary and rationally necessary implications of a solid theory, and retreated instead to the safer ground of merely claiming historical empirical proof for their conclusions, and casting themselves as phenomenologists while downgrading the theoretical basis for their conclusions, in public debates anyway, to mere heuristic arguments for the results that we have seen in real life. An example heavy, empirical argument that anti-government, anti-tax, anti-regulation policies don't work is more powerful than an effort to convince the public and policy makers that an intricate theory full of subtle assumptions is more likely to be true than a simple theory that can be reduced to emotionally satisfying sound bites.

This tactical suggestion is intimately related to a final well validated bit of evidence of what makes for good predictions. Hedgehogs, i.e. people who know one big thing, have far worse track records than foxes, i.e. people who know many things which don't necessarily have a lot of ideological coherence.

Troublingly, the media has learned that hedgehog pundits have more entertainment value and politicians guided by media informed voters are only a step behind talk show producers. The best predictor of a pundits' likelihood of being right is his prominence.

837 Posts In 2011

2011-12-31T20:58:00.004-07:00

If you simply looked at the archive page for Wash Park Prophet, you'd think that this was a pretty slow year for blogging, but that would miss the main blogging event for me in 2011, the launch of my Dispatches From Turtle Island blog, focused mostly on physics and anthropology where 205 posts this year were diverted in an effort to distinguish policy and political and cultural posts (which have remained here) and apolitical science blogging there.

Prior to the split, this blog had gotten a bit too scattered. The idea to split the two was blatantly copied from Maju, who split his blog a few months earlier. The result has been close to optimal. There has been a roughly a 50-50 split of my blogging, with each blog becoming more focused, and Dispatches From Turtle Island have provided a space to really dig down into deeper issues in the fields a blog about there, rather than merely covering current events and highlights. The traffic has been split, but comments over at Turtle Island have made clear that its audience is a high brow one with some high profile bloggers and academics as sometimes readers and commenters.

I've thought about trying to put together a sidebar feed, at least from Turtle Island and visa versa (on Maju's model) and perhaps of some of the linked blogs as well. But, that kind of redesign will have to wait for a slow spot in real life, as my law practice had picked up dramatically in the last half of this year relative to 2010 and early 2011, somehow, with no discernible impact on my blogging output. My aspirations to reduce my total blogging volume at the time that I split the two blogs were not successful. There were actually more posts this year than in any year from 2007-2010. Each blog gets an average of about one post a day (o.k., sometimes closer to two a day on average on this side for several months when both of the blogs have been in place), and I seem to be incapable of writing less even when I try.

There are topics which have had reduced coverage here in the split: defense procurement and technology, international affairs, non-Colorado politics, coffee blogging, legal theory, and reflections on daily life in Denver. I'm still not entirely pleased with the balance of coverage at this blog, where the somewhat random process of blogging which doesn't always end up matching my bigger picture priorities. I'm considering strategies to give these posts more direction. But, like law, blogging is something that you practice rather than master and it's always changing.

In my own defense, while the topic mix has not been all that I would hope for, I've definitely made strides in embedding visuals in posts (thanks in part to changes in the Blogger interface that make it easier to manage and changes in the way that open access academic journals are formatted online these days).

I have a firm policy against embedding audio and video (beyond perhaps an audio clip necessary to illustrate a point of phonetics or a link to a radio news story with a warning attached), as I don't like podcasting myself (which is also often not appropriate for workplace readers), just as I prefer the newspaper to TV news. So, you won't being seeing more of that at this blog. I do enjoy post specific charts and maps, which Razib at Gene Expression and several other blogs I read, like Calculated Risk and Neuroskeptic use to great effect. I resolve to master the technical skill of this kind of visual customization in the coming year.

Still, after six and a half years of blogging, it still seems like a worthwhile venture for some reason. Thanks for reading in 2011, and, stay tuned for more prophecies and dispatches in 2012.

Getting to Grandpa's House

2011-12-29T16:20:00.000-07:00

Is it faster to fly than to drive to grandpa's house (1176 miles away according to mapquest), after the time spent going to the airport, waiting in security lines, and getting a ride from the airport to the final destination are considered, with a family of four that can't afford to cut it close?

They answer is yes. In real life, it took 11 and a half hours all told. By car, according to mapquest, it would have taken 18 hours and 13 minutes. But, it is less of an edge than I would have expected. The actual time in the air, of course, is only about a third of the total for travel by air.

Colorado Joins Washington State and Rhode Island On Medical Marijuana

2011-12-29T12:06:00.001-07:00

The Colorado Department of Revenue has joined Washington State and Rhode Island in asking the federal Drug Enforcement Agency to reclassify marijuana as a Schedule II drug that may be prescribed by physicians under federal law, from its current status as a Schedule I drug that has no medicinal value, despite clear scientific evidence to the contrary.

From the point of policy and scientific fidelity to the legal standard, the switch would be a no brainer, but the DEA has repeatedly refused to acknowledge this reality in the past. Wikipedia summarizes these efforts. In short:

The Controlled Substances Act provides a process for rescheduling controlled substances by petitioning the Drug Enforcement Administration. The first petition under this process was filed in 1972 to allow cannabis to be legally prescribed by physicians. The petition was ultimately denied after 22 years of court challenges, although a pill form of cannabis' psychoactive ingredient, THC, was rescheduled in 1985 to allow prescription under schedule II. In 1999 it was again rescheduled to allow prescription under schedule III. A second petition, based on claims related to clinical studies, was denied in 2001. The most recent rescheduling petition was filed by medical cannabis advocates in 2002 and, as of May 2010, was being reviewed by the Barack Obama administration. Currently 16 states and Washington D.C. have legalized the use of medical marijuana, and hemp products are sold widely in the U.S. today.

Larry Ribstein Died Christmas Eve

2011-12-29T11:51:00.000-07:00

Law professor Larry Ribstein, best known as a pre-eminent scholar of limited liability company law, died on on Christmas Eve of a stroke. More rememberances can be found here. I have regularly used his treatise, Ribstein & Keatinge on Limited Liability Companies, and have heard him speak on the subject. He was highly influential in the drafting of the Colorado's laws on the subject.

Paranoia Waning

2011-12-29T10:58:00.000-07:00

This winter's semi-annual family trip by plane revealed some good news for once. A decade after 9-11, the airport security system run by the Transportation Security Administration has gone from paranoid to merely ineffectually earnest. The constant soundtrack of elevated security levels attached to a color code has faded to a periodic warning not to leave bags unattended. Children no longer have to remove their shoes at security checkpoints. Dare I say that the attitude of the TSA workers is also not quite so on edge? Let's hope it lasts.

A Story About Mirror Twins And The Mysteries Of Gender

2011-12-22T19:52:00.003-07:00

We aren't quite sure how gender identity works. Hormones play a part, but they aren't the whole story, and genes aren't the whole story either.

If you've read growing up stories about transgender children, this story in the Boston Globe, about twins in Maine (purportedly identical twins), one of whom is transgender, and the other of whom is not, rings true and is extremely familiar. This post recaps a lot of the same issues I addressed with more research rigor three years ago in response to some news stories in Colorado, and covers a lot of the same grounds, with the exception of the data point provided by the identical twin aspect of the Boson story.

Questions Of How and Why

In some ways, the notion that the two identical twins have such different personality is more notable than that they have different gender identity. While it isn't safe to generalize, certain most of the time transgender involves having XY genes and feeling certain that you are a girl, or having XX genes and feeling certain that you are a boy. Ergo, there is nothing conceptually impossible about genetically identical people not having identical gender identity.

