Major New Legal Developments

There have been several major new legal developments lately that either have happened or will take effect soon. 

In several cases, these developments reflect Biden administration officials working quietly behind the scene to change federal regulations in the face of Congressional gridlock. But, it has taken time for these efforts to bear fruit, because the regulatory process is quite slow. The other new developments are at the state level, which don't face the legislative gridlock seen in Congress.

* The federal FTC is banning non-competition agreements nationwide under a new regulation issued this week which will take effect in six months (October of 2024) unless a court rules otherwise. See, e.g., here. This is already the law in California.

* The federal National Labor Relations Board made a ruling in early 2023 that significantly limits the use of non-disparagement and confidentiality clauses in settlement agreements and severance packages with former employees under Section 8 of the National Labor Relations Act, which is one of the few provisions of that act that apply to employees who aren't in unions. The case is McLaren Macomb, 372 NLRB No. 58 (2023) (see more here). California has adopted legislation with a similar effect.

* Colorado enacted a new law, which will probably take effect on July 1, 2024, which prohibits residential landlords from not renewing periodic leases with no formal right to renew, without good cause. The full text of the act is here.

* The federal Corporate Transparency Act requires most closely held businesses to disclose their major and controlling owners to FINCEN, the federal anti-money laundering agency. Closely held businesses formed in 2024 must make the disclosure within 30 days of formation. Closely held businesses formed prior to 2024 must make the disclosure by the end of January 2025. The legislation is rather clunky, however, and the information disclosed will not be available to the general public.

* The federal regulatory process of reclassifying marijuana under the Controlled Substances Act, so that it is not a Schedule I drug, is underway and will be completed before the end of the current Presidential term. This means that marijuana can be prescribed as a drug without violating federal law (which the federal government has declined to enforce when state law authorizes it for man years). This makes it easier to do clinical studies of marijuana based drugs. This means that marijuana industry firms that are legal under state law can use the regular banking system. This means that marijuana use and businesses won't run afoul of contract and lease terms that require compliance with federal law. And, lastly, but hardly least, this means that 26 U.S.C. § 280E, which disallows tax deduction for marijuana dispensaries other than costs of goods sold, will no longer apply to marijuana businesses making them vastly more profitable after taxes (and probably significantly reducing the retail price of marijuana), but also reducing state tax revenues in states where state income taxes are based upon federal taxable income.

* Birth control pills are now available over-the-counter nationwide as a result of federal FDA regulations that were issued last July. This has been the case in Colorado for many years already.

* Via Boing Boing:

[T]he U.S. Department of Transportation announced a new rule requiring airlines to automatically provide full cash refunds when flights are canceled or drastically changed without haggling or jumping through hoops. "Passengers deserve to get their money back when an airline owes them – without headaches or haggling," declared Transportation Secretary Pete Buttigieg.

The refund mandate doesn't stop there. It also covers those maddening scenarios when you fork over extra cash for amenities like Wi-Fi or preferred seats, but the airline fails to deliver on its promises. No more getting stiffed – you'll get an automatic refund for any ancillary services not rendered. And finally, some justice for the lost luggage struggle: airlines will have to cough up that baggage fee if your checked bag is significantly delayed upon arrival.

NDAs

It should be a crime and violation of professional ethics rules, in and of itself, and should also make one a civil and criminal co-conspirator to use a non-disclosure agreement to conceal criminal conduct, tortious activity, breaches of contract, violations of government regulations, government mistakes, adultery, affairs, or to protect a person's reputation. Any such non-disclosure agreements should also be void ab initio. An NDA should be permissible solely to protect trade secrets. And, any valid NDA should disclose this limitation on its face.

Likewise, data protection and privacy rules and laws should never be used for these purposes.

Privacy protections for juvenile delinquency and educational records should also be abolished.

All of this legal protection for secrets does more harm than good.

Medieval Oxford Was Dangerous

Steven Pinker is generally correct that society has grown progressively less violent over time.

The research suggests that Oxford’s student population was by far the most lethally violent social or professional group in any of the three cities.

The team behind the Medieval Murder Maps – a digital resource that plots crime scenes based on translated investigations from 700-year-old coroners’ inquests – estimate the per capita homicide rate in Oxford to have been 4-5 times higher than late medieval London or York.

Among Oxford perpetrators with a known background, 75% were identified by the coroner as “clericus”, as were 72% of all Oxford’s homicide victims. During this period, clericus is most likely to refer to a student or member of the early university.

“A medieval university city such as Oxford had a deadly mix of conditions,” said Prof Manuel Eisner, murder map investigator and Director of Cambridge’s Institute of Criminology.

“Oxford students were all male and typically aged between fourteen and twenty-one, the peak for violence and risk-taking. These were young men freed from tight controls of family, parish or guild, and thrust into an environment full of weapons, with ample access to alehouses and sex workers.

Consider the source as this is from the University of Cambridge.

It also, in my mind, supports the case for removing the secrecy from the juvenile justice system. By all means, we should not give legal effect to stale criminal convictions or juvenile offenses, but we should also be informed by them, especially when it comes to estimating recidivism risk. Age eighteen is right in the middle of the peak age range for criminal conduct. Young men do "age out" of criminal activity, but this happens in their 30s or early 40s. The most powerful predictor of repeat criminality is how early, how often, and how intensely offenders committed crimes as juveniles. Further, secrecy encourages institutional rot because its flaws are not exposed to public inspection.

Rants And Quick Hits

 * There really ought to be a law forcing firms to make their IT systems accept names that many current databases do not, such as hyphenated names, names with apostrophes, names with accented letters, single names with two words and a space, and names with only one or two letters in them. It is such a godawful pervasive form of discrimination against a specified class of people (that includes me, my son's girlfriend, and my wife and in-laws even before we married). It is also very easy to fix with only a modest amount of non-laziness.

* I similarly hate the limitations on file names in many Microsoft Products (One Drive/Sharepoint, here's looking at you) that other programs lack. This is one of Microsoft's many sins that is a persistent pain in the ass.

* There ought to be a defense to disabled parking offenses for someone who doesn't have a tag or license plate but is actually assisting a disabled person in their car on a particular trip.

* The construction trades really ought to be regulated at the state level, rather than having separate licenses for every municipality and for the unincorporated part of every county, usually without even any reciprocity system.

* Building codes should be a copyright free part of the public record. So should the Restatements of Law. It is unconscionable for authoritative sources of law to be available solely on a pay per view basis. If necessary, have the government use the power of eminent domain to buy out the copyright holders.

* Hurray for the iPhone abandoning under E.U. insistence, the lightning power connector in favor of a USB-C connection. The U.S. government should have done the same thing.

* I dread the potential merger of Kroger and Albertsons, which would put almost every "regular" grocery store in Colorado (in contrast to niche organic or gourmet grocery stores with higher prices) under common ownership except a few stores divested to Win-Dixie in an effort to appease regulators (which could easy close down a few years later). A grocery store monopoly in Colorado would be horrible for consumers, and would likewise be horrible in other states similarly impacted.

