22 August 2014

Vote Yes On Colorado Amendment 68

Colorado ballot issue 68 would amend the state constitution to allow casino gambling at three existing horse racing tracks, one in Aurora, one in greater Grand Junction, and one in Pueblo. Special taxes on the casinos would be applied to K-12 education and charter schools.

It is supported by Rhode Island's Twin River Casino. The sanctimonious ads opposing it from "Don't Turn Racetracks Into Casinos" are paid for by a coalition of (at least) five of Colorado's existing casino operators. This measure has almost no financial support or opposition from anyone who isn't in the casino business.

As Ballotpedia, linked above explains:
Voters rejected the legalization of horse and dog racing in 1940, but later approved such gambling in 1948. In 2003, an initiative to allow video lottery at specific horse and greyhound racetracks with some proceeds going towards tourism promotion and open spaces for parks and recreation was defeated with fewer than 20 percent of voters supporting it. . . .

Following the 1990 legalization of casinos in Colorado, the state's first casino was opened in 1991. As of 2013, Colorado had 41 operating casinos employing 9,278 people. Gambling revenues in Colorado are subject to a graduated tax with a maximum assessment of 20 percent. This came to a total of approximately $104.26 million from casinos in 2013. Gambling revenue taxes are not currently allocated specifically to kindergarten through high school education. Instead, they are allocated to local communities, historic preservation, community colleges, tourism promotion and the general fund.

Colorado also has a state lottery, which has been operating since 1983. The lottery was made possible by a 1980 ballot measure, Referendum 2, which also required the net proceeds of the lottery to be put in the state's conservation trust fund. In 2013, the lottery contributed $59.2 million to the Great Outdoors Colorado (GOCO), $54.3 million to the Conservation Trust Fund, $13.6 million to Colorado Parks and Wildlife and $8.6 million to the Public School Construction Assistance (BEST Program).
The case for saying no to three new casinos at locations where gambling is already conducted would hold much higher moral ground if it weren't for the fact that Colorado already has a state lottery, horse and greyhound gambling, and 41 casinos. The fact that the opposition is funded by existing casinos fighting to reduce competition in locations that are more convenient than their own, while claiming to have other justifications for their position also isn't impressive.

When it comes to gambling, the people of Colorado aren't virgins; they are whores. Preventing three new casinos from opening in places were two other kinds of gambling are already legal won't make the state any more pure, but may raise a little tax revenue for schools and may help Aurora's struggling economic situation.

From my perspective, as a Denver resident, I'd much rather have Aurora open a new casino that doesn't compete directly Denver venues, than have it pursue Aurora's recent efforts to build a Convention Center to compete with the one in downtown Denver linked into a regional public transit plan, or Aurora's effort to steal the stock show from Denver. An approach to developing the tourism industry in Denver that doesn't undermine huge investments in the same thing that have already been made in the metropolitan area by building a casino is a better choice. Maybe Aurora's next step will be to attempt to legalize and tax the prostitution industry that thrives on its stretch of East Colfax.

The opposition to Ballot Issue 68 (which has outspent the casino's effort to pass it by more than three to one) is pure astroturf with no more concern for actual public opinion than the campaign to prevent a new taxi service and Uber from entering the metropolitan Denver transportation market. Given this reality, allowing three more casinos to enter the gambling marketplace in exchange for more taxes is the right choice.

Vote Yes On Colorado Ballot Issue 68.

21 August 2014

9th Circuit Holds That There Is No Tag Jurisdiction Over Corporations

Executive Summary

The 9th Circuit held today a trial court cannot have jurisdiction over a corporation merely because it was served with process in a state (i.e. "tag jurisdiction"), joining the 5th Circuit in taking that position, and continuing a circuit split that had already existed with the 1st Circuit which has taken the opposite position.  It held that only natural persons can be subject to "tag jurisdiction."

The decision, which concisely recounts the entire history of the leading cases in personal jurisdiction law is certain to found in almost every law school casebook on jurisdiction unless it is superseded by a subsequent opinion of an en banc panel of the 9th Circuit or by the U.S. Supreme Court.

The issue remains unsettled in the eight other numbered U.S. Court of Appeals Circuits, in the D.C. Circuit and in the Federal Circuit.

Background

Normally, if you (1) do not reside or have a regular place of business in a state ("general jurisdiction"), (2) have not engaged in any conduct within a state that gives someone a right to sue you in that state ("specific jurisdiction"), (3) do not own property located in a state ("in rem" and "quasi-in-rem" jurisdiction), and (4) have not legally agreed to be sued in a state (consent to jurisdiction), then you cannot be sued in state or federal trial courts in that state.

In the case of general jurisdiction, you can be sued without regard to the nature of the lawsuit.

In the cases of specific jurisdiction, in rem jurisdiction, quasi-in-rem jurisdiction and consent to jurisdiction, moreover, you can only be sued in the state in connection with the conduct or property that give rise to jurisdiction there, or within the scope of the matter to which consent to jurisdiction has been provided.

There are close cases under each of these four rules. Is there general jurisdiction if you live in a vacation house in the state for one month a year, or if your corporation sets up a temporary office in the state for a couple of months to response to some short term business need of a client? Does your conduct count as taking place in a state if you make a telephone call to a state or send good to a state, but never set foot there yourself? Where is a bank account located for jurisdictional purposes? Does a contract providing for jurisdiction in a state for conduct "arising out of, or related to" a contract cover a dispute arising under a separate contract without that clause between the same parties?

Even when there is no basis for jurisdiction under any of these four grounds, there is one more way for a state or federal trial court to obtain jurisdiction over a defendant named in a lawsuit.

Service of process on a natural person within a state upon a person who has no other connections to the state in connection with a lawsuit unrelated to a state is a fifth basis upon which a court can obtain jurisdiction over a defendant ("tag jurisdiction") under the U.S. Supreme Court case of Burnham v. Superior Court, 495 U.S. 604 (1990) (holding that personal service upon physically present defendant suffices to confer jurisdiction, without regard to whether defendant was only briefly in state or whether cause of action was related to his activities there).

In one notable case, tag jurisdiction was found to be sufficient even when the person served with process was merely flying over the forum state on a commercial airplane flight when the flight had neither a point of departure or a destination in that state.

Today's Decision

The facts related to the first four grounds for asserting personal jurisdiction were not close, in the case of Martinez v. Aero Caribbean decided today by the United States Court of Appeals for the 9th Circuit, as they related to defendant Avions de Transport Régional (ATR).

ATR was a French aircraft manufacturer whose allegedly defective plane carrying Lorenzo Corazon Mendoza Cervantes crashed in Cuba, killing everyone on board, the facts on these four theories were not close. ATR has no offices for the conduct of business and no property in California. None of the manufacturing or design or maintenance of the airplane took place in California, and neither did any part of the flight to Cuba that crashed. And, AFR had not consented in any way in any agreement or document to the jurisdiction of California's courts.

The only connection the case has to California is that the heirs of Martinez live there, and that the Vice President of Marketing of ATR was served with process, after an attempt to service the company with process in France had been held to be invalid, while he was attending a marketing conference in California.  Delivery of legal papers to the Vice President of a corporation is valid service of process under the applicable law in a case like this one, if the court otherwise has jurisdiction over ATR.

If tag jurisdiction applies to corporations served with process in a state, then the federal district court in the Northern District of California would have jurisdiction over ATR.  If it does not, then it must be dismissed as a defendant for lack of personal jurisdiction.  The issue was a matter of first impression in California, although other cases in the 9th Circuit and in the U.S. Supreme Court have implicitly acted in ways consistent with today's decision.

The question of whether tag jurisdiction can be established over a corporation is not settled law, however, and resolution of the issue is complicated by the fact that the reasoning behind Burnham is unclear. In Burnham, there was unanimous support for the result, but no one opinion's reasoning commanded a majority of the U.S. Supreme Court's nine justices. As the Martinez panel in the 9th Circuit explains:
Justice Scalia, in a plurality opinion joined in full by Chief Justice Rehnquist and Justice Kennedy and in part by Justice White, concluded that tag jurisdiction satisfied due process because it accorded with the “firmly established” historical principle that “the courts of a State have jurisdiction over nonresidents who are physically present in the State.” Id. at 610.
Both of the current justices of the U.S. Supreme Court who participated in Burnham, Justices Kennedy and Scalia, joined that plurality opinion. Tellingly, Justice Scalia's plurality opinion also contained a footnote:
Noting that corporations “have never fitted comfortably in a jurisdictional regime based primarily upon ‘de facto power over the defendant’s person.’” Burnham, 495 U.S. at 610 n.1 (opinion of Scalia, J.) (quoting Int’l Shoe, 326 U.S. at 316)
The decision creates a circuit split between the 9th Circuit in this opinion and 5th Circuit in a 1992 decision, which held that there is no tag jurisdiction for corporations, and the 1st Circuit, which has reached the opposite conclusion in a 2001 case.

