Does NC Prop 1 Violate The First Amendment?

North Carolina Proposition One


On Tuesday (May 8, 2012), North Carolina voters approved Proposition One, a state constitutional amendment, effective January 1, 2013 with about 60% of the vote.  It says: "Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."


Proposition One is discussed in a law review article styled paper by Eichner, et al., four University of North Carolina law professors, but the paper addresses its potential unintended implications in other areas of private law (family law, domestic violence laws, estate planning, powers of attorney, domestic partner benefits for employees), rather than its constitutionality.


Some reading broader than just a ban on same sex marriage must be intended, because same sex marriage was banned in North Carolina before this measure was adopted. The primary purpose appears to be to ban "civil unions" which are marriages between people of the same sex in all but name, affording essentially the same legal rights and responsibilities, and perhaps also to ban "domestic partnerships" between same sex couples that afford some, but not all, of the legal rights and responsibilities of marriage. But, the wording is anything but clear on precisely what effect it has because the phrase "domestic legal union" is not well defined in either plain English usage or legal practice and precedent. It is certainly susceptible to broader or narrower legal meanings.


If one reads broadly the term "domestic legal union," in the Proposition, which the North Carolina law school professors note "has never been used before in North Carolina, or interpreted in North Carolina courts," a meaning of "legally recognized allocation of rights and responsibilities in household affairs," it prohibits giving validity or recognition to a great many intrahousehold and intrafamily legal arrangements beyond the civil unions and domestic partnerships for homosexual couples that the measure was really primarily targeted at prohibiting.


Is This An Unconstitutional Limit On The Freedom Of Association and Privacy Rights?


One of the most interesting questions that this very broad language raises is whether it violates the First Amendment right to freedom of association, which applies in North Carolina and every other state via incorporation through the Fourteenth Amendment to the United States Constitution.


The First Amendment, which was adopted in 1791 (two years after the original U.S. Constitution that is now in force), says: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."


The establishment and free exercise clauses and the freedoms of speech and of the press get most of the attention.  But, "the right of the people peaceably to assemble," often called the freedom of association, is part of the First Amendment as well and like the other rights set forth in the Bill of Rights, has been interpreted broadly over the last two centuries (and particularly in the late 20th century and early 21st century).


Read broadly, Proposition One prohibits, or at least legally burdens, many ways people may peaceably assemble with each other without a very particularized state interest holding that these arrangements are contrary to public policy.  Even if there is no constitutional right to recognize "marriage" per se, between anyone other than one man and one woman, this broader prohibition might abroad First Amendment rights to freedom of association.


The constitutionality of this kind of limitation is informed by privacy/freedom of association cases like Lawrence which held that it was unconstitutional to criminalize consensual sodomy between adults conducted in private, and Griswold, which held that access to contraceptives cannot be limited to married couples.  The line of cases that invalidated the notion that the legal rights of a child may not hinge on legitimacy, except in the most narrow of circumstances, and the case of Loving v. Virginia holding that miscegenation laws are unconstitutional, are also relevant.


Other Federal Constitutional Theories That Could Invalidate Proposition One


Equal Protection


Of course, freedom of association is not the only federal constitutional theory upon which this state constitutional amendment can be challenged.  Equal protection considerations under the Fourteenth Amendment to the United States Constitution, such as those articulated in Romer v. Evans and reiterated in the recent holding of the United States Court of Appeals for the 9th Circuit, provide that citizens initiatives may not be used to make a specific class of people strangers to the law who are not entitled even to seek legislative relief for themselves on an equal basis with other people.

The wording of Proposition One may escape equal protection considerations on the theory that it disadvantages far more domestic arrangements than gay marriage and gay marriage lite, making gays uniquely strangers to the law as the Romer v. Evans proposition in Colorado did.  But, the more that Proposition One does not abridge equal protection considerations, the more it runs up against freedom of association, privacy, full faith and credit and impairment of obligations of contracts concerns. 


Full Faith and Credit


There are also questions about the extent to which this broader language constitutes a violation of the Full Faith and Credit clause of the original 1789 constitution (Article IV, Section 1), that requires states to recognize the legal acts of other states, beyond the limited exemption that DOMA, the Defense of Marriage Act, authorizes to allow states to ignore full fledged same sex marriages from other states.  This is an exception whose constitutional validity is itself the subject of challenge, although with less of an anticipated chance of success than the challenge to its provisions related to federal non-recognition of same sex marriages that are valid under state law, because Article IV, Section 1 provides that "congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."  This clause provides a fig leaf of express delegation of authority to Congress to enact the full faith and credit provisions of DOMA.

Laws Impairing Contracts

And, with respect to arrangements already in place when Proposition One takes effect, there is a fair question as to whether this measure constitutes a law that is invalid because it is a law "impairing  the obligations of contracts," something prohibited by the original 1789 Constitution in Article II, Section 10.

