06 November 2009
Congratulations Alice!
Congratulations to Alice Ra and Reuel Kim who are getting married tomorrow at the Redondo Beach Historic Library in California.
05 November 2009
Incorporation Via Privileges and Immunities
Where do our federal constitutional protections from conduct by state and local actors come from? Mostly, through incorporation of the Bill of Rights via the due process clause of the 14th Amendment.
Another route to secure a similar result, via the privileges and immunities clause of the 14th Amendment was considered and rejected in the Slaughterhouse cases. A new article by Larry Solum, the proprietor of the Legal Theory blog, offers some thoughts about what it would mean if the privileges and immunities clause rather than the due process clause of the 14th Amendment were used as the theoretical basis for incorporation of the Bill of Rights. This has been discussed as a step that the court could take in deciding whether to apply the Second Amendment to the states.
Some of the observations made include:
1. The privileges and immunities clause confers rights only on U.S. citizens, not all persons. Thus, legal and illegal immigrants could lose many of their constitutional right under this approach. This also opens a new door to denying constitutional rights to felons whose other citizenship rights are limited by their convictions.
2. The privileges and immunities clause has the potential to provide a stronger legal justification to substantive due process cases like Roe v. Wade, since it has a meaning in the legal community when the 14th Amendment was adopted that included multiple unenumerated rights.
3. This article doesn't discuss, but I've previously noted that this would also be a time when the Supreme Court could move from a selective incorporation to a total incorporation theory with regard to the Bill of Rights. This would make the right to a unanimous criminal jury (not currently available in Louisiana and Washington State), the right to have capital and infamous crimes screened by a grand jury (something now present in only about half of the states), and the 7th Amendment right to a civil jury trial, matters of constitutional stature.
Incorporating the Second Amendment is a not the best option. Gun control is best left to individual state and local governments to decide. The Second Amendment should simply prevent the federal government from nationalizing the gun control issue.
There may be room to articulate new unenumerated rights particular to U.S. citizens under the privileges and immunities clause, or to provide an additional basis for the constitutional rights of U.S. citizens vis-a-vis the U.S. government outside the territory of the United States and in parts of the United States that are not within any state. But, it does not make sense to reverse decades of precedent to use this as a primary way to apply provisions of the federal bill of rights to the states in a way that denies rights to people who aren't U.S. citizens when those rights don't obviously have a connection to U.S. citizenship.
Another route to secure a similar result, via the privileges and immunities clause of the 14th Amendment was considered and rejected in the Slaughterhouse cases. A new article by Larry Solum, the proprietor of the Legal Theory blog, offers some thoughts about what it would mean if the privileges and immunities clause rather than the due process clause of the 14th Amendment were used as the theoretical basis for incorporation of the Bill of Rights. This has been discussed as a step that the court could take in deciding whether to apply the Second Amendment to the states.
Some of the observations made include:
1. The privileges and immunities clause confers rights only on U.S. citizens, not all persons. Thus, legal and illegal immigrants could lose many of their constitutional right under this approach. This also opens a new door to denying constitutional rights to felons whose other citizenship rights are limited by their convictions.
2. The privileges and immunities clause has the potential to provide a stronger legal justification to substantive due process cases like Roe v. Wade, since it has a meaning in the legal community when the 14th Amendment was adopted that included multiple unenumerated rights.
3. This article doesn't discuss, but I've previously noted that this would also be a time when the Supreme Court could move from a selective incorporation to a total incorporation theory with regard to the Bill of Rights. This would make the right to a unanimous criminal jury (not currently available in Louisiana and Washington State), the right to have capital and infamous crimes screened by a grand jury (something now present in only about half of the states), and the 7th Amendment right to a civil jury trial, matters of constitutional stature.
Incorporating the Second Amendment is a not the best option. Gun control is best left to individual state and local governments to decide. The Second Amendment should simply prevent the federal government from nationalizing the gun control issue.
There may be room to articulate new unenumerated rights particular to U.S. citizens under the privileges and immunities clause, or to provide an additional basis for the constitutional rights of U.S. citizens vis-a-vis the U.S. government outside the territory of the United States and in parts of the United States that are not within any state. But, it does not make sense to reverse decades of precedent to use this as a primary way to apply provisions of the federal bill of rights to the states in a way that denies rights to people who aren't U.S. citizens when those rights don't obviously have a connection to U.S. citizenship.
Insulin Link To Dementia Found
Low levels of both insulin and insulin-like growth factors appear to cause cell loss and the shrinking of the brain that result in dementia . . . . [T]he findings offer real hope that the progression of dementia in those with conditions such as Alzheimer's, diabetes and Parkinson's disease may someday be prevented. . . . About 80 percent of Alzheimer's patients have a history of diabetes or pre-diabetes. Diabetics also are at a higher risk of developing dementia. . . .[T]he gradual loss of both insulin and insulin-like growth factors combined with aging and disease probably increases the risk of brain shrinkage. . . . [Therefore] "it may be possible to develop a treatment that prevents brain atrophy and prevents the progression of dementia."
Dementia (i.e. reduced mental abilities, often associated with aging) affects five million people in the U.S. and the numbers may double as the baby boomers age.
Also, since obesity is strongly linked to diabetes, controlling obesity may, in turn, reduce one's risk of Alzheimer's disease.
The State of Denver Public Schools Not Swell
A new school board is about to take office in the Denver Public Schools and the transitional item, finished by the last board, but subject to review by the new school board, will be how to deal with six troubled schools, three neighborhood schools and three charter schools. Those schools are: Lake Middle School, Philips Elementary and Greenlee Elementary and Northeast Academy Charter School, P.S. 1 Charter School and Skyland Community Charter School.
This highlights the fact that the board inherits a school district that has problems that need to be solved.
From here.
Likewise, "3,600 students drop out of DPS each year and that among the more than 7,500 who fall behind on the four-year graduation track, 42 percent are at risk of dropping out later." (Full report here.)
But, not all parts of the Denver Public School District have the same problems.
Holding On To Kids
One particularly interesting statistic in the Colorado system of widespread school choice is "capture" which measures what percentage of kids in the area attend DPS schools in that part of DPS.
In (predominantly Hispanic but gentrifying) Northwest Denver the capture rate is 80%, and "Denver has a net gain of 334 Westminster students. "
In (historically African-American and rapidly growing from new development) Northeast Denver, the capture rate is 82% and "Denver has a net loss of nine students to Commerce City and a net loss of 93 students to Adams 12 Five Star."
Far Northeast Denver (out toward the Denver International Airport) has lots of new suburban sytle development and a shortage of schools. the capture rate is 69%. "DPS has a net gain of 560 students from Aurora, net gain of 57 students from Brighton, net gain of 37 students from Mapleton."
In Southwest Denver, which has grown considerable more Hispanic and Asian in recent years and become less affluent, the capture rate is 63% and "Denver has a net loss of 1,156 students to Jefferson County and a net loss of 562 students to Littleton." Middle class kids that remain (far Southwest Denver has a reputation for being the City's "cop town", favored by protective service workers who want a suburban environment without having to fear residency requirements) often choice out to neighboring suburban school districts.
DPS also has a low 63% capture rate in Southeast Denver, the most affluent part of DPS, despite the fact that students in schools in this part of the city have the highest CSAP test scores. "Denver has a net gain of 356 students from Cherry Creek, a net loss of 1,138 students to Douglas County, a net loss of 191 students to Englewood and a net loss of 312 students to Sheridan."
Good academic performance does not imply high "capture" rates. Southeast Denver has by far the best academically performning schools in the District, 77% of students are in schools that meet or exceed expectations, yet it is tied for the lowest capture rate and sends a net 1,285 students to neighboring districts. In contrast, Northwest Denver's schools, which are the academically poorest performing in the District (with just 18% of schools meeting or exceeding expectations), has the second highest capture rate in the City and produces a net gain in interdistrict transfers.
Denver isn't primarily losing more students to parochial schools either. The decline in Roman Catholic K-12 enrollment in Denver has paralleled the decline seen in the public schools.
This highlights the fact that the board inherits a school district that has problems that need to be solved.
Almost 20 percent of seats in Denver's schools are empty, 53 percent of schools are on watch or probation and nearly 7,000 students in the city choose to be educated in places other than Denver Public Schools every year.
From here.
Likewise, "3,600 students drop out of DPS each year and that among the more than 7,500 who fall behind on the four-year graduation track, 42 percent are at risk of dropping out later." (Full report here.)
But, not all parts of the Denver Public School District have the same problems.
Holding On To Kids
One particularly interesting statistic in the Colorado system of widespread school choice is "capture" which measures what percentage of kids in the area attend DPS schools in that part of DPS.
In (predominantly Hispanic but gentrifying) Northwest Denver the capture rate is 80%, and "Denver has a net gain of 334 Westminster students. "
In (historically African-American and rapidly growing from new development) Northeast Denver, the capture rate is 82% and "Denver has a net loss of nine students to Commerce City and a net loss of 93 students to Adams 12 Five Star."
Far Northeast Denver (out toward the Denver International Airport) has lots of new suburban sytle development and a shortage of schools. the capture rate is 69%. "DPS has a net gain of 560 students from Aurora, net gain of 57 students from Brighton, net gain of 37 students from Mapleton."
In Southwest Denver, which has grown considerable more Hispanic and Asian in recent years and become less affluent, the capture rate is 63% and "Denver has a net loss of 1,156 students to Jefferson County and a net loss of 562 students to Littleton." Middle class kids that remain (far Southwest Denver has a reputation for being the City's "cop town", favored by protective service workers who want a suburban environment without having to fear residency requirements) often choice out to neighboring suburban school districts.
DPS also has a low 63% capture rate in Southeast Denver, the most affluent part of DPS, despite the fact that students in schools in this part of the city have the highest CSAP test scores. "Denver has a net gain of 356 students from Cherry Creek, a net loss of 1,138 students to Douglas County, a net loss of 191 students to Englewood and a net loss of 312 students to Sheridan."
Good academic performance does not imply high "capture" rates. Southeast Denver has by far the best academically performning schools in the District, 77% of students are in schools that meet or exceed expectations, yet it is tied for the lowest capture rate and sends a net 1,285 students to neighboring districts. In contrast, Northwest Denver's schools, which are the academically poorest performing in the District (with just 18% of schools meeting or exceeding expectations), has the second highest capture rate in the City and produces a net gain in interdistrict transfers.
Denver isn't primarily losing more students to parochial schools either. The decline in Roman Catholic K-12 enrollment in Denver has paralleled the decline seen in the public schools.
New HPV Vaccine Helps Even After Infection
The basic theory of a vaccine is that if you build up your immune system to fight a virus before you get the virus, that you can prevent yourself from being infected. A new vaccine for the most deadly strain of HPV, which causes cervical cancer and genital lesions, reduced or eliminated HPV symptoms in 14 of 20 already HPV infected and symptomatic women who received it in a Dutch study. The other six women did not benefit, but this may be because all had severe and well established cases (often ten years of infection) already.