But, twins aren't just clones of each other - genetically identical people who may be born to different gestational mothers at different points in time. Not only are they genetically identical, they also gestated in the same womb at the same time. And, yet, almost uniformly in the instances I've heard described, a conclusion that someone has a transgender identity manifests in a way that is almost impossible to ignore, even if you try very hard to do so, by preschool age - the article says the matter was absolutely undeniable by age four and manifested to some extent well before that point. And, given how difficult it is to make any sense of what infants are about in personality beyond one or two very basic dimensions, the inference that a transgender identity is probably congentital, even though it is probably not genetic (or at least, is probably not exclusively genetic) is a strong one.

The typicality of the case that the Boston Globe describes, in just one of two identical twins, suggests just a few possibilities.

1. Something within the gestational environment was different for one twin than the other, even though they were in the same womb. Thus, gestitational microenvironment might be involved. Maybe there was a different hormone balance at one end of the womb than the other at a critical moment for some reason like a residual estrogen accumulation from oral contraceptives taken at some point, or maybe a well placed kick to one of them during gestation took out the "turn into a male" circuit in one child but not the other by physically damaging it.

2. Something within the twining process wasn't perfectly symmetrical. Maybe one of the twins is a chimera of a lost fraternal triplet and the living twin, and the other is not, but genetic testing was at a locus where only the fraternal twin's genetic trace was detectable. Maybe there was a random hiccup in a key male or female identity moment of the development process that 99.99% of the time matches the genetic rule book but sometimes, in a rare process akin to a mutation but involved in the expression of that genome (perhaps an epigenetic mutation), there is a departure from the plan.

3. The trigger to a transgender identity happens post-natally in early childhood for who knows what reasons, perhaps related to some environmental exposure that happened to one child but not the other - maybe it was something not so unlike spiderman, maybe a mosquito carrying a particular rare version of a virus bit one and not the other, or bit both but only made it past the immune system of one of them due to something as random as having a cold at the time.

For what it's worth, if I had to, I'd put my money on an epigenetic mutation of unknown origin during gestation, quite possibly limited to neural epigenetics, as the likely cause, but I wouldn't bet the farm on any one of those options. My thought is that if there was a one time hormone exposure (which is possibly a more plausible mechanism for sexual orientation) that the XY genes would reassert themselves to some extent, albeit "out of tune."

For example, the notion that there might be a rare gene that makes it possible for the epigenetic mutation to happen, and that if that gene is present that the odds of an epigenetic mutation actually happening are one in six or something like that, is somewhat attractive, although I've near heard of transgender identities running in families in any of the literature on the subject.

Making Sense Of The More Complicated Than It Seems Gender Concept

All of this makes clear that the more subtle aspects of gender are real and inherent in people from some very early point in life, not simply a product of social conditions and environmental cues. I don't think that anyone who has seriously looked at the efforts that have been taken scientifically to determine if that is the case disagrees with that position at this point, although there are certainly differences in degree.

The conclusion may seem obvious, but after being taken for granted in a far simpler, two bin theory of gender that has been predominant for a lot of the time for a lot of history in a lot of cultures, from the 1960s through roughly the 1980s, the assumption that the aspects of gender pertaining to the mind were predominantly environmental and social in origin had a lot of currency.

Yet, the reality of transgender individuals is for gender what muons are for physics, something that nobody ordered or expected but that happens to exist. This reality takes nice simple grand unified theories of what gender is that fit 99.99% of the data and blows them out of the water. Sorry, Nature is telling us, explaining the last 0.01% (and these numbers are meant merely in the sense of very small number, not a specific actual value), is going to take a vastly more complex theory, but that is the reality of gender identity in the real world.

One can imagine a universe in which there are transgender and cisgender individuals. Indeed, in a lot of ways transgender identity is a much simpler to understand concept than the various concepts associated with sexual orientation. You have male hardware and genes but you mind and whole being insists that you are female, or visa versa.

Indeed, the profiles of people who are born androgonous but are genetically male, who are surgically modified in infancy to appear physically female and are raised female are remarkably similar to those of transgender individuals. The surgery never, or almost never, works, and despite all parental efforts the child made to look like and raised like a girl feels like a boy deep inside and nothing anyone can do can stop that train.

If you are willing to put the mechanism by which transgender identity happens in a black box (and you pretty much have to, in practice, because all of the usual suspects are ruled out) and simply get comfortable with the fact that there is a mechanism that isn't any of the usual suspects and that the mechanism in question is the one that really matters, it is all very straightforward to grasp.

Most of the cases described under the header of transgender identity fall neatly into a binary notion of gender. There just happens to be a mind-body discontinuity in these individuals, and since the mechanism by which sex chromosomes translate to gene expression in the body seems to be almost entirely mediated by sex hormones in the time period after birth, interrupting that process seems to be quite straightforward in theory, even if timing and technique require some doing.

If that were all there was to the story of gender it would be simple enough, but of course, it is not. The most obvious addition to the dimensions of the gender of the mind (which matches sex chromosomes in androngeous individuals surgically modified in infancy, and contradicts it in transgender individuals) and the gender of the body, is sexual orientation, which is crudely, if functionally summed up in the notion of sexual attraction, but is quite a bit more complex.

A gay man is not really even remotely the same thing as a male to female transgender individual, even though gender atypical behavior in both at an age consistent with the trait being congenital is very common. A gay man doesn't generally feel internally that he is a woman (although a transgender gay man is a conceptual, if extremely rare, possibilty), and a lesbian woman doesn't generally feel internall that she is a man. Homosexual and hetrosexual sexual orientation would seem to leave four kinds of self-concepts, gay male, straight male, lesbian female, straight female. But, in fact, sexual orientation isn't as simple as a binary thing. There are quite a few non-straight women, and not as many non-straight men, who have stable bisexual identities. There is some sense that there is stability in the characterization of butch or femme lesbian, and an analogous distinction for gay men, although what is going on in these contexts has as much basis in the intuition of people who live in the situation as it does in any consensus description of the reality.

The whole sexual orientation concept also turns out to be far more deep rooted than one might expect, and in some cases very simple. One can flip a genetic switch in a fruit fly or mouse and make him gay. Blamo, scientists have identified single tweaks in single biological systems that will do the job every time. Apparently, our genes carry both male and female instruction books on instictual gendered behavior in one or more domains (including, of course, sex), but generally we only have the fortune, or misfortune, to have access to just one of those sets of gender programing in our lives.

There are continuum and binary notions of sexual orientation. It isn't at all obvious that what we call sexual orientation in men and what we call sexual orientation in women are precisely equivalent concepts flipped only by a body gender-mind gender coupling to sexual orientation. There are scholars, I'll call them gender theorists for want of a better term, who think that what is going on in bisexuality, in particular, is very different between men and women, and that sexual orientation is more binary in men than it is in women. It also isn't at all clear whether there is one master "sexual orientation switch" that is behind all of this, or if multiple mechanism lead someone to consider himself, for example, to be a gay man, and all of the different categories of people who consider themselves to be gay men seem to be in one group simply because the phenotypes are similar enough to be compatably treated that way and we don't really understand what is going on.

But, anyway, in addition to the point that sexual orientation is a much more conceptually fraught thing than cis- versus trans- gender identity, there is the point that there is more to sexual orientation than attraction, and that a gay man is very much not, for example, either a straight man or a straight woman.

Then, there is the question of whether a transgender identity is really binary. In an extreme, obvious kind of case, like the one described in the Boston Globe; the archaetypal case, it is that simple. But, what about tom boys who still unambiguously think of themselves as women and are attracted to boys, and what about men who have some steroetypically feminine interests or personality traits but unambiguously see themselves as male and are attracted to women. Is this different in kind than what we see in transgender individuals, or just different in degree? Is there any deep down commonality between someone who cross-dresses for shits and grins with their same gender pals because that is normal for their culture, and someone who cross-dresses because it reflects their conception of who they are as an individual deep down?

