29 June 2007

Pluto Smaller Than Eris

Newly discovered dwarf planet Eris is actually 1.27 times as large as the planet Pluto by mass. Both are in the distant outer solar system. Earth's moon is more than four times as large as either of them.

The complete list of the only star, all known planets, all known dwarf planets, and all satellites of 1,000 km in diameter or more in the solar system is as follows (in km):

Sun (Star) 1,393,000
Jupiter (Gas Giant) 142,992
Saturn (Gas Giant) 120,536
Uranus (Gas Giant) 51,118
Neptune (Gas Giant) 49,528
Earth (Terrestial Planet) 12,756
Venus (Terrestial Planet) 12,104
Mars (Terrestial Planet) 6,805
Ganymede (Jupiter) 5,262
Titan (Saturn) 5,151
Mercury (Terrestial Planet) 4,880
Callisto (Jupiter) 4,821
Io (Jupiter) 3,660
Moon (Earth) 3,474
Europa (Jupiter) 3,122
Triton (Neptune) 2,707
Eris (Dwarf Planet Trans-Neptune) 2,400-3,000
Pluto (Dwarf Planet Trans-Neptune) 2,306
Easterbunny (Possible Dwarf Planet Kuiper Belt) 1,660-2,000
Titania (Uranus) 1,578
Rhea (Saturn) 1,529
Oberon (Uranus) 1,522
Santa (Posible Dwarf Planet Kuiper Belt) 1,500
Iapetus (Saturn) 1,472
Charon (Pluto) 1,212
2002 TC302 (Possible Dwarf Planet ca. Kuiper Belt) under 1,200
Sedna (Possible Dwarf Planet ca. Kuiper Belt) 1,180-1,800
Umbriel (Uranus) 1,169
Ariel (Uranus) 1,158
Dione (Saturn) 1,123
Tethys (Saturn) 1,066
Ceres (Dwarf Planet Asteroid Belt) 975
Quaoar (Possible Dwarf Planet Kuiper Belt) 989-1346
Orcus (Possible Dwarf Planet Trans-Neptune) 880-1880

Grandparent's Rights, Royalty Style

You thought you had it bad:

Prince William, the son of Diana (Princess of Wales) and Charles (Prince of Wales), turned 25 years of age on Thursday, June 21, 2007. . . . [one] benefit of reaching age 25 is that he may marry the woman of his own selection without prior approval of Queen Elizabeth II, his grandmother.

From here.

The Price Of Green Electricity

The Denver Post helpfully recaps the per kilowatt hour cost of various green energy sources compared to natural gas and coal. The vast majority of electricity now produced in Colorado comes from coal fired plants.

Photovoltaic arrays cost roughly 20 to 24 cents per kilowatt hour, compared with 13 to 16 cents for concentrating solar power, according to the Golden-based National Renewable Energy Laboratory. Natural-gas power costs an average of 8 to 10 cents, while coal runs about 4 cents.

A solar thermal plant located in New Mexico which would open in 2010 is being contemplated by two major Colorado utilities who are now under heat from the Ritter adminstration and a ballot initiative to generate greener electricity.

Alas, the story does not price out some other important possibilities: new nuclear fission plants, wind, new hydroelectric plants, biomass, and "clean coal" technologies that process coal into a liquid or gaseous form before burning it.

* * * * *

By the way, Popular Science recently covered another important development in the coal fired power generation process. Someone has come up with a way to recycle fly ash produced by coal fired power plants to make bricks. Fly ash is a major waste product of coal fired plants, which produce hundreds of thousands of tons of the stuff each year, although fly ash is one of the least important pollution products of coal fired plants whose greater menaces are air pollution and the coal mining process. Fly ash bricks, thus, do little to make the coal fired plant any greener itself, but fly ash bricks reduce pollution otherwise generated by the brick making process and reduce construction costs:

The U.S. churns out nine billion clay bricks a year—every one of them an expensive environmental nightmare. They require costly mining and bake in 2,000°F kilns that guzzle fuel and spit out pollutants. And making cement for concrete bricks spews thousands of pounds of poisonous mercury into the air annually.