The new vaccine trains immune system T cells to fight off the virus, just as vaccines administered before infection do. Anti-viral drugs, in contrast, target the viruses themselves.
Two existing vaccines for HPV have not be investigated for post-infection use, impact more strains of HPV, and are approved for administration to uninfected girls and young women.
The new vaccine trains immune system T cells to fight off the virus, just as vaccines administered before infection do. Anti-viral drugs, in contrast, target the viruses themselves.
Two existing vaccines for HPV have not be investigated for post-infection use, impact more strains of HPV, and are approved for administration to uninfected girls and young women.
04 November 2009
Are You Smarter Than A Supreme Court Justice?
You know that the law of federal habeas corpus is broken when U.S. Supreme Court justices are deeply confused by it, and the lawyers arguing before them are having trouble explaining it, yet the only way a convicted state prisoner has a right to raise issues on federal habeas corpus appeal is without a lawyer.
Recall, that in Colorado, 99% of convicted criminal defendants have no education beyond a high school diploma, and that a large share are high school dropouts who do not even have a GED. Many don't speak English as their native language. Many, like the defendant in the case before the U.S. Supreme Court (a capital case, so he does have a pro bono lawyer), are mentally retarded.
Is it any wonder that federal habeas corpus reversals are common in capital cases, where criminal defendants typically secure pro bono lawyers at every stage of the process, while criminal defendants lose in 99% of non-capital cases where they are not represented by counsel?
Would it be any less fair to require inmates to solve calculus problems on their own to get relief, with calculus textbooks made available to the? Some inmates will get the right answer by dumb luck or with the help of a jailhouse lawyer, but the system unreasonably denies a fair hearing to the vast majority of people who have had their rights violated.
An intricate legal standard could make sense in the kind of case that only sophisticated parties engage in, the application of consolidated tax return regulations to multiple related corporate entities, for example. But, it makes no sense for sorting out the saved from the damned in a system where marginally literate prison inmates are representing themselves in federal court.
Recall, that in Colorado, 99% of convicted criminal defendants have no education beyond a high school diploma, and that a large share are high school dropouts who do not even have a GED. Many don't speak English as their native language. Many, like the defendant in the case before the U.S. Supreme Court (a capital case, so he does have a pro bono lawyer), are mentally retarded.
Is it any wonder that federal habeas corpus reversals are common in capital cases, where criminal defendants typically secure pro bono lawyers at every stage of the process, while criminal defendants lose in 99% of non-capital cases where they are not represented by counsel?
Would it be any less fair to require inmates to solve calculus problems on their own to get relief, with calculus textbooks made available to the? Some inmates will get the right answer by dumb luck or with the help of a jailhouse lawyer, but the system unreasonably denies a fair hearing to the vast majority of people who have had their rights violated.
An intricate legal standard could make sense in the kind of case that only sophisticated parties engage in, the application of consolidated tax return regulations to multiple related corporate entities, for example. But, it makes no sense for sorting out the saved from the damned in a system where marginally literate prison inmates are representing themselves in federal court.
Is There A Right Not To Be Framed?
Does a prosecutor who fakes evidence in the pre-trial phase of a criminal case, and then introduces it at trial to procure a wrongful conviction, have absolute immunity from being sued under federal civil rights laws for doing so?
This is the issue that the Justice of the U.S. Supreme Court discussed at oral argument today. Prosecutors argued that it is too easy to state a plausible claim that a prosecutor faked evidence when he didn't actually do that, and that this kind of suit would gum up the works of the criminal justice system. The lawyer for men wrongfully convicted based on evidence faked by a prosecutor argue that where this kind of lawsuit was permitted, that very few cases were brought against prosecutors.
Justice Kennedy, whose vote frequently decides close cases on the U.S. Supreme Court, together with the liberal justices on the court, was highly critical of the prosecutor's claims. The conservative justices on the court, and more liberal Justice Breyer, expressed prudential concerns about this kind of claim, but were not particular vehement about doing so.
While it is always perilous to predict the future, it comes with the whole prophet business, and it looks likely from oral argument that prosecutors will be found to have only qualified immunity for pre-trial constitutional violations, although it is not necessarily easy to see exactly how this pre-trial and post-trial lines will be drawn.
Simply put, saying that a prosecutor hasn't committed an actionable violation of a constitutional right when he or she deliberately fakes evidence before trial in order to frame someone sounds indefensible. Faking evidence for the purpose of framing someone sounds like a very bad thing for a prosecutor to do, and if that means more time and effort spent by courts in a gatekeeping function, so be it.
Also strikingly, from an originalist point of view, former Solicitor General Clement, arguing for the convicted men, pointed out that there is no qualified or absolute immunity under common law or the language of the statute in question, when the statute was enacted, and there is no good reason to believe that Congress intended the statute to be subject to court created immunities. This might sway one or two conservative justices.
Usually, of course, criminal defendants plea guilty. Usually, criminal defendants are not able to plausibly make a case that the evidence against them was faked by anyone, or that the evidence which was allegedly faked changed the result at trial. Usually, even if faked evidence is present in a case, criminal defendants are not able to plausibly make a case that it was the prosecutor rather than someone else who did it, and that this happened in the pre-trial phase of a criminal case.
One way to greatly reduce the prudential risk that civil rights claims would be brought against prosecutors in cases where the prosecutors actually did nothing wrong, would be to adopt an exoneration first rule. In other word, you can't sue someone for faking evidence until you win a court ruling that you were wrongfully convicted, something that doesn't happen very often. Thus, the cause of action would not arise for statute of limitations purposes, until there was an exoneration.
In some wrongful conviction cases, moreover, the reason for an exoneration will clearly not be that you were framed, or will involve proof that someone other than a prosecutor faked evidence. Even if every exonerated person who isn't in one of these categories sues, there won't be many cases. And, as in all qualified immunity cases (qualified immunity applies to suits against all law enforcement officers other than judges and prosecutors), even then, an early evidentiary hearing and legal briefing to show that any alleged violation is immune from prosecution could be held and subject to immediate appeal.
At this point, the concern about overwhelming the criminal justice system fades away, unless, of course, prosecutors are routinely faking evidence in a way that can be discovered by criminal defendants after, but not during, trial.
An exoneration first rule doesn't seem likely to be the rule that SCOTUS will adopt in this case. But, since qualified and absolute immunity are matters of statutory interpretation that Congress has the power to change, this kind of rule could be adopted legislatively.
Indeed, one could go further and adopt a principal that any claim of absolute immunity lapses when a judicial or quasi-judicial body finds that there was either a wrongful conviction, contempt of court, or an ethical breach by the individual with absolute immunity in the case in question. So, if a judge sanctions a prosecutor for knowingly introducing false evidence in a criminal trial over which the judge presided, or an attorney ethics body finds that a prosecutor knowingly introduced false evidence in a criminal trial, or a judge in a post-conviction review process finds that someone was wrongfully convicted on the basis of faked evidence, absolute immunity would be terminated in that particular case. This happens very rarely, but these are the cases that cry out for compensation.
The other policy step that really needs to be taken is to apply the takings clause to wrongful convictions. The takings clause says that the government can't deprive you of property without due process AND just compensation. Even if you get due process, you are also entitled to just compensation. When you are found to have been wrongfully convicted, regardless of whether your initial trial was fair or not, you ought to be entitled to have the state compensate you in a just amount for depriving you of your liberty. Yes, the state will sometimes make mistakes in the criminal justice process and yet, we need a functioning criminal justice process despite its imperfection. But, that does not mean that the state should be allowed to engage in a reverse lottery, by requiring the wrongfully convicted people to bear the economic cost of those mistakes.
Indeed, if the state is on the hook in any case for paying just compensation, then the stakes in suits brought by wrongfully convicted people against prosecutors would be much lower, and one of the main parties suing former prosecutors for their wrongdoing would be the state itself seeking indemnification, in what would amount to a legal malpractice claim against the prosecutor.
Unlike police officers, former prosecutors are often in a good position to pay judgments for their past willful misconduct in suits brought by the state, because they often go on to lucrative private legal practices. Indeed, private law practices are themselves a legalized way of securing private gain by using state power. And, states have the credibility and resources to use ethics prosecutions to prove the ethical misconduct that would be a condition precedent to suing the prosecutor, and the track record necessary to show that states are unlikely to bring frivolous ethics charges against former prosecutors.
This is the issue that the Justice of the U.S. Supreme Court discussed at oral argument today. Prosecutors argued that it is too easy to state a plausible claim that a prosecutor faked evidence when he didn't actually do that, and that this kind of suit would gum up the works of the criminal justice system. The lawyer for men wrongfully convicted based on evidence faked by a prosecutor argue that where this kind of lawsuit was permitted, that very few cases were brought against prosecutors.
Justice Kennedy, whose vote frequently decides close cases on the U.S. Supreme Court, together with the liberal justices on the court, was highly critical of the prosecutor's claims. The conservative justices on the court, and more liberal Justice Breyer, expressed prudential concerns about this kind of claim, but were not particular vehement about doing so.
While it is always perilous to predict the future, it comes with the whole prophet business, and it looks likely from oral argument that prosecutors will be found to have only qualified immunity for pre-trial constitutional violations, although it is not necessarily easy to see exactly how this pre-trial and post-trial lines will be drawn.
Simply put, saying that a prosecutor hasn't committed an actionable violation of a constitutional right when he or she deliberately fakes evidence before trial in order to frame someone sounds indefensible. Faking evidence for the purpose of framing someone sounds like a very bad thing for a prosecutor to do, and if that means more time and effort spent by courts in a gatekeeping function, so be it.
Also strikingly, from an originalist point of view, former Solicitor General Clement, arguing for the convicted men, pointed out that there is no qualified or absolute immunity under common law or the language of the statute in question, when the statute was enacted, and there is no good reason to believe that Congress intended the statute to be subject to court created immunities. This might sway one or two conservative justices.
Usually, of course, criminal defendants plea guilty. Usually, criminal defendants are not able to plausibly make a case that the evidence against them was faked by anyone, or that the evidence which was allegedly faked changed the result at trial. Usually, even if faked evidence is present in a case, criminal defendants are not able to plausibly make a case that it was the prosecutor rather than someone else who did it, and that this happened in the pre-trial phase of a criminal case.
One way to greatly reduce the prudential risk that civil rights claims would be brought against prosecutors in cases where the prosecutors actually did nothing wrong, would be to adopt an exoneration first rule. In other word, you can't sue someone for faking evidence until you win a court ruling that you were wrongfully convicted, something that doesn't happen very often. Thus, the cause of action would not arise for statute of limitations purposes, until there was an exoneration.