Federalism and Private Law

Buried in the debate over Proposition One is a reality of modern American federalism.  In practice, it is quite difficult to delegate the regulation of private law, governing the non-governmental interactions of non-governmental actors, to state and local governments.  We learned that the first time as a nation from almost ninety years of trying to manage existing in a federal union where different states could adopt differing rules on the private law issue of the permissibility of slavery and indentured servitude.

We are continuing to face those issues in areas like private sector and state and local union-management relations, medical marijuana, and gay rights.  In practice, federal constitutional and statutory law in a system where Congress has near plenary power backed by the Supremacy of federal law, and interstate and international transactions and migrations of private parties, mean that it is quite challenging for states to adopt different private law rules on matters of great practical importance for long periods of  time without creating a pitched internal legal mess that is rarely sustainable.  If all else fails, and Congress clearly lacks the authority to regulate some matter within the scope of state law authority, it can and has in the past, simply bribed them to adopt uniform rules, something it has a track record of doing with success.  In American politics, state and local government greed usually trumps state sovereignty.

Countries like Germany and Canada addressed this issue by placing much more authority over private law matters in the central government than the U.S. Constitution does (at least on its face) and leaving state and local governments with authority mostly to provide public services and administer central government blessed private laws.


But, while the American system of federalism doesn't require uniformity (and on some issues it manages to tolerate differences that the European Union finds to be essential to the functioning of its union of multiple sovereigns), it is not a system of federalism capable of accommodating extremely different legal and governmental arrangements in different constituent states. 


Even the modest challenges involved in Louisiana having a legal system rooted in French civil law, while the rest of the nation has a legal system rooted in English common law, have largely been overcome simply by forcing Louisiana to operate a hybrid system in which many core common law legal principles that are foreign to the French civil law system apply anyway, for reasons more bureaucratic than substantive.


American innovation is a bit like innovation within a franchise system or big business.  A little local color can be tolerated, but wholesale deviation from the master plan, a plan that in practice goes far beyond what is stated in the U.S. Constitution, simply does not work very well.  And, when the master plan is shifted on a national level, in pretty short order, the rest of the nation usually shifts with it in almost every state where the issues involved have any salience.

U.S. Navy To Get Anti-Small Boat Laser Guns

The details are available at the Defense Tech blog.  The laser melts down or ignites fuel in the opposing boat's engines.  Unlike Star Wars, however, the laser beam has to stay on target quite a while to do the job.

GOP House Leadership Kills Colo Civil Unions Bill

Republican leaders in Colorado's State House have killed SB2, the Civil Unions bill in Colorado's General Assembly, as well as thirty other bills including a bill funding $20 million in water projects, by calling a recess of the state house two hours before the midnight deadline for passage of the bill that was coming up for a debate on the House floor where it had the support of 37 of the 65 state legislators in the chamber which Republicans control by a single seat.  The bill passed the State Senate and passed three different committee votes in the State House.  The Governor had commited to signing the bill if it was passed in the House, and the State Senate had been on call ready to consider the bill if it was passed with house amendments tonight.

The Denver Post has urged Governor Hickenlooper to call a special session to consider civil unions, but he has avoided saying if he will do so or not while there was still a possibility that the bill could be passed today.

Few Roman Emperors Collected Their Pensions

A detailed summary of the manner in which the emperors of the Roman Empire died makes clear a fundamental flaw in the Roman political system, at least insofar as the emperors were considered.  (Hat Tip to Enik Rising).

Neutered SB 163 Clears House Committee

SB 163, which would initially have reduced the penalties for a number of drug crimes in Colorado that are now minor felonies to misdemeanor status and downgraded moderately serious felony drug crimes to minor felony sentence, passed in the House Judiciary Committee yesterday without amendment from the Senate version, clearing its path to the House floor for consideration on the merits in a second reading today.

Alas, it managed this feat only because it was gutted in the State Senate, where it was introduced. In place of reforms to Colorado's criminal sentences, the bill now merely creates a commission to spend seven months studying and recommending reforms of Colorado's drug sentencing laws, without actually changing any sentences on the books now.  Commissions are a common consolation prize for bills with good ideas that too ambitious or bold to make legislators who aren't intimately familiar with the issues involved comfortable adopting them immediately.

Five Countries Dominate Immigration Courts

About 80% of new United States immigration court cases (which are Article I courts with only indirect appellate resort to the ordinary judicial branch courts) are to Mexico, El Salvador, Honduras, Guatemala, and China. 