So Henry Liu built a better brick, one that lasts just as long and puts to use a waste product of coal-power plants—fly ash—that would otherwise fester in a landfill. His bricks solidify under pressure, not extreme heat, so manufacturing them saves energy and costs at least 20 percent less. And because the bricks are molded, they're smoother and more uniform, slashing bricklaying time and labor.

It took eight years and $600,000 (a pittance considering the potential impact of the project) to figure out how to make fly ash bricks structurally sound.

The fly ash brick product also illustrates a more general principle of recycling. The people who recycle wastes are rarely the people who generate it. The notion that wastes have value and can be a separate revenue stream is simply too much for most businesses to come up with by themselves.

Gitmo Cases Back In Play

In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court -- from denial to rehearing and new argument and decision -- may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.

Someone convinced Justice Kennedy to change his mind. Assuming that the four liberals on the Court are the other people who voted to change course on these cases, this is very good news indeed. The grant's support from high court liberals presumably flows from the belief that Kennedy will vote the right way in this case.

Personally, I cynically suspect that the announcement in the Washington Post that the administration is seriously considering abandoning Gitmo all together is as important as the new legal developments in the matter. I also cynically suspect that sometime around September 2007 that the administration will moot the case by shutting down the base after all.

Twelve Years In The Law

My Career Path

Twelve years ago today, I was admitted to the practice of law in New York State, about six months after graduating from the University of Michigan Law School on the two and a half year plan. I was laid off two weeks later when the dominant client of my boss was taken over in a corporate merger, and solo practiced for a while. On April Fool’s Day in 1996, I started working at a 100 year old law firm with a dozen lawyers in Grand Junction, Colorado. Three years later, with my daughter on the way, I found a job at a new firm in Denver. Simply put, Grand Junction was not a tolerant and diverse enough place for me to feel comfortable raising mixed race children.

For my entire career, I’ve had a general civil practice, involving both transactional work and litigation, in small and medium sized firms, working mostly for privately held businesses, and middle class to affluent individuals, interrupted by an enjoyable stint as an Associate Professor of Estate Planning, at the College for Financial Planning that ended when the College laid of several professors when it failed to meet the for profit institution’s profit targets. Even then, I moonlighted with some estate planning and contact drafting work.

I’ve been fortunate to work on a wide variety of sophisticated and interesting legal questions so far in my career, for a lot of interesting people. Just about the only kind of work I’ve not done much of is criminal law, where my representations have been limited to the odd traffic ticket or ordinance violation, and “emergency representation” of clients until they can get someone who ordinarily practices in the field.

Lessons Learned

Along the way, I’ve learned a lot of the lessons that they don’t teach you in law school, which is a delightful intellectual salon, but has only vague similarities to the practice of law.

The hardest lessons for an idealist young lawyer to learn are that (1) the law as applied at the trial court level frequently differs dramatically from the law described in textbooks and appellate court opinions, and (2) most cases should be settled even though this means your client gets less than the relief to which the law entitles him. The latter lesson is, to a significant extent, a product of the former. The life of law really is not reason, but experience. Many legal notions that should work don’t. Many legal strategies that shouldn’t work do. You learn from your own experience, from the experiences of your colleagues, on rare occasions embarrassingly but helpfully with discrete suggestions from judges, and surprisingly often, from your client’s experiences in similar matters in their field of endeavor, what actually works.

Any time you walk into a court room the outcome is always in doubt, no matter how strong your case. This is no big problem if you handle large numbers of small cases for a small number of clients. You win some, you lose some, and life goes on. But, I’ve never had that kind of practice. I’ve handled cases for infrequent litigants for whom the outcome of each individual case generally has a big impact on their life.