* Unpopular opinion, but 1950s houses and "mid-century modern" are extremely fugly, far more so than the new homes criticized for that today.

* U.S. cities really made an early strategic mistake in classifying sidewalks as easements that property owners have to maintain to a certain standard of maintenance and snow removal, rather than as public roads for pedestrians which would be maintained by the city as part of its general expenses from property tax and other revenues the way that city streets are handled. Sidewalks are a "network" asset that work only as well as the worst link in the network, and collectivized snow removal would be vastly more efficient (and prevent a lot of injuries and deaths of the elderly and infirm trying to do it themselves) than the status quo of homeowner clearing of sidewalks.

* Someday, when I am not dealing with more urgent repairs like the remedying of the removal of a structural wall that a contractor said wasn't a structural wall, I will get around to replacing the last couple hundred square feet of conventional lawn in my home with a lower maintenance xeriscape alternative. Bluegrass lawns make absolutely no sense in the arid western U.S. I really like the Western U.S. centered Sunset magazine aesthetic and cultural movement that is responsive to its local conditions in that regard and I am pleased to learn that is hasn't gone out of business even though it suspended publication for a number of months and isn't as widely available in grocery store magazine stands anymore:

In March 2020, with the magazine struggling financially due to loss of advertising revenue during the COVID-19 pandemic, the company put most of its employees on unpaid leave. During the pandemic, the company briefly ceased printing the magazine but returned to print with the December 2020 issue.

* In the same vein as xeriscaping, the Western U.S. should transition to something like the Old Mexico daily schedule that is quiescent in the hot midday, but has more public activity in the evenings. 

* Similarly, the American business and professional class should continue to recognize that business suits and ties invented to meet the needs of professional in London, Berlin, Paris, and Northern Italy are ill-suited to sweltering summers of most of the United States which are virtually unknown in Europe (most of which doesn't even routinely need air condition in the summer). French and British colonists themselves didn't feel so constrained when they presided over colonial governments in tropical Africa and India in shorts and short sleeves. Americans need not straight jacket themselves into Ataturk's mandate that businessmen and professionals in Turkey wear wool, European style suits and top hats in the early 1900s in an effort to "modernize" (even though his basic insight that cultural change in inseparable from modernization and economic development wasn't fundamentally wrong). We need to think more like the Japanese on the verge of ending a long period of isolation, whose Emperor sent emissaries out all over the world to see how other countries more advanced than them at the time did things and then picked, chose, and adapted Western ways of doing things in a way that was sensitive to their own local conditions and culture.

* The big picture is that we should be changing our culture to be in better harmony with the conditions of the world we live in, rather than being so tradition bound culturally, whether its yards, the hours we have dinner and work outside, or our clothing.

* The U.S. has backfilled its falling total fertility rate a.k.a. TFR (i.e. number of children per women per lifetime) with immigration to keep its population stable as it has undergone demographic transition with its economic development. The capacity of China, Japan, Korea, and Japan to do the same, in a manner that is within the realm of the politically possible is much more difficult. None of these cultures is very receptive to immigration. This is true even between these East Asian nations with a lot of shared history and culture. Korean migrants are ill treated in China and Japan. Chinese people aren't too welcome in China either. Korea has an officially sponsored pride in its national homogeneity although South Korean farmers who can't find wives are starting to secure wives from Southeast Asia especially. China's 1.4 billion people with dramatically falling TFR has a need for people to refill its workforce that greatly exceeds the supply of people willing to relocate there. Maybe it is good to have a smaller global population as we are approaching peak global population, to place less of a strain on our planet's carrying capacity, and maybe the demographic transition that comes with economic development reflects a buried hidden wisdom that a higher standing of living ideally supports fewer people.

* The similarities between much of the Islamic world and the Victorian era and early 20th century are striking. It suggests that the Islamic world may sooner or later experience a cultural transition similar to the West from the Victorian era to the present. In the fights over the hijab in Iran, we see echos of the 1920s flappers. Most Islamic countries are treating women a lot better now than they did half a century ago even though it can be hard to see when comparing these countries to the modern West. Even though Islam allows polygamy, Tunisia and Turkey have banned it as a matter of secular law that doesn't force anyone to do something that Islam bans. The death penalty and corporal punishment are much more common in the Islamic world than in the West (and this is also common in communist countries for some reason), but apart from holdouts like Iran and Saudi Arabia, its declined a lot just as it did in industrial era Europe. Countries like Iran and Turkey are genuine, if flawed, Islamic democracies, although Afghanistan seems to have regressed. What does the Islamic transition to modernity look like? How does a global transition to a post-petroleum economy impact that?

* The nation's legal system is really digging into Trump. On the civil side, he had to settle the Trump U. case, he lost the rape/defamation case, he lost a major motion for summary judgment in a case in New York related to asset value fraud. And then he has the New York criminal fraud case, the January 6 case, the Georgia election fraud case, and the Florida classified documents case, all on track as the election comes in. And, the insurrection disqualification cases are pending.

* In 1970s the G-7 countries contained 67% of global GDP, today it's only 30%. There is every reason to think that this trend will continue. It is easier to have a higher GDP growth rate percentage when you are copying economic solutions and technologies that someone else has already proven to work successfully than it is to come up with new ways to grow the economy from scratch. So the percentage gap between G-7 countries and non-G-7 countries in GDP per capita should narrow and at the same time, less economically developed countries are growing as their population grows at a higher percentage rate than more economically developed countries whose populations are often shrinking or stagnant. As the G-7 countries dominate the global economy less strongly over time, all sorts of things change, among them the character of international trade and the feasibility of an across the board export based economy like the U.S. had post-WWII because WWII destroyed the economic infrastructure of the rest of the world more than it did the economic infrastructure of the U.S. which just had to shift its factories from making swords to making ploughshares. Probably, we'll see more orientation towards domestic production and more specialized export markets in each country.

* Intellectual property laws and privacy laws need reforms. IP laws need to be weaker. Privacy laws need to be more manageable - our current reactions are too cumbersome and overrate privacy against other values, including free speech.

The Impact Of Sharing Compensation Information

Pay equity and individualized meritocracy in compensation work at cross-purposes. 

We find evidence that pay transparency causes significant increases in both the equity and equality of pay, and significant and sizeable reductions in the link between pay and individually measured performance.

From Nature Human Behavior.

Roe Is One Of Many Things At Stake In Dobbs

The 6-3 conservative majority on the U.S. Supreme Court is poised to overrule Roe v. Wade, despite assurances to Senators and statements in confirmation hearings to the contrary. 

But, as bad as this is (and this is the real deal, not a false alarm to whip up political supporters on both sides this time), it is only the tip of the iceberg. An analysis in The Atlantic magazine explains the larger implications.