The 2nd Circuit held in 1998, that tag jurisdiction can apply to partnerships, but the legal analysis in the case of partnerships and in the case of corporations is sometimes different. While the modern rule is that a partnership is an entity separate from its partners, the traditional rule, which is the minority rule today, is that a partnership is not a separate entity from its partners, and the traditional rule is applied by the federal court, by statute, for other jurisdictional purposes, such as diversity of citizenship jurisdiction.

Analysis

Tag jurisdiction is an anachronistic stepchild of personal jurisdiction law, divorced from the legal theories of due process that motivate the other grounds for a court to assert personal jurisdiction over a party.

Indeed, as the 9th Circuit noted in its decision, in some recently decided cases involving assertions of personal jurisdiction over non-U.S. corporations, the U.S. Supreme Court has been reluctant to affirm even that "general jurisdiction" based upon regular contacts with a state suffice to establish personal jurisdiction in a case otherwise unrelated to a state.  See, e.g., Daimler AG v. Bauman (U.S. Supreme Court, January 14, 2014), previously discussed on this blog.

The 9th Circuit has likewise held that in King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579 (9th Cir. 2011), that a corporation’s designation of an agent for in-state service of process does not create general jurisdiction over the corporation, even though there has been a widespread view that this was precisely the purpose behind requiring corporations to do so in order to obtain permission to do business in a state.  Again, this is a decision doubting not just general jurisdiction based upon service of process in a state.  Instead, it doubts the validity of general jurisdiction under the requirements of International Shoe, one of the first modern federal jurisdiction cases, at all.

On the other hand, tag jurisdiction is a very useful legal doctrine from a practical perspective for trial courts.  The percentage of civil cases in a typical trial court where a defendant was served with with process within the state is high, and in those cases, all other personal jurisdictional analysis may be dispensed with, without any need to resort to further jurisdictional discovery or analysis, based solely upon the return of service provided by the process service which is notarized and has been made a part of the court file.

Tag jurisdiction, general jurisdiction, purely in rem jurisdiction, and specific jurisdiction cases such as those based upon automobile accidents taking place within a state, combined, leave only a modest percentage of cases where there is any legitimate doubt about a court's personal jurisdiction over the parties to the case.  But, without tag jurisdiction, there would be good faith arguments against personal jurisdiction that could be made in many of those cases which would require considerable fact specific legal analysis, increasing the cost of routine litigation.

Martinez and the Corporate Personhood Debate

Any distinction between corporate defendants and natural person defendants that is favorable to a corporation fuels an ongoing political narrative about the special treatment that big businesses receive under the law and in politics that is often rolled into a lack of support for corporate personhood.

The recent U.S. Supreme Court holdings that corporations have a right to make campaign contributions that are unlimited in dollar amount under the First Amendment in Citizen's United and that closely held, "for profit" corporations can assert the religious objections of their owners to providing reproductive health care for their employees as they are mandated by the Affordable Care Act (i.e. Obamacare) in the Hobby Lobby case, appear to substantiate this critique and make a decision like the 9th Circuit decision in this case a target for progressive critics of corporate personhood in a very direct way.

Corporations are persons when it suits them, but not when it doesn't, under the law, critics may fairly argue.  And, in general, any technical and procedural legal doctrine that makes it harder for someone harmed by corporate action to secure redress for torts committed against them is problematic for liberals.

On the other hand, tag jurisdiction has long been considered problematic by liberals, because it gives little credit to the due process concerns of the individuals served which differ very little in substance from the due process concerns raised by the corporation in the Martinez case.

While I am certainly more liberal than I am conservative, I don't see "corporate personhood" per se, as a conservative or pernicious doctrine.  Corporate personhood and its close cousin, the vicarious liability of private entities and persons for the acts of their employees and agents, is a critical tool by which average individuals can hold large businesses accountable without knowing the details of their inner workings.  Tort law would be toothless without it, and would instead look like the far more restrictive regime of governmental liability, where vicarious liability is the exception, and immunity from liability is the norm.

In my view, the problem is not "corporate personhood" but the undue concentration of political power of big businesses, and in wealthy individuals who often make their money in big businesses, which can be leveraged into legal and economic advantages.  But, it is also not a problem with an easy solution.  Even in a system totally free of corruption and partisanship and bias, people who make big decisions about the laws that should govern the political economy should care a great deal about the impact of their decisions on big businesses that if made unaware of the consequences of these decisions on big businesses could have a serious negative effect on the overall economy and the jobs of large numbers of people.  Big businesses provide a natural way to give voice to legitimate economic concerns that have widespread impact but are not very familiar or salient to the daily lives of most individuals.  Ignoring their voice poses a serious risk of destructive mob rule.

I also can't say that there is no rational basis to distinguish between corporations and natural persons when it comes to "tag jurisdiction."

The typical corporation is embodied in far more people who are legally authorized to accept legal process on its behalf than a typical individual.  Corporations often have dozens or scores of people who are subject to service of process and are generally required to have a registered agent for service of process available to be served during all regular business hours.  There are often only a few people, in contrast, who are authorized to accept legal process on behalf of an individual.  So, tag jurisdiction could, in principle, be more onerous for a corporation than it is for an individual.

Conversely, even "tag jurisdiction" is not quite as extreme when applied to natural persons as it seems.  There are many ways to serve a natural person who is an adult with process other than by delivering a summons personally to that individual.  In Colorado, one can also deliver legal process to any adult member of the defendant's family at his or her "usual place of abode", or at the person's "usual workplace" with his or her "supervisor, secretary, administrative assistant, bookkeeper, human resources representative, management agent."  Service of process upon an adult individual can also be made upon that person's agent for service of process.

Service upon any of these people would probably not be considered a basis for "tag jurisdiction", upon the individual. For example, if Harvey Smith has a natural person named Fred Jones who is a designated agent for service of process upon him in Utah in connection with a requirement that he do so in order to be qualified to do business as a sole proprietor there, and a process server delivered a summons and complaint to Fred Jones in Colorado, it is not at all obvious that the Colorado courts would have jurisdiction over Harvey Smith on the basis of "tag jurisdiction."  Similarly, tag jurisdiction would probably not apply to an individual that a court authorizes "substituted service" upon on a case by case basis, such as a doorman for a gated community where a defendant owns a house.

Of course, the mere fact that a person has a "usual place of abode" or "usual workplace" within the state would itself, normally establish that a Colorado court has general personal jurisdiction over the defendant.  Likewise, the fact that someone has an agent for service of process whose regular office is in the State of Colorado would traditionally suffice to establish general jurisdiction over that person in the State (although the 9th Circuit disagreed in a 2011 decision).

Colorado law does not, however, allow for service of process upon an adult natural person, by delivering papers to a spouse or adult child of the defendant who lives with the defendant, at their respective places of work, or upon someone's secretary or supervisor at work at their respective homes.

The Case For A Compromise Rule To Resolve The Circuit Split

One could reconcile the circuit split between the 1st Circuit, which held that tag jurisdiction was available in Northern Light Technology, Inc. v. Northern Lights Club, 236 F.3d 57 (1st Cir. 2001), where tag jurisdiction was held to be present when the person upon whom process against the corporation was served upon the President of the corporation, and the 9th Circuit, where service of process was made upon the Vice President of Marketing in a large corporation that probably had dozens of Vice Presidents, by holding that for tag jurisdiction purposes, that the highest ranking officer of the corporation, the CEO if there was one, and the President, if there was not a CEO, was the physical embodiment of the corporation for tag jurisdiction purposes.  This would be individuals and corporations on equal footing, as in each case, it would be possible to secure tag jurisdiction in each case, solely by serving one individual.

This would treat sole proprietorships and closely held corporations identically, which would be a fair result in cases like a 9th Circuit implicitly rejected this theory in dicta in the case of Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994), where personal service in Washington State was obtained against the president and sole owner of a German corporation within Washington State where the action was brought.  In that case, the service of process was held to be valid, but the issue of personal jurisdiction over the corporation was reserved for determination on remand, even though it would have been transparently obvious if tag jurisdiction applied to corporations.  But, it is hard to see how due process is offended in the case when the German business is organized as a corporation, but not if the German business had been organized as a sole proprietorship with the same ownership and management structure.

Against Trans-Substantive Personal Jurisdiction Rules

It is  somewhat troubling that so many of the leading personal jurisdiction cases apply to instances of non-U.S. corporations sued in U.S. courts.  In principle, the constitutional boundaries on the assertion of personal jurisdiction are no different in interstate and international case, and as a result of statutory law creating the U.S. District Courts, there is also no difference between the ability of a federal trial court and a state trial court to assert personal jurisdiction over someone.

But, there are principled reasons for treating international cases differently (a difference which exists expressly when it comes to the enforcement of court judgments from another state), and also for treating federal courts differently than state courts (a distinction which does not have constitutional character).

On one hand, forcing someone to litigate in one U.S. state rather than another is a less serious issue than forcing someone to litigate abroad, rather than in the United States.  All U.S. courts are subject to the same constitutional standards of due process of law, almost all share the same legal tradition and general outlines of substantive law, and all are subject to ultimate supervision on direct appeal by the U.S. Supreme Court whose precedents on issues of due process rights bind all of them.  Moreover, a court decision of a U.S. Court is enforceable in any other state under the full faith and credit clause of the United States Constitution.