As of 2010, when there were an estimated 10,790,000 undocumented immigrants in the United States according to the Department of Homeland Security, the most common countries of origin were Mexico (6,640,000), El Salvador (620,000), Guatemala (520,000), and Honduras (330,000). These four countries account for a little more than 75% of the total.  But, China was only the tenth most common country of origins with 130,000.  (In between were the Philippines, India, Ecuador, Brazil and Korea.) All of the countries outside the top ten combined accounted for another 1,550,000. So, the current statistics suggest that undocumented Chinese immigrants are particularly likely to end up in immigration court relative to their numbers.

About 34% of undocumented immigrants in the United States have lived in the U.S. for at least two decades, about 61% of undocumented immigrants have been living in the United States for at least a decade, and 91% have lived in the United States for at least five years.

Net undocumented immigration from Mexico is currently zero and has been zero or a net outflow for several years.

Should The U.S. Really Be Litigating This?

What is the worst kind of lawyer to have defend you in a federal murder trial?  Well, the worst would be representing yourself.  But, the next worst thing is being represented by a lawyer who isn't really a lawyer, paying $70,000 for the privilege, and being convicted after a trial in which your fake lawyer acted erratically at trial.

Gwen Bergman had that privilege in May of 2008.  The fraud was revealed in June of 2008, after she was convicted and the fake lawyer was sent to prison for nine years as a result.  Cases of people pretending to be attorneys when they really aren't attorneys are sufficiently uncommon, that neither clients nor opposing counsel systemically check to make sure that the credentials are real.  However it happened, this case fell through the cracks.  She's served seven years in prison and is currently on supervised release as a result of the defective trial.

Bergman isn't requesting an acquittal.  She's requesting a new trial on the ground that she didn't receive effective assistance of counsel, a Sixth Amendment right of every criminal defendant, because her lawyer turns out not to have been a lawyer.

The office of the United States Attorney in Denver that prosecuted the case is arguing that it doesn't matter that her lawyer wasn't a lawyer, because he was competent enough to give her a constitutionally fair trial.  They also argue that the fact that a licensed lawyer was hired at the last minute to act in basically a paralegal capacity but had some participation at trial purges the case of the taint of having an unlicensed lawyer in the first chair position.

But, honestly, while there are close cases and there are few "per se" rules when it comes to effective assistance of counsel, murder cases where the defendant's lawyer is not really a lawyer should not be close cases.  Criminal prosecutors, unlike other kinds of lawyers, have a special obligation.  Their mission statement is supposed to be to put the right people in prison for crimes that they commit while maintaining the integrity of the criminal justice system, not simply to maximize their conviction rates and not simply to secure maximal sentences.  Sometimes, events conspire to prevent a fair trial from happening even in the absence of any apparent prosecutorial misconduct and this is such a case.  There is nothing inherently wrong about a prosecutor conceding that a rare, clearly case deserves a "do over" in the interests of justice.  Indeed, the fact that it took this long to get to a hearing on the merits shows just how deeply flawed our system of collateral review of convictions can be.

SB 2 (Civil Unions) Still In Play UPDATED

After an editorial from the Denver Post yesterday, urging Governor Hickenlooper to call a special session on civil unions (essentially same sex marriage in all but name), if the House doesn't finish considering Senate Bill 2 (SB2), the Civil Unions bill in Colorado, by the end of the legislative session tomorrow, the state house is moving forward to consider the bill.

The House Appropriations Committee is considering the bill at 1:30 p.m. this afternoon.

If it passes that committee this afternoon (which will take at least one Republican vote on the committee, with five Republicans of the 33 in the House having said that they plan to vote for the bill, in addition to all thirty-two Democrats), the next step is a second reading on the floor of the House (a Committee of the Whole hearing where amendments may be proposed, any of which would kill the bill, since there is no time for a conference committee) where it must pass today in order to face a third reading final up or down vote by tomorrow, the last day of the legislative session. (The second and third readings are required by legislative rules to happen a day apart.) The state house's Republican leadership would prefer to kill the bill and controls the calendar, so it could simply refuse to schedule the bill for a second reading today even if it passes the House Appropriations Committee, but the House leadership is limited by decorum, common practice, and P.R. considerations in the extent to which they can use their scheduling power to kill a bill that is widely known to have majority support and has passed all of the relevant comittees.

On the merits, the appropriation from the bill of a little more than $10,000 is covered by filing fees in connection with obtaining civil unions and commencing court actions in connection with them.  The bill is effectively revenue neutral, and in any case, a pittance compared to the entire state budget.

The Second Reading and Third Reading, if they are placed on the House calendar, are expected to produce 37-28 votes, and presumably, advocates of the bill wouldn't be pushing as vigorously as they are right now if they thought that they didn't have the votes in the House Appropriations committee.

If the bill passes, Colorado will join a growing number of states with civil unions or gay marriage. California returned to that column in February when the United States Court of Appeals for the 9th Circuit held that Proposition 8, which ended judicially created gay marriage in the state, was unconstitutional, although an appeal to the U.S. Supreme Court is pending in that case. Washington State authorized gay marriage by legislation passed in January.