The consensus of Supreme Court watchers after Wednesday’s oral argument in Dobbs v. Jackson Women’s Health Organization is that the demise of Roe v. Wade, or at least its dilution to a point that virtually any government-imposed “burden” on abortion would be constitutionally acceptable, is coming. After all, this Court allowed a Texas law effectively banning most abortions after six weeks to stand pending litigation, rejecting multiple pleas for a temporary stay—as clear a signal as any that at least five justices on the current Court have no problem with women’s constitutional rights (as currently recognized) being violated in the interim. . . .

Consider the 1923 case Meyer v. Nebraska, in which the Court struck down a law criminalizing the teaching of German in private schools. “The obvious purpose of this statute,” the Court wrote, “was that the English language should be and become the mother tongue of all children reared in this state.” Although its enactment “comes reasonably within the police power of the state,” the Court found that the law ”unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment”—the precise grounding of the now-precarious individual right to decide whether to carry a fetus to term. Two years later, in Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, the Court struck down an Oregon criminal law forcing parents to send their children to public school. “The manifest purpose” of the law, the Court noted, “is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade.” Citing Meyer, the Court ruled, “We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.”

The Court has construed liberty to safeguard numerous other personal safe spaces: the right to marry regardless of race (1967’s Loving v. Virginia) and sex (2015’s Obergefell v. Hodges). The right to use contraception (Griswold). The right to be free from compulsory sterilization by the state (1942’s Skinner v. Oklahoma). The right to be free of government-mandated surgery involving “a virtually total divestment of respondent’s ordinary control over surgical probing beneath his skin” (1985’s Winston v. Lee). And the right to engage in intimate sexual conduct with a partner of one’s choice without fear of criminal prosecution (2003’s Lawrence v. Texas).

In Dobbs, the state of Mississippi’s answer to this line of cases is to suggest that the life of an unborn fetus is especially sacred under the Constitution: “Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life,” it claims. 

But saying so does not mean that critics of other privacy-based rights could not find their own reasons why those rights, too, must be balanced against some other competing interest.

Insider Trading Liability Broadened

Last week, prosecutors rejoiced when the U.S. Supreme Court decided an insider-trading case called Salman v. United States, and in doing so clarified that leaking confidential information so that friends and relatives can make money in the stock market is a crime, even when the leaker doesn’t get an economic benefit.

From The New Yorker with local color related to the jurisprudence of the trial judge whose legal theory was adopted.

The decision was, however, quite a narrow one.

Old Wine In New Skins

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

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

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

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

Knowledge Creates Heroes; Ignorance Creates Victims

2 teen boys in Pennsylvania are being hailed as heroes after they halted a kidnapping on their bikes. Temar Boggs and his friend recognized Jocelyn Rojas’ face from her 'missing' posters just hours after she’d been abducted off her front lawn. The teens were quick to chase Rojas down, and the little girl is now safe with her family.

Law enforcement, perhaps due to its para-military character, loves to keep the public in the dark about active investigations.  But, sharing information with the public converts the public into an army of potential heroes from an army of potential victims.

Tax Havens Considered In Light Of The Panama Papers

In the biggest leak of confidential law firm information since a junior employee leaked confidential information from tobacco tort defense firms that went on to devastate the industry, papers leaked from the records of Panamanian law firm Mossack Fonsecca have revealed a treasure trove of information about tax haven bank accounts of prominent international figures across the globe. Tyler Cohen collects some other related links to the economic issues related to the scandal at Marginal Revolution.

Few Americans are implicated because they prefer venues of common law legal traditions like Bermuda, the British Virgin Islands, the Cayman Islands, St. Nevis and St. Kitts, as well as domestic asset protection venues.  The Swiss, who invented the tax haven industry, have been out of favor for many years among both Europeans and Americans after having caved to pressure from foreign authorities to crack down on tax haven abuses.

Maintaining a Panamanian bank account is itself perfectly legal in most of the world.  

But, combined with shell companies and disregard for domestic tax laws that is impossible to detect without an improper leak of documents like this one, Panamanian bank accounts have been a global go to source for money laundering, tax fraud, fraudulent concealment of assets to hide the fruits of government corruption by top officials, to conceal assets from soon to be ex-spouses and creditors, and to hide patterns of influence.  

Simply put, it is a pain to have a foreign bank account, and typically, only people with illicit reasons or a tax evasion motive use them.  People with legitimate international financial interests usually establish accounts in non-tax haven jurisdictions where they do business or in legitimate major international financial centers like London or New York or Tokyo.

The dicey thing about tax haven/asset protection jurisdictions is that for the most part, these opportunities exist as a result of loopholed in domestic laws that permit them to be beneficial.  Tax havens typically have little economic activity of their own, and both the source of the funds and the places that they invest the funds are typically the countries that are the victims of these legal loopholes and have ample power to collectively punish tax havens if they wish to do so.  Indeed, there have been a couple of times in U.S. history when the U.S. military has intervened when countries in the greater Gulf of Mexico tried to stiff U.S. creditors.

In this respect, tax havens bear a great deal of resemblance to the Islamic fundamentalist Salafist movement that has in turn given rise to Islamic terrorism, which is funded almost entirely from the oil wealth provided by the Western countries these movements have sometimes targeted. Terrorist organizations, however, tend to be less sophisticated and traditional, than the corrupt international financial networks that are the lifeblood of international tax havens like Panama.

Musings On Governor Hickenlooper's Remarriage This Saturday

Who Is Governor Hickenlooper?

Colorado's Governor Hickenlooper is arguably the most popular politician in recent history in Colorado.  After one full term and most of a second one as Mayor of Denver, he ran as a Democrat to be the state's Governor, won, and was re-elected.  He gave his sixth State of the State address yesterday to a joint session of the Colorado General Assembly.

What Is The News About Governor Hickenlooper's Marriage?

In every organization, the people below scrutinize the personal lives of the people above them, in part because, they have no authority to stand in judgment over them in their professional lives.  A Governor is above almost everyone but the President, U.S. Senators, royalty, Forbes 100 members, the Pope, the Dalai Lama, and A-list celebrities are below them on our society's status pyramid, so just about everyone is inclined to scrutinize a Governor's personal life.

Governor Hickenlooper is 63.  His son is close in age to my own son, although they attended different schools.  He separated from his wife of ten years the same week that I did.  My wife and I after a couple of year of separation, managed to get back together, calling off divorce proceedings a matter of days before our permanent orders hearing that would have finalized the split would have happened.  Mr. Hickenlooper, and his wife, Helen Thorpe, ultimate divorced after an extended period of separation in one of the most civil and public drama-free splits that can be imagined.

Five years later, after a year of dating, he proposed to his 37 year old girlfriend over Christmas. They will be married tomorrow in a very small, very private ceremony held at an undisclosed location after just three weeks or so of an engagement - with timing dictated by Colorado's legislative calendar, which dictated that they have a small wedding before the legislative session in moving forward in earnest, or have a huge wedding after the legislative session was over.  He received a bipartisan sendoff with legislators showering him and his fiancee with rice walked down the aisle out of the legislative chamber.