Also, forcing someone to litigate in a federal court in a given state is a less serious issue than forcing someone to litigate in the state courts of a different U.S. state, or in a different country.  The federal courts were established by the United States Constitution expressly for the purposes of providing a fair forum for interstate and international litigants that might not be available in a particular state's own popularly courts that might have an incentive to systematically disfavor out of state defendants.  Procedural issues in federal trial courts in civil cases are governed by a uniform national set of federal rules of civil procedure and federal procedural statutes, even though there are local rules in different federal district courts that often reflect state court practice in those states, and even though some procedural issues (like choice of law) are determined using forum state law.

Furthermore, there is no really good reason, other than tradition, for the fact that the long arm jurisdiction analysis made by a federal trial court should be based upon the connection that the defendants and the case has to the United States of America, in general, rather than merely the ties that the defendants and the case have to the particular state in which the particular federal trial court in the case is located.  Congress and the U.S. Supreme Court could easily have adopted a national analysis of personal jurisdiction for the federal courts, while leaving the consideration of which of the federal courts a case should be tried in as a non-jurisdictional question of proper venue (as the state courts do when deciding which county a case is most appropriately tried in which the state).

Thus, it would be perfectly reasonable to have a personal jurisdiction rule that made it easier to sue a non-U.S. corporation in a federal trial court than it was to sue a U.S. corporation from the next state over in a state trial court.  Similarly, it would be perfectly reasonable to have a personal jurisdiction rule that made it easier for a non-U.S. corporation to escape a state court forum, than it was for a U.S. corporation to do so.

For what it is worth, I favor changing the law to allow federal trial courts to evaluate specific jurisdiction on the basis of contacts with the United States, rather than contacts with a specific U.S. state (which would expand the federal courts' personal jurisdiction), and changing the law to repeal the statutory basis of U.S. District Court jurisdiction over both diversity jurisdiction cases between non-governmental parties (except cases that have specialized statutory authorization such as interpleader, interstate property disputes and interstate class action lawsuits), and federal question lawsuits between non-governmental parties that have no other separate jurisdictional basis authorizing them (particularly, employment law lawsuits against non-governmental defendants) (which would narrow the federal courts' personal jurisdiction in cases where all parties were U.S. parties).  Although, I might be inclined to allow for diversity jurisdiction in cases involving a non-U.S. party who is not collusively joined, even in the absence of "complete diversity" which is currently required.

These reforms would subject more foreign defendants to the jurisdiction of the U.S. courts and make it easier for them to get into federal court, but would dramatically reduce the volume of ordinary domestic litigation between non-governmental domestic parties in the federal courts, where state court authority and capacity is more or less co-equal under existing law.

18 August 2014

Gremlins Attack!

It has not been a good few days for technology in my life.

My car is in the shop and won't be done until later today or Tuesday.

My newest laptop died this weekend, although my old spare that I am using now is limping along.

Sometime between 12:46 p.m. and 3:20 p.m. on Sunday, my office suite's phones, local area network, file server, and Internet connection died.  I think that our e-mail server also works through this network.  Also, since it was the weekend, the HVAC systems in our office were shut down and the lights went out every hour until I went into the hall to restart them.  Two and half hours later, I left the office too frustrated to try to make everything work.

While my car has been in the shop, I have been using the car2go smart car share system.  But,  on Sunday afternoon, the same time that the office systems died, I reserved a car that was supposedly at 1221 East Alameda Avenue, but after walking several blocks to get there, there was no car even though the system showed that it was still there.

Also, this weekend, my phone died for almost a day, although I hadn't realized that fact, because the batteries were dead.

Also, this morning, the copying machine had a paper jam even though it hadn't had one when I left on Friday afternoon.

I also learned that our managing partner and office manager were both on vacation (and our law clerk finished his summer on Friday), so the usual suspect to fix the tech problems were away.  One lawyer colleague, a former lawyer at the firm in doing some contact work, my assistant and I were it. 

We may not be back to the Stone Age, but we are definitely back to the Bronze Age of paper and pen, and maybe even to the Middle Ages when the printing press was invented, because we do have law books that we can refer to in the meantime.

I am currently encamped in Subway having a coffee and roll, and waiting for the cavalry to arrive, and trying to function with my spare computer and poached Internet service.

I'm totally blaming Gremlins for all of this mess.

14 August 2014

Sanskrit Resurected?

Before Israel became a state, Zionists worked to resurrect Hebrew, which had declined to the point where it was solely a liturgical language, as a living language. A similar movement, which has been embraced by India's Hindu nationalist party, is trying to restore Sanskrit, which is the source language for most of the Indo-European language of South Asia in much the same way that Latin it the source language for the Romance languages.
Sanskrit has somehow managed to remake itself as a living language. Universities around the world (including Penn), schools, and summer camps offer courses on spoken Sanskrit that are well attended, and there are villages in India where most of the people are conversant in Sanskrit. 
The reason I bring all of this up now is that BBC News Asia just published an article entitled "Why is Sanskrit so controversial?" which focuses on the political aspects of the spread of Sanskrit in recent times. One thing that I think needs to be made clear is that the modern rebirth of Sanskrit began long before the ascension of the BJP to power. 
"The 'Revival' Of Spoken Sanskrit In Modern India: An Ethnographic And Linguistic Study" (1998) 
Nonetheless, it is clear that the new Prime Minister Narendra Modi is well disposed toward Sanskrit and that this venerable classical language can expect to see additional gains in the coming years.
FWIW, the village in India linked above is home to three major Hindu temples and hence is not really inconsistent with Sanskrit's character is a primarily liturgical language with this village being analogous in some ways to Vatican City in Italy where Latin is still used as a living language by a community of ordained Roman Catholic religious officials.

A revival of Sanskrit, like the revival of Hebrew in Israel, could serve to unify a fractured Indian state as a nation whose current conceptual basis is multi-ethnic (in terms of ethnic identity and regional ethnic diversity, India is more analogous to the E.U. than to a particular European nation), but would do so at the cost of alienating non-Hindu minorities from this national identity.

11 August 2014

Budget Air Power

The Iraqi Air Force exemplifies a recent trend in poor country military forces.  It's air force has as a major component of its air to ground fighter complement, small Cessna general aviation aircraft fitted with Hellfire missiles originally designed for use on attack helicopters.  The focus on high tech offensive weapons on budget flight platforms is typical of the trend.

Local Government And Economic Development

A post at Marginal Revolution on libertarian misconceptions about government recalls for me another under appreciated aspect of the developed world status quo.

Most of what distinguishes Third World political economies from those in the United States, happens on a largely non-partisan basis at the local government level in the First World.  What do local governments provide in the United States that is often missing or sorely deficient in the Third World:

* Water supply, treatment and sewage services.
* Mosquito control.
* Weed control.
* Storm sewers.
* Public street lights.
* Local road maintenance.
* Operate and build public transit systems (sometimes with grant funding at higher levels of government).
* Traffic and parking law enforcement.
* Administration of motor vehicle registration.
* Administration of motor vehicle emissions requirements.
* Enforcement and adoption of building codes.
* Property tax assessment and collection.
* Resolution of property line disputes.
* Administration of public records related to real property ownership.
* Administration of public education via public schools.
* Enforce vaccination and truancy requirements.
* Enforce laws prohibiting child abuse and neglect.
* Administer libraries.
* Mental health services.
* Administration of welfare laws.
* Local hospitals of last resort.
* Fire fighting and functional EMT services.
* Alcohol establishment regulation.
* Relatively non-corrupt enforcement of laws prohibiting blue collar crime by law enforcement, and prosecuting attorneys.
* Determination of cause of death in suspicious cases.
* Trial courts for all crimes.
* Pre-trial incarceration and misdemeanor sentence implementation.
* Collection of small debts and evictions in courts of limited jurisdiction with appeals in most cases to a general jurisdiction court in the same county and enforcement by local law enforcement officials.
* Civil trial courts of general and probate and domestic relations jurisdiction.
* Conduct of non-judicial foreclosure proceedings.
* Marriage licensing.
* Most election administration except compilation of final tallies in multi-jurisdictional election districts.

It also isn't uncommon for local governments to operate or manage by outsourced contracts utilities such as electric power grids, cable television, and Internet access providers.

State and federal governments legislate broadly and engage in some administration of governmental functions, but far less than most people realize.  A quite small percentage of law enforcement officers are in state or federal government positions.

The biggest categories of state and federal workers are college and university employees, postal workers, national defense employees, park rangers, and managers of public lands and public property.

The proportion of the federal and state government engaged in controversial regulatory activities is quite modest.

Driving

My daughter, who has her learner's permit, and I, took advantage of light traffic due to closures on I-25 over the weekend to practice getting on and off the highway, over and over again.  As I'm still writing this on Monday, it clearly went well.

The secret was immediately plunging into the task before she had time to be scared and panic.

