We Shouldn't Trust The National Security Establishment

There is a very simple reason that we shouldn't trust the national security establishment to act in good faith and be truthful. This is that repeatedly, when the truth eventually does come out, it becomes clear that they haven't been in the past.

For example, high level administration officials repeatedly lied about why Rahinah Ibrahim was on the "no fly" list. The truth: a simple clerical error. But, it took "seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time," and false statements by high level officials including Eric Holder, for this fact to be revealed. A redacted version of the final court opinion can be found here.

Administration officials also lied about the extent of NSA surveillance programs and about their effectiveness.

Administration officials have been very misleading in their statements about how sexual assault cases are handled in the military.

Administration officials in the Bush administration lied about the claim that the Guantanamo Bay involved only high value prisoners, and about U.S. use of torture.

The Bush Administration lied about the connections between Iraq and 9-11.

The use of the cloak of secrecy afforded to National Security matters for improper purposes has historically been invoked for a very, very long time to hide mistakes, ineptitude, and human rights abuses in cases that almost never require such sweeping secrecy to protect legitimate national security interests.

While President Obama has had significant achievements in reforming domestic policy in a liberal direction, he has inexplicably mostly left extremely radical national security policies from the Bush Administration undisturbed.

Reruns!

In most, if not all, states attorneys must take a certain number of hours of continuing legal education classes every so often to keep their licenses current. In Colorado, the requirement is 45 hours every three years, including seven hours of legal ethics every three years.

Last fall, I flew out to a television studio to record my lectures for a continuing legal education class that was then broadcast over the web to students all across the nation (and in theory, the world) about a month later, at which point I made myself available to answer students questions on a live basis.

On April 23, 2014, this will be the first of the dozens of continuing legal education classes I've taught and conference papers that I've presented to enter the "rerun" cycle, and I'll make myself available a second time for Q&A.

The class is: Use of LLCs in Asset Protection and Estate Planning.

The CLE provider is the National Business Institute (800-931-3140), and the class will be offered in a video webcast format. If you are an attorney, you can register to watch the 7 hour presentation and receive the associated course outline for $339.[1]

My co-presenter is the charming and highly intelligent Shayna W. Borakove of Wisconsin. The topics that I cover in the talk are:

Estate Planning Advantages of an LLC
* Lack of Marketability Discounts
* Income Earned out of the Estate
* IRC Section 2036 - Retained Enjoyment in Life Estates

Transfer of Interest
* Buy-Sell Agreements, Options, and Similar Arrangements
* Planning and Executing a Gradual Transfer

Using LLCs and Trusts Together
* Choosing the Type of Trust to Use
* Protecting Pension Plans
* Protecting and Transferring Real Estate
* Case Examples of Using LLC and Trust in Combination
* Administration Costs

Tax Planning and Reporting
* Asset Freezing Techniques - Preserving the Low Value of the Business Assets
* Avoiding Step-Up in Basis
* What to Do about the New Federal Tax Law
* Income and Gift Tax Hurdles
* Preventing Challenges by IRS with Regard to Valuation Discounts and Disclaimers

Legal Ethics
* Who Is Your Client?
* Preventing Fraudulent Transfers
* Attorney Fees
* Attorney Fiduciary Liability

My co-presenter discusses "Initial Client Considerations", "Structuring and Funding the LLC," and "Asset Protection with LLCs," although, in many of the sections there is a fair amount of back and forth discussion between us. (For what it is worth, it is much harder to give one of these talks to a camera in a studio without an audience, as we did, than to do a presentation before a live audience, since you don't get real time feedback as you look them in the eyes so that you can see if they are getting it.)

Thanks to the able assistance of my assistants, this presentation also includes some of the most awesome and entertaining power point presentations that I have ever used in any class or presentation.

You will laugh, you will cry, it's better than Cats (and more expensive to watch)!

______________________________________________________________

[1] Consider that price.

Instead of watching three first run movies in 3D at the local multiplex for $14 each and buying a trade non-fiction paperback by a best selling author for another $20 (total $62), hundreds of highly intelligent adults have chosen watch Shayna and I, and to read our course pack, for about five times this cost, even though I will freely admit that I am not nearly as good looking as your average movie star (Shayna probably comes out better in that department, so our viewers aren't getting a total loss), and not nearly as funny as the screenwriter for a typical big screen comedy.

Clearly, we are pretty awesome and our reputations precede us.

Alas, despite the much higher ticket charge, I assure you that I am not making anything approaching what Hollywood movies stars do for their performances, despite the fact that I have far more screen time and far more lines than they do. The pervasively unionized environment of the Hollywood movie industry has its privileges.

To earn even Hollywood character actor class paychecks as a lawyer, you need a better paying performance situation - the kind where your audience is a judge and a jury, or perhaps a boardroom.

What's the moral of this story?

Remember folks: Law is theater for ugly people, except it pays more consistently.  My current assistant, Alex, has learned this lesson.  He's spending today taking the LSATs (the standardized tests you need to do well on to get into law school).  Good luck Alex!

Seriously though, the price of a presentation like this does make a certain amount of sense. Watching us teaches you skills that allow your clients to reduce their tax bills by hundreds of thousands, or millions, of dollars.  For implementing these techniques, the lawyers watching the program, in turn, will receive handsome fees and be allowed to keep their licenses which are indispensable for their livelihood, current.

Essentially, the pricing reflects a return on investment pricing model (and the fact that the economies of scale aren't nearly so good when you have an audience of hundreds, instead of tens of millions, of students).  This deal is really better than most classes of this kind.  A class like this one pays for itself for the student even if that student does only a single transaction that requires this knowledge base.  And, unlike ordinary "get rich quick" seminars, I have no interest in offering my students false hopes that will screw them up down the road in order to pack my audiences in for my huge commissions.

Also, the malpractice lawsuit liability to a lawyer for screwing up a transaction like the ones we are discussing could easily run into the hundreds of thousands or millions of dollars as well. Indeed, ethical mistakes in transactions like this could even cost a lawyer his license or result in criminal charges.  This is another huge value added feature of watching this presentation.

So, really, the class is well worth the price, even though I'm no Brad Pitt.

Methuselah and Legendary History

Between the period when written accounts of history at least aspire to modern standards of truthfulness and to recounting what actually happened, and the prehistoric period, there is an era of legendary history.  I include in the legendary history corpus, for example, the Bible, the Avesta, the Rig Veda, the Illiad, the Icelandic and Norse epics, the Sumerian epics, the tales of King Arthur, the Medieval Lives of Saints, and a host of Chinese legends.

These stories blur the line between history, historical fiction, propaganda, and purely fantastical story telling.  They recount the lives of heroes, of magic, of monsters, and of divine intervention.  But, they also intersect with places, people and events that existed in history.

The Minotaur as a mythical monster surely never existed, but the Palace of Minos and systems of tribute and conflict with other palace-states and city-states in the Aegean surely did.  Solomon really did have the mines he was created with having, but his story also contains hyperbole and pure inventions.  There were blood feuds in early Norse and Icelandic society, but not sea monsters in caves and marshes to slay.  There were English courts caught between a pagan past and a Christian future in England around the time that the Arthurian legends are set, but no real magical spells.  The Philistines may have been taller than the Jews,  even though they were not truly "giants."  There were Messianic movements seeking independence for Jews from the Roman Empire in a more just and more Jewish regime, but if there was a Jesus, the Bible's accounts of his ability to perform miracles is greatly overstated.

One fairly common conceit in legendary history is an era of long lived men, the rulers of the land or leaders of the tribe, at the very at least, with the classic biblical example being Methuselah.  Similar accounts appear in the Queen lists of the Kingdom of D'mt in North coastal Ethiopia and Eritrea, where just four queens purportedly presided over a Kingdom that lasted at least four hundred years, and in the earlier entries of the Sumerian king lists that may have informed the writers of the Book of Genesis.

What was going on here?

There are several plausible explain these impossible accounts, and all seem plausible to me.