And, all of this doesn't yet address the question of people whose bodies are androgynous or whose genes have extra chromosomes (or lack chromosomes) associated with one gender or the other. Furthermore, don't forget people who are hormonally neutered in some way (e.g., castration, disease, chemically), who themselves differ based on the point in life at which this happens, and differing cultural roles for men and women.

One starts out with an extremely two bin system that explains 90% of reality, and before you know it, you've got a blur of concepts - chromosomonal gender, hormonal gender, body phenotype gender, self-perception gender, attraction gender, personality style and inclination gender, and other blends and mashup of these dimensions.

Managing Daily Life Like A Decent Person

Practically speaking, modern, reasonably tolerant people tread cautiously, take people's self-identity at face value, and do what is practical to realize workable arrangements that make everyone happy. this works quite well in real life, respects the dignity and worth of everyone involved, makes people happy most of the time, and has the virtue of not necessitating an understanding of precisely how any of it works, which we don't have available to us. And, people who haven't happened upon that realization cling to the two bin classification system, try to fit everyone into it, and reserve words like disgusting and abomination to anyone who is a round peg that won't fit in a square hole. But, the writing is on the wall in the Western world and the people in the first category are becoming culturally dominant in a transformation that has already been dramatic in basically two generations.

Post-puberty, without medical intervention, trying to follow the "go with the flow" game plan all gets much more inconvenient for transgender indiviudals. Puberty brings about irreversable changes in a person's body, and bringing about some sort of congruity between the gender identity of the mind, which transgender individuals usually want to have honored in daily life, and the way one presents at first glance, can be a devilishly difficult matter to manage, particularly so in the male to female dimension, since it is in practice easier for a woman's body to pass for not particularly masculine young man or old boy, than it is for a very masculine man's body to pass for a woman's.

Sexual orientation, which doesn't have the same kind of disconnect between your body and who you perceive yourself to be, doesn't post the same kinds of problems. A gay man may have a different instinctual playbook than a straight man or a straight woman, but he generally doesn't want anyone to treat him entirely as a woman, so there isn't the same need to tinker with one's body physically via medical professionals.

Looking forward, the big questions in my mind are whether our conceptual framework for these concepts will become better defined at some point in an accurate way, whether we will every learn how this comes to be from a mechanism point of view, and how our culture will continue to adapt.

As they say, interesting times.

Financial Crisis Recap And Anti-Unemployment Policies

2011-12-22T15:58:00.000-07:00

* The Swedish government effort to help a local company save Saab when it faced shut down after it was spun off by General Motors failed.

* The biggest mistake of the financial crisis, in cost to the taxpayer that the taxpayer isn't benefitting from is the bailout of Fannie Mae and Freddie Mac. There was no legal obligation of the U.S. government to do it. It did let the shareholders of that privately owned, but government chartered firm lose most of their investments, but it could easily have put the two firms into Chapter 11 bankruptcies or the equivalent, let bondholders rather than taxpayers take the $160 billion +/- haircut that exceeds the cost of all the other bailouts and some of the most notable stimulus programs combined, moral hazards would have been reduced, and the bondholders of Fannie Mae and Freddie Mac would have still gotten a decent share of their investment back, maybe not 100% with interest, but a pretty large percentage. Instead, in part, because of the bailout, we have some of the lowest mortgage interest rates in memory but far fewer borrowers that lenders trust to actually extend credit to in the first place. If those two institutions had busted, we might have 6% mortgage interest rates rather than 4% mortgage interest rates, but banks might be more willing to lend at that rate and either way there would be record low single family residential housing investment.

* Other programs that have done very little good have been the mortgage modification programs, the cars for clunkers program, and the homebuyer's tax credit. The way to have done mortgage modifcation would have been to allow cramdowns in bankruptcy for residences, that would have forced banks doing business in the shadow of that reality to compromise because it was in their interest to do so. The other two programs merely shifted the timing of major purchases by people who were already going to make them by a few months and were almomst completely counterbalanced macroeconomically by post-program slumps.

* There were good responses too. The government backing of privately insured money market funds when a single instance of one "breaking the buck" threatened a run on that entire shadow credit industry worked just like a scene out of "it's a wonderful life." The FDIC has performed brilliantly throughout. Extending unemployment benefits and allowing laid off employee paperwork free COBRA subsidies worked so well that we should consider making both programs into permanent automatic stabilizers and part of our social safety net.

* A monumental mistake has been the resort in the U.S. and abroad to government austerity programs that have laid off government employees at a time when we need economic stimulus, not what Krugman has called big and little Hoovers. The notion that government doesn't create jobs is nonsense. Somebody with a job is employed, someone without one is not, and dumping people into unemployment lines (that government is out of pocket for to some extent anyway) during periods of high unemployment and rising demand for government services is nonsense and defies lots of empirical economic evidence on the subject. The time to trim government payrolls is when private industry has better uses for those employees, not when it is suffering from a failure to see profitable things for people to do. We should be hiring teachers when people take advantage of a time when the private sector no longer wants their skills and they need to retool by going back to school, not firing them. Increased leniency on student loans, however, has been good policy. The more people go back to school, the fewer people there are in the workforce, and the lower unemployment will be as a result. And, when the economy comes back will have increased the capacity of our workforce.

* We should be creating more entry levels jobs in the Army, where there is a legitimate military reason to create them because the current force structure in two modest regional wars had the effect of putting rank and file soldiers have been put in rotations that are grossly too long and too frequent, not eliminating them to cut the defense budget - if we are going to cut the defense budget in a way that is sensitive to the health of the economy, we should be postpone big ticket purchases of weapons system that create few jobs per dollar spent and focusing on hiring soldiers and civilian support personnel which is a much better value in jobs per dollars spent. And, honestly, we can afford to postpone big ticket purchases on weapons systems because there is no looming conflict that requires them against a plausible opponent in the relevant time frame.

* We should stop trying to backfill active duty military force shortages with reservists and national guardsmen who have jobs, and instead establish a policy of meeting the entire active duty military force with active duties soldiers and sailors.

* We should prefer postage increases and generous pension overpayment settlements with the USPS to postal service layoffs and service reductions. Get it over with and give us the 50 cent first class stamp already. Subsidize universal service for the time being at least and think about cutting that subsidy when jobs are abundant, not when they are scarce.

* If the financial sector is recovering and the employment sector is not, it makes no sense to push for tax incentives that favor investment income over earned income. At times of high unemployment, we want incentives to employ, not incentives to automate.

* There are other no brainer ways to reduce the work force and free up jobs. For example:
- Use grants to replace the funds students get from work study, so that people who aren't almost out of the workforce anyway don't have to take those scarce entry level jobs.
- Increase the mandatory school attendance age for teenagers, which reduces no high school dropout entrants to the labor force and creates jobs for truant officers.
- Tighten overtime enforcement and overtime laws that employers don't give in to the temptation to simply overwork the hourly employees they have (potential hourly employees are far more likely to be unemployed than salaried ones), and instead hire new workers to do the work they need to get done.
- Subsidize unemployment programs that are seeing a surge in premiums in high turnover industries as claims rise so that businesses that would otherwise hire lots of people aren't discouraged from doing so.
- Temporarily waive penalties for early retirement under Social Security and public employee pension programs.
- Temporarily waive penalties for early retirement under tax favored defined contribution and defined benefit private retirement arrangements.
- Strengthen Family and Medical Leave Act enforcement that makes it possible to take unpaid leaves of absence.
- Slow down discretionary parole releases (which both supports prison employment and reduces the number of new entrants to the labor force).
- Shift jobs that are now part of programming for people who are in prison to people who are on parole or in halfway houses and would otherwise be part of the labor force.
- Allow longer time period installment payment plans and easier offer in compromise terms based on inability to pay for back tax debts for employers at risk of going out of business.
- Increase child tax credits while decreasing child care tax credits so that the tax incentive to work rather than staying at home with children is weakened.
- Relax expectations that beneficiaries of disability benefits like SSI and Social Security disability must meet in regard to trying to find employment. At times of high employment, we're better off if people who are willing to simply collect benefits without seeking employment do so.
- Put government program automation projects on hold. They cost a lot of money that creates few jobs, since tech employees are high wage, in areas where private industry is hiring because they have to cut their payrolls and put people out of work when their completed.
- Reduce the availability of temporary work visas for jobs that are unlikely to create secondary jobs like nannies and seasonal workers at ski resorts.
- Tighten enforcement of work prohibitions for people on student visas.
- Tighten limitations on double dipping in public employee retirement systems.
- Increase the taxation of Social Security benefits for people with earned income.
- Relax limitation on treating as dependents for tax purposes adult relatives who move in with family and aren't working or are only working part-time as dependents. Encourage family networks to buffer the intensity of the need to be in the workforce.
- Reduce employer tax risk related to tipped employees by treating tips as self-employment income rather than wages and salary. Tipped employees are among the easiest to create jobs for.
- Relax or clarify and publicize exceptions from minimum wage rules for commissioned employees and piece workers so employers can reduce the economic risk associated with hiring more people.