The task of driving on a highway isn't that hard.  The percentage of people who learn to manage this task rivals the number of people who manage to finish middle school or read a newspaper headline, or who ever have sex sometime in their life, or who learn to operate a telephone.  It exceeds the percentage of people who become functionally literate, who manage to do their own taxes, who can tie a Windsor knot, who manage to finish a tour of military service without a dishonorable discharge, who know who their U.S. Senator is, who manage their own checking account, who try drinking alcohol without becoming drunks, who make it through life without being convicted of a felony, or who ever manage to run a ten minute mile.

But, it can be intimidating.  You recall this when you witness someone doing it for the first time.   Hurling up an exit ramp at sixty miles an hour; watching over their shoulder to see if there is a gap in a line of people people who have no duty to yield to them as they move at similar speed; then, changing lanes into traffic, with a penalty for failure of death or serious injury for everyone in more than one vehicle.

There were people still living while my father was alive who had never faced such a challenge and had never had an ancestor do so either.  My great-grand father bought his first car in the days before driver's licenses and never learned to stop it before leaving the dealership.  He ended his trip by planting the car in a fence post and there is sat for years, or so the story goes.

As a math, science and economics tutor over the years, from my wife before we were dating, to my children's peers, I've seen something similar.  The number one problem of students struggling with STEM subjects and people who struggle in daily life with technical tasks from making their computers behave to hanging pictures is that they fail to remain calm and sanguine as they try to puzzle out the answer.  Many people are so inured to the idea that piling on more emotion will solve their problems that they find it very hard to center and focus in a non-emotional way on solving their task.

Almost anyone can learn to do it, but it doesn't come naturally to lots of people.

It is rewarding.  Driving is one of the last things that my children absolutely must learn to survive in the world on their own.  There are lots of other tasks that they can afford to fail, but this is not one of them.  The assurance of seeing them master these tests means you've gotten them over that critical threshold.

08 August 2014

The Case For Atrocity Prevention On A Budget

Saving The Yazidis

Yesterday, President Obama authorized the U.S. military to make airdrops of food and water supplies, and airstrikes in the part of Iraq under the control of the Islamic State that has de facto political control of most of Northern and Western Iraq and Eastern Syria.  Before taking action, he obtained the permission of the elected civilian Iraqi government that the U.S. and its allies installed in the wake of the Iraq War that deposed the Baathist regime of dictator Saddam Hussein, to take action in Iraqi territory.

The mission was carried out with five aircraft.  A large C-17 military cargo plane and two smaller C-130 military cargo planes dropped 72 bundles of food and water containing a total of 5,300 gallons of drinking water and 8,000 pre-prepared military ration meals over about 15 minutes in a target drop area.  Two F/A-18 fighter jets (the main kind of jet fighters deployed on aircraft carriers) escorted the cargo planes and bombed selected Islamic State military targets in the vicinity.

President Obama did this to protect members of the Yazidi religious minority trapped in Sinjar Mountain without food and water facing imminent slaughter by fundamentalist Sunni Islamist fighters from the Islamic State.  Stopping an imminent atrocity that we had the power to prevent from happening was a central justification for the United States to take some steps, however modest, to help.  The Yazidi community had previously relied regional Kurdish government militias to protect them, but the Islamic State had outgunned the Kurds in this instance, which is in the heart of the territory that they claim as their own.

The Islamic State openly acknowledges that one of its objectives is the extermination or exile from its territory ("ethnic cleansing to use the term used by Serbs in the war in Bosnia) of the Yazidi people.  Their fundamentalist reading of Islamic law calls this objective a religiously required and righteously moral  jihad. The rest of the world and international law, however, consider any efforts to carry out these objectives by the Islamic State to be the war crimes of genocide and of the disproportionate slaughter of civilians, because killing these non-combatants civilians serves no legitimate military objective.

President Obama also did this protect the safety of U.S. humanitarian aide workers and U.S. diplomats at a U.S. consulate in the vicinity, but this justification was secondary.

The U.S. could have simply brought U.S. citizens in the region into the consulate, holed up there with protection from a beefed up Marine Guard Unit, and extracted the people in the consulate if it appeared that this modern fortress would not hold, while leaving the locals to fight their own battles without any U.S. intervention.

The United States has done many times in the past at locations around the world.  An evacuation of this kind from the U.S. embassy in Vietnam in the final days of the Vietnam War was famously captured by news photographers. A 2003 Hollywood movie on this theme called "Tears of the Sun" portraying an effort to make this kind of extraction in an African country that was falling apart that famously illustrated the moral problems with this kind of policy.  This week's episode of international intervention by President Obama, however, is one of the first times in recent memory in U.S. history that the U.S. has taken action to address the moral problems with its standard evacuate its own and don't intervene protocol in these situations.

Who Are The Yazidi and Why Does The Islamic State Want To Slaughter Them?

While it doesn't really matter much to the larger issue of U.S. policy towards preventing atrocities like the Islamic State's attempt to slaughter the Yazidi people, it is worth a moment to familiarize ourselves with who they are and why the Islamic State wants to kill them.

From the point of view of their fundamentalist Sunni Muslim religious doctrine, the Islamic State is justified in its genocide of these people.  Islamic law calls for Muslim communities to allow other "People of the Book" (i.e. Christians and Jews) to be tolerated on a subordinate basis, but demands the conversion or extermination of pagans and heretic Muslims.  But, the Yazidi are clearly not "People of the Book."  And, in the interests of expediency and terrorizing dissenters, the Islamic State, in  the honeymoon period at the dawn of its regime, has focused on the extermination strategy, rather than the conversion approach.

The Yazidi people's religion is an offshoot of Zorastrianism, with a strongly gnostic character and borrowing from other pagan religious traditions of Mesopotamia.  There are about 700,000 Yazidi people in the world, about 500,000 in Iraq (mostly in Ninevah province in an area near the Kurdish-Arab ethnic boundary in that Northwestern Iraqi province), about abut 35,000 in Armenia, about 18,000 in Tiblisi, Georgia (with another 2,000 elsewhere in Georgia), and about 105,000 in a diaspora mostly in Germany, Russia and Sweden.

Gnosticism is a mystical metaphysical belief system that was influential particularly among Neo-Platonistic philosophers and early Christian sects of the classical Greco-Roman era in the Eastern Mediterranean that lost the struggle to become the orthodox interpretation of Christianity among early Christian sectors that considered each other to be mutually heretical.

Zoroastrianism was the predominant religion of Iran (known as Persia at the time) from ca. 1000 BCE to about 650 CE, and communities that practiced this religion were common throughout the classical Greco-Roman era in Anatolia, Babylon and Central Asia.

Zoroastrianism is a likely religious source of ideas that would give rise to Christian metaphysical understandings of the world we live in as a battle ground between the forces of Good, led by God in Heaven, and the forces of evil, led by Satan in Hell, who send angels, prophets, Jesus and demons into the world to do their bidding.  These ideas probably made their way into Christianity, not directly, but through Jews returning to the Levant from a period of exile in Babylon where they would have been exposed to Zoroastrianism who incorporated these ideas into one of more Jewish sects from which Christianity emerged.  These Zoroastrian influences had little impact, however on the sects of Judaism that would go on to found modern Rabbinic Judaism after the fall of the Second Jewish Temple in 70 CE.

In addition to the Zoroastrian influenced Yazidi people mostly from Northern Iraq in the vicinity, two relatively "purely Zoroastrian" faiths remain.  The Parsi community, which migrated to India from the Persian capitol of Pars in the wake of the initial mass forced conversion to Islam in Persia ca. 700-900 CE, and the Irani community, who migrated to India from Iran ca. 1500-1700 CE, in the wake of a crackdown on relict Zoroastrian communities by a later Islamic ruler in Persia.

Today, fewer than 1 million of the 7046 million people on Earth are either Zoroastrian or Yazidi: the 700,000 people who share the Yazidi faith (which is sufficiently far from its Zoroastrian influences to be considered a separate religion from it) and the 125,000 to 300,000 members of Zoroastrian sects.  These Zoroastrians are found today in India (ca. half of the world total), Iran (ca. 1/6th), Azerbaijan, Afghanistan and Pakistan (ca. 1/8th in these three countries combined), various English speaking countries around the world (about 1/5th of the world total), and small communities in Singapore and the Gulf States (about 1/20th).

The Case For Atrocity Prevention On A Budget

We Are Regularly Aware of Atrocities That Are Imminent Or In Progress

The modern reality is that telecommunications and widespread global travel, communication and commerce brings news of imminent atrocities or atrocities in progress around the world to the attention of well informed Americans several times a year.

We knew about the Hutu genocide directed at Tutsi people in Burundi as it was about to happen and started to happen.  We were aware of the Boko Haram capture of hundreds of school girls in Northern Nigeria before many people in Lagos did and have also heard promptly about the many instances in which Boko Haram has slaughtered whole villages in Northern Nigeria.  We have witnessed Syria and Libya use aircraft to bomb their own civilian populations, and promptly witnessed Syria use chemical weapons on its own people in a way that did not discriminate between soldiers and civilians - we intervened in Libya under Hilary Clinton's leadership as Secretary of State, but did not in Syria, in order to avoid crossing Russia which deployed war ships to the Syrian coast to discourage Western intervention in the conflict.