I reviewed the national legislative scene last June, when Rhode Island passed a civil unions bill, although I may have missed a development or two between then and now. By my count, if SB 2 passes, Colorado would be one of six states with civil unions (the other five would be Rhode Island, Hawaii, Illinois, New Jersey and Delaware), in addition to eight states (New York, New Hampshire, Vermont, Iowa, Massachusetts, Connecticut, Washington, California) and the District of Columbia (and two U.S. recognized Indian tribal governments: the Coquille and the Suquamish) which have gay marriage. In addition, other states (including Maine, Nevada, Oregon and Wisconsin) have domestic partnership laws which have legal effects short of the equivalent of marriage under state law (although Oregon's law apparently comes close to being a civil unions law). Maryland has passed a same sex marriage bill, but it does not take effect until January 1, 2013 and could be derailed by a citizens referrendum before that date.

North Carolina voters are on the verge of considering this month a ban a state constitutional ban on same sex marriage which is likely to pass, although there is fierce campaigning on both sides of the issue.

Internationally, Canada, Australia, New Zealand, South Africa, most of Western Europe, and most of Latin American recognizes same sex couples legally in some manner or another, although there is considerable variation and nuance in the details of what is recognized in which jurisdiction. In much of the rest of Africa and the Islamic world, homosexual acts are illegal.

UPDATE 5:09 p.m. and 5:20 p.m. from here:

Early in today's hearing, at which lawmakers also intend to take up a proposal to legalize civil unions, it appeared the [driving while on THC] bill might be caught up in a filibuster aimed at the later bill. Republican lawmakers opposed to civil unions repeatedly asked questions about earlier bills that, because of legislative rules, have no hope of becoming law. The pace then quickened, however, and it took about 20 minutes for the [driving while on THC] bill to clear the committee.

Per a Colorado Pols commenter posting a 5:04 based on the audio feed: "[SB2] Passes 7-6 with Gerou voting yes."

SB 2, having cleared all of the relevant committees, now has a little less than seven hours to make it to the floor of the House and survive a second reading. It has the votes on the floor of the house, but could still run out of time if the House leadership refuses to bring the bill up on the floor today (or if opponents of the bill manage to prevent the consideration of the bill on the floor today manage to prevent the house from finishing its second read consideration of the bill today). This will be down to the wire.

UPDATE 9:08 p.m.

North Carolina passed a ban on same sex marriage at the polls today.  It still isn't clear if SB 2, the Colorado Civil Unions bill, will pass or not today.  If it passes today on a second reading, it will very likely be passed on a final reading tomorrow and will be signed by the Governor.  If it doesn't pass today on a second reading (it has the votes, but a final second reading vote might be delayed until the day is over), then the bill will fail in this regular legislative session.

UPDATE 10:20 p.m.

According to 9 News the House went into recess at 10 p.m. with 30 bills awaiting consideration before a midnight deadline for second readings, and negotiations in progress.  Still down to the wire, still capable of coming out either way.

Traffic Deaths Continue To Fall

Traffic fatalities fell to an all time record low (1.10 per 100 million vehicle miles of travel) in 2010, for the fifth consecutive year and a on track to fall again in 2011. Traffic fatalities have fallen 24% per vehicle mile of travel since 2005. The seventeen quarter streak of decline traffic fatalities is the longest since record have been kept. The rate of fatalities per vehicle mile of travel predates the financial crisis and controls for both the cyclical economic effects that produce reduced motor vehicle use, and increases in population that drive up motor vehicle use. The declines are continuing despite a major increase in distracted driving accidents associated with rising cell phone use.

Even the absolute number of traffic deaths in 2010 (32,885), was lower than in any year since 1949 (when the nation's population and vehicle miles traveled was much lower), when there were 30,246 traffic deaths and the number of deaths per 100 million vehicle miles of travel was close to 7. The number of injuries per 100 million vehicle miles traveled has also steadily fallen (the 75 in 2010 was identical to the figure for 2009 after many years of declines). The declining fatality rate isn't simply a matter of more injured people surviving their injuries.

Causes

About 31% of all traffic fatalities were in alcohol impaired driver accidents. Alcohol impaired accident fatalities have fallen more rapidly than traffic fatalities as a whole.  In Colorado, 127 traffic fatalities (28% of the total) involved legally drunk drivers in 2010.

Nighttime accident fatalities and fatalities involving drivers under the age of twenty-one have fallen significantly in the last few years.