Some of the lessons are easy to state but hard to learn. Get your subpoenas out as soon as you can. The status quo often prevails, especially in settlement negotiations, so cash in hand matters, regardless of the legal rights involved. Court judgments are often hard to enforce, except when they produce sudden payment in full and full cooperation. Despite a vast array of defenses to actions to enforce contract, contracts are enforced in full according to their plain language, far more often than one would expect from reading the cases. Juries and judges are often stingy and often split the baby when awarding relief. The clarity of the facts matters more than the magnitude of the harm involved or the amount of evidence which can be produced, when it comes to reaching a settlement or verdict. One good case is worth more than lots of pretty good cases. Many judges have great difficulty comprehending subtle or involved legal arguments much of the time. The legal reasoning in court orders is frequently far less rigorous than the legal reasoning in a lawyer’s legal briefs. Shorter documents are often easier to enforce, so long as they contain all the terms agreed upon and a handful of legal nuances that matter.

A Jealous Mistress

As my fellow University of Michigan alumnus Ken Salazar noted in one speech I heard him give, law is not “hard work” in the sense that it is not physical demanding or brain numbing the way manual labor or work as a cashier or retail clerk or petty bureaucrat can be, and attorneys shouldn’t claim otherwise. But, this doesn’t mean that law doesn’t take a toll on those who practice it.

Aside from accumulated pounds from sitting on your duff at a desk all day, which can be countered if you devise a better exercise plan than I have, or repetitive stress injury risks, shared by almost all modern office workers, the job is not physically demanding. But, the emotional cost of practicing law is high. The common term for that toll is “stress,” but that doesn’t really capture the source of it. The stress comes from being empathetic towards your clients and voluntarily assuming responsibility for their problems.

Most lawyers work long hours, although most can’t bill a substantial share of those hours which are spent on administrative demands and never ending endeavor to keep abreast of the field, develop clients and contribute to the community – most of us have served helping to administer some civic group at some point or another. But, for most of us, it isn’t the billable hour rewards that push us to work those long hours. It is the desire not to let down our clients. It is the awareness of the dozens of to do list items and deadlines that loom over us from multiple cases and will produce serious consequences if not attended to in time.

The uncertainty inherent in trying to secure results for your clients, and it exists in the transactional field as well as in litigation, means that you can’t do half baked work and still live with yourself. In actual fact, often it doesn’t matter. In the last month, for example, my firm has settled two cases that we devoted considerable time to prosecuting. We absolutely spent long hours in both of those cases getting ready to handle trial issues that never arose because the cases were settled. But, experience shows that the best way to avoid going to trial is to act as if going to trial is a certainty. Bluffing when you don’t have the cards to back up your bluff is not a very good long term strategy, even though it occasionally works. In transactional practice, you plan for everything that could go wrong for your client, and most of the contingencies you plan for never come up, while some that no one foresaw often do come up.

In small and medium sized firms you have less administrative support, get paid less per hour, get stiffed on your bills more often, and have more routine boom and bust cycles, than in larger firms. But, you also have less drudgery to muck through on huge impersonal cases, spend more time interacting with clients, and get to handle a wider variety of matters. According to my law school’s alumni survey, lawyers come in basically two varieties – lawyers who make big bucks working crushing hours working at large firms who are miserable in life, and lawyers who have trouble paying off their student loans promptly who work in small and medium sized firms, for governments or for nonprofits, who merely work long hours and are much happier in life.

A modest percentage of lawyers take the former path and stick with it. Many people start out with the former approach and burn out after a few years and change employers. I’ve always taken the latter path and don’t seriously regret it, although a couple of years up front making a big firm salary so I could pay off my student loans sooner would have had its virtues.

Fringe Benefits

One of the most satisfying parts of being a lawyer, apart from the work itself, indeed, sometimes despite the work itself, is knowing how things work. You know, in far more concrete detail than most economists, how our economy actually functions. You understand the situations you read about in the paper at a whole new level. You know where the bodies are buried in the tax code, who looks like they have it easy but doesn’t, and who is receiving windfalls in our society.