One is that there may have been a tradition, reinforced by Kings often taking the names of their predecessors, of treating all rulers in a single hereditary dynasty as a single individual.  Just as we talk about the dozen Dr. Who's or the half dozen James Bonds, there may have been eight or ten Patriarch Methuselah's.  At the time the early king lists (the earliest of all historical records) were made, it might have been clear that a reference to one individual living 800 years was really a reference to all of the people in that dynasty who assumed the role over that length of time.  But, that distinction may have been lost in the retelling until some people believed that it was actually true.

Another possibility is that there is a disconnect in units.  For example, genealogies and king lists may have originally been kept in terms of months or tenths of years of service, then months of life, then years of life, then years ruling, with the change in units omitted in the retelling at some point.  This falls within the scope of what Wikipedia describes as mistranslation.

A third possibility is pure hyperbole, perhaps for purposes of propaganda.  The men of old were great.  Their achievement were exaggerated.  And, in the oldest accounts, where almost nothing survives to the present but their names, order of appearance and ages, the best we can do to inflate their importance is to inflate their ages, a process that continues until the oral tradition is reduced to writing.  Closely related is the notion that the time periods may have been symbolic in some kind of numerology.

A fourth possibility is gap filling.  Perhaps it was widely accepted that a certain number of years, e.g. a number of reckoned years that have passed since Creation used in popular calendars, or that have had passed since the first ruler in the King list.  But, there aren't enough names to fill that span of time, or there is some symbolic reason why there must be a certain number of generations in that span of time.  So, the authors conclude that each of those rules must have been very long lived in the absence of evidence to the contrary in the tradition.

Of course, I reject the possibility that people really did live lives these longs as the literal reading would suggest.

There is no really decisive way at this point to distinguish these accounts, or to even know how the original intended audiences viewed them - as factual or a tall tales.  But, it doesn't hurt to consider the possibilities and wonder if there will every be a way to test them.

Legendary history is better than nothing and archaeological finds have accurately been informed by them, but they must be used with caution.

The Day After And Other Rants

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Benjamin Hayempour Attempts Improper DMCA Takedown!

On December 14, 2013, I wrote a post at this blog entitled "Graduate Student Benjamin Hayempour Shows Pattern Of Plagiarism." This post identified eight different papers written by Hayempour, by citation, that contained strong evidence of plagiarism with a link to my source at Retraction Watch that analyzed this instances of alleged plagiarism which provided a factual basis for my own post. I also identified other facts about this case that corroborated my conclusion, such as his dealings with journals that have a poor reputation (supported by another link to a third party. And, of course, I included my own analysis of the situation. Later, I posted a comment to my own blog post identifying a post at a different blog, Neuroskeptic, that analyzed a ninth instance of alleged plagiarism by Hayempour.

These links, which provide a factual basis for my own post, insulate me from liability for defamation, because allegedly defamatory material concerning media defendants (which include bloggers) or matters of public interest (such as academic plagiarism) are not actionable unless they are not only untrue, but are made with reckless disregard for the truth. Reasonable reliance on third parties who have analyzed the allegedly plagiarized papers in depth in a manner that I concurred with (including one paper that was retracted) establishes a lack of recklessness with regard to the truth.

Not long after I made that post, Hayempour wrote me a number of e-mails alleging that I had defamed him. He did not at any point claim that the material was copyright infringing. His arguments in those posts that he acts did not constitute plagiarism were unconvincing. I responded by stating, in essence, that the facts spoke for themselves and that I would not take down or edit my post. I did make a correction regarding his current institutional affiliation which was clarified by his correspondence. I had originally, inaccurately claimed that he had another institutional affiliation based upon online materials about him that asserted that this was the case.

Today, Google took down that post pursuant to a DMCA complaint alleging a copyright violation (no doubt filed by Hayempour or someone acting on his behalf). They revert your post to draft form, put a notice at the top of your log in page, and send you an e-mail. The DMCA creates a safe harbor for entities such as Google in is role as the host of the Blogger service from copyright violation liability if it takes down allegedly offending post and gives a notice to the blogger whose post was taken down. There is a process for filing a counternotice to have the post reinstated because it is not a copyright violation which I utilized today. Under the DMCA process, the post must be reinstated upon receipt of a conternotice, unless a court action is filed with regard to my alleged copyright violation within 14 days.

Since there is no remotely viable basis for claiming a copyright violation in a post that contains no copied material, and which would be protected by fair use criticism provisions even if it did, I have no fear of litigation over this post. I am quite comfortable that I could prevail without ever having to appear in person in the California federal court venue designated by Google in its Complaint form.

A DMCA takedown is not authorized for an alleged instance of defamation.

Hayempour, in his ongoing pattern of misconduct, had to lie about his claim that he had a good faith basis to believe that there was a copyright violation in order to issue a DMCA takedown notice. Unlike Retraction Watch and Neuroskeptic, I didn't even quote from the allegedly plagiarized articles that he wrote.

So, again showing Hayempour has shown himself to be dishonest and unfit to be admitted to professional practice in his field. Of course, we already knew that from his nine documented instances of plagiarism and his dubious associations with shady journals, and from his abuse of the legal process when sending a cease and desist notice to Retraction Watch.

The Scientific Worldview And Its Impact Of Traditional Religion

Scientific understanding has advanced tremendously from its state in the Middle Ages, from classical Greek and Rome, and from the legendary and magical histories of the Bronze and Copper ages that was the source for, among other things, the ancient Mesopotamian and Semitic myths that came to be digested in the biblical Book of Genesis.

Paleontology, biology, physics, geology, astronomy and genetics have revealed that the true story of the origins of man, of life of this planet, and of our planet, solar system and universe bear no resemblance to the creation and global flood stories of Genesis.

These stories are no more true than the belief that we live on a flat earth, or that the Sun revolves around the Earth.  There may have been something akin to a creation event in the Big Bang, more than 13 billion years ago and about 7 billion years before the Earth formed.

But, we can explain the way that the modern universe came into being from at least as far back as Big Bang Nucleosynthesis, during which light atoms like helium and lithium were formed in a period approximation 10 seconds until 20 minutes after the Big Bang using a Standard Model of cosmology, while resorting to just one feature of the universe that cannot currently be well understood with the Standard Model of Particle Physics and General Relativity with a cosmological constant.  Apart from the precise nature of the dark matter that was involved in that process, we can tell a complete, more or less consensus story of the history of the universe from then on.

There is more scientific uncertainty in the first ten seconds of the Big Bang, with the most difficult questions being answers to the nature of cosmological inflation, and to the baryon number of the universe and lepton number of the universe, which are conserved constants in the Standard Model that relate to the number of particles of matter in the universe (e.g. how many quarks, electrons and neutrinos there are in the universe) net of the number of particles of antimatter in the universe.  We don't even know what contributions are made by neutrinos to this total since we don't know the relative number of neutrinos and antineutrinos in the universe.

Our universe's history is not quite that of Newton's clockwork God, because quantum mechanics turns out to be stochastic (i.e. probabilistic) rather than deterministic.  But, the randomness is so pure that it amounts to the same thing.  There is no room in modern cosmology for a God who did anything other than put in place the fundamental laws of physics and set the initial conditions of the universe in the Big Bang and perhaps the first few seconds that followed.

Historical linguistics buttressed by a fuller understanding of human prehistory generally, secured with archaeology, with modern population genetics and ancient DNA for both people and for plants and animals whose histories are intertwined with our own, and deeper understanding of linguistic processes from modern linguistic studies have all worked to displace the Tower of Babel.

While we can not cure every illness and remedy every condition, we understand much more deeply what causes all manner of diseases and psychiatric conditions.  None of them are caused by demons or spirits acting with moral purpose in the human world.  As a consequence of this, we know that the exorcism and faith healing that was one of the core ministries of Jesus, his disciples and many of the Saints whose lives are part of Catholic doctrine, didn't happen.