* To the extent possible, support a weak dollar in foreign currency markets, or at least, do nothing to try to strengthen the dollar. A weak dollar creates export jobs and reduces offshoring of employment via imports.

* Tighten legimate, non-tariff customs enforcement in any area that could undermine domestic employment, such as illegal imports of trademark violating knockoffs, and examination of health and safety issues for cheap imported products. This also creates customs enforcement jobs.

* Embrace growing industries like the medical marijuana industry, rather than cracking down on it.

* Develop policies that free up the mobility of people who are prevented from moving to available jobs by factors like upside down mortgages. For example, establish a right to short sell a residence without causing the loan to be called, or incurring any penalties, so long as the unpaid unsecured balance is paid.

* Use national law to discourage and weaken non-competition clauses in employment contracts that reduce the capacity of workers to go where the jobs are and have been convincingly been shown to reduce the aggregate economic health of the tech industry.

* Curtail limitations on performance rights for performable intellectual property like plays and songs. For example, strengthen the right to perform "covers" without IP owner consent by making the royalty inversely proportional to the age of the IP. Thus, the mandatory license fee for a twenty year old work would be half the mandatory license fee for a ten year old work. Buy back IP that is not currently generating significant revenues for its owners and orphan IP at discounted rates, since the transaction costs of dealing with these IP owners interferes with creative industry job creation. Create a new cottage industry by creating a right to translate old untranslated works and works that have been out of print for long periods of time at similar statutory royalty rates.

* Reduce filing fees and pre-filing procedural bars to bankruptcy (like credit counseling and the requirement the pleadings be completed pre-petition) that discourage hopelessly behind debtors from acting in an economically rational way and leave assets tied up in suboptimal uses. The increased viability of the bankruptcy threat also encourages banks to act reasonably outside of bankruptcy.

* Develop a right to provide add a reason like a loss of job or health crisis to a credit report so that future lenders can distinguish between spendthrifts and people who are merely unlucky.

* Allow charitable tax deductions for allowing a structure to be used as practice by fire departments thereby decreasing the supply of a glutted resource (buildings).

* Ease rules on tax loss carrybacks that would allow businesses that are struggling after having once been profitable to have a greater chance of surviving and preserving jobs in the process.

Rolo The Dog Remembered

2011-12-21T19:03:00.001-07:00

It happened a year and a half ago, but Rolo the dog, whose owner I represented in an appeal while the dog was on doggie death row (successfully) died in the summer of 2010, about two and a half years later than he would have had he been euthenized, at the age of eight. Farewell, Rolo.

Doug Bruce Convicted Of Felony Tax Fraud and Attempted Bribery

2011-12-21T17:04:00.002-07:00

Colorado Pols summarizes the breaking news regarding Taxpayer Bill of Rights initiative (TABOR) author and former state legislator and county commissioner Doug Bruce's felony tax fraud and attempted bribery conviction this afternoon. He was convicted of not reporting about $190,000 of interest earned by a sham non-profits that he used as his own funds over a three years period (2005-2007).

Bruce's pro se defense (he is legally trained and was a deputy district attorney in California for six years, but has never been admitted to practice in Colorado and chose to represent himself in this case), was in typical Bruce style, "unconventional" a.k.a. delusional. He acted like a tax protester who didn't respect the court rather than someone making a bona fide claim of innocence of the charges against him.

Bruce faces up to six years in prison and a hefty fine at a February 13, 2012 sentencing date, in addition to any civil liability he may have for unpaid state taxes, interest and penalties. Of course, the Court would also have any number of other sanctions available to it at sentencing, such as probation. Leniency wouldn't be uncommon for a non-violent, white collar crime defendant with no meaningful criminal record (in 1995, he served eight days in jail for contempt of court), and a record of public service and civic involvement. But, the nature of his defense and his unwillingness to accept responsibility or even to acknowledge the wrongfulness of his actions makes this less likely in his case than in other white collar criminal cases.

An appeal from Bruce is almost certain, but is unlikely to prevail.

The prosecution was made in state court, but the federal government has every right to prosecute him on nearly identical civil and criminal federal tax evasion charges if it wishes to do so.

Bruce tried to evade subpoenas and faced investigations related to civil campaign finance non-disclosure charges in 2010. He was ultimately not held in contempt of court in September, 2010, after a several day long trial in which he was represented by an attorney, although he was ordered to provide testimony in that case. In December of 2010, in the same case, a charity he founded ("Active Citizens Together") was fined $11,300 for campaign finance violations in connection undisclosed initiative contribution.

He has also recently been accused of engaging in the unauthorized practice of law in Colorado and served with an order to show cause why an injunction requiring him to refrain from doing should not enter in June of 2011, while he was representing himself in a TABOR related lawsuit that he brought. He filed a bombastic answer in the case, Colorado Supreme Court case no. 10UPL058 aka case no. 11SA154, on July 7, 2011. The civil Colorado Supreme Court case in which a petition was filed on May 23, 2011, is currently pending against Bruce in the Colorado Supreme Court and requests fines as well as the injunction.

Hungarian GOP-Clones Downgrade Their Democracy To U.S. Level

2011-12-21T14:02:00.001-07:00

Paul Krugman has devoted several blog posts and a newspaper column in the New York Times to the political situation in Hungary.

Hard economic times have diminished popular support for democracy among the people of former Warsaw Pact member countries in Central and Eastern Europe (citing this Transition Report prepared by the European Bank for Reconstruction and Development.

In Hungary, where the electoral system made it possible for the center-right Fidesz party, which got 53% of the popular vote in the spring of 2010, allowing it to command 68% of the seats in parliament, making it possible for it to amend the constitution at will, a power that Fidesz has used liberally despite not having campaigned on a platform of radical constitutional reform.

The Fidesz Reform Compared To The American Democratic Standard

Many of the Fidesz reforms take "best democratic practices" provisions of the Hungarian constitution and legal system and replace them with less democratic American style practices, or in some cases, with provisions of the kind that are widely popular among U.S. Republicans, but have been thwarted, at least at the national level, politically or by the U.S. Supreme Court's interpretations of the U.S. Constitution. Here are some highlights from a guest post at Krugman's blog:

* Fidesz stripped the Constitutional Court of many of the powers it previously held (e.g. the power to review the constitutionality of laws in the abstract), leaving the Hungarian system of judicial review more anemic than the European norm and very similar to that of the United States where constitutional claims are subject to standing requirements that are particularly narrow in matters of public finance and must work there way through the court system rather than starting at the top. Fidesz also expanded the number of judges on the Constitutional Court and packed it with judges favorable to it.