You get much more insight into what kind of people the typical players in typical situations are like, good, bad and ugly. Many supposedly nefarious people in the “power structure” that an Oberlin education taught you to distrust, are actually exceptionally decent and deserve their positions. Others don’t.

I still haven’t entirely decided what I want to do when I grow up. Maybe when my kids have gone to college, my mortgage is paid off, and I’ve learned more than I know now, I’ll decide. Until then, I guess I’ll just keep practicing, just as I have for the past twelve years.

All About Kennedy

As SCOTUS blog points out in hard numbers, Justice Kennedy is the only vote that matters on the U.S. Supreme Court today.

28 June 2007

Law Scholarship Statistics

The Empirical Legal Studies blog has interesting information about law review article authorship:

[T]here are 314,331 unique authors in the ILP database. . . . There are approximately 750,000 articles with one or more named authors. The average output per author is 2.45 articles. . . the Top 1000 authors account for 9.1% of the entries (70,452). In other words, 1/3 of 1% of the authors produced 9.1% of the entries.

Thus, the average top 1000 law review article author has 70 published articles, and 3 published articles is enough to put you in the above average category for legal scholarship. The source of the data and methodology and its limitations are discussed in the linked post.

Other studies note that:

The top 0.5% of articles get 18% of all citations; the top 5.2% of articles get 50% of all citations; and the top 17% of articles get 79% of all citations. . . . 40% of articles are never cited at all.

SSRN downloads of articles are far less skewed towards the big names.

Travels in the Scriptorium

I picked up "Travels in the Scriptorium" by existentialist writer Paul Auster at my local library's new acquisitions shelf. It is short, 145 pages, it is new (2006), and it has pretty cover art. If you thought that the play "No Exit" by Jean-Paul Sartre was way too straight forward for you, and loved post-modernism in college, you will love this book. If you prefer straight forward narratives (a spirited defense of which can be found here), you'll hate it. I was disappointed.

Bookslut explains why this particular book is even more obscure than Auster's usual fare:

Everyone hates clip shows -- those TV shows that feature clips of old episodes . . . So what are we to make of Paul Auster? His 13th novel, Travels in the Scriptorium, sounds suspiciously like a literary clip show: an abbreviated frame tale populated with characters from his previous books. . . .

So Travels in the Scriptorium is really two books: one for Auster fans and one for everybody else. If you fall into the first group, you’re in luck. You now have a treasure hunt on your hands. You might as well grab a pen, as Mr. Blank does, and start writing down names as if you were reading Encyclopedia Brown. Here, I did some work for you:

Page 28: Mr. Blank is asked to wear white clothes at the request of Peter Stillman, Jr. (City of Glass).
Page 79: Mr. Blank receives a phone call from his doctor, Samuel Farr (The Country of Last Things).
Page 88: Dr. Farr tells Mr. Blank that the manuscript he has been reading was written by John Trause (Oracle Night). . .

There is also Auster’s distracting over-description (“He savors the bulk and softness of Sophie’s somewhat pendulous but noble mammaries”) and questionable slang (“two shakes of a cat”). Careful reading is necessary to acquit some phrases; a tautology like “the word all is an absolute term” becomes acceptable only if one remembers its pair, “the word old is a flexible term,” 23 pages back. . . .

for fans only.

In short, this book, already containing literal masturbation, also has plenty of the intellectual kind.

LHC Due To Start May 2008

The Large Hadron Collider is the only game in town for particle physicists who are the people busy trying to determine the fundamental laws of the universe that apply to very small things. It had an accident and construction was delayed. The particle physicist community's existing toys have pretty much been used for all they're worth and the field is at a standstill until their new bigger and better toy comes on line. This is scheduled to happen May 2008.

Most importantly, the Large Hadron Collider should be able to resolve whether the most important element of the standard model of particle physics not yet established by experiment, called the Higgs boson, really exists as predicted in the most mainstream of the particle physics theories. If it's there, the standard model gets its crowning gem and lots of theoretical particle physics dies. If it isn't there, the standard model goes the way of Newton's Theory of Gravity, a useful approximation of historical value, but something that is clearly not exactly right. We should know how it turns out by 2010.