Historical and literary study of the Bible, informed by early collections of religious texts such as the Dead Sea scrolls, has made clear that the traditional Judeo-Christian accounts of their authorship are often incorrect, that stories like the Garden of Eden, Noah's flood, and the appearance of Baby Moses floating in a river to a Pharonic princess have direct antecedents in Sumerian myths, and that portions of the Gospels such as the stories of the childhood of Jesus and of his post-crucifixion exploits are late additions that are probably not authentic.  The Bible isn't even consistently monotheistic, acknowledging in its earlier portions YHWY as a the most powerful and righteous of many gods, rather than as the only existing God.

This isn't to say that legendary Biblical histories were entirely divorced from reality.  There really were non-Semitic Philistines in the Southern Levant in the early Iron Age.  There really was a Jewish kingdom in the Iron Age Levant that had conflicts with Mesopotamian sovereigns.  Many of the notable Roman political figures of the New Testament really existed.  Many of the places referred to in the Bible, like the City of Jericho and Solomon's Mines, correspond to places that really exist.  Indeed, the further you advance along the timeline of the Hebrew Bible, on average, the more it corresponds to some semblance of historical reality.  But, like the Bronze Age and early Iron Age myths of so many of the world's people, the Bible contains legendary elements intertwined with historical elements in a manner that does not delineate where hyperbole and fantasy end and historical accounts begin.  The Bible is a collection of short works of historical fantasy written by human beings, each with their own agendas, not an inspired, absolutely true historical account of man's dealings with God.

Studies of global religious variation and the history of religion sheds light on the origins of current religious belief systems, which are quite young compared, for example, to the time depth of our linguistic origins, and also make clear that there is no consistent, universal set of metaphysical religious beliefs.  Religious beliefs are so completely irreconcilable that certainly the vast majority of these beliefs must be completely wrong as a factual matter.

A scientific worldview, in short, is inconsistent with the metaphysical worldview of every one of the major world religious traditions in a manner that it increasingly obvious as our understanding of science and history grows ever more precise and gains ever more complete factual support.

Now, a scientific worldview does not deny that religions exist and that they have played a powerful role in the human story.  Archaeology supports the existence of human spiritual activity going back to the Upper Paleolithic period at the very least and quite possibly even to archaic homins predating modern humans such as the Neanderthals of West Eurasia.  Religious institutions and belief systems appear to have played pivotal roles in the emergence of the earliest farming and herding societies in the Neolithic revolution, and to the organization of the earliest cities and civilizations.

But, the essence of what makes religious belief systems religious, which is that there are non-human forces or beings that act with moral purpose in the human world with which humans can interact, benefit from or influence via religious practice, in the end is simply wrong.  The factually accurate history of religion is a story of people creating gods, spirits and religious practices and agreeing among themselves to at least act as if they believe them (and often sincerely actually believing them), in part to facilitate religious practices that taken as a whole provide some benefit to their societies.

Without a belief in the worldview in which religion is embedded, however, its force as anything more than an embodiment of philosophies and political views that can support themselves independent of their religious content (which is present in philosophies like Confucianism which are sometimes called religions), evaporates.  Perhaps some cultural philosophies and political views associated with religion can survive apart from the divine, but I very much doubt that this can hold in the case of some of the leading monotheistic religious beliefs such as Christianity and Islam.

In a world where the scientific worldview is increasingly acknowledged to be correct, religion must change or die.  It must either transform into philosophies (like humanism) and traditional practices (like Santa Claus) that initiated adults acknowledge have no divine basis or metaphysical truth, or it must be limited to people who reject to an ever greater degree a scientifically established reality that is ever more indisputably correct.  There are conditions where the benefits of religious belief may allow it to persist longer in the fact of these fatal intellectual and conceptual flaws.  But, no religious worldview is defensible any longer as an accurate description of how our world works.  And, as the world becomes ever more educated and gains ever more free access to accurate information, existing religious worldviews formulated for pre-scientific eras will be forever threatened by a consistent, global, universal scientific worldview.

I have no doubt that competing philosophies, culturally maintained traditional practices which may have roots in religious practice, and institutions serving purposes similar to those historically served by religious institutions, in some form or another that it is too early to be able to predict with any certainty, quite possibly in different bundles of functionality than traditional religious institutions, will emerge.  We are probably not entering an era of global moral consensus or one that is truly culturally homogeneous.  But, we are living in the middle of a historic era during which our collective religious inheritance will ever more swiftly lose its force in favor of a shared scientific worldview which will be a foundation upon which new worldviews will emerge afresh with little direct descent from single predecessor belief systems.  Belief systems and worldviews before the scientific worldview becomes predominant, and belief systems and worldviews after this point in our intellectual history, will be largely disconnected from each other.

Global Wealth Inequality

Not only do the top 1% of the world's richest own 65 times more than the world's poorest 50%, but the 85 richest people own more than half the world.

From Oxfam via BoingBoing.

Upsides and Downsides

* One of the downsides to being a lawyer is that nobody in the office understands the hilarious xkcd comic strips that you post on your door.  Then again, the upside to this is that people are really impressed with your mathematical abilities when you can understand what makes a spreadsheet work, handle compound interest calculations, and work with percentages.

* There are a few upsides to being sick to some degree for more than six weeks:
- you can follow the starve yourself and barf diet without having to suffer from the psychological conditions or social disapproval associated with anorexia or bulimia.
- your intensely sore throat encourages you to listen rather than speak to the extent possible.
- your family is less annoyed with the fact that you can't keep up with your share of laundry chores.
- you tend to catch up on sleep after months and years of routinely cutting corners in that department.
- when you see the world fly by in a senseless jumble that makes no sense you can take some comfort in the fact that you really are feverish and delirious, so it might just be you rather than the world that is messed up.
- you can feel pride about the fact that you are doing your part to keep the health care industry healthy.

The downside, of course, is that even though you are working fewer hours and even missing multiple days of work, you aren't able to enjoy your time off and do anything fun.

Broncos Rule!

Yesterday, the Denver Broncos (our pro football team) beat my brother's hometown team, the New England Patriots, to win a spot in the Superbowl.  In the Superbowl itself (two weeks from last Sunday), Denver will face my wife's sister's team from Seattle.

Pundits have christened it the "Smoke A Bowl" or "Pot Bowl" because both teams in this year's Superbowl of legalized the recreational use of marijuana at the state level (a fascinating exercise in the impotence of the federal government notwithstanding the fact that this remains illegally in federal law).

The last time the Denver Broncos went to the Superbowl, I lived in Grand Junction, Colorado, had no children, and John Elway, now a part-owner of the team, was the quarterback.

MLK Day Musings

Legacy is not fate.  

Less than a century ago, Mayor Stapleton presided over Denver on the strength of support from the Ku Klux Klan.  Colorado had more than its fair share of lynchings.

Since then, majority white Denver (at least in its electorate) has had two black mayors, including its current one, and a Hispanic mayor who went on to be a cabinet secretary in the national government.  My landlord is black and once served as the chief judge of the U.S. District Court for the District of Colorado.  The current chief judge of Denver's District Court (the general jurisdiction state court for the City and County) is Latino.  And, our majority white nation, of course, has a sitting black President.  Majority white Colorado backed him in the Presidential election.  There have been (and are) black and Latina justices on the United States Supreme Court.

In Martin Luther King, Jr.'s day, interracial marriages were illegal in much of the nation.  They remain uncommon, but it isn't that exceptional to see interracial couples around Denver.  

The principals of each of my children's schools in the Denver Public Schools are black, and their middle school's previous principal was Latina.  Both my son's middle school and my daughter's high school are substantial contingents of student from every race, although the proportions differ substantially within school within a school programs in each.  In Martin Luther King, Jr.'s day, Muslims were almost unknown outside some African-American converts exemplified by Malcolm X and Muhammad Ali.  Today, my children's schools have substantial numbers of immigrant Muslim students, as well as some converts.