The Political Impact

Sooner or later, people are going to start talking about how this impacts Governor Hickenlooper's prospects as a Presidential candidate in either 2020 or 2024 (depending upon whether or not a Democratic wins the Presidential race in 2016).  Helen Thorpe, who married Hickenlooper shortly before he ran for Mayor, is an accomplished author in her own right, but has never had much of an interest in playing the role of a socialite first lady, either when Hickenlooper was Mayor, or when he was Governor, and has made a bare minimum of campaign appearances during her marriage (although I have seen her at a couple of those).

Barring service as the President, Governor Hickenlooper would also be an attractive Vice President, potential cabinet member, commission director or ambassador for a Democratic President.  He could run for the U.S. Senate from Colorado when an opening arises on the Democratic ticket for that post. Alternately, he could return to the world of business, or could enter the non-profit sector (perhaps, for example, as a university system chancellor). Hickenlooper is not a lawyer, so a judicial post is not in his future. Surely, he will not withdraw from the world of politics entirely, no matter what he choses to do, even if it once again becomes a mere avocation for him.

Generally speaking, being in a marriage with someone who may be more willing to play a role in the process of campaigning and playing a part in her spouse's political life is an asset and makes a political career path more attractive than it would be with a spouse who wants nothing to do with that process in the household.

A Personal Take

Personally, Hickenlooper's marriage is an occasion for me to briefly acknowledge how close my wife and I came to pursuing a very different path.  It is not a path that I wish I had taken, but it would have made our lives, and the lives of our children, very different it we had, and as in Hickenlooper's case (at least in the public view), if it had happened differently, it would have been exceptionally civil and low conflict (at least to all appearances, regardless of the emotional turmoil involved).

A Measure Of How We See Divorce And Remarriage Today

In the brief time available to them, the Denver Post and other media outlets have squeezed in everything possible about May-December weddings.  Already, this discussion includes a discussion of whether or not the new couple will end up having children together.  This is interesting, but it is also old news as the long parade of celebrities in such relationships and many otherwise perfectly ordinary people in such relationships that the stories explore, illustrates.

Divorce is a bipartisan reality.  Democratic and Republican public officials both get divorced and serve the public well in their public duties while failing to keep their marriages together.  The well to do divorce much less often than the members of the working class and the poor (both of whom often split up without ever managing to get married in the first place, even when they have children together).  But, no socio-economic class from royalty to vagrancy is immune to relationships that don't last.

Overall, I think we have as a society reached a level of maturity where we can acknowledge that even decent, basically good people can have relationships that grow fragile and break.  I think that Governor Hickenlooper and Helen Thorpe are good examples of such people.  I recognize that it can be particularly hard when careers and avocational activities take a front seat when it comes to priorities in a couple that doesn't share the same passions in those pursuits.

People Can Be Excellent In One Domain While Merely Mediocre Or Even Horrible In Another

Most of society has not reached the level of maturity necessary to understand that people can be paragons of virtue in some respect and seriously flaws in some other respect, and probably never will.

But, I am well aware that this is true in real life.

It is entirely possible that either Governor Hickenlooper, or Helen Thorpe, or both of them, are not just not made for each other, but are actually really not very nice in how they handle personal relationships.  As outsiders, we can never know, and on balance, that is a good thing, as even politicians are entitled to some respect for their privacy, at least if they don't exercise their power to impose hypocritical standards that they can't live up to themselves upon others.

I do not in any way hint that this is actually true, and to all outward appearances it is not.  But, even if it was true, this does not in any way detract from the fact that Governor Hickenlooper is one of the most remarkably good politicians in the nation, or that Helen Thorpe is an accomplished author. People can be genuinely and deservedly excellent in once domain, and simultaneously be abysmally bad in another.  A person's personal life is often a poor gauge of their professional competence.

Similarly, there is nothing irreconcilable about the possibility that Bill Cosby could be a masterful comedian, and perhaps even a good father and not intolerable husband, while simultaneously being a serial philanderer who at a minimum abused the trust and inappropriately manipulated a great many women (many during his marriage) and at worse was a serial rapists whose celebrity helped empower him to continue is pattern of drugging and having sex with women who were little more than strangers without their consent.

I recently finished the book The Tale of the Dueling Neurosurgeons by Sam Kean, which tries to inform its readers about neuroscience in the context of memoirs and anecdotes about the lives of some of the most notable doctors and patients who brought us to our current level of understanding. Many of the most illustrious neurosurgeons engaged in some form or another of questionable conduct, and of the greatest, who pinned down the cause of the Papuan neurological disease call kuru, and was critical in co-discovering the class of diseases caused by infectious agents called prions, such as Mad Cow disease and Alzheimer's disease, was also almost surely a pedophile who preyed on pre-teen and teenaged boys, a practice that was more tolerated in certain tribes in Papua New Guinea than it was in the contemporary United States where he was ultimately prosecuted for this conduct when he was in his 70s.

To take another example, Presidential candidate Ben Carson is, by all accounts, an outstanding neurosurgeon.  But, he is also, simultaneously, in other domains an incredibly credulous, superstitious, naive, and paranoid individual, and unfortunately, his faults are in areas which while irrelevant to neurosurgery, are very relevant to the job of serving as the President of the United States.

For that matter, lots of abominable political leaders who have committed crimes against humanity as Nazis or in other totalitarian regimes, are also excellent family men.

It isn't that genius in one field necessarily requires moral flaws in another domain.  But, genius in one field and deep flaws in some other domain can exist in the same person.

Parenting

Also, while it is appropriate to be concerned about how the breakup and remarriage has impacted their son, it doesn't hurt to recall that perhaps the second most remarkable individual in all of Colorado politics, Andrew Romanoff, is a son of divorced parents who had a far less civil divorce than Hickenlooper and Thorpe did.  Indeed, it isn't unreasonable to infer that Romanoff owes a fair share of his remarkable ability to build consensus and forge compromises to growing up with divorces parents, one of whom is a very political Democrat, and the other of whom is a very political Republican.  And, while the evidence is pretty clear that for kids, parents who stay together is often better for them, even when the marriage is not a net benefit either of the parents, the next best thing is for unmarried parents to stay civil with each other, to keep focused on the best interests of their children, and to keep their own relationship problems out of the children's lives as much as possible. Their son is likely to get a pretty good approximation of the next best alternative.

Visionary Legal Scholarship

Rachel Harmon's article "Why Arrest?" is one of those rare pieces of legal scholarship that fundamentally challenges the mainstream worldview upon which a major institution, arrests in our criminal justice system is based.

She marshals unexceptional and widely known facts, together with counterintuitive empirical realities about the way people act in the criminal justice system to argue that good policy dictates that the tool of an arrest should be used far less often, even when the law clearly permits arrests.

There are two main alternatives that she suggests.