In some wrongful conviction cases, moreover, the reason for an exoneration will clearly not be that you were framed, or will involve proof that someone other than a prosecutor faked evidence. Even if every exonerated person who isn't in one of these categories sues, there won't be many cases. And, as in all qualified immunity cases (qualified immunity applies to suits against all law enforcement officers other than judges and prosecutors), even then, an early evidentiary hearing and legal briefing to show that any alleged violation is immune from prosecution could be held and subject to immediate appeal.
At this point, the concern about overwhelming the criminal justice system fades away, unless, of course, prosecutors are routinely faking evidence in a way that can be discovered by criminal defendants after, but not during, trial.
An exoneration first rule doesn't seem likely to be the rule that SCOTUS will adopt in this case. But, since qualified and absolute immunity are matters of statutory interpretation that Congress has the power to change, this kind of rule could be adopted legislatively.
Indeed, one could go further and adopt a principal that any claim of absolute immunity lapses when a judicial or quasi-judicial body finds that there was either a wrongful conviction, contempt of court, or an ethical breach by the individual with absolute immunity in the case in question. So, if a judge sanctions a prosecutor for knowingly introducing false evidence in a criminal trial over which the judge presided, or an attorney ethics body finds that a prosecutor knowingly introduced false evidence in a criminal trial, or a judge in a post-conviction review process finds that someone was wrongfully convicted on the basis of faked evidence, absolute immunity would be terminated in that particular case. This happens very rarely, but these are the cases that cry out for compensation.
The other policy step that really needs to be taken is to apply the takings clause to wrongful convictions. The takings clause says that the government can't deprive you of property without due process AND just compensation. Even if you get due process, you are also entitled to just compensation. When you are found to have been wrongfully convicted, regardless of whether your initial trial was fair or not, you ought to be entitled to have the state compensate you in a just amount for depriving you of your liberty. Yes, the state will sometimes make mistakes in the criminal justice process and yet, we need a functioning criminal justice process despite its imperfection. But, that does not mean that the state should be allowed to engage in a reverse lottery, by requiring the wrongfully convicted people to bear the economic cost of those mistakes.
Indeed, if the state is on the hook in any case for paying just compensation, then the stakes in suits brought by wrongfully convicted people against prosecutors would be much lower, and one of the main parties suing former prosecutors for their wrongdoing would be the state itself seeking indemnification, in what would amount to a legal malpractice claim against the prosecutor.
Unlike police officers, former prosecutors are often in a good position to pay judgments for their past willful misconduct in suits brought by the state, because they often go on to lucrative private legal practices. Indeed, private law practices are themselves a legalized way of securing private gain by using state power. And, states have the credibility and resources to use ethics prosecutions to prove the ethical misconduct that would be a condition precedent to suing the prosecutor, and the track record necessary to show that states are unlikely to bring frivolous ethics charges against former prosecutors.
California's Civil Gideon Law
California has adopted a law providing legal representation at state expense in certain non-criminal family law, eviction and foreclosure suits. Previously, publicly appointed counsel was available only in criminal and termination of parental rights cases, and in rare cases where courts appoint counsel so that a position can be properly represented (often in appellate cases).
I've argued for something similar in the past, particularly in custody cases where the interest of the parties is significant, but the parties may all be indigent. The representation will be funded through court costs.
Those who think that it is more expensive to hire lawyers in these cases than to let the parties fumble though the court process should look at the tangles these cases routinely produe and then think again.
I've argued for something similar in the past, particularly in custody cases where the interest of the parties is significant, but the parties may all be indigent. The representation will be funded through court costs.
Those who think that it is more expensive to hire lawyers in these cases than to let the parties fumble though the court process should look at the tangles these cases routinely produe and then think again.
Prof Dismisses Suit v. Above The Law
Sunlight is the best disinfectant.
Professor D. Marvin Jones, in the face of overwhelming negative publicity in the popular press and legal blogosphere about his pro se lawsuit against the Above The Law blog, and a letter from their lawyer (Marc Randazza), has voluntarily dismissed the suit without prejudice before an answer was filed.
As the post announcing the suit implies, this means that the statute of limitations for any defamation claims has lapsed.
Professor D. Marvin Jones, in the face of overwhelming negative publicity in the popular press and legal blogosphere about his pro se lawsuit against the Above The Law blog, and a letter from their lawyer (Marc Randazza), has voluntarily dismissed the suit without prejudice before an answer was filed.
As the post announcing the suit implies, this means that the statute of limitations for any defamation claims has lapsed.
Other News
November 3 in history:
Yesterday, a Louisiana justice of the peace who refused to solemnize interracial marriages resigned from office.
Also yesterday, the Board of Directors of General Motors voted to reorganize, rather than sell, its European Opel division. This is the first major break the now government and union controlled entity has seen from its pre-bankruptcy corporate policies. Fellow post-bankruptcy automaker Chrysler's sales were down 30% from the prior year in October, far worse than its U.S. and foreign competitors and the overall market.
The restaurant chain (Landry's) that owns the Downtown Aquarium in Denver was acquired for $1.2 million in cash by its CEO who was already a 55% owner.
Today, 22 CIA agents were convicted of kidnapping, in absentia, by an Italian court in connection with the extrajudicial seizure of a Muslim man in Italy as part of a Bush Administration "extraordinary rendition" program targeted at suspected terrorists and conducted without Italian involvement.
0644 - Kalief Omar I injured during assassination attempt
1394 - Jews are expelled from France by Charles VI
1493 - Christopher Columbus discovers island of Dominica
1527 - Ferdinand of Austria/Bohemia chosen as king of Hungary
1529 - London: 1st sitting of the Reformation Parliament
1534 - English parliament accepts Act of Supremacy: Henry VIII church leader
1620 - Great Patent granted to Plymouth Colony
1655 - England & France sign miltary & economic treaties
1656 - Treaty of Vilnius Russia/Poland sign anti-Swedish covenant [NS]
1676 - Kara Mustafa succeeds Ahmed K”prl as Turkish grand vizier
1679 - Great panic occurs in Europe over close approach of a comet
1716 - Pacification Treaty of Warsaw: Czar Peter the Great guarantees Saxon monarch August I's Polish kingdom
1762 - England & Spain signs Treaty of Paris
1762 - Spain acquires Louisiana
1783 - Washington orders Continental Army disbanded
1791 - Battle at Wabash: Indians assault general St Clair/killed 637 soldiers
1794 - French troops conquer Maastricht
Yesterday, a Louisiana justice of the peace who refused to solemnize interracial marriages resigned from office.
Also yesterday, the Board of Directors of General Motors voted to reorganize, rather than sell, its European Opel division. This is the first major break the now government and union controlled entity has seen from its pre-bankruptcy corporate policies. Fellow post-bankruptcy automaker Chrysler's sales were down 30% from the prior year in October, far worse than its U.S. and foreign competitors and the overall market.
The restaurant chain (Landry's) that owns the Downtown Aquarium in Denver was acquired for $1.2 million in cash by its CEO who was already a 55% owner.
Today, 22 CIA agents were convicted of kidnapping, in absentia, by an Italian court in connection with the extrajudicial seizure of a Muslim man in Italy as part of a Bush Administration "extraordinary rendition" program targeted at suspected terrorists and conducted without Italian involvement.
2009 Election Redux
So, there was an election yesterday. What happened in Colorado?
Denver voters rejected (by an almost 7-3 margin) an initiative proposing mandatory car impoundment for driver's without licenses. It was opposed by almost the entire political establishment and was a loophole closing follow up to a prior impoundment initiative that has proven to be most invalid or unenforceable. Both impoundment initiatives were not so veiled anti-immigrant measures. Turnout of 81,553 voters in Denver's all mail ballot election was lower than any comparable recent election in Denver since 1999 when turnout was 81,489 in the November school board election.
Voters in Breckenridge, Colorado, home of a popular ski resort, voted to decriminalize possession of small amounts of marijuana under town ordinances, with 73% of voters favoring decriminalization. State law remains in effect, so this measure, like a similar one that passed in Denver, is largely symbolic.
In Colorado Springs, Doug Bruce, the lead sponsor of TABOR (which limits the authority of Colorado governments to impose taxes without voter approval and imposes revenue limitations) prevailed at the ballot box where he had failed in local government and the courts. He was battling a stormwater user's fees that he called (without court agreement) a tax. TABOR also required Colorado Springs to seek voter approval to increase property taxes so it could avoid steep cuts in city services, and voters yesterday refused to go along. Most municipal governments in Colorado have "deBruced" with voter approval, but not Colorado Springs, so its revenues are strictly limited.
The 2-1 defeat of the property tax proposal in hard pressed Colorado Springs may presage how Colorado Springs would vote if state government put a tax increase or TABOR relief on the ballot to avoid further budget cuts. This means that any revenue increase proposal on the ballot in 2010 would need solid support outside this conservative anti-tax stronghold.
Teacher's union backed candidates will now hold four of the seven seats on the Denver Public School board, despite the fact that these candidates were less well funded in their campaigns. They won the two districts on Denver's West side. Mary Seawell, on the other slate, won the at large seat. The big issue was support for charter schools. Teacher's union candidates are lukewarm about charter schools without rejecting them out of hand. The other board members are more enthusiastic about the possibilities that charter schools offer.
Meanwhile, in Douglas County, Colorado, a conservative Southern Denver suburb, four school board candidates backed by the Republican party in the officially non-partisan race, defeated four candidates backed by the teacher's union there.
The voters in the City of Aurora (a large first ring suburb to the East of Denver) nixed a proposal to create a library district with its own property tax base. As a result (well publicized in advance), four of Aurora's seven libraries will close and the library system will lay off 40 people. I sympathize for an Auroran friend of mine who is in a library science graduate program right now.
While Aurora is shutting down libraries, Mayor Hickenlooper spared a branch library that was to have been shut down and Sunday hours at the Central Branch from this year's budget cuts. A replacement Colorado History museum is under construction half a block away from its current site (and in sight of the Central Branch library), which is being torn down to make way for a replacement to the structurally unsound state appellate courts building that shares the block with it. The appellate courts will move into the Denver Post Building across Civic Center Park from its current site in the interim. A new art museum is ready to break ground in December as a new addition to the Denver Art Museum complex, after a cost saving redesign and falling construction costs have reduced the estimated construction costs by $4 million dollars. Both the history and art museums receive major funding from the appointed Scientific and Cultural Facilities District in metropolitan Denver, a funding source that reflects the regional draw of these attractions.
The front range Regional Transportation District (RTD), in Colorado, in contrast, is far short of funds to complete its voter approved FasTracks rail expansion plan, but did win approval from a labor arbitrator of its contract proposal for its unionized workers while a more generous worker sponsored proposal was rejected. The arbitrator cited tough economic times for the district. Despite the FasTracks shortfall, RTD did not ask voters for additional funds in this election (nor did Denver).