Gay rights have also advanced dramatically in Colorado from the early 1980s when the U.S. Supreme Court made history in overturning an anti-gay ballot initiative adopted here.  We have had several openly gay state legislators, and one of our members of Congress is a gay man.  We have civil unions (although not gay marriage yet) and laws modeled on those of the civil rights movement prohibiting discrimination on the basis of sexual orientation.

The color of a man or woman's skin is no longer a ceiling in this country, and barriers based on sexual orientation are also tumbling.  

We are not in the promised land.  Race and the legacy of racial discrimination are still deeply embedded in our nation's social class structure.  Racism and homophobia are still common, if more muted than they used to be.  Our nation's culture has changed and that cultural change has coincided with political change, with cultural change sometimes spurred by political and legal action and cultural change at other times driving political action.  But, Colorado has managed to shift itself from a legacy as a hate state to a present as a relatively tolerant and inclusive state.

 

Smart Rifles Exemplify The Threats Our Forces Will Face In The Next War

What Are Smart Rifles?

In a nutshell, a smart rifle is a targeting system for sniper rifles that allows total novices to shoot with more than twice the accuracy of military snipers and sharpshooters at ranges of about 1000 yards (e.g. about seven city blocks in central Denver) at a cost of about $27,000. This cost is in the same vicinity as the least expensive and smallest guided missiles and guided artillery rounds, but can be used over and over again for negligible ammunition costs using rounds that can be purchased at any Wal-Mart, Big Five, or gun shop.

The component parts and software languages used are basically commercial, off the shelf items, and much of the process, of assembling them into a completed targeting system is simple enough for amateurs to assemble from kits in their own homes. It is easily integrated with a wide variety of underlying rifles. At this point, they systems can be purchased by anyone who can legally buy a rifle. In contrast, small guided missiles and guided artillery rounds are generally available only to military and paramilitary forces.

Smart Rifles Could Be Game Changing

A couple year old start up company with fewer than a hundred employees without any government R&D funding has made one of the most significant developments in the rifle since the laser target identifier for a fairly affordable price for a cutting edge weapons system.

In new conflicts, smart rifles could rival the importance of the IED in recent counterinsurgency operations. 

Historically, using rifles accurately at ranges of a thousand years has been a skill limited to an elite subset of soldiers (and assassins) who have honed their skills through years of Olympic class training. These sharpshooters have been particularly scarce in armies made up mostly of draftees with short one or two year tours of duty and in armies in the developing world and Third World with inferior resources for both training and equipment. Moreover, even the elites miss targets at thousand yard ranges seven or eight times out of ten on their first shot.

With a smart rifle system and an expenditure of just a few million dollars, comparable to the cost of a single modern tank, and enough training to bring soldiers to above the novice level, a country or rebel group could field a full company of soldiers who miss targets at thousand year ranges less perhaps one time out of twenty on their first shot. Ambush tactics for units like that could easily shift the balance of military power in a war like the one currently being waged in Syria.

Also, smart rifles are small and portable enough that they could not immediately be purged by a more advanced military force that could leverage control of the airspace and a monopoly on heavy and hard to hide weapons systems from insurgents.

Alternately, a rifle equipped with this kind of targeting system allows anyone with enough funds to buy an new mid-grade SUV or sedan or pickup truck for cash, intent on assassinating someone or going on a killing spree, to have the shooting accuracy that in 2010 was restricted to the best U.S. military snipers with minimal practice. From the perspective of someone like a Secret Service agent, the increased accuracy at long range of a smart rifle means that the area that needs to be checked and cleared of potential snipers other than true professionals is increased by a factor of 25 to 100 relative to the situation before smart rifles were available. 

The relative simplicity of the system and ordinariness of the components that go into it mean that preventing it from proliferating worldwide is almost impossible. The design could probably be reverse engineered and converted into a shopping list for common parts, software file, assembly manual and set of 3-D printer part designs in a matter of days by a properly trained professional and then transmitted in a single encrypted e-mail anywhere in the world where production could be set up locally. Even without truly reverse engineering it, a knowledgeable person given a few hours or couple of days with one could probably gain enough of an understanding of how it works conceptually to create a comparable system in a matter of weeks, rather than the years that went into designing the original.

Selected Data Points From The Source Story

The U.S. military has begun testing several so-called smart rifles made by the applied technology start-up TrackingPoint Inc., company officials said. The Army is rumored to have acquired six of the precision-guided firearms, which cost as much as $27,000 apiece. Oren Schauble, a marketing official with the Austin, Texas-based company, confirmed the military bought a handful of them in recent months for evaluation. . . . 

With only a few minutes of instruction on the weapon, this correspondent was able to hit a target almost 1,000 yards away on the first shot. Of the 70 or so reporters and other novice shooters who tested the weapon on Monday at a range in Boulder City, Nev., only one or two missed the target, which was located about 980 yards away, according to Schauble. “That is a better day than usual,” he said. “I would say we’re at about 70 percent first-shot success probability at 1,000 yards … with inexperienced shooters.” By comparison, military snipers and sharpshooters have a first-shot success rate of between 20 percent and 30 percent, said Schauble, a relative of the firm’s Chief Executive Officer Jason Schauble. They usually reach about 70 percent on subsequent shots, he said. . . . 

When asked whether the product has encountered resistance from military marksmen, Schauble said, “This is not necessarily for them. This is for guys who don’t have that training who need to perform in greater capabilities. This is more for your average soldier.” 

While the company built the rifle for the commercial market, it quickly realized the potential applications for the military and defense sector, especially as battlefields become more networked, Schauble said. “Rifles can communicate with each other,” he said. “We can enable a more information-driven combat in the sense that you can tag targets. You can pass off those targets to someone else with a scope. There’s a whole layer of communication that comes with having a rifle that can designate and track targets.” 

The system includes a Linux-powered computer in the scope with sensors that collect imagery and ballistic data such as atmospheric conditions, cant, inclination, even the slight shift of the Earth’s rotation known as the Coriolis effect. Because the computer is wireless-enabled, information can be streamed to a laptop, smart phone or tablet computer for spotting or to share intelligence. “The only way to guarantee accuracy is to control all the variables,” said Scott Calvin, a company representative who demonstrated the rifle at the range. The only variable the system doesn’t account for is wind speed and direction, which must be entered manually, he said. 

The rifle operates far differently than its traditional counterparts, though the process is quite simple. After looking through the scope, a shooter pushes a red button near the trigger to tag a target — similar to the way a Facebook user tags a friend in a photograph. A reticle then appears based on the bullet’s expected trajectory determined by the computer. The shooter then arms the scope by squeezing the trigger back, lines up the reticle with the painted target and releases the trigger to fire a round. 

The rifle may take the art out of marksmanship, but its apparent accuracy is virtually guaranteed to continue to draw interest — not just from customers in the U.S., but around the world. The company has already sold about 500 of the rifles, mostly to wealthy safari hunters and elderly hunters, Schauble said. Officials from the Agriculture Department stopped by the company’s booth at the show to look at the products for possible use in a program to better control the rising population of feral pigs. 

The guns range in cost, from about $10,000 for scope-and-trigger kits installed on semi-automatic Daniel Defense rifles accurate to about 750 yards, to between $22,000 and $27,000 for those installed on bolt-action Surgeon rifles accurate to about 1,250 yards, according to Schauble. The kits can also be installed on other types of firearms, he said. 

TrackingPoint was launched about a year ago by John McHale, a founder of multiple technology start-ups, and has about 75 employees, more than half of which are engineers, Schauble said.

From Defense Tech.

The Bigger Picture

Smart rifles, together with small drones armed with small firearms, combined present a threat that is effectively impossible to control access to highly accurate deadly antipersonnel weapons that allow the user the kill far enough away from the target to minimize the risk faced by the killer of retaliation from the targeted individuals or people in their immediate vicinity protecting them. These weapons system don't require the people using them to have a great deal of skill and don't require a large scale military-industrial complex to build at prices that even a moderate sized urban gang or insurgent militia in a third world country can afford in small numbers.