Seatbelts were not being worn in a little more than half of all traffic accidents where there were fatalities and it was possible to determine if a seatbelt was being worn or not. About 3,341 people died in fatal traffic accidents who would have lived had they been wearing seatbelts in 2010, and about 706 people riding motorcycles died in traffic accidents that they would have survived had they been wearing motorcycle helmets.  Child car seats saved 303 lives in 2010.

Many driver's involved in fatal accidents were driving with suspended or revoked driver's licenses: 11% of drivers with no alcohol at the time of a fatal accident, 20% with a legal level of alcohol at the time of a fatal accident and 26% of drivers who were legally drunk at the time of a fatal accident.

Infant Mortality Down In Africa

Child mortality (defined as under age five) is not only falling but is falling at an increasing rate in Africa in the 2000s, across its varied regions.  
Why has child mortality fallen?   Improvements in dealing with malaria using insecticide-treated bednets were particular important.

Among the possible causes of the decline are various targeted new public health initiatives and improved access to water and sanitation. A Oaxaca-Blinder decomposition using Demographic and Health Survey data shows that the increased ownership of insecticide-treated bednets in endemic malaria zones explains 39 percent of the decline in postneonatal mortality and 58 percent of the decline in infant mortality. Changes in other observable candidate factors do not explain substantial portions of the decline. The portion of the decline not explained may be associated with generalized trends such as the overall improvement in living standards that has taken place with economic growth.

The absolute numbers still aren't wonderful. There are nineteen to twenty child deaths per 100 live births each year in Niger and Mali. Even better performing countries like Senegal, Kenya and Madgascar have seven child deaths per 100 live births each year.

In the developed world, one infant death per 100 live births is on the high side and child deaths are much less common after a child survives infancy.

Colorado Civil Unions Bill On The Brink

Colorado's Civil Unions bill (SB 2) could go either way this legislative session, which ends on Wednesday. The bill would make it possible for same sex couples to have a union which would carry all rights and responsibilities of marriage under state law, but not the name (something that can't be done without a state constitutional amendment). It would be a major step forward for Colorado, which has a number of means by which same sex couples can secure some legal rights for each other, but not all of the rights afforded by marriage and not with the same level of simplicity.

It isn't yet clear if federal law, which is close to recognizing same sex marriages now that the Obama Administration is no longer actively defending challenges to the Defense of Marriage Act (DOMA), would treat same sex marriages and civil unions identically, or only afford federal law rights to same sex marriages.

SB 2 has cleared the State Senate and both the Judiciary and Finance committees in the State House. As of Friday, when it cleared the House Finance Committee, it still needed to make it out of the House Appropriations Committee today (the appropriations would be minimal) or perhaps early Tuesday morning, to have a second reading on the floor of the House tomorrow (the stage at which amendments are considered), so that it could have a final third reading vote on its passage on Wednesday, in order to be sent to the Governor in 2012 (who would sign the bill).

The bill is sponsored by my pre-redistricting State Senator (Pat Steadman) and my post-redistricting State Representative (Mark Ferrandino), both of whom are gay men.

The State House has as 33 Republican-32 Democrat split, and two Republicans have voted for the bill in committee. So it is likely clear that if the bill makes it to a floor of the state house for a second reading tomorrow, that it will become law.  But, either the appropriations committee, or the House leadership by declining to put the bill on the calendar for consideration on Tuesday if it passes the appropriations committee, could kill the bill. Both the House Appropriations Committee chair and the House's Republican leadership are signaling (and again today) that they may try to prevent the bill from receiving a final vote this legislative session.

Absent intervention from Governor Hickenlooper, who has a track record of changing minds in clinch situations, the odds a good that the bill will run out of time this session.

There is a good chance that Democrats will secure control of the state house again in the 2012 elections, so a defeat in this session, may portend a one year delay in passage of a civil unions bill, rather than its ultimate failure. Both of the bill's sponsors will almost certainly still be in the legislature in 2013.

Why Are Phishing Scams So Lame?

Maule points out the myriad flaws in a phishing scam he recently received in his e-mail in box. The low quality of the scam e-mail is typical. Why? One could have a much more polished scam e-mail with only a little effort, and presumably, it would catch more savvy recepients, dramatically increasing its yield. It isn't obvious that a better polished scam would be more easily traced. Someone sophisticated enough to conduct these scams should surely have the skill set to write better e-mails. Is this a case of predators deliberately choosing the dotty and the creduluous as victims in order to reduce the likelilihood that someone competent will be burned and in turn will devote serious attention to locating the perpetrators? Or are the perpetrators really just less sophisticated themselves than I give them credit for being?

How Appealing Turns Ten

The How Appealing blog turned ten years old yesterday. This blog has its seventh birthday in about two months.