Together With Our Allies, We Have The Ability To Stop Many Individual Atrocities

The United States has, by far, the most powerful military force in the world.  It has the largest and most advanced air force and is the only country with a significant fleet of operational stealth aircraft.  It has the largest blue sea navy in the world by war, and the greatest power to use that navy to establish bases for its troops and aircraft and missiles far from its own territory.  It is rivaled only by Russia in its nuclear arsenal.

Only China has more tanks (although, surprisingly, Syria is second to the United States in that respect).  Also, only China has more active duty soldiers, despite the fact that the U.S. has about a third fewer active duty soldiers than it did during the Cold War, and has a wealth of veteran officers and non-commissioned officers with wartime experience and training that rivals any other military in the world.

The budget of the United States military is the largest in the world and rivals or exceeds the military budgets of the rest of the world combined.  Our intelligence resources are second to none.

The U.S. also has a great many allies in the world, many of whom are willing to offer up their assistance and military resources as part of coalitions with the U.S. to advance uncontroversial missions, and the U.S. together with its developed world allies, collectively, wield immense economic power in the global economy.  The money that third world despots have available to fund their own military organizations comes mostly from their share of profits from the domestic operations of multinational companies based in the developed world, from sovereign wealth funds invested in developed world economies or in developing economies other than their own through international financial markets in developed world economies, and through direct military aid and loans to these countries.

Even if the U.S. cannot unilaterally sanction sovereign bad actors in the world economy effectively with economic sanctions, the community of first world nations, collectively, if they chose to do so, collective do have economic control over the rest of the world.

Meanwhile, the atrocities that we do learn about almost always take place in smallish (compared to the United States or the European Union or China or India, for example), third world or developing world countries with non-democratic governments with regimes that leave little to find worth respecting, other than their bare sovereignty.

We don't intervene in this atrocities, however, most of the time, out of a lack of direct national interest, a fear that we will end up footing an unaffordable bill in the lives of our soldiers and treasure, to become a "World Policeman" that we are not politically willing to pay, and a fear that intervention will impair the benefits we and our allies receive from the principle of absolute national sovereignty, transforming civil wars and insurgencies across the globe into a Pandora's box unleashed to international wars.

Devoting A Measured Amount of Resources To Atrocity Prevention As An Express, Secondary Mission Of Our National Defense And Intelligence Establishment Is In Our National Interest.

I believe that we can do better, and that it is in our interest to do so.

We can't do everything as a world policeman, but we could certainly set aside 1%-2% of the defense and intelligence budget ($7-$14 billion a year plus contributions from allies who would join us in this venture, with perhaps 15,000 to 30,000 active duty soldiers and appropriate weapons systems, vehicles and gear for their missions), together with no additional cost or low additional cost assistance from other national security resources (such as spy satellites), for a military, intelligence, law enforcement, and humanitarian aid force that had as its primary mission preventing atrocities due to military force or natural disaster, intervening to prevent atrocities in progress, and holding the war criminal perpetrators of atrocities accountable.

This force wouldn't be large enough to effect regime change, or serve as long term peacekeepers as the U.N. Blue Helmet forces do, but it would be enough to rapidly intervene in international crisis situations much like police, firemen, and EMTs do domestically.  Even a tiny force of a five planes and perhaps a couple of hundred active duty servicemen was enough to make all the temporary but critical difference that may have saved thousands of lives for the Yazidis in a moment of crisis this week, for example.

This narrow mission - limited to war crimes and national disasters - would also provide a limiting principle to this exception to the general principle of national sovereignty that would prevent the general rule from being too badly compromised.  This would be akin to the domestic violence and child abuse and neglect exceptions to the general rule of a family's right to privacy in its own home and autonomy and religious freedom in how the members of that family raise their children.  This narrow mission would also help to keep this agency popular politically, both at home with voters and abroad with allies.

This agency could be mobilized by the President in times of war for other national defense missions, much like the Coast Guard, the National Guard, and the Army, Navy, Air Force and Marine Corps reserve units.  So, this spending while being put to use and generating a corp of people with real life conflict experience, would be available if necessary.  And, honestly, a huge percentage of the U.S. military (certainly more than 1%-2%) is training (often for missions that are highly unlikely to every happen), rather than involved in carrying out any other military operations or objectives, at any given time.

The limited budget of the agency, contributions of third party economic resources, and limited mandate of the agency would allow the United States, through the agency, to be a world policeman, without falling down the slippery slope that would overextend American budgetary resources, expose American soldiers unreasonable to risks not justified in the narrowly construed national interest, or impair the general rule of sovereignty as a governing principle of international law.

In addition to assuaging our consciences and "saving the world", this agency would also enhance U.S. soft power by adding to U.S. goodwill, in the world through the horrors it prevented that it had no obligation to prevent, and by cementing a global perception of international leadership and of the U.S. as a first among equals in the world.

Furthermore, by establishing that there is someone in the world who will intervene to stop war crimes, save disaster victims, and punish war criminals, this agency would discourage war crimes as a political tactic and would mitigate the harm caused by natural disasters and in the process would make the world a safer place for American commerce and Americans around generally and would advance democracy.  World leaders who can't credibly threaten to commit war crimes with impunity are weaker and this strengthens the hands of the comparatively good guys around the world in their own domestic struggles for political power, making the world a better place for everyone and enhancing economic development in a way that ill supervised, tiny grant programs have failed to achieve.

Details: Some Guiding Principles

As a result of budget limitations, the agency might not have the ability to response to every incident in the world that its mandate would permit it to intervene in, and political realities like credible demands from nuclear armed countries that the agency not intervene in a particular conflict would prevent it from taking on other missions.

I would contemplate a threshold for taking on a mission that might result in three to six major war crime interventions in a particular year, perhaps another half a dozen or dozen potential war crime interventions that can be handled with much smaller teams (perhaps a platoon or smaller with a few civilian advisors), and perhaps half a dozen to a dozen full fledged natural disaster responses a year in cases where no other responders are adequate and deployments of a few specialists to assist otherwise adequate national natural disaster responses in a couple of dozen other cases.  A budget of $6-$13 billion a year, plus perhaps $1-6 billion of agency supporter and coalition support would probably be able to manage a level of operations on something like this order of magnitude.  If it couldn't, it would do less.  Someone in the organization would have an office devoted to finding other people to do work within the agency's mandate that it can't afford to do itself.

Typical missions would last anywhere from a few days to a few months.

I would imagine that the number of people at any given time being investigated, pursued, or prosecuted for war crimes might number in the dozens or low hundreds in an operation that might cost $100 million to $1,000 million a year, but might also generate revenues sporadically from asset forfeitures from convicted and suspected war criminals, and, like support for humanitarian natural disaster aid, it might generate national government financial support in cases from countries that might be uncomfortable supporting military action to support war crimes (e.g. from countries like German and Japan that have constitutions that disavow offensive military action, or from countries like Switzerland that prefer to remain a position of neutrality for the most part).

A number of missions would be outside the scope of this agency.

It would have a rapid reaction "emergency room" philosophy of stabilizing the patient, and would not be an agency in the business of providing "long term care" in the form of prolonged peace keeping missions or "nation building."

It would not respond to coups, even if they depose democratically elected regimes, that don't involve imminent risks of atrocities committed against large numbers of civilians.

It would not be an anti-terrorism force, even though there are parallels.  While one man's terrorist may be another man's freedom fighter, nobody wants to stand up for a war criminal or war crime, or to let people suffer and die as a result of a natural disaster.

It would operate with the kind of transparency found in well run civilian governmental agencies, rather than the shroud of secrecy associated with agencies that have a "national security" mission.  It would have a "white" budget, would not engage in covert operations, and would not be privy to state secrets other than brief tactical delays in disclosing operational information in order to facilitate current operations but not to protect methods and practices.  The only secrets would be those necessary to protect intelligence collection methods and practices from other national security oriented intelligence agencies.  Even then, this agency would operate on the basis of maximum transparency and would share any intelligence, used by it in a particular mission, that had to be redacted for the public with the intelligence agency counterparts of in all governments contributing to any particular mission.  It might even have a counterpart to the U.S. Secretary of State's website warning travelers and locals alike of disaster and conflict risks in various places.

The agency would have as its ultimate commander in chief at all times the President of the United States and would be an international organization permanently controlled and primarily funded by the United States government in which other governments could participate with voice and contractual promises but not a vote.  It would not be subject to United Nations or NATO control, or require their authorization to act.  Details of how missions would be authorized could be worked out.  It might be done by the President as a political decision, it might be done by vote of an agency board, it might be authorized or subject to conferral without a mandatory approval by the U.S. Senate or Congress, or some Congressional committee or foreign ally participants in the agency or the supporters of a particular mission, or it might call for a judge or multi-judge panel of a court to authorize missions at the request of a decision maker in a manner similar to an arrest warrant or search warrant or wiretap or grand jury indictment, but without the secrecy attendant with any of those tools - proceedings to request authorization to act would, as much as possible be public and certainly would not be classified.  Authorizations for missions would not themselves be specific enough to require tactical short term secrecy related to operational details.  The public discussion of a possible request to authorize a mission would be calculated (much like U.N. Security Council meetings) to deter war crimes and encourage remedial action and negotiation and disclosure of information that clarifies the situations on the part of countries suspected of committing war crimes.