One is  a "criminal citation" in which persons suspects of crimes are issued a summons to appear in a criminal court to face charges similar to a traffic ticket for non-traffic crimes.  The utility of this option is driven by the high rate at which people receiving criminal citations appear in court, even for serious crimes, and by the strong predictability with which objective factors can determine that someone is likely not to appear.  This follows naturally from the long known observation that people released on personal recognizance without bail pending a criminal trial are just as likely to show up for trial, for the most part, as people who post-bail.  She also notes that tools like cheap mobile digital photography and mobile fingerprint scanners, can make criminal citations even more effective.

She notes as a precedent the fact that civil actions, like criminal prosecutions today, once used to be routinely initiated with arrests.

Another key alternative, somewhat paradoxically, is the "field detention", in which an officer detains an individual who presents a threat to public order, briefly depriving him of his liberty and perhaps transporting the person to someplace other than a jail, such as a mental health treatment center or homeless shelter or home, rather than booking the individual and charging that individual with a crime.

In her view, arrests should largely be reserved for people with histories of failure to appear at trial, people with significant criminal records, and people who pose such a threat of violence that pre-trial release on bond would also not be appropriate, dramatically reducing the many hidden costs of a policy of the predominant use of arrests as tools in the criminal justice system.

The problems associated with the excessive use of arrests as a criminal justice tool are similar to those associated with our excessive use of pre-trial detention and bail, and the sharing of information from the booking process even when someone is not charged with or convicted of crime leads to increasingly serious reputational harm with real economic consequences.

Her more human vision of criminal justice could make us a more human ad civil society without sacrificing safety and personal security to nearly the degree that our intuition, untrained by empirical evidence, would suspect.

Emily Ryo's article, "Less Enforcement, More Compliance: Rethinking Unauthorized Migration", meanwhile examines the paradox that undocumented immigrants tend to be much more law abiding than native born citizens with similar demographic profiles.  Her key conclusion is that illegal immigration is rampant, even among otherwise law abiding people, because there are a variety of widely held viewpoints which permit people to conclude that undocumented immigration is illegal, but not immoral.  The secret to great compliance, she reasons, is to better align immigration laws with widely held views regarding moral imperatives.

For example, if a temporary guest worker program allowed many undocumented aliens to work on a temporary basis in the U.S. in fields where there are labor shortages and workers face the economic need to support their families in their home countries, it is likely that there would be more voluntary compliance with immigration laws because they recognize the legitimate needs of employers and workers alike.

Rocky Ford a.k.a. Bad Copville

Rocky Ford is not a town with a good track record of quality control.

For the past few years, until a few months ago, the small town in Southeast Colorado was known for the disastrous listeria ridden cantaloupes called "Rocky Ford Sweets" from Jensen Farms that killed thirty-three people in 2011.

Now, it has another claim to infamy.  It turns out that the town made it its business to hire cops who had already been discovered to be bad apples.  Four out of ten officers on the force have prior serious criminal records or histories of discipline in previous law enforcement jobs.

In November of 2014, one of those bad cops with a history of using excessive force shot an unarmed man in the back, killing him, and then pepper sprayed the man and fled, while on duty.  Unlike most cases of this type, the bad cop who did it was fired and charged with second degree murder in a prosecution that is currently in progress.

This "second chance" hiring policy may have been modeled on the Vatican's policy of relocating priests who sexually abused children to new posts where families of new potential victims didn't know about the priests' prior crimes.  The policy didn't work out well for the Roman Catholic Church.  It turns out that their second chance priests (and often there were many "second" chances), had a strong tendency to reoffend and require the church to engage in more cover ups.

It also doesn't turn out to be working that well for Rocky Ford.

There is absolutely room in the world for giving people second chances in life.  But, giving someone a second chance in life doesn't mean that one should give that person who has proven himself to be ill suited for a task a second chance in a position of public trust ripe for a repeat of the mistakes that this person made the last time.  A second chance like that is just another name for corruption.

If you give a priest who abused children a second chance (and that second chance should come only after the priest and the church apologizes to the victims, tries to compensate the victims, reports the incident to authorities and punishes the priest), that second chance should be an a monastery or a prison ministry, not a parish serving young families or a youth camp.

If you give a cop who screwed up a second chance, it should be in a position that doesn't involve giving him a gun, or putting him in a position of authority over others, like driving a truck, working on a farm, or framing new apartment buildings.

Of course, as the Denver Post's excellent investigative journalism on this story (credit where credit is due in an increasingly understaffed newspaper) points out, the Colorado Board of Peace Officer Standards and Training, the licensing body for state and local law enforcement officers in the state, is also to blame.  At least 39 other states make it harder for bad cops to remain licensed as law enforcement officers and at least 18 other states require employers of bad cops to inform state authorities when police officers are fired or resign.  In contrast, "Colorado will not even share the employment history it does have with the chiefs wanting to know about an applicant's background."

If the state licensing authority for law enforcement tells law enforcement offices that an individual meets state standards to do the job, it is natural that offices with tight budgets, like Rocky Ford, are going to hire bottom of the barrel candidates in order to make it possible for them to pay bottom of the barrel salaries.

Yet, when the government puts someone on the street with expanded authority relative to an ordinary person to use deadly force, qualified immunity from civil liability, and deadly weapons, privacy should take a back seat to public safety.

Not all tragedies can be prevented.  Some are inevitable.  But, we need to do a better job at preventing the tragedies that are eminently predictable.

Larimer County Judge Is Suspended, Publicly Censured And Resigns

Larimer County, Colorado Judge Robert A. Rand was suspended on July 3, 2013 and then accepted a resolution of his case in which he received a public censure (in case 13SA172) from the Colorado Supreme Court, and resigned on February 10, 2014.  Somehow, I managed to miss the news when it happened.

The censure identifies seven instances when he made inappropriate joking comments about people who encountered in the court, six of which were sexist.  It identifies two instances of inappropriate ex parte communications, one as a result of technological ignorance about how to do a conference call and a more serious case where he talked to a former paralegal related to a married couple coming before him as criminal defendants and failed to recuse himself.  It also identifies numerous inappropriate, off the record discussions with criminal defendants after proceedings ended.

The disciplinary counsel has identified problems created by the excessive confidentiality requirements involved in the formal judicial disciplinary process that is rarely invoked.

On the whole, it is reassuring that Colorado's judicial disciplinary process manage to bring about the resignation of a judge who engaged in repeated, albeit minor, judicial ethics violations, without the intense political tussle of a legislative impeachment proceeding or cumbersome and not always well informed process of a retention election.

The Day After And Other Rants

In any hard fought sports competition, even at the highest level, someone wins and someone losses, even if there are no non-forced errors.  Alas, the Superbowl wasn't like that.  The Broncos utterly impolded.  Some of their errors, like the safety that resulted when the center wildly overthrew the quarterback on the very first play after the kickoff, were amateur hour screw ups that were entirely our fault.  Others, like consistent failure to secure the twenty yard on kickoff returns that a mere fair catch could have secured, or our challenge of a pretty clearly correctly called play, or our failure to have someone in position to prevent the Seahawks from scoring a touchdown on a kickoff return, were cases of bad judgment.  When it comes to the multiple turnovers - there isn't much to say except that our offense was totally outclassed by their defense on that given day.