Oberlin The PhD Factory

My undergraduate alma mater, Oberlin College, ranks 18th in the nation (according to the National Science Foundation) in the number of science and engineering PhDs it produces per hundred bachelor's degrees awarded nine years earlier. It also produces PhDs in the social and behavioral sciences at a high rate. Indeed, the descriptor the "Oberlin 50" is used to describe small liberal arts colleges that produce far above average numbers of PhDs.

The top twenty colleges on the list are:

1. California Institute of Technology 35.2
2. Harvey Mudd 24.9
3. M.I.T. 16.6
4. Reed 13.8
5. Swarthmore 12.9
6. Carleton 11.7
7. University of Chicago 10.8
8. Grinnell 10.5
9. Rice 10.5
10. Princeton 10.3
11. Harvard 9.9
12. Bryn Mawr 9.7
13. Haverford 9.5
14. Pomona 9.1
15. New Mexico Institute of Mining and Technology 8.7
16. Williams 8.4
17. Yale 8.4
18. Oberlin 8.2
19. Stanford 8.1
20. John Hopkins 7.7

The average overall ranges from 1.0 to 3.0 depending on the type of high educational institution involved. Liberal arts colleges overperform in the sciences, but produce much lower percentages of engineering PhDs. Were one to make an apples to apples comparison by looking at science PhDs per graduating science major, the number for the liberal arts colleges would be even better (Oberlin's rate, for example, is diluted by the fact that a sixty of its graduates are from its music conservatory and by its lack of an engineering school).

Then again, perhaps one reasons that liberal arts colleges produce so many PhDs is that an undergraduate liberal arts degree by itself doesn't have much economic value even though it is an asset when one applies to a graduate school.  More general interest and less traditional institutions have their numbers diluted by large proportions of their undergraduates who are chasing degress in fields like business and education and nursing that can be immediately translated into employment without going on to earn a PhD.

Combine selective admissions and few other options and one is going to see lots of your graduates go onto PhDs.

Are Lawyers Slackers?

At a nearby table we saw three young people with plaid shirts and floppy hair. For all we know, they may have been plotting the next generation’s Twitter, but [Edward] Conard felt sure they were merely lounging on the sidelines. “What are they doing, sitting here, having a coffee at 2:30?” he asked. “I’m sure those guys are college-educated.” Conard, who occasionally flashed a mean streak during our talks, started calling the group “art-history majors,” his derisive term for pretty much anyone who was lucky enough to be born with the talent and opportunity to join the risk-taking, innovation-hunting mechanism but who chose instead a less competitive life. In Conard’s mind, this includes, surprisingly, people like lawyers, who opt for stable professions that don’t maximize their wealth-creating potential. He said the only way to persuade these “art-history majors” to join the fiercely competitive economic mechanism is to tempt them with extraordinary payoffs.

From here.

I sincerely doubt that Conard has the psychology of entrepreneurship right.  Even if extraordinary payoffs are one way to encourage entrepreneurship, it is hardly the only or the most efficient way to do so.

Also, somebody has to prevent risk taking entrepreneurs from crossing the line over into being foolhardy and stupid, and this is what lawyers do. The risk would be much greater if it weren't for the lawyers (and investment bankers and accountants and other "staff" professionals) advising entrepreneurs.

Conard is an apologist for the status quo and former partner of Mitt Romney at Bain Capital. He argues that the super rich are indispensable to the well being of the entire society.

One reason to be skeptical of this view is that people are pretty insensitive to the amount of the payoff it will take to motivate them to extend themselves on the high end.  For a well educated, upper middle class trio in a coffee shop, working entry level professional jobs, a reward of $2,000,000 each and a reward of $20,000,000 each aren't that different in their capacity to provide motivation.  The research shows that winner take all incentives aren't as effective at producing aggregate levels of effort as more modest but more widely attainable rewards.

One of the better counterexamples is government.  The very highest levels of public service, as cabinet officers, generals, astronauts, politicians, and city managers may provide enough fame, power and prestige to make a sacrifice of earnings potential compared to a private sector job with similar responsibilities tolerable.  But, a lot of smart, talented, capable people happily and competently hold down jobs year after year without serious complaint as nearly invisible senior civil servants, managing massive government resources of people and money, and bearing great responsibility, for a tiny fraction of the pay of comparable private sector employees (the overall deal is pretty comparable to the private sector at the mid-level and tends to be more generous than the private sector at the low end).  A Colonel, or CIA agent, or senior executive service employee in a Washington D.C. agency headquarters lives a comfortable enough life but brings home a surprisingly modest paycheck.

People are also risk averse for good reason.  Failing to be rich is survivable for one's entire life.  Failing to have enough resources to provide yourself and your family with food, shelter, clothing, health care and other necessities of life, even briefly, is not.