* In another move to pack the judiciary, many sitting judges were forced out of office and will be replaced de facto life appointees hired by a new official appointed by their party:

The government lowered the retirement age for judges from 70 to 62, giving judges only a few months to adjust to their new futures. More than 200 judges will be forced to retire from the bench starting on January 1, including most of the court presidents who assign cases and manage the daily workings of courts. The new law on the judiciary requires that the Supreme Court president have at least five years of Hungarian judicial experience. The current president of the Supreme Court is disqualified because his 17 years of experience as a judge on the European Court of Human Rights do not count. Therefore, he must leave office on January 1 also. The law on the judiciary also creates a new National Judicial Office with a single person at the helm who has the power to replace the retiring judges and to name future judges.

This too has parallels to U.S. practice, which while it does not permit the removal of sitting judges from office, does allow for sudden expansions of the judicial ranks to allow the party in power to pack the courts.

* The same National Judicial Office which was given the power to appoint judges was also given "the power to move any sitting judge to a different court," and starting in 2012, "both the public prosecutor and the head of this new National Judicial Office to choose which judge will hear each case."

This step, in principle is unprecedented, in U.S. practice, although, in reality, choice of venue decisions made by prosecutors, intimate familiarity with how the process of assigning judges works, and the option of dismissing a case without prejudice if they don't like the judge and then refiling it gives prosecutors something closer to this ability in practice than is commonly acknowledged.

* Under the old political norms, "the five-member Election Commission to be politically diverse and for the government of the day to consult the opposition before nominating candidates." Now, the incumbents on that commission lose their offices following each new election, the winning party or coalition can (and in the case of Fidesz, has) appointed their own partisans to all of the seats on the Commission.

Thus, Hungary has retreated from the European norm of having non-partisan electoral administration to the American norm of having elections run by whatever partisan elected official prevailed in the last election. In the U.S. that official is typically called the Secretary of State at the state level and the County Clerk at the local level. There is no significant national level election administration in the United States.

* In a move that is classic in American politics, but unfamiliar to Europeans, Fidesz has gerrymandered the electoral districts in their favor; "using the new district boundaries [in the last three elections] . . . Fidesz would have won all three elections, including the two they actually lost."

* Fidesz has appointed partisan minded loyalists to posts in charge of "human rights, data protection and minority affairs", the "public prosecutor, the state audit office and, most recently, the Central Bank."

It is classic, American style, spoils to the victor political appointment politics.

* Content based media regulation has been instituted.

New "media laws created a new media board – staffed only by Fidesz party loyalists with a chair who is appointed by the Prime Minister to a nine-year term. This board can review all public and private media for their compliance with a nebulous standard of political “balance” and has the power to bankrupt any news organization with large fines. It is not surprising that the media have become self-censoring."

Basically, every media outlet in Hungary is now legally required to behave like Fox News. This is something that conservative Republicans in the U.S. can only dream of having, under constitutional law protections of the First Amendment freedom of the press that liberals and conservatives alike have upheld in the U.S.

* The party has enshrined conservative Christian social policy on abortion and gay rights and the status of the country as a Christian nation in the Constitution, despite the fact that only 21% of the population is religious, and limited official recognition of minority religions. Under the new constitution:

The fetus is protected from the moment of conception. Marriage is only legal if between a man and a woman. The constitution “recognize(s) the role of Christianity in preserving nationhood” and holds that “the family and the nation constitute the principal framework of our coexistence.” . . . a new law on the status of religion cut the number of state-recognized churches to only fourteen, deregistering 348 other churches.

In other words, the new Hungarian constitution pretty much matches the American Republican party platform on religious and social issues.

* Supermajority requirements that Fidesz has put in the constitution make it hard for their policies to be undone if the lose control of parliament.

The new constitution makes huge swaths of public policy changeable only by a two-thirds vote of any subsequent parliament. From here on, all tax and fiscal policy must be decided by a two-thirds supermajority. Even the precise boundaries of electoral districts cannot be changed by simple majority vote, but only by a two-third supermajority. If a new government gets a mere majority, policies instituted during the Fidesz government cannot be changed.

In other words, the Hungarian center-right party has created the equivalent of the filibuster powers of the minority in the U.S. Senate.

* They have given key political appointees long terms that could outlast their removal from office, subject only to impeachments by two-thirds majorities, much as the U.S. does for posts like the FBI director and the Federal Reserve:

The new constitutional order extends the terms of office for the public prosecutor (9 years), the head of the state audit office (12 years), the head of the national judicial office (9 years), the head of the media board (9 years), the head of the budget council (6 years) and more.

* They have based the GOP pipe dream of a balanced budget amendment with an institutional means of being enforced: "a national budget council with the power to veto any future budget that adds to the national debt, which any foreseeable budget will do. The members of the budget council have been chosen by this government for terms of 6 or 12 years and can only be replaced if two-thirds of the parliament can agree on new candidates when their terms are over. Another part of the constitution requires the parliament to pass a budget by March 31 of each year. If the parliament fails to do so, the president of the country can dissolve the parliament and call new elections."

Of course, in states like Colorado, similar substantive rules exist, although the institutional means of implementing those rules is a bit different, and most U.S. states have some form of balanced budget requirement often enforceable via a line item veto.

* The door has been opened to banning certain extremist political parties on theories similar to the McCarthy era anti-communist laws in the United States:

Under laws that preceded Fidesz’s election last year, political parties that are anti-constitutional may be banned. Some have suggested that Fidesz could eliminate [the Neo-Fascist] Jobbik [party] in this way.

It will also probably be made easier to prosecute communist era officials, and suppress the communist party, in a way that arguably and most troublingly opens the door to punitive sanctions of the main center-left opposition party arising from the Communist era regime:

According to a proposed constitutional amendment, the crimes of the former communist party will be listed in the constitution and the statute of limitations for prosecuting crimes committed during the communist period will be lifted. The former communist party is branded a criminal organization and the current opposition Socialist Party is designated as their legal successor. It is still unclear, legally speaking, what this amendment means. But it is probably not good for the major opposition party.

Analysis

Opposition forces are not totally without a remedy.

Hungary is a party to a number of European treaties including the human rights regime of the Council of Europe which has the power to mandate Bill of Rights like protections for citizens of member nations, and these kinds of treaty obligations are not as easily ignored in Europe, where taking treaties seriously is a practical necessity, as it is in the United States where our legal system and constitution as interpreted are notoriously hostile to any form of international law, even when it is party to an international treaty.

Popular support in Hungary for the Fidesz party has also plummeted from a peak of more than 40% around the time of the last election to less than 20% now, although these voters now largely sit in the ranks of the "undecided" or "unaffiliated" rather than having cast their support to any of the other pre-existing major parties. And, in Hungary's electoral system, a drop in the popular vote for the Fidesz party would have a disproportionate effect on the number of parliamentary seats they win in the next election and could easily reduce the Fidesz party to less than a third of the seats in parliament if their unpopularity was sustained. The Fidesz party did not campaign on major entrenching constitutional reforms (and probably was surprised itself to get the majorities necessary to enact them).

Normally, securing two-thirds majority support for just about any kind of political change is extremely hard, but if Hungarian voters forcefully reject the direction Fidesz is taking Hungary's political system in the next election, it wouldn't be surprising if all of the other political parties in parliament could form a coalition united around promptly undoing some or all of the entrenching reformed enacted by Fidesz, which are a life or death threat to all of the other political parties in the country.