No state level or federal offices or issues were on the ballot this year in Colorado.
Outside Colorado
Voters in Virginia and New Jersey elected Republican Governors. Both elections focused on personalities and local issues. Democrats kept a majority in the state legislature in New Jersey, while Republicans retained control in Virginia's legislature.
In Maine, a narrow majority of voters vetoed a gay marriage law enacted by the state legislature and signed by the Governor. Meanwhile, in Washington State were returns are always slow because ballots can be postmarked on election day, "Referendum 71, which sought to confer the same rights on domestic partnerships as civil marriages, was narrowly ahead in the latest returns."
Ohio voters authorized casino gambling in Cincinnati, Columbus, Cleveland, and Toledo.
Maine and Washington State voters rejected proposed TABOR amendments similar to the one in place in Colorado.
Pro-streetcar candidates did well in local elections across the nation, including Cincinnati.
In New York State's special election to fill a Congressional vacancy:
NY-23 is in rural northern New York State, north of Albany and Syracuse. Parts of the district have not been represented by Democrats since the 1850s, when the Whig party was the main party opposed to the Democrats. Democratic Congressman Bill Owens of New York is no relation to former Republican Governor Bill Owens of Colorado, despite the Today Show's screwup on that point.
Republican Mayor Bloomberg of New York City won a third term against a low profile Democratic party challenger, after a massively expensive campaign and the repeal of a term limits law. Bloomberg (like most Northeastern Republicans who hold elective office) is a moderate Republican in overwhelmingly Democratic New York City.
Denver voters rejected (by an almost 7-3 margin) an initiative proposing mandatory car impoundment for driver's without licenses. It was opposed by almost the entire political establishment and was a loophole closing follow up to a prior impoundment initiative that has proven to be most invalid or unenforceable. Both impoundment initiatives were not so veiled anti-immigrant measures. Turnout of 81,553 voters in Denver's all mail ballot election was lower than any comparable recent election in Denver since 1999 when turnout was 81,489 in the November school board election.
Voters in Breckenridge, Colorado, home of a popular ski resort, voted to decriminalize possession of small amounts of marijuana under town ordinances, with 73% of voters favoring decriminalization. State law remains in effect, so this measure, like a similar one that passed in Denver, is largely symbolic.
In Colorado Springs, Doug Bruce, the lead sponsor of TABOR (which limits the authority of Colorado governments to impose taxes without voter approval and imposes revenue limitations) prevailed at the ballot box where he had failed in local government and the courts. He was battling a stormwater user's fees that he called (without court agreement) a tax. TABOR also required Colorado Springs to seek voter approval to increase property taxes so it could avoid steep cuts in city services, and voters yesterday refused to go along. Most municipal governments in Colorado have "deBruced" with voter approval, but not Colorado Springs, so its revenues are strictly limited.
Had it been approved by voters, the permanent property tax increase would have generated an estimated $27.6 million in additional revenue next year and allowed the government to maintain services at 2009 levels.
Without it, city officials warned of having to close recreational and cultural facilities, slash 63,000 hours of bus service and lay off dozens of employees, including police officers and firefighters, among a host of cuts.
The 2-1 defeat of the property tax proposal in hard pressed Colorado Springs may presage how Colorado Springs would vote if state government put a tax increase or TABOR relief on the ballot to avoid further budget cuts. This means that any revenue increase proposal on the ballot in 2010 would need solid support outside this conservative anti-tax stronghold.
Teacher's union backed candidates will now hold four of the seven seats on the Denver Public School board, despite the fact that these candidates were less well funded in their campaigns. They won the two districts on Denver's West side. Mary Seawell, on the other slate, won the at large seat. The big issue was support for charter schools. Teacher's union candidates are lukewarm about charter schools without rejecting them out of hand. The other board members are more enthusiastic about the possibilities that charter schools offer.
Meanwhile, in Douglas County, Colorado, a conservative Southern Denver suburb, four school board candidates backed by the Republican party in the officially non-partisan race, defeated four candidates backed by the teacher's union there.
The voters in the City of Aurora (a large first ring suburb to the East of Denver) nixed a proposal to create a library district with its own property tax base. As a result (well publicized in advance), four of Aurora's seven libraries will close and the library system will lay off 40 people. I sympathize for an Auroran friend of mine who is in a library science graduate program right now.
While Aurora is shutting down libraries, Mayor Hickenlooper spared a branch library that was to have been shut down and Sunday hours at the Central Branch from this year's budget cuts. A replacement Colorado History museum is under construction half a block away from its current site (and in sight of the Central Branch library), which is being torn down to make way for a replacement to the structurally unsound state appellate courts building that shares the block with it. The appellate courts will move into the Denver Post Building across Civic Center Park from its current site in the interim. A new art museum is ready to break ground in December as a new addition to the Denver Art Museum complex, after a cost saving redesign and falling construction costs have reduced the estimated construction costs by $4 million dollars. Both the history and art museums receive major funding from the appointed Scientific and Cultural Facilities District in metropolitan Denver, a funding source that reflects the regional draw of these attractions.
The front range Regional Transportation District (RTD), in Colorado, in contrast, is far short of funds to complete its voter approved FasTracks rail expansion plan, but did win approval from a labor arbitrator of its contract proposal for its unionized workers while a more generous worker sponsored proposal was rejected. The arbitrator cited tough economic times for the district. Despite the FasTracks shortfall, RTD did not ask voters for additional funds in this election (nor did Denver).
No state level or federal offices or issues were on the ballot this year in Colorado.
Outside Colorado
Voters in Virginia and New Jersey elected Republican Governors. Both elections focused on personalities and local issues. Democrats kept a majority in the state legislature in New Jersey, while Republicans retained control in Virginia's legislature.
In Maine, a narrow majority of voters vetoed a gay marriage law enacted by the state legislature and signed by the Governor. Meanwhile, in Washington State were returns are always slow because ballots can be postmarked on election day, "Referendum 71, which sought to confer the same rights on domestic partnerships as civil marriages, was narrowly ahead in the latest returns."
Ohio voters authorized casino gambling in Cincinnati, Columbus, Cleveland, and Toledo.
Maine and Washington State voters rejected proposed TABOR amendments similar to the one in place in Colorado.
Pro-streetcar candidates did well in local elections across the nation, including Cincinnati.
In New York State's special election to fill a Congressional vacancy:
Democrat Bill Owens defeated Conservative Party candidate Doug Hoffman in New York's 23rd congressional district special election, 49%-45% (with 92% of the voting in), becoming the first Democrat to control the district since at least the 1890s. . . . It was something of an upset after it was widely considered a likely victory for Hoffman after the Republican pick, Dede Scozzafava, dropped out of the race over the weekend. Scozzafava did, however, endorse Owens -- though it was unclear what effect that would have. . . . Republicans now control just two of 29 districts in New York State -- one Upstate and one in Long Island. They have lost six districts Upstate just since 2006. They control zero seats in all of New England.
NY-23 is in rural northern New York State, north of Albany and Syracuse. Parts of the district have not been represented by Democrats since the 1850s, when the Whig party was the main party opposed to the Democrats. Democratic Congressman Bill Owens of New York is no relation to former Republican Governor Bill Owens of Colorado, despite the Today Show's screwup on that point.
Republican Mayor Bloomberg of New York City won a third term against a low profile Democratic party challenger, after a massively expensive campaign and the repeal of a term limits law. Bloomberg (like most Northeastern Republicans who hold elective office) is a moderate Republican in overwhelmingly Democratic New York City.
Meet Western Citizen
Yesterday, Wendy Norris launched Western Citizen, a new online magazine featuring investigative reporting and local color. Wendy was a colleague of mine at Colorado Confidential (now known as the Colorado Independent, link in the sidebar). As she describes her new venture:
Warning: The first story on the page when I checked out the site today was a glowing review of a 900 page plus biography of President Theodore Roosevelt, and the page was anchored with a prescription drug co-payment bar chart from the Congressional Budget Office. This is serious policy wonk material that Unbossed readers (link in sidebar), and many of my readers, are sure to enjoy. If you want lighter local content, try Westword or 5280 (links in the sidebar).
The aim is to combine investigative reporting with online tools to empower citizens to discover their own opportunities for direct action and to publicly deliberate on finding solutions to community problems. And we'll have some fun too with quirky pieces on life in the Rocky Mountain West (see: Me llamo Dick) and some ass-kicking media criticism (see: Whiskey and Water).
Warning: The first story on the page when I checked out the site today was a glowing review of a 900 page plus biography of President Theodore Roosevelt, and the page was anchored with a prescription drug co-payment bar chart from the Congressional Budget Office. This is serious policy wonk material that Unbossed readers (link in sidebar), and many of my readers, are sure to enjoy. If you want lighter local content, try Westword or 5280 (links in the sidebar).
03 November 2009
Race, Class, Income and College
Another major data set, by sociologist Thomas J. Espendshade, on race, class, income, test scores and admissions based on data from 9000 students at ten highly selective public and private institutions of higher education in the United States (include public and private institutions, research universities and liberal arts colleges) is available.
The results show that empirically, being black is a major plus in the selective college admissions process, that there is some advantage in the admissions process to being Hispanic or lower class, and that being Asian is a disadvantage. High social class is a plus a public colleges and a minus at private colleges.
Of course, all those advantages are for a given applicant with a given class rank and set of test scores. All the groups that are at a disadvantage in the admissions process are overrepresented in those institutions of higher education.
In a nutshell, those groups that are favored in the process are favored because they are rare, and those groups that are disfavored in the process are disfavored because they are common. Highly selective colleges are not jammed full of lower class black students who were in the bottom 20% of the high school classes.
Indeed, it is remarkable how many people who didn't do very well in high school manage to get into highly selective colleges. Traditionally, one assumes that people in the bottom 40% of their high school class aren't college bound. Yet, of those admitted to highly selective colleges, a large percentage do come from the bottom 40% of their high school classes. About 33% of white students, 74% of black students, 61% of Hispanic students, 37% of Asian students, 56% of lower and working class students, 42% of middle class students, and 32% of upper class and upper middle class students.
Lots of mediocre high school students of all races and classes get into highly selective colleges, and students from a "disadvantaged" background are particularly likely to get into highly selective colleges despite mediocre high school performance. Indeed, given the likelihood that it took greater academic ability to get a good class rank at the schools attended by upper class and upper middle class students, the "disadvantaged" students were probably more medicore as high school students than those numbers would suggest.
Retention and Big Picture Issues
The new numbers deserve some caveats (some explored in a prior post of dropping out of college).
First, the higher up the selectivity chain you go, the more extreme affirmative action numbers tend to appear. Non-academic factors play a much larger part at Yale or Princeton than they do at a branch campus of Colorado State University or Mesa State College. At less selective schools prestige issues siphon off many of the best students, and bare minimum standards (set below levels where there is much of a likelihood of securing a four year degree once admitted) set a floor, so there isn't nearly as much of a range witin students who are admitted.