Notably, many of the most innovative people in our society in both the public sector and the private sector - our most productive professors, our most prolific inventors in the corporate world, the people who write the all of the changes to the laws and regulations that govern our lives, the physician at some of our most prestigious and innovative medical centers like Mayo Clinic - work for comfortable upper middle class salaries, rather than being organized economically in their own lives in a way that affords them even an opportunity to make a big payoff, ceding those opportunities to large institutions in exchange for reliable moderate comfort.  People who are insecure in their own personal lives are much less prone to take risks even if there is a real chance that the gamble could produce immense payoffs.

NBA Player Status As Destiny

"[W[hile the probability of, say, an American between 6’6″ and 6’8″ being an NBA player today stands at a mere 0.07%, it’s a staggering 17% for someone 7 feet or taller."

From here.

One Week Left For Colorado General Assembly

Colorado's state legislature, the Colorado General Assembly, is officially a part-time body.  It has a one hundred and twenty day session each year, absent extraordinary circumstances that cause a "special session" to be called, typically by the Governor and only for a narrow specific purpose. 

On the last day of the legislative session, the magical power of this group of people evaporates as the state house and state senate adjourn "sine die."  This year, the make or break constitutional deadline for getting legislation from the 2012 legislation session passed in May 9, a week from today. 

To be perfectly honest, I only have a dim notion of what notable bills remain live in the final week of the session.  Some are simply last minute details of appropriation bills, which are reserved for the last month of the legislative session, but many are the hardest decisions and most controversial bills of the session which have been procrastinated over until the last minute.

I know that a Civil Unions bill that passed the Democratic controlled State Senate is at risk of being killed by the Republican leadership in the State House, even though the bill probably has the votes if it makes it to the floor. 

A bill converting many minor drug felonies into misdemeanors is also in limbo.  On the merits of what kinds of sentences are appropriate for minor drug felonies, the bill would sweep to passage pretty easily with the current set of legislators.  But, intrastate budgetary federalism has reared its ugly head.  State government pays the tens of thousands of dollars per inmate per year of incarcating felons.  County governments pay the almost as costly sum per inmate per year to incarcate people converted of misdemeanors, sometimes for sentences that are nominally as long as two years before good time is considered, and county governments also have to build the jails that house these inmates.  Downgrading minor drug felonies to misdemeanor status reduces the combined state and local incarceration budget materially.  But, while the measure would reduce the state's Department of Correction's budget quite a bit, it would greatly increase the jail budgets of every county in the state.  The backers of the bill, focused on the merits of sentencing policy, failed to foresee this budget driven opposition and have scrambled to overcome the powerful local government lobbies resisting the change.

Once the session is over for the year, a week from today at midnight (Andrew Romanoff's tradition of finishing the legislative session's a day or two early hasn't lasted), there will be a few weeks when Governor Hickenlooper can consider whether to veto straggler bills or not, activity under Denver's golden dome fades away to a hush for another eight months.  Most of this year's bills will take effect July 1, 2012, and the handful that didn't manage to be passed with "safety clauses" will take effect in August. 

After a few parties and a bit of a breather, state legislators will return to thinking about their campaigns and those of their political allies in the 2012 election season, planning bills for the next legislative session, claiming credit for the session's accomplishments, and interacting with their constituents. Many will also try to get back in the flow of their second bannana day jobs. 

In the off season, under the golden dome, this is interrupted only by the odd meeting of interim committees and study committees of the General Assembly, and the comings and goings of the highest level officials in the Governor, Lieutenant Governor, State Treasurer, Secretary of State and Attorney General's office. 

The Colorado Supreme Court (then the only appellate court in the state) used to be located there as well, but has long ago relocate.  In another year, the Attorney General and the appellate courts will have a brand new building a block away, where the Colorado History Museum and old appellate court buildng used to be, looking north at downtown Denver.  The new Colorado History Museum, just a block south of its old location, opened last weekend.  The new appellate court building and Attorney General's office town look almost complete on the outside, but looks are deceiving.  As a rule of thumb, a building is roughly 50% complete when the fascade first looks finished.  For what it's worth, the new appellate court building looks like it will be the architecture momument that a highly symbolic public building should be (and the expense was pretty much necessary, as the old one was structurally unsound).  But, I'm really quite disappointed with the decision to put the entire Department of Law in one building downtown, rather than just putting the Solicitor General's office, and a few high profile political and headquarters offices in Civic Center and leaving its more prosiac duties in a less skyline hogging, less high profile, and less symbolic office space.

Happy May Day!

May Day is related to the Celtic festival of Beltane and the Germanic festival of Walpurgis Night.

May Day falls exactly half a year from November 1, another cross-quarter day which is also associated with various northern European pagan and the year in the Northern hemisphere, and it has traditionally been an occasion for popular and often raucous celebrations.