In some ways it would have something of the character of the French foreign legion.  Individuals who are not citizens, nationals or permanent residents of the United States would be allowed to be employees, independent contractors and active duty or reserve military personnel in the agency.  But, military veterans of the agency receiving honorable discharges would have a right to U.S. citizenship and the same military benefits as U.S. veterans.  Foreign soldiers could swear allegiance to the agency's mission and to loyally obey the orders of its ex officio commander in chief, but not to the United States, or to its constitution or laws except insofar as they apply to the agency itself.

The agency's charter would permit up to 1/3rd of the agency's military personnel organized in national military units loaned from the military of another nation but subject to the agency's command and control, and would be allowed to receive up to 1/3rd of the agency's funding to come from supporting governments.  For example, perhaps Canada might provide a unit of 1,500 people trained in search and rescue operations and their gear at Canadian expense as part of a Canadian unit, for a couple of year commitment.  The unit would remain part of the Canadian military, but while serving with the agency, that Canadian unit's commanding officer would report to the general who was the commanding officer for the military personnel in the agency who in turn would report to the President of the United States.

The agency would also be permitted to borrow or rent military or civilian resources from non-U.S. governments on a long term or temporary basis.  "Significant" free borrowing or "significant" dramatically below reasonably equivalent value support, however, would count against the 1/3rd of agency funding from outside sources that was permitted under its charter.  Short term use of resources donated to it (e.g. use of an air field or port or vehicle for less than a month in connection with current missions), donated humanitarian supplies, volunteers not paid by their sponsoring governments, somewhat below fair market value economic arrangements, unrestricted donations from individual or corporate donors not affiliated with or controlled by a government, or donations under some threshold of dollar value per year, would not count as significant.  Bribes and kickbacks for individuals working at the agency would be strictly forbidden (no "tipping" allowed for rescuers except as authorized by express written policies of the organization).

U.S. posse comitatus limitations would apply to the agency just as they do to other U.S. military forces.

The United States and other supporting countries could (and would) delegate to the agency the authority to issue refugee visas and to transport refugees to the sponsoring countries in a safe and secure manner.  Each nation's delegations of immigration authority would be on its own terms and conditions and would be individually negotiated.  Thus, for example, Germany might offer to provide refugee status to 10,000 Yazaris assisted by the agency in the year 2014, subject to processing of applications by a German immigration official loaned by Germany to the agency for the mission to assist the Yazari people in the face of a threat from the Islamic State, while Indonesia might agree to provide refugee status to up to 2,000 Sunni Muslim sympathizers and deserters who renounce their military intentions in the same mission in the year 2013, subject to processing of applications by an Indonesian immigration official loans by Indonesia to the agency for the purposes of this mission.

Countries that regularly offered to assist with refugee visas like the United States, Canada and Sweden might have civilian immigration application processors on loan to the agency indefinitely who were authorized to handle delegated refugee authority for any incident that might come up and might have form refugee visa delegation contracts drawn up and agreed to by the agency and the supporting country so that no time was wasted haggling over boilerplate details and only mission specific authorizations would have to be communicated when emergencies come up.

Similarly, there could be standing agreements and arrangements in place with particular countries regarding support for the agency through donations of humanitarian aid supplies, use of air fields, or protocols for gaining permission to cross a nation's airspace in furtherance of a mission, or to provide natural disaster response in a country.  These standing agreements might even include standing agreements to provide certain kinds of assistance to the agency in certain situations without the prior authorization of elected officials or high level government officials.

The agency might organize a system of low cost or subsidized national disaster insurance for countries that don't have sufficient financial reserves, credit, political discipline, are too small, or do not have a sufficient lack of corruption, to allow them to finance their own national responses to natural disasters when they come up (e.g. the kinds of services that FEMA provides in the United States which the United States can afford without insurance because it is large enough to spread risk widely and is affluent and non-corrupt enough to pre-fund in a natural disaster reserve fund, tax and spend or to borrow funds to provide this kind of disaster assistance if necessary).

The agency would have a secondary mission of documenting atrocities and determining who was responsible in cases that it is unable to mobilize to prevent for whatever reason.  I suspect that the agency would prove to be able in practice to mount an effective economic sanction regime on countries that commit war crimes, but its credibility and first hand on the scene documentation of war crimes when it intervenes might be sufficient to help others mobilize economic sanctions.  On the other hand, I do think that it might be able to secure widespread cooperation from national governments to cooperate in prosecuting war criminals, much as the Israeli government has received considerable support from other national governments in its long running, dogged and tireless efforts to prosecute Nazi war criminals for the principle of the matter even when they are elderly and harmless now.

War criminals who were located would be prosecuted in the U.N. War Crimes Tribunal, when available, a national court with jurisdiction (universal or specific) over the Defendant for the acts charged, or an agency military tribunal when neither the U.N. War Crimes Tribunal or a national court of the United States or a participating or cooperating country, is not available.  The relevant judicial body, as the case might be, would have authority to issue arrest warrants, to issue search warrants, to make extradition requests, to attach assets, etc. in countries with treaty relationships to the agency or a participating country taking action coordinated with the agency, and so on.  There would also be arrangements with the United States and/or other participating countries for the incarceration of war criminals convicted by these means.

Countries would have the option of signing on to a full fledged membership in the agency which would require it to consent in advance to any future authorized missions in their country, to cooperation with agency investigations and prosecutions of war criminals, and to other kinds of cooperation with and contributions to the agency.  Some of these might be particularized to particular relationships with individualized treaties in a manner a bit like individualized agreements in the Middle Ages of a notable lord to swear fealty to a more powerful sovereign lord.  They would have rights and privileges that would be respected by the lord and would be on the lord's "team" and not attacked by him without good cause, in exchange for recognizing the lord's authority to obtain certain kinds of support and cooperation from him.

23 July 2014

Solving The ACA Religious Employer Problem

How can one resolve the Gordian knot of employers with religious objections to ACA mandated health insurance that are imposed on employees who receive group health insurance from an employer, now that the Hobby Lobby case has held that at least closely held companies can invoke religious exemptions to the ACA coverage mandates.

One of the cleanest approaches borrows a trick from education funding.  Public entities must not advance religious positions.  But, public entities are allowed to give content neutral scholarships and/or vouchers that can be used by individual students or their parents at either religious or non-religious educational institutions.  A mere provision of money controlled by an individual does not offend any legitimate interest of either the provider or the person receiving it.

How does this apply to the ACA?

Any employer could be allowed to opt out of the requirement to provide group health insurance if they instead provide equivalent vouchers for employees to spend on buying individual or family plan health insurance on an exchange and/or funding health savings accounts to pay for co-pays and deductibles.  But, employers who opt to provide group health insurance would not be allowed to opt out of the contraceptive mandate or any of the other mandated benefits of ACA compliant group health insurance plans.  Individuals on the exchanges could purchase plans that opt out of one or more kinds of coverage based upon religious objections - Seventh Day Adventists could buy insurance that doesn't cover blood transfusions, devout Roman Catholics and pro-life Evangelicals could opt out of contraception coverage, and so on, but they couldn't impose their views on others and would have to find an insurer willing to offer compliant coverage or pay the individual mandate penalty.

Hobby Lobby itself tends to enforce a neo-feudalist approach in which the local lord makes decisions on religious conviction for all of his subjects.  In contrast, this solution (which might even be possible on a regulatory basis) reduces to neo-feudal power of employers over their employees on matters of faith, a far better approach in a religiously pluralistic society, that still minimized the amount of health care provided directly by an employer.

22 July 2014

Manifest Misconduct and Mismanagement

It isn't uncommon for a court case to reveal serious misconduct or mismanagement that is beyond the scope of the current litigation and therefore doesn't give the party suing a right to relief.

For example, a recent 7th Circuit case involving sex discrimination at a state prison in Indiana, revealed a rampant lack of discipline among the staff to the point that night shift workers were having sex on the Plaintiffs desk almost every night.  This was widely known and the supervisor expressly said that he didn't care and that she should just wash her desk off each morning.

The Court held that this didn't constitute sexual harassment because night shift workers only had sex there because it was convenient, and not because she was a woman, and further held that she had no retaliation claim because her complaint was not about gender related harassment, but merely run of the mill, not federally regulated harassment.

There is room to disagree with that conclusion, but the screaming and yelling obvious point revealed by evidence like this in her case, for which she personally wasn't allowed to sue in federal court, is that the management of the prison under both the current and previous warden was absolutely egregious.