For exapmle, the four year college program presumptive cutoff of 85 on their admissions index at Mesa State College (in Grand Junction, Colorado) translates to roughly a 460 on each setion of the SATs (about the 35th percentile), a 19 ACT (35th percentile), a 35th percentile in class rank, and a 2.7 GPA (B-), or some appropriate combination of these test scores, class rank and GPAs. This is not the least selective college in the state. Community colleges and associate degree programs are usually even more open in their admissions process than four year college programs. At colleges that have open admissions or are not highly selective, anyone minimally qualified is given the opportunity to find out for themselves if they are capable of earning a degree. At Mesa State College, with these admissions standards, about one in three admitted students manages to graduate in six years.
Attrition based admissions sort those likely to continue from those unlikely to continue as well or better than the traditional process for upper division students. Students who transfer from community college to four year colleges do as well as the average traditionally admitted student of the state's flagship University of Colorado campus in Boulder, and better the average traditionally admitted student at less selective institutions. Students at high risk of dropping out usually do so early.
A second and related factor is that mostly, college admissions is about where, rather than if, one goes to colleges. Almost every state has colleges and universities that will admit almost anyone with a high school diploma or GED. Indeed, these institutions, as well as being the easiest to get into to are also usually the least expensive. Everyone with any meaningful chance of completing a college degree can get into some public college or university, or at least, will not be denied admission on account of inferior academic ability.
The college admissions process is mostly about matching academic ability and other plus factors (e.g. race, social class, extra-curricular interests, being from far away, legacy status), with institutional prestige. A failure to get admitted at one college (as an undergraduate) mean that one will be admitted to a "safety school" instead.
People who don't get into college at all usually fail because they don't understand this feature of the admissions process, not because they can't get into any college or university. Far more people who have a meaningful chance of earning a degree fail to do so because they feel they can't afford it, need to meet family obligations, or fail to complete the proper entrance exams and applications, than because they are academically incapable of getting into any college or university.
Indeed, given the surprisingly low retention rates at reasonably selective public universities (two in three students graduate in six years at the most selective public institutions in Colorado) and the extremely low retention rates at less some of the least selective public institutions (at Metropolitan State, one in four graduate in six years, at most community colleges in Colorado, most drop out in the first year), it is fair to say that many, many people who don't have a meaningful chance of earning a degree do get into some college or university.
Seen in this light, affirmative action at the undergraduate level is less insidious. A small number of Asian and white applicants will go to a slightly less presitigous institution than they might otherwise have attended, and a small number of "disadvantaged" student will go to a more prestigous institution than they might otherwise have attended. In the case of applicants who are both black and poor, it will often be a much much sought after institution than they might otherwise have attended.
Moreover, institutional prestige isn't the whole story. Those who went to less prestigous schools than they might otherwise have attended will tend to have a higher class rank than they would have at the more prestigous school. Those who attend more prestigous schools tend to be towards the bottom of their classes academically. In a lot of cases, those students who are given the benefit of the doubt, for whatever reason, and admitted with marginal academic credentials, end up dropping out rather than earning undergraduate degrees. Those who drop out, moreover, more often than not, do so in the first couple of semesters.
Once people graduate, the link between the prestige of the school you attended and your academic performance there, and many economic and non-economic measures of life success, is not necessarily very great.
The results show that empirically, being black is a major plus in the selective college admissions process, that there is some advantage in the admissions process to being Hispanic or lower class, and that being Asian is a disadvantage. High social class is a plus a public colleges and a minus at private colleges.
Of course, all those advantages are for a given applicant with a given class rank and set of test scores. All the groups that are at a disadvantage in the admissions process are overrepresented in those institutions of higher education.
In a nutshell, those groups that are favored in the process are favored because they are rare, and those groups that are disfavored in the process are disfavored because they are common. Highly selective colleges are not jammed full of lower class black students who were in the bottom 20% of the high school classes.
Indeed, it is remarkable how many people who didn't do very well in high school manage to get into highly selective colleges. Traditionally, one assumes that people in the bottom 40% of their high school class aren't college bound. Yet, of those admitted to highly selective colleges, a large percentage do come from the bottom 40% of their high school classes. About 33% of white students, 74% of black students, 61% of Hispanic students, 37% of Asian students, 56% of lower and working class students, 42% of middle class students, and 32% of upper class and upper middle class students.
Lots of mediocre high school students of all races and classes get into highly selective colleges, and students from a "disadvantaged" background are particularly likely to get into highly selective colleges despite mediocre high school performance. Indeed, given the likelihood that it took greater academic ability to get a good class rank at the schools attended by upper class and upper middle class students, the "disadvantaged" students were probably more medicore as high school students than those numbers would suggest.
Retention and Big Picture Issues
The new numbers deserve some caveats (some explored in a prior post of dropping out of college).
First, the higher up the selectivity chain you go, the more extreme affirmative action numbers tend to appear. Non-academic factors play a much larger part at Yale or Princeton than they do at a branch campus of Colorado State University or Mesa State College. At less selective schools prestige issues siphon off many of the best students, and bare minimum standards (set below levels where there is much of a likelihood of securing a four year degree once admitted) set a floor, so there isn't nearly as much of a range witin students who are admitted.
For exapmle, the four year college program presumptive cutoff of 85 on their admissions index at Mesa State College (in Grand Junction, Colorado) translates to roughly a 460 on each setion of the SATs (about the 35th percentile), a 19 ACT (35th percentile), a 35th percentile in class rank, and a 2.7 GPA (B-), or some appropriate combination of these test scores, class rank and GPAs. This is not the least selective college in the state. Community colleges and associate degree programs are usually even more open in their admissions process than four year college programs. At colleges that have open admissions or are not highly selective, anyone minimally qualified is given the opportunity to find out for themselves if they are capable of earning a degree. At Mesa State College, with these admissions standards, about one in three admitted students manages to graduate in six years.
Attrition based admissions sort those likely to continue from those unlikely to continue as well or better than the traditional process for upper division students. Students who transfer from community college to four year colleges do as well as the average traditionally admitted student of the state's flagship University of Colorado campus in Boulder, and better the average traditionally admitted student at less selective institutions. Students at high risk of dropping out usually do so early.
A second and related factor is that mostly, college admissions is about where, rather than if, one goes to colleges. Almost every state has colleges and universities that will admit almost anyone with a high school diploma or GED. Indeed, these institutions, as well as being the easiest to get into to are also usually the least expensive. Everyone with any meaningful chance of completing a college degree can get into some public college or university, or at least, will not be denied admission on account of inferior academic ability.
The college admissions process is mostly about matching academic ability and other plus factors (e.g. race, social class, extra-curricular interests, being from far away, legacy status), with institutional prestige. A failure to get admitted at one college (as an undergraduate) mean that one will be admitted to a "safety school" instead.
People who don't get into college at all usually fail because they don't understand this feature of the admissions process, not because they can't get into any college or university. Far more people who have a meaningful chance of earning a degree fail to do so because they feel they can't afford it, need to meet family obligations, or fail to complete the proper entrance exams and applications, than because they are academically incapable of getting into any college or university.
Indeed, given the surprisingly low retention rates at reasonably selective public universities (two in three students graduate in six years at the most selective public institutions in Colorado) and the extremely low retention rates at less some of the least selective public institutions (at Metropolitan State, one in four graduate in six years, at most community colleges in Colorado, most drop out in the first year), it is fair to say that many, many people who don't have a meaningful chance of earning a degree do get into some college or university.
Seen in this light, affirmative action at the undergraduate level is less insidious. A small number of Asian and white applicants will go to a slightly less presitigous institution than they might otherwise have attended, and a small number of "disadvantaged" student will go to a more prestigous institution than they might otherwise have attended. In the case of applicants who are both black and poor, it will often be a much much sought after institution than they might otherwise have attended.
Moreover, institutional prestige isn't the whole story. Those who went to less prestigous schools than they might otherwise have attended will tend to have a higher class rank than they would have at the more prestigous school. Those who attend more prestigous schools tend to be towards the bottom of their classes academically. In a lot of cases, those students who are given the benefit of the doubt, for whatever reason, and admitted with marginal academic credentials, end up dropping out rather than earning undergraduate degrees. Those who drop out, moreover, more often than not, do so in the first couple of semesters.
Once people graduate, the link between the prestige of the school you attended and your academic performance there, and many economic and non-economic measures of life success, is not necessarily very great.
Above The Law Sued
The Above The Law blog has been sued in federal court in the Southern District of Florida by University of Miami law professor Donald Marvin Jones.
Professor Jones made headlines after being arrested on charges of soliciting a prostitute to which he has pleaded not guilty, and before that for a bogus arrest which was dropped by police. He takes particularly umbrage to the racially derogatory tone of the pieces. He is an African-American constitutional law expert, and alleges that he is routinely the subject of hate mail from anti-civil rights advocates.
The Complaint alleges the privacy torts of false light and invasion of privacy.
The false light claim arises from a portray of him as "a dope dealer, pimp and criminal," saying he has an arrest record despite the fact that no charges were filed in his 2007 arrest and the police purged him from their arrest record database, and for calling him a "nutty professor."
He alleges that the invasion of privacy claim involves a situation where he was simply "driving while black" in a nice car in a bad part of town, that the matter was dropped by police leaving him with no criminal record, but that the blog continues to portray him as a "criminal."
As a third count, he claims copyright infringement for the website's use of a copy of his University of Miami website photograph without his permission.
He demands $2 million in non-economic damages (enumerated as compensatory in one place and damage to his reputation in another) and $20 million in punitive damages.
Analysis
It isn't obvious that the first two claims asserted really amount to invasions of privacy as opposed to more traditional defamation claims.
There are also important choice of law issues in this case. Is the case governed by the New York forum where Above The Law is based, or the Florida forum where the Professor is domiciled. This may matter quite a bit, because the law of privacy varies quite a bit from state to state, although in the case of the false light claim, it is a distinction without a difference.
In a diversity action in a federal court in Florida, Florida's choice of law rules would apply, and if Florida's law was held to apply, the legal question of the validity of a false light claim might even be certified to the Florida Supreme Court to resolve, as it is an important unresolved question of state law. The general rule is that the place of publication governs in the case of a newspaper published in a single state, but a blog read nationally may look more like a newspaper published generally, in which case the mushy "state wit the most significant relationship" test applies.
As of 2002, false light had been rejected as a valid cause of action in ten states, including New York, while the issue had not been resolved in Florida:
Florida's Supreme Court joined the chorus of states rejecting a false light claim separate from defamation a little more than a year ago in October of 2008.
Invasion of privacy claims are also rare in the absence of an express or implied duty on the part of the person blabbing to maintain confidentiality, or a confidential relationship. Above the Law doesn't have that kind of relationship to the Professor. Either tips the blog received, or newspaper coverage provided its description. And, it isn't at all clear that merely republishing information that reveals truth facts about a person obtained through a breach of privacy is a basis for liability.