As Europe became Christianized, the pagan holidays lost their religious character and either changed into popular secular celebrations, as with May Day, or were merged with or replaced by new Christian holidays as with Christmas, Easter, Pentecost and All Saint's Day. In the twentieth century, many neopagans began reconstructing the old traditions and celebrating May Day as a pagan religious festival again.

The earliest May Day celebrations appeared in pre-Christian times, with the festival of Flora, the Roman goddess of flowers, and the Walpurgis Night celebrations of the Germanic countries. It is also associated with the Gaelic Beltane. Many pagan celebrations were abandoned or Christianized during the process of conversion in Europe. A more secular version of May Day continues to be observed in Europe and America. In this form, May Day may be best known for its tradition of dancing the maypole dance and crowning of the Queen of the May. Various Neopagan groups celebrate reconstructed (to varying degrees) versions of these customs on May 1st.

The day was a traditional summer holiday in many pre-Christian European pagan cultures. While February 1 was the first day of Spring, May 1 was the first day of summer; hence, the summer solstice on June 25 (now June 21) was Midsummer. In the Roman Catholic tradition, May is observed as Mary's month, and in these circles May Day is usually a celebration of the Blessed Virgin Mary. In this connection, in works of art, school skits, and so forth, Mary's head will often be adorned with flowers in a May crowning. Fading in popularity since the late 20th century is the giving of "May baskets," small baskets of sweets and/or flowers, usually left anonymously on neighbours' doorsteps. . . .

Roodmas was a Christian Mass celebrated in England at midnight on May 1.  

Traditional British May Day rites and celebrations include Morris dancing, crowning a May Queen and celebrations involving a Maypole. Much of this tradition derives from the pagan Anglo-Saxon customs held during "Þrimilci-mōnaþ" (the Old English name for the month of May meaning Month of Three Milkings) along with many Celtic traditions.

From Wikipedia.

Walpurgis Night is apparently a major celebration in Sweden and Finland somewhat resembling New Year's Eve with something of the mirth of April Fool's Day thrown in as well. 

Saint Walpurga was a nun, abbess and Christian missionary from Devon, England to Germanic Europe from the 8th century, and "she is often called the first female author of both England and Germany." Unlike many Christian saints she was not a martyr. She is "the patron saint of those suffering from rabies," her relics were associated with healing oils, and she has been conflated in some iconography with symbols associated with the pagan Grain Mother goddess. The Saint's Day of May 1st was assigned to her when she was canonized in 870 CE.

Walpurgis Night is sometimes call the Witches' sabbath.

The Godless Are Good

[N]ew research from the University of California, Berkeley, suggests that the highly religious are less motivated by compassion when helping a stranger than are atheists, agnostics and less religious people.

From here.

The results were replicated in three different studies with different methodologies.

Neuroscience Of Impulsivity Advances

A new study looking at fMRI scans of 1,896 teenagers has revealed that the kind of impulsivity that leads to substance abuse, and a kind of impulsivity that leads to ADHD are the product of particular types of networks in the brain that appear to precede the substance abuse rather than being caused by substance abuse.

[D]iminished activity in a network involving the "orbitofrontal cortex" is associated with experimentation with alcohol, cigarettes and illegal drugs in early adolescence. . . .  

The researchers were also able to show that other newly discovered networks are connected with the symptoms of attention-deficit hyperactivity disorder. These ADHD networks are distinct from those associated with early drug use. In recent years, there has been controversy and extensive media attention about the possible connection between ADHD and drug abuse. Both ADHD and early drug use are associated with poor inhibitory control -- they're problems that plague impulsive people. But the new research shows that these seemingly related problems are regulated by different networks in the brain -- even though both groups of teens can score poorly on tests of their "stop-signal reaction time," a standard measure of overall inhibitory control used in this study and other similar ones. This strengthens the idea that risk of ADHD is not necessarily a full-blown risk for drug use as some recent studies suggest.

This is one of the most direct observations ever made of the biochemical and anatomical basis of ADHD and the impulsivity associated with substance abuse. It adds to the increasing evidence that these conditions, at least by the time people are teenagers, are to some extent "hard wired" rather than merely reflecting easily changeable habits of thinking. And, it provides some very specific guidance regarding the mechanisms at work in these mental health conditions. The fact that more than one network was associated with ADHD also suggests that it may be possible to use fMRI studies to develop a more meaningful set of subtypes for ADHD based on brain mechanism rather than merely visible symptoms.

It isn't clear if the factor analysis that researchers used to discern the different neural networks would be sufficiently specific to use as a diagnostic tool in individual cases, or if they are merely capturing a statistical tendency. The fact that researchers can afford to have such a large sample of fMRI scans at all, and that they have the computational power to make sense of and see trends in such a massive four dimensional dataset is a testament to the impact that technology is having on fields like psychiatry that have until recently tended to lag behind other fields of medicine in technological sophistication.