You'd think that after an incredible season during which Peyton Manning dazzled the fans with the best offense in the NFL that produced a 13-3 record in the regular season, plus several undefeated playoff games and broke numerous long time offensive records, we would have fared better.  The point spread had us favored by two.  But, if you want a powerful example that factors like momentum and moral matter, at least in football, this was it.  This was a game lost not just by one mistake, but by one after another after another.  At the end of the first quarter, it seemed like it might be possible for us to rally and overcome as we had several times before, but by the conclusion of the first few seconds of the second half, the parade of errors had grown insurmountable and we were clearly and irrevocably off our game.  Sports bar patrons started going home early and we all slunk our heads.

Overall, it was a good season.  The last time we were in the Superbowl was before my children were born.  But, yemaleagun*, what a horrible finish!

* A mild Swedish expletive (spelled phonetically and probably incorrectly) frequently uttered by my mother and my maternal grandparents in my youth, whose direct translation is not known to me, but is used in circumstances where an English speaker might say "damn!"

* * *

There are professions that are not illegal, but which I have a hard time imagining someone who doesn't have a serious morality deficit entering into with a genuine knowledge of what they involve.  Two of those are immigration enforcement officer and drug enforcement agent.

Granted, there are rare cases where immigration officers use immigration laws for somewhat morally justifiable purposes, like deporting short time immigrant felons, or rescuing involuntary immigrants who are the victims of human trafficking rings.  But, the vast majority of the time, they simply destroy the lives of people who are guilty of nothing more than seeking better futures for themselves and their families and who aren't hurting anyone.  How can someone who isn't sadistic, or at least lacks any sense of empathy, enjoy that kind of work?

The legal ethics of lawyers specifically forbid us from threatening to report people to immigration authorities to gain an advantage in a civil case.  Doctor-patient privilege typically forbids them from reporting their patients, although the issue of getting paid for the work rendered to these patients complicates the matter.  Schools too, frequently operate in a don't ask, don't tell world - a sensible policy given that many children of undocumented immigrants are themselves U.S. citizens by birthright, and that we do not need a new generation made up of illiterate youngsters unable to function viably in the modern world.

The people on the receiving end of their actions frequently have little or no capacity to access the minimal due process to which they are entitled, and mostly, the law itself is an ass, tearing apart families, preventing hardworking capable people from seeking a better life, not infrequently deporting people who genuinely face persecution, and creating a grey market for the services of undocumented immigrants where they are exploited undermining legal workers as well, and imposing conditions of detention that are dubious in the process.  Since immigration is viewed as a status, rather than an act of unlawful entry that can have a statute of limitations, someone who has lived peaceably in the U.S. for decades, even as far back as they can remember, must still live at risk of deportation and live in the shadows every day.

Similarly, while there are cases where some mild criminal sanction can force a drug addict to turn himself or herself around, or while drug dealing can provide resources to criminal gangs that resort to violence mostly because of the fact of drug prohibition itself, all too often, the criminal justice remedy is worth than the problem itself.  Hundreds of thousands of lives have been thrown away with senselessly long sentences for minor drug violations.  Often they are guilty, but the length of the sentences are a monumental silent tragedy.

The nature of the crime, in which mere possession amount to guilt, has undermined the physical personal integrity of all of us at the hands of law enforcement.   Drug mules playing minor roles in the drug trade for ill chosen loved ones often end up serving decades or their entire lives in prison sentences that cost the public immense sums, while their higher ups serve shorter sentences bargained with the information they can provide about co-conspirators.  Absurd headlines like "Drug Warriors Kidnap and Sexually Assault a Women After Getting Permission From a Dog" have all too often become our reality instead of a bad joke.

Decent moral middle class people don't report violations of drug laws, unless the offender has also done something more morally blameworthy, like killing or ordering the killing of people in connection with that trade or destroying the liveability of their neighborhoods, because they have leaned the lessons of the decades old drug wars that involving law enforcement ruins lives and leaves no one better off.

The same phenomena is evidence in the absurdly lengthy sentences meted out to people (almost entirely socially awkward, but harmless old men) who watch and share child porn on the Internet for free.  Tasteless, yes.  Appropriate to make illegal to discourage its production, granted.  But, something that is appropriate to punish for hard time in prison?  Not except in the rare cases of the people who actually produce it, or at least make a livelihood out of distributing it.

In a world were sentencing was proportional to the seriousness of the crime, these men would not be put in prison for five years to many decades.  The ordinary case of someone who just watches it should be a low grade misdemeanor.  The case of someone who distributes it gratuitously, a serious misdemeanor.  The case of someone who makes significant profits from distributing it, a minor felony of a few years at most for all but the most extremely profitable distribution operators.  But, only actually playing a role in creating it, who are engaged in a particularly blameworthy case of rape ought to be punishable by felonies carrying hard time criminal felonies.  But, too often, watching and collecting and perhaps distributing child porn without any involvement in its creation and no element of personal economic gain garners sentences as long or longer than the perpetrator would have received had he personally raped a child.  Studies claiming that men who watch child porn are usually at high risk to be child rapists turn out to be total bunk.  Yes, child rapists tend to watch child porn as well.  But, the converse is not true.  The vast majority of those who watch wouldn't dream of doing it in real life, just as the vast majority of adults who watch legal orgy and adult rape porn don't actually engage in either kind of conduct.

In general, vice is a purely economic crime.  Someone has made money by breaking the rules.  And, in general, punishments for these economic crimes should be proportionate to the economic gain secured by the perpetrator.  Ordinarily, the punishment shouldn't be any more severe for even someone making tens of thousands of dollars a year as an illegal drug dealer, than simple larceny involving stolen property of comparable value.

Colorado has taken a lead along with a number of other states, in rolling back excessive sentences for most drug crimes, and legalizing a limited recreational and medicinal marijuana trade (apart from federal laws that the federal government lacks the resources and the desire to enforce).

It doesn't escape my notice that many of the worst abuses of government power affecting large numbers of people take place at the federal government level.  Federal drug and child pornography sentences are routinely much more severe than those at the state level in most states.

Immigration enforcement is a purely federal enterprise although many "Red states" would like to jump into the breach of immigration enforcement when federal enforcement is less harsh than local xenophobic conservatives and independents would like.  The Democratic party and even unions are largely united in favoring significant reforms liberalizing immigration laws.  Republicans are split between cheap labor conservatives who favor relaxed immigration laws because of their ties to businesses that benefit from it or out of an ideological commitment to free markets that logically extends to labor markets, and xenophobic, socially conservative Republicans and Republican leaning conservatives who fear that their culture is threatened by immigration of people who don't share that culture and who believe that immigration has undermined the economic well being of blue collar men.