Neither of these systems are the most powerful or sophisticated weapons systems that can be built today. But, it is for all practical purposes impossible in the modern era of advanced aerial photography and sensors to hide a tank, a traditional military multiple rocket launcher system, a purpose built armored personnel carrier, a military helicopter or warplane, a large artillery piece, a warship, a submarine, a medium to long range missile, an traditional anti-aircraft gun, or a reasonably busy airstrip or military base. Any military force that can control the air space in a military theater can identify these large military systems and obliterate them with impunity in a heart beat.

Moreover, these physically large military systems also tend to be beyond the budgets of all potential combatants except sovereign military forces, with the more sophisticated of these systems available only to the countries with the fattest military budgets. Only a few dozen countries, for example, can afford navies with submarines or with warships larger than frigates, or state of the art jet fighters with guided munitions. Only a handful have access to aircraft carriers, battleships, blue sea nuclear submarines, long range missiles, or nuclear weapons. And, the military-industrial complexes necessary to produce high end military weapons systems are hard to hide.

Any weapons system that can't be hidden in somebody's garage or barn is useless to an insurgent force. So is anything that can be easily detected by opposition forces with only the thinnest network of local supporters, when transported for a few miles. An insurgency's small weapons systems and systems that can be disguised as ordinary civilian vehicles and equipment, in contrast, can escape detection by opposition forces and remain available to fight wars that can last months and years. These smaller, often off the shelf component weapons systems also tend to be easier to produce covertly and far less expensive than the weapons of a conventional military or paramilitary force.

The more deadly and easily available these systems become, the harder it is for traditional forces to control territory in the face of armed opposition without suffering casualties that first world military forces are likely to view as unacceptable. Thus, these technologies make it dramatically harder to use military force to end revolutions, civil wars, large scale organized crime organizations, and piracy. And, since the vast majority of military conflicts at any given time are revolutions and civil wars (or sustained piracy or organized crime), rather than conflicts between sophisticated near peer sovereign military forces on both sides of a conflict, the development of these kinds of weapons technologies are likely to transform the actually practice of military conflicts on a much more widespread and immediate basis.

Of course, these technologies can be used by traditional military forces of countries with fat military budgets as well. But, since these forces have already long had a decisive edge in conventional warfare, the marginal benefit that they receive from these additional capabilities which can be replicated by larger and heavier and more expensive existing military systems is not nearly as important as the impact that these additional capabilities on their opponents.

We live now and have lived for a long time in an era in which offensive military technologies are generally able to best comparable defensive technologies like armor plating. Smart rifles and drones with small arms present two new "next war" challenges on top of the IEDs and suicide bombing tactics that have plagued counterinsurgency forces in the last decade or so. In principal moderate armor and ballistic materials should be sufficient to stop these small munitions. But, their potential pervasiveness makes it very hard to stop all of these threats from every possible direction all of the time, which is what one needs to do for years and years and years to minimize casualties in long counterinsurgency conflicts.

General Jurisdiction Gutted By New SCOTUS Ruling

Yesterday, the U.S. Supreme Court reversed precedents concerning the states in which a corporation can be sued for any act, no matter where committed that have been in place since the International Shoe case in 1945 in the case of Daimler AG v. Bauman.  The ruling was 9-0 with only Justice Sotomayor filing even a concurring opinion.

Before this ruling, courts had personal jurisdiction over corporations in every place where they have a regular office or agent for the conduct of business, because, in those cases, the foreign corporation's "continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities."

Now, "general jurisdiction" without regard to the place where the events giving rise to the lawsuit took place is available, except in exceptional cases, only where the business is incorporated or where it has its principal offices.  In all other cases must be supported by "specific jurisdiction" where the lawsuit "arise[s] out of or relate[s] to the defendant's contacts with the forum." (Presumably, specialized exceptions to these two main personal jurisdictional categories such as "in rem" jurisdiction and "tag" jurisdiction still survive this ruling.)

The facts set for in the syllabus of the case were as follows:

Plaintiffs (respondents here) are twenty-two residents of Argentina who filed suit in California Federal District Court, naming as a defendant DaimlerChrysler Aktiengesellschaft (Daimler), a German public stock company that is the predecessor to petitioner Daimler AG. Their complaint alleges that Mercedes-Benz Argentina (MB Argentina), an Argentinian subsidiary of Daimler, collaborated with state security forces during Argentina's 1976-1983 "Dirty War" to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs. Based on those allegations, plaintiffs asserted claims under the Alien Tort Statute and the Torture Victim Protection Act of 1991, as well as under California and Argentina law. Personal jurisdiction over Daimler was predicated on the California contacts of Mercedes-Benz USA, LLC (MBUSA), another Daimler subsidiary, one incorporated in Delaware with its principal place of business in New Jersey. MBUSA distributes Daimler-manufactured vehicles to independent dealerships throughout the United States, including California. Daimler moved to dismiss the action for want of personal jurisdiction. Opposing that motion, plaintiffs argued that jurisdiction over Daimler could be founded on the California contacts of MBUSA. The District Court granted Daimler's motion to dismiss. Reversing the District Court's judgment, the Ninth Circuit held that MBUSA, which it assumed to fall within the California courts' all-purpose jurisdiction, was Daimler's "agent" for jurisdictional purposes, so that Daimler, too, should generally be answerable to suit in that State.

The U.S. Supreme Court could easily have reached the same result on much narrower grounds, ruling that MBUSA was not an agent of true tortfeaser MB Argentina, even if both were subsidiaries of Daimler AG, the parent corporation, or more generally, that subsidiary companies were not agents of their parent companies for jurisdictional purposes.

This would have followed naturally from its recent ruling in Goodyear, 564 U.S. ___, without any need to reach for the much broader holding reached yesterday that unravels court and longstanding precedents, rather than tweaking an obscure rule regarding how they are applied.  The question resolved in Goodyear was: "Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?"  

The Court could have even held, more narrowly and consistent with Goodyear,  that a general principal that a subsidiary corporation's presence is enough to establish general jurisdiction over the parent company does not apply, for constitutional reasons to international subsidiaries. It would have been simple to simply to narrowly hold that the existence of foreign subsidiaries of a United States parent corporation do not suffice to provide general jurisdiction over a foreign parent corporation based upon acts taken by a different foreign subsidiary.

Indeed, Justice Ginsberg considers taking that path and declines to do so, stating:

This Court has not yet addressed whether a foreign corporation may be subjected to a court's general jurisdiction based on the contacts of its in-state subsidiary. Daimler argues, and several Courts of Appeals have held, that a subsidiary's jurisdictional contacts can be imputed to its parent only when the former is so dominated by the latter as to be its alter ego. The Ninth Circuit adopted a less rigorous test based on what it described as an "agency" relationship. Agencies, we note, come in many sizes and shapes: "One may be an agent for some business purposes and not others so that the fact that one may be an agent for one purpose does not make him or her an agent for every purpose." 2A C. J. S., Agency §43, p. 367 (2013) (footnote omitted).  A subsidiary, for example, might be its parent's agent for claims arising in the place where the subsidiary operates, yet not its agent regarding claims arising elsewhere. The Court of Appeals did not advert to that prospect. But we need not pass judgment on invocation of an agency theory in the context of general jurisdiction, for in no event can the appeals court's analysis be sustained.

Take note.  Even in its U.S. Supreme Court argument, Daimler was arguing for the narrow holding, and didn't even dream that the court would reach so far beyond the facts before it.

But, instead, the U.S. Supreme Court largely disavowed the notion that has been the settled constitutional law for 68 years in the United States, that general jurisdiction over a corporation can be asserted anywhere that it has a regular agent or office for the conduct of business, and held instead that a corporation was a resident only of the state of its incorporation and the state of its principal place of business for general jurisdiction purposes.  This will have a sweeping impact far beyond the facts of this case.  

Essentially, Justice Ginsberg, writing for the majority retcons the last sixty-eight years of constitutional general jurisdiction law and specifically International Shoe which is redefined as a specific jurisdiction rather than a general jurisdiction holding (see footnote 10 of the opinion), by arguing in the manner officially summarized as follows (citations omitted).