The kind of tactics Fidesz has engaged in parallel the anti-union overreaching that Republicans in Wisconsin engaged in when they took control there following the 2010 elections that produced a string of state legislator recall efforts, some successful, although not enough to immediately deprive Republicans of control of that state, and an effort to recall the Republican Governor with an unprecedented level of grass roots support(petitions will be submitted January 17, 2012 and there is a decent chance that they will have a sufficient number of signatures by then). Also, while the trend evidenced by the Fidesz reforms in Hungary are troubling and anti-democratic,I'm less inclined towards a "sky is falling" take on how they might work out in practice, because so many of those reforms represent an adoption of long standing U.S. political practice. They look so horrible mostly because the status quo in Hungary is so good. The reforms overwhelmingly adopt the most flawed components of the American political system, and some proposals that would have made the American political system even worse if adopted, but it isn't impossible to run a somewhat functional democracy on this basis. Also, while these reforms do appear to be entrenching many solidly conservative Fidesz officials in office, it doesn't appear to be the case that the appointees have flaws are any worse than being particularly partisan and conservative. The officials are not being entrenched with absolute control forever, a la the Ayatolla's theocrats in Iran, and do not appear to adhere to ideologies that are fundamentally at odds with the basic concept of multi-party democratic capitalism. These appear to be politically conservative reformers, not true revolutionaries or anti-democratic religious extremists or Nazis.

Fidesz wants to tip the odds in its favor for the short and medium term future and substantively bound the scope of the political discussion to ideologies that they deem acceptable, but they are basically chasing a shot at becoming a dominant party with decades of continous rule in the traditional of Japan's LDP or Mexico's PRI or FDR's Democratic party, rather than a fully authoritarian regime.

The fact that Fidesz has pulled this off, however, has troubling historical echos from Weimar Germany. Hungary's pre-reform constitution, like that of Weimar Germany, was a model of constitutional democracy. Hungary voters, like those of Weimar Germany, influenced by hard economic times, put the parliamentaries who are carrying out these reforms to the political system into office in free and fair elections and according to the legal process set forth in the validly adopted constitution, not by virtue of military force. But, ultimately Weimar Germany reached a point of no return that undid that democratic regime that it embodied and there is good reason to fear that history could repeat itself in Hungary.

In particular, the fear is that if the Fidesz reforms continue apace, and that neither European human rights institutions nor sharp voter backlash against Fidesz are quite strong enough to prevent the reforms from going to far for too long, that Hungary could reach a tipping point and take the few extra steps on the trendline it has already embarked upon towards a true right wing authoritarian regime.

If the reforms made so far by Fidesz are at least prevented from going any further and interpreted in ways that mute the worst slippery slope concerns they engender by enough Fidesz appointees who care enough about the overall welfare of a democratic state in Hungary to restrain their raw capacity to exercise political power at least somewhat, Hungary could settle into being a seriously flawed, but genuine democracy like the United States in due time.

But, if Fidesz can push much farther beyond the brink that it has already approached, and its appointees in key political positions aren't sufficiently fair minded in their exercise of the power that the reformed constitutional arrangements give them, the potential for Hungary to slip into becoming a conservative one party authoritarian state that ends up being a sort of mirror image of the one party Communist regime it was for several decades of the 20th century is very real and is deeply troubling for the future of Europe as a whole. And, without the kind of long standing democratic norms and political culture that the United States had in place for about a century in its capacity as a group of semi-autonomous British colonies, even before it established its current constitution in 1789, Hungary's odds of overcoming its current crisis of democratic government are not nearly high enough that we can be comfortable that it will all work out.

The United States and some European international institutions have expressed concern about the political developments in Hungary. Realistically, there isn't much that the United States can do about it, however, other than to express concern. As this post explains, most of the changes that Fidesz has put in place brings Hungary closer to the norms of the American system of government, and most of those that aren't a part of American politics have been regularly sought by one of the two main political parties in the United States, so the U.S. can't bring much moral authority to the situation at this point. European institutions have far more leverage in the situation, but in the end, it is hard to impose democracy on a public that isn't willing to use, at least, the formal legal and political rights that they have to preserve their democracy.

A preference for a Western European style democratic political system is not like a desire for food, water, clothing or shelter. It is a learned preference that has a lot of individual and collective utility if it is widely shared, but when you have an electorate who spent their formative years without that system, the public commitment to that system will not be as deep. People naturally gravitate towards thinking of what they know as what is just and right, and what most of the people of Hungary know is life under a one party authoritarian regime. People can change their preferences and new generations can develop preferences different from those of their predecessors. But, only time will tell if the Western European democratic political culture has taken hold firmly enough in the people of Hungary for its initially state of art democratic constitution to successfully facilitate permanent democratic government in Hungary in the face of economic hardship and shallow public commitment to it.

The optimist in me give some credence to the idea that the optimal level of democracy to produce a stable functional democratic system is the bare minimum necessary to earn the name democratic at all, and that beyond that additional democratic refinements add little benefit and may even be counterproductive. Hence, a system of democratic elections sufficiently great to make electoral politics more attractive than a military insurgency annd to make those who govern cognizant of the wishes of the governed is good enough, and extra bells and whistles, like initiative processes, proportional representation, and campaign finance reforms may do more harm, by making the process more complex, than they add in terms of the quality of the democratic process given that the bare minimum standards have been met.

The pessimist in me says that things are going from bad to worse in Hungary, and that is would be a crime to stand by and do nothing if there was anything we could do to prevent the current anti-democratic trend there from going too far. Perhaps that is why I am writing this post. But, I'm hard pressed to see anything that can be done, at least by Americans, that isn't already being done, or any room for a lasting solution that doesn't predominantly come from the Hungarians and perhaps institutions with which they have treaty relationships and obligations.

U.S. Corporate Income Tax Not As High As It Seems

2011-12-20T22:27:00.000-07:00

The U.S. corporate income tax, considered on an apples to apples basis internationally, isn't as high as it seems when taxes on both corporate taxes and dividends received are considered. Also, under U.S. law, 90% of U.S. businesses aren't subject to this tax, most closely held C corporations can structure their affairs to avoid paying the full burden of these taxes, and even publicly held corporations often find ways to reduce the total tax burden dramatically with tax credits, international tax planning, retention of earnings together with capital gains tax breaks, and so on.

Being Kim Jong Un

2011-12-20T19:34:00.000-07:00

Suppose you are Kim Jong Un. You are in your late twenties, similar in age to a typical entry level associate at a big law firm or medical resident or mid-career NCO in the military.

This week you have just inherited from your father (deceased at age 69 or 70, who was somewhat unbalanced and not the world's nicest guy) an entire country with twenty four million people, substantial territory and nuclear weapons on missiles at your disposal to rule as an absolute dictator, without even having to ask for campaign contributions or filling out a job application.

How do you feel about that? Are you overjoyed at your newfound power? Are you mostly consumed with grief over your father's death? Are you ticked off that your father totally screwed up your country causing millions of its people to die of starvation and the vast majority of the rest to live totally backward lives and then gave you the mess to clean up? Are you terrified that you'll screw up given your responsibilities? Are you terrified that you'll be assassinated by someone close to you before you have a chance to consolidate your authority? Do you seriously consider abdicating and letting someone else deal with it, after all who made it your problem?

By all accounts Kim Jong Un is a much more decent and sane person than either his father or his grandfather who preceded him in office (or than his older siblings who were passed over for the job after having amply demonstrated what losers they were), although not necessarily so charismatic. Do you worry that you aren't ruthless enough for the job? Do you try to act crazy and ruthless because you think you must to be taken seriously? Do you undermine your own power structure for the benefit of your people, knowing what works in other countries, or do you feel the need to enhance your own personal cult of personality in order to gain the clout in de facto power you need to institute major reforms? Do you follow the precedents and policies established by your father and grandfather, imitate the systems of places like Switzerland where you received some of your education, or try to devise some third way specific to your inclinations and local conditions? Do you submit to being a figurehead for your elders and late father's flunkies who wield power more directly and have more experience, or do you make your own decisions? Just because you've grown up around immense power doesn't mean that you know how to wield it yourself. Do you put your friends in power, or people you think you need to have support you? Do you indulge yourself with creature comforts attendant upon your new office, or throw yourself into a spartan life full of work? How do you date somebody?