But, this claim may not stand as a privacy tort even if the allegations are true, a determination that depends upon state law and in turn upon which state law applies.
To my knowledge, Florida hasn't outright rejected the public disclosure of private facts cause of action. But, a case involving the videotape of a man being arrested in his underwear was held to be not within the scope of the tort. The U.S. Supreme Court held in a Florida case that publication of a rape victim's name in a newspaper in violation of an express state law forbidding newspapers from doing this and in violation of the newspaper's own policies, could not constitutionally support a public disclosure of private facts claim, so it is hard to see how Above the Law's disclosure could be a violation in this case. The statute of limitations in Florida for disclosure of private facts is four years.
New York does not recognize a suit for public disclosure of private facts.
Even if the case had been pleaded as a defamation case, the Professor's case is very weak, because the Above the Law posts have a credible factual basis rather than being published with reckless disregard for the truth. One contains a screen print from a public database, a second has an image of an incident report, a third has a school newspaper report with quotations from people likely to have relevant knowledge, and the last has a non-realistic graphic likely to be protected as a spoof or parody, and suit based on the image may also be barred by Section 230 (providing considerable additional analysis as well).
Statute of limitations concerns also apply to the defamation claims. The suit was filed October 27, 2009, within two years of the original publication of the last of the four Above The Law blog posts, but more than two years after the first three blog posts. The statute of limitations for defamation claims in Florida is two years. New York has a one year statute of limitations for defamation claims.
The Florida venue also raised the issue of jurisdiction and venue. Generally, jurisdiction is available in Florida only when the defendant has minimal contacts with the Florida, something that has produced a mixed bag of precedents with regard to blogs distributed widely (see e.g., here and here and here), and venue is proper where the defendant resides (New York) or where the tort occurred (cyberspace including republication in Florida). It isn't obvious that the fact that a blog can be read in Florida and discusses Florida people and events makes a Florida venue proper.
As for the copyright claim, it isn't clear that the photo actually belongs to the Professor, as opposed to the University of Miami. It was probably taken by their public relations department at University of Miami expense as work for hire of the photographer. So, a copyright claim, if there is one, probably belongs to the University rather than to the Professor. And, there is a good argument that it is fair use to use a P.R. photograph provided to the general public by one's employer. Also, while copyrights arise automatically, in the absence of a circle c mark with a year, most statutory remedies are not available, and a copyright suit cannot be brought until the protected matter is registered with the registrar of copyrights, which very likely didn't happen.
The copyright claim makes the suit a federal question suit, in addition to giving the claim diversity jurisdiction support. There is no dollar threshold in federal question cases, and state law is less often borrowed by the federal court in making its rulings. It is possible, if the copyright claim is seen as the primary basis of jurisdiction, that federal common law and interpretation of the copyright statute might supersede state law analysis of the other claims.
The Professor didn't plead appropriation of likeness, the best established of the privacy torts, which allows one whose image is used without one's permission for commercial purposes to sue for the commercial value of that image (i.e. it is an implied right to a modeling fee), even though this is a stronger claim than either copyright or the other two of the three best known privacy torts. Still some manner of fair use in connection with the fact that this is news reporting may still apply in an appropriation of likeness claim. This may not have been brought because the damages for that claim would be minimal and normally wouldn't include punitive damages.
Bottom line: It is my view that the Professor's claim fails to state a claim upon which relief can be granted as currently pleaded. It might be possible to plead different claims (defamation and appropriation of likeness), instead, but even then, it would be a difficult case to prevail upon, and it isn't clear that Florida is the proper state in which to bring the claims. The suit is simply poorly done and a weak case, something that often happens when one represents oneself rather than hiring a lawyer (even if you are a lawyer), because one often loses professional objectivity.
On the whole, the Professor hurts his reputation as much by bringing the half-baked suit as the stories from Above The Law do. The Complaint displays his lack of legal acumen, which is much more important to his professional reputation than allegations, since dropped, that he solicited a prostitute that had grown cold with two years of time. Universities don't fire professors or refuse to hire them because they once were accused of soliciting a prostitute, particularly where no conviction resulted and no students were involved. Law schools do have a low opinion of law professors who show that they don't know the law in suits that they file pro se, particularly when the suit involves a constitutional law professor whose suit raises a host of First Amendment issues.
Professor Jones made headlines after being arrested on charges of soliciting a prostitute to which he has pleaded not guilty, and before that for a bogus arrest which was dropped by police. He takes particularly umbrage to the racially derogatory tone of the pieces. He is an African-American constitutional law expert, and alleges that he is routinely the subject of hate mail from anti-civil rights advocates.
The Complaint alleges the privacy torts of false light and invasion of privacy.
The false light claim arises from a portray of him as "a dope dealer, pimp and criminal," saying he has an arrest record despite the fact that no charges were filed in his 2007 arrest and the police purged him from their arrest record database, and for calling him a "nutty professor."
He alleges that the invasion of privacy claim involves a situation where he was simply "driving while black" in a nice car in a bad part of town, that the matter was dropped by police leaving him with no criminal record, but that the blog continues to portray him as a "criminal."
As a third count, he claims copyright infringement for the website's use of a copy of his University of Miami website photograph without his permission.
He demands $2 million in non-economic damages (enumerated as compensatory in one place and damage to his reputation in another) and $20 million in punitive damages.
Analysis
It isn't obvious that the first two claims asserted really amount to invasions of privacy as opposed to more traditional defamation claims.
There are also important choice of law issues in this case. Is the case governed by the New York forum where Above The Law is based, or the Florida forum where the Professor is domiciled. This may matter quite a bit, because the law of privacy varies quite a bit from state to state, although in the case of the false light claim, it is a distinction without a difference.
In a diversity action in a federal court in Florida, Florida's choice of law rules would apply, and if Florida's law was held to apply, the legal question of the validity of a false light claim might even be certified to the Florida Supreme Court to resolve, as it is an important unresolved question of state law. The general rule is that the place of publication governs in the case of a newspaper published in a single state, but a blog read nationally may look more like a newspaper published generally, in which case the mushy "state wit the most significant relationship" test applies.
As of 2002, false light had been rejected as a valid cause of action in ten states, including New York, while the issue had not been resolved in Florida:
Ten states -- Colorado, Massachusetts, Minnesota, Missouri, New York, North Carolina, Ohio, Texas, Virginia and Wisconsin -- have expressly rejected false light as a viable claim when recovery is sought for untrue statements. Some of those states, such as Virginia, have statutes that dictate what type of privacy claims may be made and that specifically leave out false light. In the other states, the highest courts have determined, as a matter of common law, that false light will not exist in their state.
In 11 states, supreme courts have not had an opportunity to rule on whether false light is recognized. In those states -- Alaska, Florida, Hawaii, Michigan, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming -- journalists should assume that courts will hear claims against the media for false light. In South Carolina and Washington, false light claims are less likely to succeed, as lower courts have predicted that those states' supreme courts would not recognize such claims.
The remaining 29 states and the District of Columbia accept false light as a viable claim.
Florida's Supreme Court joined the chorus of states rejecting a false light claim separate from defamation a little more than a year ago in October of 2008.
Invasion of privacy claims are also rare in the absence of an express or implied duty on the part of the person blabbing to maintain confidentiality, or a confidential relationship. Above the Law doesn't have that kind of relationship to the Professor. Either tips the blog received, or newspaper coverage provided its description. And, it isn't at all clear that merely republishing information that reveals truth facts about a person obtained through a breach of privacy is a basis for liability.
But, this claim may not stand as a privacy tort even if the allegations are true, a determination that depends upon state law and in turn upon which state law applies.
To my knowledge, Florida hasn't outright rejected the public disclosure of private facts cause of action. But, a case involving the videotape of a man being arrested in his underwear was held to be not within the scope of the tort. The U.S. Supreme Court held in a Florida case that publication of a rape victim's name in a newspaper in violation of an express state law forbidding newspapers from doing this and in violation of the newspaper's own policies, could not constitutionally support a public disclosure of private facts claim, so it is hard to see how Above the Law's disclosure could be a violation in this case. The statute of limitations in Florida for disclosure of private facts is four years.
New York does not recognize a suit for public disclosure of private facts.
Even if the case had been pleaded as a defamation case, the Professor's case is very weak, because the Above the Law posts have a credible factual basis rather than being published with reckless disregard for the truth. One contains a screen print from a public database, a second has an image of an incident report, a third has a school newspaper report with quotations from people likely to have relevant knowledge, and the last has a non-realistic graphic likely to be protected as a spoof or parody, and suit based on the image may also be barred by Section 230 (providing considerable additional analysis as well).
Statute of limitations concerns also apply to the defamation claims. The suit was filed October 27, 2009, within two years of the original publication of the last of the four Above The Law blog posts, but more than two years after the first three blog posts. The statute of limitations for defamation claims in Florida is two years. New York has a one year statute of limitations for defamation claims.
The Florida venue also raised the issue of jurisdiction and venue. Generally, jurisdiction is available in Florida only when the defendant has minimal contacts with the Florida, something that has produced a mixed bag of precedents with regard to blogs distributed widely (see e.g., here and here and here), and venue is proper where the defendant resides (New York) or where the tort occurred (cyberspace including republication in Florida). It isn't obvious that the fact that a blog can be read in Florida and discusses Florida people and events makes a Florida venue proper.
As for the copyright claim, it isn't clear that the photo actually belongs to the Professor, as opposed to the University of Miami. It was probably taken by their public relations department at University of Miami expense as work for hire of the photographer. So, a copyright claim, if there is one, probably belongs to the University rather than to the Professor. And, there is a good argument that it is fair use to use a P.R. photograph provided to the general public by one's employer. Also, while copyrights arise automatically, in the absence of a circle c mark with a year, most statutory remedies are not available, and a copyright suit cannot be brought until the protected matter is registered with the registrar of copyrights, which very likely didn't happen.
The copyright claim makes the suit a federal question suit, in addition to giving the claim diversity jurisdiction support. There is no dollar threshold in federal question cases, and state law is less often borrowed by the federal court in making its rulings. It is possible, if the copyright claim is seen as the primary basis of jurisdiction, that federal common law and interpretation of the copyright statute might supersede state law analysis of the other claims.
The Professor didn't plead appropriation of likeness, the best established of the privacy torts, which allows one whose image is used without one's permission for commercial purposes to sue for the commercial value of that image (i.e. it is an implied right to a modeling fee), even though this is a stronger claim than either copyright or the other two of the three best known privacy torts. Still some manner of fair use in connection with the fact that this is news reporting may still apply in an appropriation of likeness claim. This may not have been brought because the damages for that claim would be minimal and normally wouldn't include punitive damages.