The paradigm all-purpose forums for general jurisdiction are a corporation's place of incorporation and principal place of business.  Plaintiffs' reasoning, however, would reach well beyond these exemplar bases to approve the exercise of general jurisdiction in every State in which a corporation "engages in a substantial, continuous, and systematic course of business." The words "continuous and systematic," plaintiffs and the Court of Appeals overlooked, were used in International Shoe to describe situations in which the exercise of specific jurisdiction would be appropriate. With respect to all-purpose jurisdiction, International Shoe spoke instead of "instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit . . . on causes of action arising from dealings entirely distinct from those activities." Accordingly, the proper inquiry, this Court has explained, is whether a foreign corporation's "affiliations with the State are so 'continuous and systematic' as to render [it] essentially at home in the forum State."

Neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA's sales are sizable. No decision of this Court sanctions a view of general jurisdiction so grasping. The Ninth Circuit, therefore, had no warrant to conclude that Daimler, even with MBUSA's contacts attributed to it, was at home in California, and hence subject to suit there on claims by foreign plaintiffs having nothing to do with anything that occurred or had its principal impact in California.

In lieu of the actual relevant history of the law, Justice Ginsberg at footnote 18 notes a law review article which pushes for the kind of broad ruling that she enters, which was not argued for by either party: Feder, Goodyear, "Home," and the Uncertain Future of Doing Business Jurisdiction, 63 S. C. L. Rev. 671 (2012) (questioning whether "doing business" should persist as a basis for general jurisdiction). In fact, the standard cited by the Defendant's has been the well settled black letter law for half a century or more, and the "continuous and systematic" contacts test hasn't been the relevant test for "specific jurisdiction" for decades (the primary issue today is whether the defendant "purposefully availed itself" of the benefit of the forum state such that it would not be unfair to subject it to that state's laws, something that can happen even in a single, isolated instance).  On these facts, Justice Ginsberg concludes that:

Even if we were to assume that MBUSA is at home in California, and further to assume MBUSA's contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California, for Daimler's slim contacts with the State hardly render it at home there. . . Here, neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA's sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants "to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." Burger King Corp., 471 U.S., at 472(internal quotation marks omitted)

The fact that the suit is international and involves a kind of human rights statute that the Supreme Court has looked upon with disfavor are added as additional justifications for the denial of jurisdiction, but don't really narrow the dramatic holding that will impact far more ordinary cases.

The new rule on the scope of general jurisdiction may not change many outcomes in ordinary cases, because the scope of specific jurisdiction has grown so expansive.  But, it does dramatically increase the range of facts that are relevant to determining whether or not personal jurisdiction is present in a vast array of very ordinary civil cases and greatly increases the uncertainty involved in resolving those case because "specific jurisdiction" law, like the law of Fourth Amendment search reasonableness is highly fact specific.  In the past, facts easily determinable by a third party, like the existence of an office or store address in a state was sufficient to dispense with personal jurisdiction questions in civil cases without reaching the merits of the case.   Now, cases that would have once been obvious and not litigated under the general jurisdiction rule against out of state defendants will hinge on mini-trials that go to facts at issue on the merits of the claim.

While specific jurisdiction is factually simple to prove in physical tort cases, specific jurisdiction can be very vexing to prove and hinge on seemingly trivial details in contract and business tort cases where general jurisdiction principles are often much easier to apply.

Under Daimler it is not even entirely clear if a corporation's registration as a foreign corporation authorized to do business in a state, historically required for the purpose of granting a state general jurisdiction over that business, will continue to serve that purpose.

It is not at all clear that the Daimler court has anticipated these consequences of its holding in the vast majority of cases that have far less exotic facts.  Conceptually, Justice Ginsberg made the critical mistake of failing to realize that the fact that there is little litigation over a clear rule that works well does not mean that it is not a good and widely relied upon rule.  General jurisdiction is rarely litigated because the relevant facts are few and easy to discern, and the application of the general jurisdiction rules to those facts is obvious in the vast majority of cases where it applies.  Justice Ginsberg's failure to realize what is at stake is clear in this part of footnote 20 of her opinion:

JUSTICE SOTOMAYOR fears that our holding will "lead to greater unpredictability by radically expanding the scope of jurisdictional discovery." Post, at 14. But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home. JUSTICE SOTOMAYOR's proposal to import Asahi's "reasonableness" check into the general jurisdiction determination, on the other hand, would indeed compound the jurisdictional inquiry. The reasonableness factors identified in Asahi include "the burden on the defendant," "the interests of the forum State," "the plaintiff's interest in obtaining relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," "the shared interest of the several States in furthering fundamental substantive social policies," and, in the international context, "the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction." 480 U.S., at 113-115(some internal quotation marks omitted). Imposing such a checklist in cases of general jurisdiction would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation.

The radical expansion of jurisdictional discovery that Justice Sotomayor fears does not involve a determination of where a corporation is at home.  It involves jurisdictional discovery to determine if specific jurisdiction is present in cases that would previously have been straightforwardly resolved by general jurisdiction principals because the Defendant has an office for the conduct of business or regular agent in the forum state.

Cases were a foreign corporation is sued in a state that is not its narrowly defined "home state" but does have an office for the conduct of business or regular agent in a state are legion.  Cases like Daimler where a foreign corporation is sued by people who are not U.S. citizens for conduct of a non-U.S. subsidiary for non-U.S. conduct, when neither have any connections to the United States except insofar as the non-U.S. subsidiary of the defendant also has a different subsidiary in the United States, are extraordinarily rare and can safely be made the subject of special rules that won't place a burden on state and federal courts alike in routine fact patterns.

The Daimler case also includes the revolutionary holding that specific jurisdiction (i.e. jurisdiction based on the events giving rise to the lawsuit) was the rule and that general jurisdiction was the exception, upsetting precedents that are even older.  Specific jurisdiction, also known as long arm jurisdiction, wasn't even a well defined concept until a few years after International Shoe.  Prior to International Shoe, under a doctrine exemplified in Pennoyer v. Neff (1878) only the courts of  the state where a person resided had jurisdiction over that person for most civil actions and a person was deemed to have only a single domicile at any one time.
Justice Sotomayer's sensible concurrence makes all the right points, but in the face of eight Justices ruling the other way, probably won't have much of an impact.  But, there is some hope to tame this decision in footnote 19 and 20 of the majority opinion which backhandedly acknowledges the pre-2014 state of the law and explains that (many citations omitted):

We do not foreclose the possibility that in an exceptional case, a corporation's operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler's activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, quite another to expose it to suit on claims having no connection whatever to the forum State. . . .To clarify in light of JUSTICE SOTOMAYOR's opinion concurring in the judgment, the general jurisdiction inquiry does not "focu[s] solely on the magnitude of the defendant's in-state contacts." General jurisdiction instead calls for an appraisal of a corporation's activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, "at home" would be synonymous with "doing business" tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142-1144. Nothing in International Shoe and its progeny suggests that "a particular quantum of local activity" should give a State authority over a "far larger quantum of . . . activity" having no connection to any in-state activity.

Footnote 19 and 20 seem to open up the possibility of "doing business" jurisdiction as a third kind of personal jurisdiction, between specific jurisdiction and general jurisdiction, that makes a corporation generally subject to the jurisdiction of the forum state for "operations in the forum state" of that corporation, without the kind of myopic, transaction specific analysis that applies to specific jurisdiction cases.

All in all, this case is an example of a horrible decision making process by the U.S. Supreme Court making bad law based upon exceptional and unusual facts when it could easily have avoided doing so. It is really a disappointment that undermines my faith in the Court as an institution and Justice Ginsberg as a smart Justice, even though its precedent doesn't do earthshaking injustice despite being a bad rule, and despite the fact that its holding on the case before it is a correct one.