This isn't quite a Princess Diaries moment. Your didn't grow up in some peasant household oblivious to your place in the society. If you are Kim Jong Un, you've known this day was coming for years, have lived your entire life in your father's inner circle which is the pinnacle of all political and economic power in the country, and have already had some close calls when you were nearly pushed into the job after your father's other health emergencies. Surely, you've spent a great deal of time thinking about this day. What kind of plans and expectations did you form in advance? Which of them will still seem to make sense now?

There is some reason to have optimism for the long term. While the early years of the rule of young, absolute leaders of countries has historically been a mixed bag, the ranks of the truely outstanding absolute rulers of nations are disproportionately made up of people who inherited the office at an early age, not people who took office after decades spent in an understudy role. Perhaps if you start young you have more time to learn how to do the job well and more of a stake in your long term success. We'll soon see how Kim Jong Un compares.

Wells Fargo Still Stupid Or Evil

2011-12-20T19:08:00.002-07:00

A have a client who lost his home, which was worth considerable more than his mortgage from Wells Fargo bank, in a foreclosure more than a month ago that discharged the entire amount of the loan. Today, he calls me and tells me that he just got a letter today from Wells Fargo bank with the loan number, personal identifying information, pre-foreclosure loan balance and interest rate, etc. asking him to call them to talk about modifying his loan. Incidentally, he'd also repeatedly sent them extensive packets of loan modification information over the previous six months, which each time they claimed to have never received and never acknowledged.

Not only is Wells Fargo bank too big to fail, it also appears to be to stupid to live. If it ever makes economic sense for a bank like Wells Fargo to modify loans, it is missing the boat. This is a government program that it participates in formally, but doesn't seem to actually support.

Of course, a less charitable interpretation is that somebody in management at Wells Fargo bank has decided that loan modifications are not a profit center and has deliberately set up this division of the bank to fail, because these discussions frequently discourage debtors from taking the rest of the foreclosure process seriously and thereby improve their rate of success in the collections process. For example, the loan modification division employees at Wells Fargo bank routinely tell debtors orally that they don't have to take legal action and shouldn't try to cure a loan that will otherwise go into foreclosure so they can get a modified loan, although this division of Wells Fargo bank has a strict policy of not putting any of these communications in writing. The loan modification employees at Wells Fargo go blithly on their way spinning tales of forgiveness and compromise while the collections law firm that Wells Fargo has retained (one Colorado law firm whose name I will omit has the overwhelming majority of this business statewide) does not communicate any knowledge whatsoever that this is happening.

But, in Colorado, at least, something called the credit agreement statute of frauds prevents anyone from suing a bank for making misleading or outright fraudulent oral representations of this kind from a bank employee under state law, for any reason, even though a third party debt collector or attorney who made similar representations would have civil liability for compensatory and punitive damages, even if you can identify who said it and when, even if you have a tape recording of the conversation.

Is it so much to ask that different divisions of the same bank who are interacting with the same customers regarding the same loan have any communication with each other whatsoever? Is it so much to ask that banks have a legally enforceable duty to refrain from telling the people who owe them money that they can ignore legal process that is delivered to them and should refrain from exercising their rights in that process?

Is North Korea A Monarchy?

2011-12-19T16:49:00.000-07:00

Kim Il Sung founded North Korea as a country and regime out of the ashes of World War II occupation of Korea by Japan and the process of new state formation that ultimately led to the Korean war, one of the first "hot" conflicts of the Cold War. There is a cease fire in that conflict but not a true peace treaty.

Kim Il Sung, who ruled that hard line one party Communist state as a dictator in a cult of personality, was succeeded by Kim Jong Il who ruled for seventeen years until his death, also as a dictator in a cult of personality.

Now, the heir apparent to rule North Korea is Kim Jong Un, the third son of Kim Il Sung, although the transfer of power has not been confirmed.

Assuming that Kim Jong Un does take power as an absolute dictator, like his two predecessors, at what point do we start to acknowledge the status of North Korea as a monarchy rather than a communist regime?

There are residual communist one party state frameworks for the regime, but these seem to have been increasingly withered in favor of a cult of personality that deifies the ruler.

Of course, there is also the question of how Kim Jong Un, a Swiss educated basketball fan who is by most accounts a serious, intelligent young man might choose to take his country out of the dark ages, where it lingers in autarky, backwardness, fear, and privation. The only comparable example in European was the communist regime of Albania, which is now struggling to remark itself in a Western parliamentary capitalist mold, despite mishaps along the way.

Might Kim Jong Un see the path of constitutional monarchy, followed by Japan and Thailand, as attractive? Would he be willing to cede power to democractic elections by a polity so stripped of civil society and democratic instincts that it is hard to know if it would be even possible to recreate a democracy in that mold? Might he work towards reunification with South Korea?

His people might not know that the regime he is inheriting is profoundly backward, but he does, and surely have given considerable thought to what he would do if he was in charge. It is also entirely possible that there could be a coup of some kind by the real powerbrokers in the regime, for example, in the military.

This may seem like a mere academic exercise, but when a regime has nuclear weapons and missiles to deliver them, as well as submarines it has shown a willingness to use against its neighbors in recent history, the outcome matters, no matter how out of whack its parameters may be.

Gingrich: First Let's Lock Up the Judges

2011-12-19T12:31:00.003-07:00

GOP nomination front runner Newt Gingrich's rheotric offers a stunningly dytopian approach to dealing with judges whose rulings he disagrees with:

With just weeks to go before the Iowa Caucus, Newt Gingrich . . . former House Speaker held a half-hour phone call on Saturday during which he pledged to abolish courts and eliminated activist judges he believed were either outside the mainstream or infringing too deeply on the commander in chief's authority.

On Sunday, he followed that up by saying he would be willing to arrest a judge who he thought was out of line.

"If you had to," he said on CBS's "Face the Nation" when asked if he would send a Capitol Hill police officer to round up a judge, "or you would instruct the Justice Department to send the U.S. Marshal."

The result, of course, would be a constitutional crisis in which the decision of the U.S. Marshal in question about who to obey would be hard to determine and an impeachment effort would surely follow.

Newt Gingrich seems bound and determined to become yet another Republican hellbent on dismantling our system of government and showing would be voters that he is too crazy and extreme to be trusted to lead the free world. But, apparently, the activist Republican grass roots are hungering for crazy.

Gingrich also claims that the President has the authority to defy federal court orders.

The extreme rhetoric cost Gingrich the endorsement of Iowa's leading newspaper, less than three weeks before their first in the nation Presidential nomination caucus:

The Des Moines Register, when announcing its endorsement for Republican presidential candidate Mitt Romney on Saturday, lauded the former Massachusetts governor's restraint from "reckless rhetoric and moralizing" while "other candidates have pandered to extremes with attacks on the courts and sermons on Christian values."

Proposals like Gingrich's are amusing as satire, from a powerless blogger, but less amusing when they come in the form of serious discussion about a viable Presidental candidate's agenda should he take office.

Ancient Rome Has Less Income Equality Than The U.S.

2011-12-19T12:18:00.000-07:00

[I]n Rome the top 1.5% controlled 15-25% of income while in the United States around 2007 the top 1% controlled 23.5% of income thus suggesting slightly more inequality in the United States. Scheidel and Friesen calculate a Roman Empire gini coefficient of .42-.44 again perhaps slightly less than the U.S. coefficient of around .4-.45 depending on source.

More details here.