This should, but all too often does not, have serious consequences.  The facts that came to light should cause every single manager on the day shift and night shift, and everyone who was involved in carrying out the harassment at that prison, to be fired in a matter of days.  If the staff at the prison cannot maintain some minimal degree of professionalism at work, then there is no way that anyone can reasonably expect that they are fulfilling their other professional duties in a reasonable manner.

Once upon a time, grand juries were convened when this sort of scandal was revealed to investigate the mismanagement of a public institution, but now, that doesn't seem to happen.

Indeed, this case also reveals an all to common divide and conquer litigation tactic.  The core sex discrimination in this case involved a slap on the wrist punishment for a male employee with seniority and higher rank who was involved in an affair, while she lost her pension, had a difficult time obtaining unemployment benefits and lost any hope of working for the state again.

In other contexts, it is common for a defendant to settle with someone who has the greatest capacity to litigate a wrongdoers misconduct, while the settlement leaves obvious harm to other similarly situated people as a result of the same pattern and practice of conduct who have less of a capacity to litigate without relief.  Similarly, even if multiple people violate the law in ways that give rise to legal liability, private litigators frequently satisfice, litigating until enough big pockets have paid enough in damages, even if that means that there are no consequences for equally guilty offenders who pose a continuing threat to the general public.

In a world where harms were mostly isolated incidents, this wouldn't be a serious problem.  But, in a world in which systemic conduct by big businesses, government agencies, and even not so big businesses that interact with many customers or vendors are the norm, as often as not, misconduct directed at one person or one employee is part of a pervasive pattern of misconduct that impacts many people.

For example, even if a contract term if found to be void as against public policy in a court case, it is rarely actionable for a firm to continuing using the same form contract in the hope of strengthening their negotiating position in future disputes with people who don't know that this happened.

In a better world, when a litigated case reveals something rotten, that information should be shared widely and have consequences.  All too often, however, this is artfully avoided.  Class action lawsuits were meant to address this kind of problem, but have not been very effective.  Routinizing other collateral consequences of misconduct and mismanagement that are revealed in a case should be one objective in reforming our civil litigation system.

16 July 2014

California's Death Penalty Held Unconstitutional

California has sentenced 900 people to death since 1978 when it reintroduced the death penalty, but has executed just 13, the last in 2006.  Seven people have died of other causes while on death row for each person who was executed.  The appellate process takes twenty-five years on average (twice the national average), in addition to the often lengthy process of convicting someone of the death penalty in the first place.

A federal judge held today that the entire process is unconstitutional because the ultimate reality that chooses which unlucky few people will be executed and who will not is so arbitrary and capricious that it violates the 8th Amendment prohibition against cruel and unusual punishment.

If the ruling sticks is will remove 742 people from death row, more than any court ruling in the history of the United States other than the ruling of the U.S. Supreme Court in 1972 that temporarily ended the death penalty in the United States.  Nationwide there are 3,070 inmates in the United States who have been sentenced to death and have not had those sentences reversed on appeal.  Almost a quarter of them could potentially have death sentences converted into life in prison by this ruling.

An appeal, if the State of California chooses to pursue it, would be to the United States Court of Appeals for 9th Circuit (arguably the most liberal federal appeals court in the country on death penalty issues), and then to the U.S. Supreme Court.  The state attorney general could, however, simply decline to appeal the case and end the death penalty in California, as was done in the case of Proposition 8, a plausible result giving the officials who hold those offices.  Kamala Harris, the attorney general, is a leading opponent of capital punishment and Governor Brown isn't a strong supporter of it either.  A 2012 referendum to abolish the death penalty in California narrowly failed with 48% of voters supporting the measure.

Military Justice, Isn't.

It is an embarrassment  to be a citizen of a country, like the United States that conducts the kinds of kangaroo court proceedings that the United States military is conducting at Guantanamo Bay.

There, military tribunals issue orders that prosecutors and judges can see, but defense counsel and the defendants are not allowed to see.  This is a fundamental miscarriage of anything remotely resembling due process, and it is fundamentally at odds with the principles upon which our nation was founded.

It is clear that the truth of the matter is that the U.S. is covering up an illegal policy of intentional torture, while seeking to use information obtained through torture in legal proceedings.  The defies all domestic and international standards of justice and deprives proceedings meant to bring terrorists to justice of all legitimacy.

President Obama, as a former constitutional law professor, with whom the buck stops as commander in chief of every members of the United States military involved in these military tribunals, owes our constitution and our nation's reputation for fairness and justice, more respect.

People Under 65 Don't Vote Their Pocketbooks

Voters aged 65 and older who believe they are net beneficiaries of federal spending are more likely to be Democrats and vote for Barack Obama than seniors who believe they are net contributors to the federal government. However, the 77.5 percent of voters under age 65 who believe they are net beneficiaries of federal spending are as likely to vote for Romney as for Obama and as likely to be Republicans as Democrats. Voters who live in states that receive more in federal funds than they pay in federal taxes are less likely to vote for Obama or to be Democrats. For most of the electorate, dependence on federal spending is unrelated to vote choice.
Thus, there is no meaningful correlation between perceived net benefit from the federal government, for voters under the age of sixty-five, and partisan affiliation. Moreover, actual net benefit from the federal government is weakly correlated with a tendency to vote Republican.

While people to engage in referendum voting, ousting the party in power during weak economies, social issues, rather than economic ones, seem to be the driving determiners of political identity.

An alternative explanation is that people misperceive whether or not they are net contributors to the federal government or not,  in response to surveys.  But, this is not very politically salient to most voters because the magnitude of the net contribution or net benefit is so modest either way for them.
Meanwhile, the number of people whose net contribution is really economically significant enough for it to be really salient to voting decisions is so small that personal self-interest is statistically unimportant.  In other words, if only 1%-5% of the population are net contributors in way great enough to be politically salient, the fact that they vote their pocketbooks is usually irrelevant to electoral outcomes.  Their power comes from campaign contributions that influence the masses on terms relevant to those masses, not from the clout of their own voting block.

14 July 2014

7th Circuit Rules That Humanist Officiants Can Solemnize Marriages

The 7th Circuit Court of Appeals has ruled that an Indiana law prohibiting secular humanist officiants from solemnizing marriages, while allowing clergy, and in certain faiths, non-clergy, as well as mayors and other government officials, but not notaries of non-religious cultural marriage officiants or the couple themselves, to solemnize marriages violates the First Amendment establishment clause.

As a remedy, the 7th Circuit ordered that secular humanist officiants be allowed to solemnize marriages. The opinion by Judge Easterbrook is eminently presaged by other precedents, but is a step forward for non-theists of all stripes who have organized cultural institutions.  It would have been easy to rule that the fact that there were secular options was good enough, but Judge Easterbrook's opinion makes clear that this was not sufficient.

09 July 2014

Colorado's Gay Marriage Ban Ruled Unconstitutional By Adams County Judge

Adams County District Court Judge Crabtree issued a ruling today holding that Colorado's gay marriage ban is unconstitutional, denying any money damages claim against Governor Hickenlooper, and staying his ruling pending an appeal to the Colorado Supreme Court.

Court rulings declaring a law to be unconstitutional skip the Colorado Court of Appeals in the appellate process and advance directly to the Colorado Supreme Court.  Colorado Attorney General Suthers intends to appeal the ruling, despite the fact that Governor Hickenlooper, in a separate brief, expressed doubts about the constitutionality of Colorado's gay marriage ban.  The ban was enacted by the Colorado General Assembly in the year 2000, and was made a part of Colorado's state constitution in 2006.

The core conclusion of the ruling is that the Colorado's Attorney General's argument that there is a compelling governmental interest in encouraging procreation and providing parenting for children by their biological parents was an after the fact pretext that was not important in the passage of either the law, or in the state constitutional amendment.  He also noted that Colorado's marriage laws are not closely tailored to this purportedly compelling governmental interest, allowing marriage in many cases where the couple cannot or does not wish to have children (and although the Court does not really address it, doing little to discourage extramarital child bearing).

Instead, the ruling concluded that the principle reason for the ban was to uphold tradition, which standing alone, which precedent clearly holds is a legally insufficient reason for denying someone a fundamental right to marry that has been recognized in a broad variety of other contexts, and a fundamental right for people who are married (perhaps elsewhere) to remain married.

The Court also concluded that the availability of civil unions in Colorado, which provide marriage-like rights to couples entering into them under state law, are not an adequate substitute for marriage, because they do not confer upon couples the rights of married couples under federal law.  Thus, this is a second class institution that is not an adequate substitute for marriage.

Following the lead of many other judges in similar cases, the ruling is stayed while appeals are pending.

Unless the U.S. Supreme Court overruled the 10th Circuit and/or other state and federal court rulings holding that gay marriage bans are not unconstitutional, four factors will probably lead the Colorado Supreme Court to uphold this ruling on appeal:

* The U.S. Supreme Court ruling in Windsor striking down the federal component of the Defense of Marriage Act, Lawrence, holding that criminalizing consensual sodomy involving consenting adults is unconstitutional, and Romer holding that a state initiative in Colorado prohibiting local governments from passing gay friendly laws was unconstitutional, have created a body of precedent whose logical conclusion is to hold that gay marriage bans by states are unconstitutional.