Selected Axioms

Some working axioms that I rely upon to consider the future and understand the world:

1.  The costs of hedonism in affluent societies are greatly overstated.  Drugs, polyamory, atheism and other rejections of traditional values are far less harmful than widely assumed.  To the extent that this is demonstrated by legalization that has only modest societal impact where it happens, the legal barriers to restrictions on these activities will collapse.

2.  We have a sufficient technological base to continue to maintain advanced civilization in the face of dramatic increases in the cost of natural gas and mineral source oil driven by great scarcity in those resources.  The changes would be dramatic, but would not return us to the dark ages.  Peak oil will lead to a bad recession with a major economic restructuring, not an apocalypse.

3.  20th century Cold War communism is dead in all but name almost everywhere by North Korea and one or two European pocket states like Belarus.  Elsewhere it is merely a facade covering what has become a basically capitalist economy.

4. A very large share of U.S. military expenditures are devoted to conflicts types that are profoundly unlikely to ever happen.  Much of it is devoted to World War II style conflicts that will never recur.

5. All fundamental physics that could have useful engineering applications has been discovered.  Scientific advances in the future will involve chemistry, solid state physics, biology and other intermediate sciences that in principle can be derived from the Standard Model and General Relativity as they exist today.  There is more fundamental physics to be done, but at this point it is a mountain to climb and not a bridge to build.

6. If technology makes it possible to do something that people desire, regulation will not be able to prevent it from happening, within reason.

7.  Earth's carrying capacity is much greater than we give it credit for being, by orders of magnitude.

8.  Some people will live in outer space and other planets and the moon someday, but the percentage of people who do so will be no larger than the percentage of people who relocate to unfavorable environments on Earth like Antarctica, the Sahara, the ocean depths, and the atmosphere.  The overwhelming majority of humans (99.9%+) will live on the surface of Earth for centuries to come, barring something like global nuclear war or a major comet strike.

9. We will deal with global environmental problems like global warming too late to prevent permanent serious change to the world, but definitely in time to prevent species extinction.

10.  Even a major global societal collapse would set back technology by decades nor centuries for more than a brief a period of time   The necessary information to rebuild is too redundantly distributed to be totally lost in large amounts.

11. Even very serious plagues that wipe out 90%-95% or more of the global population, which are virtually unprecedented even with modern medicine, will set back global population sizes by only a century or so.  The long term survival of humans as an advance, global civilization is virtually unstoppable even in the very long term at this point.

Minor Makeover For New Year

I've slightly rearranged the side bar, added a number of new notable links, and deleted a few links that have become moribund and become bad links.

The new links mostly consist of Colorado think tanks, secular organizations, a couple of web comics, tech oriented web sites with a particular focus on intellectual property and privacy issues, some law blogs I read often, and a few more sources of national current affairs coverage as the Denver Post grows ever more dismal as a source for that news.

Bitten (2014 TV series)

Canadian Kelley Armstrong is a proven contemporary fantasy novelist with thirteen "Women of the Otherworld" novels, six young adult novels set in the same world, a number of short stories in that world, and a separate (so far) series about a female assassin for hire. I've read almost all of her published work until the last year or so, subscribe to her fan newsletter, and have provided copy editing suggests to her on several draft short stories that later appeared in print in the profits for charity "Men of the Otherworld" short story collection.

It all started while I was looking for entertainment during lunch breaks while working as an associate attorney with a mixed transaction an litigation practice at a medium sized law firm in Wheat Ridge, Colorado in the early 2000s. I had left my prior employer where my work consisted overwhelmingly of drafting estate plans one after the other for affluent individuals, a specialty in which I was highly competent, but bored to death. I left a few years later to pursue a brief career as a law professor in the master's degree at a for profit college for financial planners (one of my favorite jobs ever, despite the fact that it involved a modest pay cut).

My lunch breaks in those days were fruitful times for me creatively. I wrote almost half of a science fiction novel. I listened to the first Harry Potter book on audiotape. And, one day, on a whim, a bought Kelley Armstrong's third Women of the Otherword book "Dime Store Magic" at a local book story as entertaining, fluffy, sexy entertainment.

A few weeks and a few novels later, I had backtracked to the first book in the series "Bitten". The setting, in upstate New York not far from my wife's hometown, where I lived for about fifteen months while my wife was getting her graduate degree there, and familiar Toronto which I often stopped off at en route to her from Ann Arbor, Michigan and back while I was finishing my law degree, was a familiar one.

Yesterday, that story, original produced by a Canadian movie studio and then picked up by the American SyFy network aired the first TV episode of the series. If this story works well, a dozens more seasons could follow before the material dried up.

Armstrong's literary take on the werewolves, and later witches, half-demons, necromancers, ghosts, shamans, vampires and other supernatural mythical beings, is the superposition of these myths into ordinary daily American and Canadian lives. Her supernaturals are ordinary people with one more nuance in their life living out their supernatural lives in the shadows of ordinary society, but not on its fringes. Most of them work ordinary day jobs. They are not embroiled in epic, centuries old, struggles between good and evil. They want better lives for themselves and their loved ones. Their conspiracies are more like office politics and less like grand conspiracies involving the fate of civilization. Rather than being gothic horror stories, they are stories of romance, banal murders, big business power plays and diverse people living lives more like homosexuals trying to live in the closet than like monsters who exist to prey on the good people of the world. They have bad apples that they try to self-police, like murders of innocent humans by mutts. Their little world has its own injustices. The have to deal with wrongs, like the involuntary conversion of heroine Elana to a werewolf, that have consequences that must be worked through by their small community. But, Armstrong's stories are not driven by epic struggles between the forces of good and the forces of evil in the world, and the supernatural community's capacity to govern itself is hardly perfect. These stories are driven by the impulsive misjudgments and failings of ordinary people who can love and support each other, or hurt each other, based upon their own sense of duty and choices made one day at a time.

The television premier of "Bitten" shows potential to be good, but isn't a masterpiece so far either.

Wisely, the television narrative beings in the middle, leaving back stories and complex relationships from the novels unexplained at this point. But, sometimes this goes overboard. A brief definitive statement at some point in the premier that than man with whom Elena has such a prickly relationship is an ex-boyfriend who is not ready to let go of her (without, of course, a full rehashing of that relationship) could have clarified many of the scenes in the premier for someone who has not read the books. The production values and special effects are tolerable of a made for TV series in the speculative fiction genre, although a little iconic Toronto and upstate New York scenery for a few more seconds in each case would have more firmly grounded the story in the real world - a key point since they books decidedly do take place in something very like the real world.

Stonehaven is a reasonable approximation of the locality in the book, as is its relationship with the local community. Jeremy Danvers lacks some of the gravitas he has in the books in the television premier. An increased importance for the role of Elena's boyfriend and family are valuable improvements to the story that help illustrate Elena's complex motives. The risque sex and nudity scenes suitably capture the seamy feel of the original series, even if the details vary a bit. The Elena of the TV series is more sophisticated and strong minded than the original, but in general, this is an improvement on the original and leaves room for interesting plot developments going forward. The Elena of the TV series has a bit more of an edge to her which makes her more interesting.

The cinematography and background music in the TV series give off a bit more of a horror vibe than is really appropriate for this story whose overall feel is closer to a romantic police procedural or dyfunctional family story than a story that primarily preys on primal fears of the unknown. Bitten is not, at its root, a horror story or even a thriller.  It is not a close cousin of superficially similar series like Hemlock Grove.  It is more like Haven before the deeper plot lines of that series become apparent.  It is a story about people who are different, who have to handle their problems on their own before the authorities do, and can't risk being exposed. It is also not deeply multi-generational or a story in which the fate of the world is at stake in the way that a similar story, the Vampire Diaries, is and is not really even a conspiracy theory tale either.

Probably the most serious flaw of the first episode, plot-wise, is the confusion readers are left with over who kills the girl.  It plays almost as if Elena rather than the Mutt did it, although this doesn't seem to be the intended story.  Others have questioned casting decisions, but mostly, it is too early to tell with so many of the characters introduced for just moments.