Uninformed Less Partisan People Tame Intense Minorities In Democracies

2011-12-16T17:41:00.001-07:00

People who are not very informed about issues and have not very strong opinions about issues tend to side with the numerical majority of those who do have a point of view, even if there is a very intense majority that favors the other position. Thus, ill informed moderate voters may actually enhance democratic consensus building and prevent the tyranny of the minority. The empirically motivated conclusions are contrary expectations that uninformed individuals are swayed by the loudest voices.

Even a small number of uninformed individuals without strong opinions dramatically strengthens the consesus building process.

Saudi Arabia Still Executes Witches Under Color Of Law

2011-12-15T20:39:00.000-07:00

The Saudi Arabian government (which is still an absolute monarchy) executed a woman for practicing witchcraft purported to heal (for about $800 per session) this week.

Life As A Big Brother Parent And The Vanishing Generation Gap

2011-12-15T20:14:00.002-07:00

As a responsible twenty-first century, reasonably technologically competent parent, I know far more about my children's personal conduct when I'm not around than my parents did about mine.

Netflix provides me with a detailed summary of what was watched for how long on which day, and it isn't very hard to infer which child watched what movie or television show.

My daughter almost always prefers texting to talking on her cell phone or a landline, and a glance now and then at that phone details for me, what was said, verbatim, on every side of every communication, when it was said, and to whom it was said.

The Denver Public Schools provide parents of middle schoolers with not just a few times a year general report card, but the ability to look at every grade in the gradebook for my child in every class in real time, and almost all of my child's teachers have websites that provide details on current homework assignments, the school and superintendent and PTA have newsletters that go straight to my personal e-mail account, and every teacher and administrator is never more than an e-mail way.

A significant number of homework assignments and activities come with parental signoffs that require them to be reviewed by a parent.

I have access to my children's Denver Public library accounts that tell what is checked out and when it is due, because they expect me to renew their books online before they are overdue.

One of my children has a Kindle, that they both use sometimes, and every new download to it is reported to my e-mail account.

Every withdrawal from the children's bank accounts must happen with a parent present, and in practice, so must every deposit, because the bank is too far from home to get to without parental assistance.

A parent is usually present at music lessons, again, in part due to transportation considerations, so we know what is supposed to be practiced for the week.

We have the practical capacity to read our children's e-mail, and since they often choose to do so from a living room computer, we see who they write to, what they say, and when they write, on a regular basis.

Of course, we still have the old school options of wandering into children's rooms to see what is there, and evesdropping when car pooling kids in the back seat ignore your presence. We accompany each child to the either a schoool bus stop, or the school's front door, so we know what they wear to school and what they bring to school.

Neither of my children have ever kept a meaningful diary, but the middle school requires each child to keept a detailed planner with homework assignment due dates in it, which could be reviewed in detail.

I could access far more information than I actually do, of course. And, certainly, I don't know everything. For example, I rarely check Internet browsing histories, recently updated document files on computers, and recycling bins on computers, although I know how to do that. But, if I had concerns, it would be easy to be more vigilant.

Honestly, in an almost purely effortless way, I get more information about fairly private conduct by my children than I want or need.

The hard question is what to do with that information. How aggessive does it make sense to be in dogging a kid to study for tests after a low mark now and then, when better grades on homework give that kid straight A report cards? What should you choose to say when a child is watching television at times when it is permitted under house media rules, and the shows they choose to watch aren't harmful but aren't always what you would think were the most appropriate either? Your own parents didn't even know what you watched when they weren't present. What use should you make of your imperfect digitally based knowledge of your children's social networks?

In practice, it seems as if the choices our children make that we aren't particularly happy about have turned out to be the ones made with our full knowledge and not secret ones. Openness is good and secrets are bad, right? Convincing them to do the right things seems to be a bigger battle than knowing what their choices are at this point in life (a middle schooler and a soon to be middle schooler).

I'm sure that the Big Brother opportunities that come with twenty-first century parenting could be sorely abused by other parents with more strict parenting styles who had a stronger belief in the benefits of controlling the influences in their children's lives. But, in our family, we're relaxed and trusting enough that the extra knowledge is almost superfluous and probably excessive. Maybe when they get into their teen years the desire for privacy will increase, and this will become more of a point of tension. Then again, maybe it won't. It doesn't seem to be one for the parents we know who do have teenagers.

I've felt for some time (with support now and then in the media) that the generation gap is as small as it has ever been in recent memory, so maybe that defuses some of the tensions that I remember from when I was that age. As a Vanity Fair article I read recently, explained, in terms of visual cultural feel and style, the world hasn't changed much in twenty years:

Since 1992, as the technological miracles and wonders have propagated and the political economy has transformed, the world has become radically and profoundly new. (And then there’s the miraculous drop in violent crime in the United States, by half.) Here is what’s odd: during these same 20 years, the appearance of the world (computers, TVs, telephones, and music players aside) has changed hardly at all, less than it did during any 20-year period for at least a century. The past is a foreign country, but the recent past—the 00s, the 90s, even a lot of the 80s—looks almost identical to the present. This is the First Great Paradox of Contemporary Cultural History.

Think about it. Picture it. Rewind any other 20-year chunk of 20th-century time. There’s no chance you would mistake a photograph or movie of Americans or an American city from 1972—giant sideburns, collars, and bell-bottoms, leisure suits and cigarettes, AMC Javelins and Matadors and Gremlins alongside Dodge Demons, Swingers, Plymouth Dusters, and Scamps—with images from 1992. Time-travel back another 20 years, before rock ’n’ roll and the Pill and Vietnam, when both sexes wore hats and cars were big and bulbous with late-moderne fenders and fins—again, unmistakably different, 1952 from 1972. You can keep doing it and see that the characteristic surfaces and sounds of each historical moment are absolutely distinct from those of 20 years earlier or later: the clothes, the hair, the cars, the advertising—all of it. It’s even true of the 19th century: practically no respectable American man wore a beard before the 1850s, for instance, but beards were almost obligatory in the 1870s, and then disappeared again by 1900. The modern sensibility has been defined by brief stylistic shelf lives, our minds trained to register the recent past as old-fashioned.

Moreover, when there have been changes in the past twenty years, my generation has adapted to it every bit as much as my children's generation experiencing it for the first time. I got my first cell phone a couple of years before my daughter got her first cell phone, for example. Three of the four members of my household have blogs, although only I use mine with any frequency.

When the children listen to Radio Disney, the music reminds me of the Top 40 pop music I grew up with, although my mix didn't have rap and country, and I listen to rap and country and pop music in the same genres anyway; often with the same songs playing, although the mouse is a bit more selective than I am. I've read many of the books that they're reading, sometimes, as in the case of the Harry Potter or Twilight books, for example, even though they weren't in print when I was a kid.

The political aspirations of my children's generation, so far as I can discern, are extraordinarily wholesome and in tune with those of my wife and I. The two mommies families I represent as a lawyer are the same families that they go to school with every day. The concern with the environment they show is the same one that I grew up with myself. The struggles over authority with school administrators and other adults that I recall being seeped in as a child are no where in evidence, in part, because those authority figures seem to understand the kids better than they did when I was a kid.

When I was a kid, the coaches of our soccer teams had to learn the rules from books at the library because they'd never played the game as children. Now, both of my children have played soccer and I haven't needed to learn the rules or the skills and strategies involved from books or strangers - it has become the near dominant team sport of their generation, just as it was starting to be in mine.

I will be taking one of my kids this weekend, without any parental prompting whatsoever, to a shoe store to buy the exact same sneakers that I wore in casual settings every day from the time I was ten until I was thirty-five. The style has considerably outlasted the company that made them (which licensed them to someone else as an asset in a bankruptcy).

Certainly, my children's lives are different than my life was at the same age. But, the changes have mostly been ones that align them more with where I am culturally now, rather than dividing us culturally.

Is this simply the calm before the storm? Perhaps. But, for now, we'll enjoy the tension it alleviates from lives that aren't so private anymore.