Anyone who has seriously studied the facts would be hard pressed to disagree with the widespread consensus of economists and criminal justice experts that undocumented immigrants contribute more in indirect taxes (like property taxes on rental property and sales and excise taxes) than they consume in public services, and that undocumented immigrants are much less likely to burden the criminal justice system than comparable native born individuals or even the average native born person.  While there is a strong correlation between the percentage of the population in a place that is native born black and serious crime rates (which is not to say that these correlations may be mere indicators of severe poverty and other neutral factors), the correlation between Hispanic or foreign born or undocumented immigrant population percentages and serious crime rates is negligible or non-existence or negative (i.e. more of these populations is associated with less crime).

Econometric studies that have looked at the correlation between undocumented Latin American immigration and the wages and working conditions of blue collar men have seen effects that are very faint.  And, there are reasons why this may be plausible.  Off shoring of manufacturing and other less skilled jobs (like telephone customer service), automation of less skilled jobs, increased access of women to jobs formerly held only by men, and the increasing levels of skill required for the jobs in manufacturing, construction and farming, for example, the remain jobs in sectors that used to employ blue collar men in large numbers have also played important roles in undermining their economic circumstances separate and apart from any role by less skilled immigrants often from Latin America.  But, looking at how the faces of workers in industries like construction and auto repair (and the way that these industries employment practices in these industries) have changed since the 1970s when the economic condition of the native born blue collar man started to stagnate, it hard not to be skeptical of economic studies that low ball the impact of this immigration on their economic circumstances.

Then again, it is also hard not to fault the relative quality as workers of native born men seeking to fill these jobs relative to immigrant competitors in the marketplace.  A large share of the most qualified men in these blue collar professions have secured further education and moved into the white collar workplace, or done well for themselves by employing immigrants in their own small businesses.  As more and more men get college educations, the quality as workers of the remaining men who do not has declined.  Pay for some of these positions has stagnated relative to what it would have had there not been as much immigration, but the construction and repair jobs being filled in droves by Latin American immigrants are hardly minimum wage burger flipping jobs either.  These are jobs that the people who fill them managed to support larger than average American families upon, while living in reasonable working class comfort (one student of socio-economic class called these individuals "high proles") and sending money back to family abroad as well, often without the benefit of unions or labor law protections.

For better or worse, these workers are building the America we know and love and making it the global economic powerhouse that it remains despite the fact that its economic growth has lagged behind that of many of its global peers with merely developing rather than developed economies.  Should we do right by them, given how much they have in fact contributed to our economy, or should be rebuke them and send them packing.  Morally, those in the latter camp are in the wrong.

More NSA Malfeasance Revealed

The U.S. National Security Agency released declassified records that show the spy agency broke rules in targeting specific citizen’s telephone records, and then proceeded to hide it from the courts overseeing the operation.

Director of National Intelligence James Clapper released the records Tuesday in response to a series of lawsuits filed by privacy groups. The documents cover the four years stretching from 2006 to 2009.

From here.

NSA Concealed Abuses From Justice Department and Director of National Intelligence

The National Security Agency not only violated the privacy rules we are supposed to trust it to obey thousands of times a year in a trend that has gotten worse and worse since 2008, it concealed the extent and nature of the abuses from oversight officials in the Justice Department, the Director of National Intelligence to whom it reports, and established unconstitutional programs without obtaining even FISA court approval. In a related Washington Post article, the chief FISC judge is quoted stating:

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

But, this isn't really true.  In genuine courts, which have an adversary system and transparency, the people who could be harmed by government non-compliance with its order are informed of the existence of the orders and people allegedly harmed by a violation of an order have standing to enter an appearance contesting the order.  In the FISC case, only the government has standing to appear before the Court, the Orders that might be violated are known only to the government, and noncompliance is punished only if the government asks the Court to punish it.  Needless to say, this (almost never) actually happens - probably just once in the fall of 2009.

Congressional oversight committee members never saw the audits that showed this was the case and NSA employees were instructed to be purposefully vague in even internal reporting about their own abuses.  In general, Congressional efforts to provide oversight are muzzled and often thwarted by the agencies.

Former NSA contractor Edward Snowden, increasingly looks like a Patriot and not a criminal, for revealing this massive web of NSA lies, deceit and abuse.

Every day that evidence mounts that a massive overhaul of how the federal government conducts intelligence activities needs to be undertaken to provide meaningful privacy protections to Americans (and to foreigners not involved in diplomatic or terrorist activities), and to provide meaningful oversight of an agency that even members of Congressional intelligence committees, supposedly overseeing courts and senior federal officials with jurisdiction over the NSA aren't told about, but private contractors can find out about.  The NSA is broken in a way not easily mended.

Simply put, the way the NSA is operating is un-American and Unpatriotic.  Its activities are doing as much to undermine the values of our country and our national security as they are to preserve it.  They have stopped working for "Team Good" and starting working for "Team Evil."  Our elected officials have the power to act, but they need to exercise it.

Texas Still A State With An Abusive Criminal Justice System Problem

In multiple unrelated incidents, dash cams on police cars have caught Texas police officers conducting unreasonable body cavity searches in an unreasonable manner, allegedly searching for contraband drugs.

The cases also seem to have a strong "driving while black" arbitrary stop character to them.  The similarity and brazenness of the conduct in incidents involving officers not related to each other closely in time and place suggests that this is a larger pattern of conduct statewide in Texas.

The clarity of the police video evidence has led to criminal charges and employee disciplinary action against some of the perpetrator female police officers, in addition to lawsuits.  To some extent this corresponds with a growing shift in public opinion that sees strip searches and cavity searches for people who have committed only minor offenses, or have not been incarcerated, as abusive punishments rather than merely justifiable procedural matters.  As an attorney for one of the Texas women searched sums up the view:

"They basically raped them on the side of the road."

I expect that judges and legislators, despite the fact that challenges to these procedures have been rebuffed already in many cases, are going to eventually decide that this kind of invasive searching is not acceptable on the routine basis that it is used today.

Feds Lied About Benefits Of Domestic NSA Surveillance

At a Senate Judiciary Committee hearing, the chairman, Patrick J. Leahy, Democrat of Vermont, accused Obama administration officials of overstating the success of the domestic call log program. He said he had been shown a classified list of “terrorist events” detected through surveillance, and it did not show that “dozens or even several terrorist plots” had been thwarted by the domestic program. . . . The Obama administration has been trying to build public support for its surveillance programs, which trace back to the Bush administration, by arguing that they are subject to strict safeguards and court oversight and that they have helped thwart as many as 54 terrorist events. That figure, Mr. Leahy emphasized, relies upon conflating another program that allows surveillance targeted at noncitizens abroad, which has apparently been quite valuable, with the domestic one. . . . John C. Inglis, the deputy director of the N.S.A., said there had been 13 investigations in which the domestic call tracking program made a “contribution.” He cited two discoveries: that several men in San Diego were sending money to a terrorist group in Somalia, and that a suspect who was already under scrutiny in a subway bomb plot was using a different phone.