Bottom line: It is my view that the Professor's claim fails to state a claim upon which relief can be granted as currently pleaded. It might be possible to plead different claims (defamation and appropriation of likeness), instead, but even then, it would be a difficult case to prevail upon, and it isn't clear that Florida is the proper state in which to bring the claims. The suit is simply poorly done and a weak case, something that often happens when one represents oneself rather than hiring a lawyer (even if you are a lawyer), because one often loses professional objectivity.
On the whole, the Professor hurts his reputation as much by bringing the half-baked suit as the stories from Above The Law do. The Complaint displays his lack of legal acumen, which is much more important to his professional reputation than allegations, since dropped, that he solicited a prostitute that had grown cold with two years of time. Universities don't fire professors or refuse to hire them because they once were accused of soliciting a prostitute, particularly where no conviction resulted and no students were involved. Law schools do have a low opinion of law professors who show that they don't know the law in suits that they file pro se, particularly when the suit involves a constitutional law professor whose suit raises a host of First Amendment issues.
Family Shout Out
Congratulations to my cousin Monte Willeke, of Akron, Colorado, who will be getting married next month.
Under A New Flag
* Last week I gave a national teleseminar for the National Business Institution "The Essentials of Asset Protection." You can buy copies for continuing education credits if you wish, I believe. I've lectured on the topic to lawyers for many years.
* Friday was the last day that the lawyers Anne McGihon, Andrea Montague and I, Andrew Oh-Willeke, did business as a branch office of the 500+ lawyer, Florida based law firm of Akerman Senterfitt LLP.
All of the lawyers of McGihon & Oh-Willeke, LLC joined Akerman on March 9, 2009. My practice remained commercial litigation, business transactions and estate planning. Anne McGihon's practice in Denver and Washington D.C. focused on public policy issues like representing clients in legislative and regulatory matters vis-a-vis the federal government. Andrea Montague worked with both of us.
As of this week, we are no longer affiliated with Akerman Senterfitt. Those of you who read websites like Above The Law, in the sidebar, know that this has been a very difficult time for big law firms. Most, including Akerman, have cut associate pay, reduced the number of lawyers and staff on their payrolls, reduced rent expenses, and focused on their long established core businesses. Akerman has followed suit determining that it was not ready at this time to take on expansion plans like the one our Denver South office involved. We have greatly enjoyed working with the lawyers at Akerman and continue to serve as local counsel for them in Colorado on select matters. For the vast majority of our clients, this simply means that they will start receiving e-mails from a new e-mail address and will see different stationary when they receive correspondence from us.
Big Law definitely has benefits, although there is always inconvenience adapting to the peculiarities of life in a big organization. But, small is beautiful too. Our telephone numbers and address are the same for now, and e-mail to our old e-mail address will be automatically forwarded in this interim period.
* For readers of this blog, this means that I am no longer professionally limited from discussing the affairs of past clients of the firm, many of whom are in the health care, banking, real estate development and financial sectors. My duties to this firm clients and the risk that I would share insider information (or be perceived as having it, I rarely actually did have insider information that was blogworthy, and most of that was information that was on the verge of public announcement anyway) has limited my ability to blog in this area over the last nine months. Obviously, I still have clients whose privacy and interests must be respected, but I don't have to continue considering the interests of the clients to whom I had only a vicarious connection through my attorney colleagues in the large firm.
* Friday was the last day that the lawyers Anne McGihon, Andrea Montague and I, Andrew Oh-Willeke, did business as a branch office of the 500+ lawyer, Florida based law firm of Akerman Senterfitt LLP.
All of the lawyers of McGihon & Oh-Willeke, LLC joined Akerman on March 9, 2009. My practice remained commercial litigation, business transactions and estate planning. Anne McGihon's practice in Denver and Washington D.C. focused on public policy issues like representing clients in legislative and regulatory matters vis-a-vis the federal government. Andrea Montague worked with both of us.
As of this week, we are no longer affiliated with Akerman Senterfitt. Those of you who read websites like Above The Law, in the sidebar, know that this has been a very difficult time for big law firms. Most, including Akerman, have cut associate pay, reduced the number of lawyers and staff on their payrolls, reduced rent expenses, and focused on their long established core businesses. Akerman has followed suit determining that it was not ready at this time to take on expansion plans like the one our Denver South office involved. We have greatly enjoyed working with the lawyers at Akerman and continue to serve as local counsel for them in Colorado on select matters. For the vast majority of our clients, this simply means that they will start receiving e-mails from a new e-mail address and will see different stationary when they receive correspondence from us.
Big Law definitely has benefits, although there is always inconvenience adapting to the peculiarities of life in a big organization. But, small is beautiful too. Our telephone numbers and address are the same for now, and e-mail to our old e-mail address will be automatically forwarded in this interim period.
* For readers of this blog, this means that I am no longer professionally limited from discussing the affairs of past clients of the firm, many of whom are in the health care, banking, real estate development and financial sectors. My duties to this firm clients and the risk that I would share insider information (or be perceived as having it, I rarely actually did have insider information that was blogworthy, and most of that was information that was on the verge of public announcement anyway) has limited my ability to blog in this area over the last nine months. Obviously, I still have clients whose privacy and interests must be respected, but I don't have to continue considering the interests of the clients to whom I had only a vicarious connection through my attorney colleagues in the large firm.
Last Day To Vote!
Denver voters have until today to vote. You must hand deliver the ballot you received because it is too late to mail your ballot. When and where?
The drop off is easy. You can drive by and hand it to someone without getting out of your car and you don't even need a stamp. The Mexico Avenue location is just West of Colorado Boulevard and just North of I-25.
There are school board races and Denver municipal ballot issue 300. The right answer to the municipal ballot issue is "No." It is an anti-immigrant measures that would also inflict considerable collateral damage on the city's finances, our city's capacity to police itself without having resources diverted to car impoundents, and innocent people swept into a zero tolerance policy. If you aren't sure how to vote, my prior post on the topic, and the links and comments there, can help.
In 2007, the most recent comparable election, 93,644 people voted.
In 2005, the next most recent comparable election, 117,212 people voted.
In 2003, 100,632 people voted.
In 2001, 95,251 people voted.
As of the end of the day yesterday, 63,885 people had voted. In order to meet historical levels another 30,000 votes need to come in either by mail from yesterday and before, or by being dropped off. It is safe to expect that at more than 12,000 ballots will be received today (the number received yesterday which was the highest so far in the election). But, with 243,002 ballots not yet returned as of yesterday, turnout could vary greatly based upon today's results.
Conventional wisdom is that lower turnout produces a more conservative electorate.
Your voted ballot must be received by the Denver Elections Division by 7 p.m. on Election Day in order to be counted. An Election Day postmark will not be honored if your ballot is received after Election Day. Please remember to sign your mail ballot before you return it.
You can return your voted ballot to a Voter Service Center located at the Denver Elections Division, 3888 E. Mexico Ave. or the Wellington Webb Building, Atrium, 201 W. Colfax Ave. from 8 a.m. to 6 p.m. Saturday, October 31 and Monday, November 2. Voter Service Centers will be open from 7 a.m. to 7 p.m. on Election Day. Drive-through ballot drop-off is also available in front of the Elections Division during the same hours.
The drop off is easy. You can drive by and hand it to someone without getting out of your car and you don't even need a stamp. The Mexico Avenue location is just West of Colorado Boulevard and just North of I-25.
There are school board races and Denver municipal ballot issue 300. The right answer to the municipal ballot issue is "No." It is an anti-immigrant measures that would also inflict considerable collateral damage on the city's finances, our city's capacity to police itself without having resources diverted to car impoundents, and innocent people swept into a zero tolerance policy. If you aren't sure how to vote, my prior post on the topic, and the links and comments there, can help.
In 2007, the most recent comparable election, 93,644 people voted.
In 2005, the next most recent comparable election, 117,212 people voted.
In 2003, 100,632 people voted.
In 2001, 95,251 people voted.
As of the end of the day yesterday, 63,885 people had voted. In order to meet historical levels another 30,000 votes need to come in either by mail from yesterday and before, or by being dropped off. It is safe to expect that at more than 12,000 ballots will be received today (the number received yesterday which was the highest so far in the election). But, with 243,002 ballots not yet returned as of yesterday, turnout could vary greatly based upon today's results.
Conventional wisdom is that lower turnout produces a more conservative electorate.
02 November 2009
Ford Makes 3Q Profit
It should be a dog bites man story. Ford Motor Company, an investor owned public company, didn't go bankrupt, didn't get a government bailout, and made a profit in the third quarter of 2009. It hasn't made a profit in 2009 as a whole and doesn't expect to do so, but hopes to make a profit in 2010.
General Motors Corp. and Chrysler LLC each received government bailouts followed by bankruptcy, their retired workers took huge hits in exchange for percentage ownership in the reorganized entities, and their current workers took pay cuts. Ford workers haven't accepted cuts and Ford is still on the hook for debts to retired workers and bondholders that its competitors have shed, yet it is still making a profit for one quarter so far this year.
Ford last made a full year profit in 2005, and increased its market share this year for the first time since 1995. It has even managed to hold onto its finanial arm, something that GM spun off and that Chrysler is shutting down.
UPDATE (11/2/09): Also, while a billion dollars of profits is nothing to sniff at, it also isn't that remarkable and works out to something on the order of $3 per car sold in the U.S. in the quarter. It is a safe bet that the average retail price of a Ford vehicle is $15,000 or more. So, Ford's margin is roughly 0.0002% of retail, and that overstates the matter by a factor or two or three by applying non-U.S. sale profits and financing profits to the U.S. sales. While shareholders weren't wiped out entirely at Ford as they were in GM and Chrysler (although collectively, they surely still have capital losses), the only people making real money in this operation are employees, bondholders, and car dealers. The parts suppliers are overwhelmingly losing money too.
General Motors Corp. and Chrysler LLC each received government bailouts followed by bankruptcy, their retired workers took huge hits in exchange for percentage ownership in the reorganized entities, and their current workers took pay cuts. Ford workers haven't accepted cuts and Ford is still on the hook for debts to retired workers and bondholders that its competitors have shed, yet it is still making a profit for one quarter so far this year.
Ford last made a full year profit in 2005, and increased its market share this year for the first time since 1995. It has even managed to hold onto its finanial arm, something that GM spun off and that Chrysler is shutting down.
UPDATE (11/2/09): Also, while a billion dollars of profits is nothing to sniff at, it also isn't that remarkable and works out to something on the order of $3 per car sold in the U.S. in the quarter. It is a safe bet that the average retail price of a Ford vehicle is $15,000 or more. So, Ford's margin is roughly 0.0002% of retail, and that overstates the matter by a factor or two or three by applying non-U.S. sale profits and financing profits to the U.S. sales. While shareholders weren't wiped out entirely at Ford as they were in GM and Chrysler (although collectively, they surely still have capital losses), the only people making real money in this operation are employees, bondholders, and car dealers. The parts suppliers are overwhelmingly losing money too.