* There have been a large unbroken string of rulings holding that gay marriage bans are unconstitutional across the nation.

* The ideological makeup of the Colorado Supreme Court (probably best characterized as having 4 liberals, 1 moderate, and 2 conservatives), is liberal leaning.

*  The United States Court of Appeals for the 10th Circuit has struck down a gay marriage ban in Utah and will probably strike down a similar ban in Oklahoma where the judges on the Court of Appeals panel are the same and the facts are essentially identical, before the Colorado Supreme Court has a chance to rule on the issue.

There is also a question of timing.  The incumbent Colorado Attorney General, a Republican, is term limited.  His successor will be elected in four months and will take office in six months.

If that successor in the open race for Colorado Attorney General in this November's general election is Democrat Don Quick, he will is likely to reverse the course taken by our incumbent Attorney General and abandon an any appeal of this ruling, or urge the Colorado Supreme Court to affirm the ruling if someone else is allowed to argue in favor of upholding the law on appeal.

In contrast, if Republican Attorney General nominee Cynthia Coffman wins in November, she will likely stay the course set by her predecessor.

UPDATE July 10, 2014:  The Attorney General's effort to enjoin the Boulder Clerk's issuance of same sex marriage licences has failed on the grounds that repairable injury was not shown, despite the fact that it violates current state law since relevant court ruling have been stayed in this ruling.  This ruling also recounts all of the cases holding same sex marriage bans unconstitutional in an unbroken streak in a footnote.  The State of Utah has forgone en banc review in the 10th Circuit and is instead directly seeking U.S. Supreme Court review.  Denver's Clerk and Recorder has also begun to issue same sex marriage licenses.

UPDATE July 14, 2014: The Pueblo County Clerk has followed the lead of Denver and Boulder on this issue. Governor Hickenlooper has asked the Attorney General to drop the appeals (although he doesn't have the authority to order him to do so). Governor Hickenlooper said:
I have urged the attorney general not to appeal Judge Crabtree’s ruling. If he feels he needs to continue to defend this discriminatory law, I urge him to seek final resolution at the Colorado Supreme Court.
Cynthia Coffman, the Chief Deputy AG under Colorado Attorney General Suthers and Republican nominee for the post, favors continued appeals; Don Quick, the Democratic candidate for the Colorado Attorney General's office, would drop appeals of the District Court ruling.

UPDATE July 15, 2014: The 10th Circuit stay of its Utah gay marriage decision will expire at 8 a.m. on July 21, 2014 unless the U.S. Supreme Court intervenes, which is not automatic. According to the Desert News (a leading Salt Lake City newspaper):
The state's petition for a stay would be directed to Justice Sonia Sotomayor, who oversees the six states that make up the 10th Circuit. Sotomayor put the brakes on same-sex marriage in Utah last December with an order that appeared to have support of all nine justices because there were no dissenting votes. But that doesn't necessarily mean the court would intervene in the marriage recognition case, Evans v. Utah.
Colorado Attorney General Suthers, meanwhile, has asked the Colorado Supreme Court to order the Boulder County Clerk and Record to stop issuing same sex marriage licenses until an appeal of Judge Crabtree's ruling is resolved, something that a District Court Judge in Boulder County refused to do.

This will be the first time that the Colorado Supreme Court will have had to address the gay marriage issue, although the issue presented directly will be a procedural one.  Note that any decision of the Colorado Supreme Court, affirming or reversing Judge Crabtree's ruling must necessarily be based on the United States Constitution, because the gay marriage ban is part of the constitution of the State of Colorado.

UPDATE July 18, 2014: This afternoon, U.S. Supreme Court extended the stay of the Utah ruling which the 10th Circuit would have let expire on Monday morning.  Also this afternoon, the Colorado Supreme Court ordered clerks in Denver and Adams County not to issue same sex marriage licenses pending any appeal of the Adams County District Court ruling striking down Colorado's gay marriage (the decisions is not directly applicable to the clerks in Boulder and Pueblo counties who are also issuing same sex marriage licenses at this time).  Finally, unsurprisingly, the 10th Circuit panel that found a gay marriage ban unconstitutional in Utah came to the same conclusion by the same 2-1 margin today in a case from Oklahoma.

Recall that Utah's attorney general has already announced that the 10th Circuit ruling on gay marriage will be appealed directly to the U.S. Supreme Court without seeking en banc review in the 10th Circuit.

This afternoon's stays of lower court decisions pending appeals in the U.S. Supreme Court and Colorado Supreme Court are arguably merely questions of preserving the status quo pending appeal.  But, the U.S. Supreme Court stay does suggest that the U.S. Supreme Court is likely to take up the issue. 

These 10th Circuit rulings and the apparent pending U.S. Supreme Court review of one or more of the 10th Circuit decisions on gay marriage, is also pertinent to the Colorado Supreme Court.  Because Colorado's state constitution prohibits gay marriage, any judicial action ending a gay marriage ban in Colorado must rely solely on federal law with regard to which the U.S. Supreme Court and 10th Circuit's rulings are precedents on these issues of federal law that are applicable to Colorado.

In contrast, in states where a gay marriage ban is not part of the state constitution, a state court ruling that a ban is unconstitutional under a state constitutional provision, even one identical in language to the federal constitution, cannot be reversed by the U.S. Supreme Court.

Gay marriage supporters want as much of a consensus as possible in the lower courts that gay marriage bans are unconstitutional before the U.S. Supreme Court weighs in on the matter.  Right now, there is not a genuine split of authority on the issue.  The U.S. Supreme Court is generally inclined not to reverse unanimous holdings of large numbers of lower courts on the same issue, even though it has the authority to do so and sometimes exercises that authority.

06 July 2014

Sidonia

Many people have been executed for witchcraft.

One of the more notable, whose legend spawned an opera after which in turn an ill fated World War II ship was named, was Sidonia von Borcke, a litigious Pomeranian* noblewoman who never married and lost most of her family young.  She and a former employee of the Lutheran Abby where where lived in her later years where she served as a sub-prioress, was executed at the age of seventy-two in 1620 after many nobles who had arguably persecuted her died mysteriously.  The former employee and then she confessed to murder by sorcery while being tortured.  A thousand pages of the trial record remains available as a historical document.

* Pomerania means land by the sea and refers to a principality on the South Coast of the Baltic Sea, much of which is now part of Poland.

01 July 2014

ISIS aka ISIL declares itself a sovereign caliphate


The map, via the Reference Frame blog, shows in dark red the area controlled by ISIS aka ISIL, the militant organization that has declared itself a sovereign state as an Islamic Caliphate.  The light red area show the territory that it claims.

Thoughts On The Rise Of Soccer

Soccer is the most popular sport in the world, almost everywhere but the United States.

When I grew up, I was one of the first generations of kids to play soccer.  None of our parents knew the rules.  Now, as an adult, both my children have played soccer and I've been able to provide meaningful guidance to them in doing so, perhaps not at international standard, but I know the game.  Of course, my son now plays lacrosse, I game I'd never even seen played until my late 30s, and still don't really understand, so the cycle repeats itself - although lacrosse is a Pre-Columbian American sport from the Northeast, even if it didn't reach its modern form until much later.

Pro and college American football is still the king of American sports, but fewer and fewer school kids play it, in part, because the risk of injury is so high relative to soccer, basketball, and other leading sports.  Rural school districts that once prided themselves on their football prowess now field reduced size teams if they have football teams at all.

I played T-ball (I was so bad that I struck out once, which is bad when the ball is sitting still on a stick) and played on a firm softball team once, but never advanced to fast pitch.  Baseball is hardly played at the school level anymore, in part because it is a summer sport when school is out of session.  Also, to be honest, baseball is boring as sin and lots of people don't watch it or have an interest in playing it anymore.  A perfect game is my idea of a nightmare.  We see about one Rockies game a year in person for the stadium experience.  No sport is easier to follow in a radio broadcast or with a newspaper box score report.  And, we watched when the Rockies made it to the World Series, but I don't even understand the playoff system in baseball and they play so many, many games.  I also don't get why the World Series includes only the U.S. and Canada, despite the fact that there is one more great baseball playing country in the world, Japan, that is excluded from it.

When I was growing up and first playing soccer, the U.S. was awful at the sport and didn't have a pro-soccer league.  Now, the U.S. has a pro-soccer league (including Denver's own Colorado Rapids franchise with its own dedicated soccer stadium at Dick's Field), and we have made it to the final 16 in the FIFA World Cup in Brazil (an even that occurs only every four years, like the Olympics).

Symbolically, the new found American love of soccer, demonstrates that even the U.S. is slowly making its way towards the international norm.  It has been slow in coming, just as we have been reluctant to adopt international norms like the metric system in our daily lives, universal health care, belief in evolution rather than creationism, to disavow life without parole sentences for juveniles, to abandon the death penalty, and to cease using of jury trials on a widespread basis to resolve civil disputes.  It is a sign of cosmopolitan times.