Still, fan that I am, I look forward to seeing how the series continues to develop in future episodes this season.

Miscellaneous Pipedreams

It is one thing to predict the future.  This post does not contain predictions.  It contains a wish list of things that it would be nice to have in the future that are possible but improbable.

1.  A broad spectrum anti-viral drug (akin to modern antibiotics).  The common cold and kindred viral infections no longer seem common and trivial until you've suffered five weeks and still counting with them.

2.  An era where new computers don't come packaged with junk programs and the programs that you do get just work seamlessly without active user intervention.

3.  A painless, effortless weight loss system.

4.  An over the counter "gumption" pill that would give you the verve to go get things done with gusto in the face of apathy, urges to procrastinate, and inertia.  Not just general nervous system stimulants like caffeine.

5.  A dramatic expansion of the intellectual property public domain.

6.  A political culture in which anti-science zealots and other politicians disconnected from reality would be treated like crackpots rather than taken seriously.

7.  The invention of a better battery or battery-substitute that would make fossil fuel vehicles obsolete.

8.  Secularization in the United States to the extent seen in the most secular countries of Europe.

9.  More dog-free communities.

10. Customizable newpapers with only the sections you care about and no ads.

11. The demise of the necktie as a male fashion accessory.

12. Something that would create strong incentives to refrain from a variety of annoying or misleading advertising techniques like spam, correspondence designed to look official or governmental when it is not, catches hidden in fine print, multi-layer marketing schemes, etc.

13. Better nuclear waste recycling and disposal systems.

14. An effective, quick acting hangover remedy.

15. Reliable and objective diagnostic tests for most mental health conditions.

16. PIN numbers for credit cards.

17. Cheap biometric keys for all sorts of purposes (e.g. fingerprint or retina pattern or DNA tests) in lieu of passwords or keys.

18. Magnetic bullet/shrapnel deflectors.

19. Widespread high speed rail in high population density corridors (e.g. Pacific Coast-Las Vegas, I-25 corridor, major Texas connector routes, Atlantic Coast).

20. Drone pizza delivery - to the balcony in high rises.

21. Sunday automobile sales.

22. Faster processes to get people onto and off of commercial airplane flights.

23. Systems that would encourage people to check baggage on commercial flights and make it faster and more convenient and free to do so.

24.  Quality school lunches.

25.  Retail prices that were quoted after rather than before sales taxes.

Wither Appalachia?

"The Hunger Games" books and movies revolve around a impoverished small city in Appalachia.  The real Appalachia isn't under a totalitarian regime, but the quality of life there is only marginally better.

Owsley County, Kentucky in the hear of Appalachia is the poorest county in the United States and suffers many of the same problems as other underclass urban ghettos although it has about half the violent crime, more of its teen mothers are married and more of its poor families include married couples.

Owsley County, Ky. – There are lots of diversions in the Big White Ghetto, the vast moribund matrix of Wonder Bread–hued Appalachian towns and villages stretching from northern Mississippi to southern New York, a slowly dissipating nebula of poverty and misery with its heart in eastern Kentucky, the last redoubt of the Scots-Irish working class . . . mining and cropping and sawing the raw materials for a modern American economy that would soon run out of profitable uses for . . . . 

[Y]ou have the pills and the dope, the morning beers, the endless scratch-off lotto cards, healing meetings up on the hill, the federally funded ritual of trading cases of food-stamp Pepsi for packs of Kentucky’s Best cigarettes and good old hard currency, tall piles of gas-station nachos, the occasional blast of meth, Narcotics Anonymous meetings, petty crime, the draw, the recreational making and surgical unmaking of teenaged mothers, and death: Life expectancies are short — the typical man here dies well over a decade earlier than does a man in Fairfax County, Va. — and they are getting shorter, women’s life expectancy having declined by nearly 1.1 percent from 1987 to 2007. If the people here weren’t 98.5 percent white, we’d call it a reservation. . . .

There is still coal mining — which, at $25 an hour or more, provides one of the more desirable occupations outside of government work — but the jobs are moving west, and Harlan County, like many coal-country communities, has lost nearly half of its population over the past 30 years. . . .

There is here a strain of fervid and sometimes apocalyptic Christianity, and visions of the Rapture must have a certain appeal for people who already have been left behind. Like its black urban counterparts, the Big White Ghetto suffers from a whole trainload of social problems, but the most significant among them may be adverse selection: Those who have the required work skills, the academic ability, or the simple desperate native enterprising grit to do so get the hell out as fast as they can, and they have been doing that for decades. As they go, businesses disappear, institutions fall into decline, social networks erode, and there is little or nothing left over for those who remain. It’s a classic economic death spiral: The quality of the available jobs is not enough to keep good workers, and the quality of the available workers is not enough to attract good jobs. These little towns located at remote wide spots in helical mountain roads are hard enough to get to if you have a good reason to be here. If you don’t have a good reason, you aren’t going to think of one.

From Kevin D. Williamson, "The White Ghetto" in the National Review (January 9, 2014).

One wonders if the best solution wouldn't be to follow the approach to the local unemployment problem once used by at least one major American city: pass out bus tickets to places where there are actually jobs to be had.  Appalachia has more people than its current economy needs, and more than it has any reasonable prospect of needing for decades to come.  Even many of the employed there are basically serving the needs of people who remain only out of inertia and because government assistance checks make it possible to do so.

Pushing a policy of work rather than welfare only makes sense if there is work to be had.  And, in Appalachia, locally at least, there is no work to be had.

On the other hand, if you are going to be poor, it is probably better to do so in a place where the cost of living is low, the scenery is pretty, the locals understand you and your culture, and violent crime is lower than in urban ghettos where you might otherwise live.  And, it is entirely possible that the unemployed of Appalachia would be unemployed any place that they went.  Most of those with better prospects elsewhere have already left.

The behavior of the poor in Appalachia is also often self-defeating.  These are people who pay America's favorite tax on the mathematically challenged - scratch off lottery cards - in droves.  These are people who trade the $500 of food they could get for their families with food stamps for $250 in cash (laundered via cases of soda) often used for cigarettes, meth, and illegal prescription drug addictions, leaving their children to go hungry.  Drunks abound.  Good work ethics are rare.

What is one to do with a land full of losers?

There will always be some significant proportion of the population that is stupid, lazy and self-destructive.

But, advances in technology have made them ever more economically useless than they used to be.  Factory workers now need to be able to repair sophisticated precision machinery and tweak complex software, rather than simply engaging in repetitive manual labor.  Modern automobiles and trucks need less maintenance and more academic knowledge to do the maintenance that is needed.  Each miner can produce more coal while old seams have less coal to be mined.  ATMs, online retailing, video kiosks, steaming video services, automated gas pumps, and self-checkout machines in grocery stores have dispensed with many entry level banking and retail jobs.  E-mail and e-filing has put postal workers and photocopier operators out of work.  Audio recording has displaced many court reporters and secretaries.

While many people of poor are temporarily poor but would be self-supporting given the right opportunities, others are incapable of being economically productive even if they don't formally qualify as "disabled."  Dealing with this kind of poverty is about harm reduction and is a classic NIMBY problem - there is something or someone who is undesirable to all, but needs to be somewhere, and the question is how to sensibly decide where.

Perhaps, as the author suggests, the answer to the cultural failures created by concentrations of poor people is dilution and a depopulation of Appalachia via out migration of the poor until it reaches a population that its economic resources can support comfortably is the answer.  Or, maybe a dramatic expansion in the size of the U.S. Army in a pretty unselective manner could suck large numbers of unemployed people from the region and put them on track towards better futures with wider horizons.

Of course, maybe this analysis presents too dim an assessment of the possibility of self-improvement.  Could some dramatic Great Awakening-style revival turn a culture of failure into one in which whole communities manage to turn themselves around and make something of themselves and pull themselves up by their own bootstraps?  Perhaps.  I can imagine several historical precedents for that sort of thing, most recently, African Christianity in the late 20th and early 21st century.