29 October 2009
Disaggregating Government
There is a strong tendency in the modern design of American government to disaggregate government authority. Instead of lumping responsibilities onto the plate of an all powerful sovereign (like the U.K. Parliament which has the power to dissolve all subordinate entities at will and no meaningful constitutional limitations outside the area of human rights), the tendency is to to set up self-sustaining systems, more or less independent from the rest of government to perform a function.
The second largest government employer (not just now, but for most of U.S. history) as been the United States Post Office. For more than three decades, however, it has been a state owned enterprise that is primarily responsible for managing itself and raising its own revenues. A good share of the federal appropriation for the postal service amounts to payment for the part of the service that the federal government itself uses.
The nation's major roads and bridges have executive branch departments at the federal, state and local levels charged with maintaining them, but most routine revenue for this system comes from a group of excise taxes, like the gas tax, tailored to the purpose.
The civil side of the court system is overwhelmingly funded with fees paid by litigants. Real estate records, corporate records, vehicle registration, driver's licensing and professional regulation are also financed through user's fees.
Almost all special districts except school districts are funded more or less entirely through their own combination of property taxes, user's fees, earmarked sales taxes, private grants, and public grants. School districts were originally funded almost entirely through local property taxes with state governments stepping up to the plate with general fund appropriations only because local property taxes proved to be a dysfunctional form of school funding in many places.
Public institutions of higher education in Colorado are increasingly becoming non-profit enterprises that receive government grants sporadically, rather than integral parts of the state bureaucracy. Tuition, fees, institutional endowments and research grants pay most of the bills. In an effort to deal with TABOR, much of the aid previously provided to institutions is now provided mostly through scholarships to in state students who may attend public or private institutions with their money. Community colleges have earmarked funding from casino taxes. It may be only a matter of time before high education, which is always first in line for cuts when the general fund grows scarce, may decide that they would prefer to trade general fund appropriations to institutions for some suitably sized dedicated tax source -- severance taxes or a small state property tax levy perhaps. One way to save the federal estate tax might be to give it a constituency for its modest revenue stream, perhaps higher education scholarship and loan funding.
Social security and Medicare, the programs that ate the federal budget are funded primarily through earmarked payroll taxes. Social security has been hived off from the Department of Health and Human Services into an independent agency.
Politically, earmarked taxes are much more marketable than general purpose taxes. One of the key factors that made the European social welfare state politically acceptable, despite the fact that it results in such high levels of taxation, is that social welfare taxes are clearly identified with the services that they are providing to the people who pay them. A payroll tax for health insurance looks less ominous when it takes a hefty health insurance premium out of the firm budget. The highly regressive Social Security payroll tax has retained popularity because almost everybody gets at least the money that they put in back and the net combination of taxes paid and benefits received is meaningfully progressive, even though the tax standing alone is not, and the more generous Social Security is, the less people have to set aside every pay period for private retirement savings.
Deficit hawks have bemoaned the crush of entitlements on the federal budget. But, entitlement programs are a natural fit with the program of setting up autonomous, more or less independently funded and operated systems that meet needs that a governmental responsibilities. The need to compare apples and oranges in a more free wheeling budget process leaves so much room for error, that the legislative branch often ends up ceding really policy making authority in favor of complying with its limitations and honoring the standing mini-deals maintained in executive branch budgets aside from some minor tinkering at the fringes.
Colorado's Amendment 23, which guarantees certain funding levels from the general fund for K-12 education, is similarly a natural move in this direction. It leaves K-12 education with an earmarked property tax revenue stream and a core protected piece of the state general fund that is insulated from the whims of the political budget process to pay for a core function of government. It makes state general fund revenue for K-12 education act like a long term property tax in an area with stable property values instead of like the every contingent food fight for political power that it was before Amendment 23.
This plays out at the local level too. Aurora voters are being asked to separately earmark property taxes for a separate library district, or see dramatic cuts in its library services this year. Aurora could have asked for a general tax increase for a general budget shortfall, but found spinning off one function along with a dedicated source of revenues for it more palatable.
Disaggregating government so that most specific functions of government have earmarked revenue streams creates sustainable, low maintenance systems to keep all of the functions available to provide important services indefinitely to the people with a minimum of political strife.
Of course, this comes at a price. Earmarking revenue is the public sector equivalent of leveraging an investment. The government functions reliant upon residual general revenues face ever more intense budget fights over a highly cyclical amount left over after mandatory payments are made, and the risk of an overconstrained situation where the is no legal way to meet all of the legal obligations of the budget process looms ever larger. It also makes the disaggregated parts free from the need to be efficient with their share if their dedicated revenues turn out to be overgenerous, while leaving those parts with skimpy dedicated revenues at a perilous brink begging for their survival every budget cycle. The insufficiency of gas taxes and lack of political clout for the diffuse users of roads and bridges, for example, has led to scandalously deferred maintenance.
No one has consciously made a decision at a global level about what should and should not be in the general fund. It simply covers every service that has not opted out. But, rather than trying to reaggreate government revenues and centralize the budget process, it may make more sense to openly acknowledge what is going on and to strike to find independent bases of revenue support appropriate to every major and minor function of government, with the legislative budget process fading into the background replaced by a larger process sunset review type process that periodically examines each component of the system and recalibrates its revenue sources with its ongoing needs. This kind of longer run approach aimed at sustainable solutions to parts of the puzzle would promote the more deliberative and episodic decision making model that legislatures are better suited to participating in meaningfully.
The second largest government employer (not just now, but for most of U.S. history) as been the United States Post Office. For more than three decades, however, it has been a state owned enterprise that is primarily responsible for managing itself and raising its own revenues. A good share of the federal appropriation for the postal service amounts to payment for the part of the service that the federal government itself uses.
The nation's major roads and bridges have executive branch departments at the federal, state and local levels charged with maintaining them, but most routine revenue for this system comes from a group of excise taxes, like the gas tax, tailored to the purpose.
The civil side of the court system is overwhelmingly funded with fees paid by litigants. Real estate records, corporate records, vehicle registration, driver's licensing and professional regulation are also financed through user's fees.
Almost all special districts except school districts are funded more or less entirely through their own combination of property taxes, user's fees, earmarked sales taxes, private grants, and public grants. School districts were originally funded almost entirely through local property taxes with state governments stepping up to the plate with general fund appropriations only because local property taxes proved to be a dysfunctional form of school funding in many places.
Public institutions of higher education in Colorado are increasingly becoming non-profit enterprises that receive government grants sporadically, rather than integral parts of the state bureaucracy. Tuition, fees, institutional endowments and research grants pay most of the bills. In an effort to deal with TABOR, much of the aid previously provided to institutions is now provided mostly through scholarships to in state students who may attend public or private institutions with their money. Community colleges have earmarked funding from casino taxes. It may be only a matter of time before high education, which is always first in line for cuts when the general fund grows scarce, may decide that they would prefer to trade general fund appropriations to institutions for some suitably sized dedicated tax source -- severance taxes or a small state property tax levy perhaps. One way to save the federal estate tax might be to give it a constituency for its modest revenue stream, perhaps higher education scholarship and loan funding.
Social security and Medicare, the programs that ate the federal budget are funded primarily through earmarked payroll taxes. Social security has been hived off from the Department of Health and Human Services into an independent agency.
Politically, earmarked taxes are much more marketable than general purpose taxes. One of the key factors that made the European social welfare state politically acceptable, despite the fact that it results in such high levels of taxation, is that social welfare taxes are clearly identified with the services that they are providing to the people who pay them. A payroll tax for health insurance looks less ominous when it takes a hefty health insurance premium out of the firm budget. The highly regressive Social Security payroll tax has retained popularity because almost everybody gets at least the money that they put in back and the net combination of taxes paid and benefits received is meaningfully progressive, even though the tax standing alone is not, and the more generous Social Security is, the less people have to set aside every pay period for private retirement savings.
Deficit hawks have bemoaned the crush of entitlements on the federal budget. But, entitlement programs are a natural fit with the program of setting up autonomous, more or less independently funded and operated systems that meet needs that a governmental responsibilities. The need to compare apples and oranges in a more free wheeling budget process leaves so much room for error, that the legislative branch often ends up ceding really policy making authority in favor of complying with its limitations and honoring the standing mini-deals maintained in executive branch budgets aside from some minor tinkering at the fringes.
Colorado's Amendment 23, which guarantees certain funding levels from the general fund for K-12 education, is similarly a natural move in this direction. It leaves K-12 education with an earmarked property tax revenue stream and a core protected piece of the state general fund that is insulated from the whims of the political budget process to pay for a core function of government. It makes state general fund revenue for K-12 education act like a long term property tax in an area with stable property values instead of like the every contingent food fight for political power that it was before Amendment 23.
This plays out at the local level too. Aurora voters are being asked to separately earmark property taxes for a separate library district, or see dramatic cuts in its library services this year. Aurora could have asked for a general tax increase for a general budget shortfall, but found spinning off one function along with a dedicated source of revenues for it more palatable.
Disaggregating government so that most specific functions of government have earmarked revenue streams creates sustainable, low maintenance systems to keep all of the functions available to provide important services indefinitely to the people with a minimum of political strife.
Of course, this comes at a price. Earmarking revenue is the public sector equivalent of leveraging an investment. The government functions reliant upon residual general revenues face ever more intense budget fights over a highly cyclical amount left over after mandatory payments are made, and the risk of an overconstrained situation where the is no legal way to meet all of the legal obligations of the budget process looms ever larger. It also makes the disaggregated parts free from the need to be efficient with their share if their dedicated revenues turn out to be overgenerous, while leaving those parts with skimpy dedicated revenues at a perilous brink begging for their survival every budget cycle. The insufficiency of gas taxes and lack of political clout for the diffuse users of roads and bridges, for example, has led to scandalously deferred maintenance.
No one has consciously made a decision at a global level about what should and should not be in the general fund. It simply covers every service that has not opted out. But, rather than trying to reaggreate government revenues and centralize the budget process, it may make more sense to openly acknowledge what is going on and to strike to find independent bases of revenue support appropriate to every major and minor function of government, with the legislative budget process fading into the background replaced by a larger process sunset review type process that periodically examines each component of the system and recalibrates its revenue sources with its ongoing needs. This kind of longer run approach aimed at sustainable solutions to parts of the puzzle would promote the more deliberative and episodic decision making model that legislatures are better suited to participating in meaningfully.
Trouble In River City
Some high schools have homecoming dance public gang rapes, 19 student murders in the last year, and a 69% truancy rate. In those that don't, some principals feel a need manufacture the sense that they are the finger in the dike keeping the collapse of Indiana civilization as we know it from coming to an end. There is nothing new under the sun.
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