From The New York Times.

[U.S. Senator Leahy] noted that senior officials had testified that the phone logging effort was critical to thwarting 54 plots, but after reviewing NSA material, he said that assertion cannot be made — “not by any stretch.” Pressed by Leahy on the point, Inglis admitted that the program “made a contribution” in 12 plots with a domestic nexus, but only one case came close to a “but-for” or critical contribution.

From The Washington Post.

And thus, 54 terrorist events detected became one plot to which the program made a critical contribution, over many, many years of monitoring every single phone call of every single American in the United States. This tips the balance quite a bit. It is not at all clear that a House vote of 207-217 rejecting limitations on NSA domestic surveillance made last month would have survived if the administration's lies about the program's effectiveness in preventing terrorism had been available at the time. The fact that it took an illegal disclosure by an outside contractor to get the administration to tell Congress the truth or to release basic information about the program also casts doubt on the effectiveness of Congressional oversight of the program.

A key question in my mind is whether the "critical contribution" was one for which a request support by "probable cause", or even a "reasonable suspicion" related to a particular suspect or even a particular terrorist plot or group for which names are not known, could have achieved the result, or if this "critical contribution" would not have been possible but for a blind search.  If the critical contribution came from finding another phone of a subway bomb plotter, one might think that it could have been.  If the critical contribution was related to people sending money to a terrorist group in Somolia, I'm inclined to think that greater privacy protection might be worth missing one instance of terrorist group funding found with a blind search that couldn't have been found any other way.

On the whole the updated effectiveness data strongly suggests that probable cause based investigation is not just legally sound, but is also an extremely good discriminator between almost worthless blanket searching and highly fruitful targeted searching.

Bonus:  Absurd details about the FISA Court.

America Is Flawed But Not Broken

Sometimes things fall apart.

In the Great Depression, our nation's existing institutions collapsed.  The banking system collapsed.  The stock market crashed.  Soup kitchen lines wound around blocks as no one had jobs.  Most of the lawyers in New York City were earning less than poverty line incomes.  Unemployment rates surged to unprecedented levels.  The Dust Bowl buried whole farm communities in sand.  In Germany, inflation grow so intense that a wheel barrel of cash would barely buy you breakfast.  Angry crowds gathered.  In reaction, the New Deal changed the scope and scale of the federal government so profoundly,. with enactment of programs like Social Security, securities regulation, huge federal public works programs, that political scientists often describe this transformation as a new constitutional system even greater than the one brought about in the aftermath of the U.S. Civil War even though the transformation didn't involve an overhaul of the legal document adopted by the states in 1789.

In contrast, the Financial Crisis shuttered a lot of financial firms, financially ruined a lot of real estate investors, destroyed a lot of middle class home equity wealth, and left a lot of young people in the lurch as they tried to start careers, but our economic system didn't fundamentally collapse, and ever slow slowly, the economy has recovered without a wholesale overhaul of the workings of our economy.  Instead of crowd of unemployed office and factory workers in soup lines and Hoovervilles in every city in the nation, we had a few hippies occupying public parks in a few big cities and college towns.  Many people lost homes but almost no one starved.  There was corruption in the way that a wave of foreclosures were handled, but basically, the ordinary legal process for foreclosures and bankruptcies continued to function on a stressed but normal basis.  A few stimulus bills were passed, but not the massive make work programs of the Great Depression.  New housing construction tanked, but in Denver at least, lots of public works programs planned before the economy collapsed continued as planned and there were even isolated small scale infill developers continuing to grow the city.  The federal bureaucracy was reshuffled a bit and financial regulations were tweaked, but there were no reforms so dramatic that someone who wasn't a policy wonk could tell the difference between the before picture and the after picture.

Many European nations are experiencing double dip recessions, there is one regime toppling sovereign debt crisis after another, and the depth of their economic slumps have been greater than they suffered in the Great Depression.  In contrast, in the United States, the financial crisis may have been the worst economic downturn since the Great Depression, but it was just a very, very bad recession, not another Depression that did not lead many people to conclude that a fundamental overhaul of the kind of economic system we used (e.g. a switch from democratic capitalism to communism or fascism) was necessary.

The levels of organized crime, violence directed at law enforcement officers and politicians, gang violence and corruption associated with Mexico's drug war is at levels not seen in the United States, which has near record low homicide rates at the moment, since Prohibition.

Afghanistan has been in a state of civil war with only brief interruptions since 1978 when disco was cool and bell bottoms were chic.  It still hasn't achieved peace.  The U.S. Civil War ended in 1865 and it has been more than a century since the U.S. Army was involved in last of the Indian Wars.

In Iraq this week, Al-Qaeda in Iraq used rocket propelled grenades, mortars, and twelve suicide bombers to simultaneously break hundreds of prisoners each out of two of the country's prisons.  I'm not sure there has ever been a prison break of that magnitude of all of U.S. history.  Indeed, the number of people who escaped by force from within the walls of Iraqi prisons this week is probably larger than the total number of people who have escaped by force from within the walls of prisons in the United States since the Civil War ended.

Despite Congressional brinksmanship in a period of divided government, somehow our elected officials have continued to be able to pass budgets that keep the federal government in operation and have found ways to appoint enough senior civil servants to run the government.  The Courts are still open and functioning, even if their performance sometimes leaves much to be desired.  While progress these days in the United States is often a two steps forward, one step back process, there is a steady drumbeat of steps taken to help address, at least partially, one or another of our nation's many flaws.

In contract law, there is a distinction between cases where there is no substantial performance of a contract, where the contractor receives no compensation for the work done, and cases of flawed but substantial performance, where the contractor is entitled to the contract price for the work done reduced by the cost of completion or the diminution in the value of the work done caused by its flaws.

American society is flawed, but it isn't fundamentally broken.  We are in an era where reform overwhelmingly seems like a better course than revolution.  On balance, this is a pretty good thing to be able to say about our society.

This suggests that reform minded people like myself, and policymakers generally, should be as cautious about avoiding unintended consequences of reforms that make things worse as they should about fixing the flaws in the system that we are perfectly aware exist.

It is much easier to determine why something that is flawed isn't working than it to know precisely why something works.  Most policies that are broken are broken for just a few reasons, and often enough because just one thing isn't done correctly.  In contrast, when complex systems work, it is often because myriad different components of the system that are all necessary but not sufficient for the system to work come together in concert.

It is very common for conventional wisdom, and even very smart people, to misunderstand why a complex system works when it works - overemphasizing the importance of parts that actually aren't critical, while overlooking the importance of features of the system that aren't emphasized or even acknowledged as being part of what makes the system work.

In a situation like the one American society confronts today, it is as important to not try to fix the parts that aren't broken as it is to grease the squeaky wheels.