Police Tribunals

Until today, I had never heard of a court-martial style "police tribunal" to enforce discipline in the ranks. But, Philadelphia apparently has one:

An officer who ordered two women to put on a "sex show" in a jail cell will be fired.

Norberto Cappas, 32, was found guilty by a police tribunal of conduct unbecoming an officer and lying during a departmental investigation, the department said Tuesday.

Internal Affairs investigators found that Cappas ordered the two women to kiss and touch each other and expose their breasts in September 2003. The two had been picked up on suspicion of drug possession, but they had no drugs and were not charged with a crime.

Can any Keystone state readers provide more background on this?

27 June 2007

Should Computers Have Internal Hard Drives?

We are entering the dawn of the era of "e-discovery" and identity theft. Right now, the industry norm is for people to do a great deal of work on a general purpose computer used in a business or home. Typically:

These computers have an internal hard drive. This internal hard drive is the primary locus of both executable programs and data while the computer is used. This is supplemented by data stored primarily on a server or on the Internet, often supplemented by temporary files containing the same made locally on an internal hard drive. Removable media are largely used to (1) install computer programs on internal hard drives, (2) as a "sneaker net" that moves data from one computer to another without transmitting it over a computer network, and (3) as a general backup of data.

Does this make sense?

It is perfectly feasible to place all of a computer's user installed data and executable programs on removable media, ideally, the executable progams on one removable medium, and the data on another. Why would someone want to do this?

1. Removable media are much easier to secure against theft or disaster. You can put a few disks in a single small locked drawer, rather than securing an entire office, and if fleeing a flood or hurricane, you can fit everything essential in your glove compartment or purse.
2. Inadvertent data transfers/security breaches accompanying hardware transfers would disappear.
3. This makes it much easier for a single user to seamlessly use multiple computer hardware stations.
4. This largely eliminates privacy concerns involved in having multiple users share the same hardware.
5. This makes it easier to troubleshoot whether you are dealing with a hardware or a software problem, which is otherwise often quite difficult.
6. This makes it easier and cheaper to take greater precautions with hard to replace data, than with easy to replace hardware.

Also, in business and large organization applications, employees could be given one "read only" removable medium, with things like applications and perhaps company policies. The company could keep a single copy of this for archival purposes while being able to truthfully say, when faced with an information disclosure request, that there dozens or hundreds of other read only disks don't need to searched.

Indeed, in businesses and large organizations, it might be helpful for work stations to have no ability to store data after a computer is turned off locally at all. Everything would be stored, as a matter of engineering possibility, only on the central server, where, in turn, all data would be stored in a removable form of media. Employees could have password protected personal files on the server, to control their own cyberspace, but not a personal off network hard drive space. Then, faced with a subpeona, for example, a custodian of records for the organization could search a single removable media device and accurately report that everything in the possession of the company had been reviewed and disclosed. Compliance would simply be a matter of creating a partial backup, and popping the medium upon which the disclosures were made in the mail.

Ackerman On Policy Wonks

Bruce Ackerman also has good words at Balkinization on the audience for progressive legal scholarship and the means by which it can accomplish its ends:

Heather Gerken is on to something important . . . that goes well beyond election law and enlightens the general predicament of progressive legal scholarship today. Quite simply, we’ve lost the federal courts for a decade, and maybe longer, so who precisely is our audience?

Presidents and governors, Congresses and legislatures, and agencies and NGOs-- ­ when progressives manage to gain the upper hand. And, more broadly, ordinary citizens.

But to make sense to these audiences, we must better understand their distinctive interests and modes of understanding. Whatever you might think of federal judges, our new audience . . . [is] often interested in the public good. To be sure, professional politicians will turn away if policy prescriptions are plainly inconsistent with their interest in reelection, but there are lots of reforms that are in the grey zone where the merits matter. And, of course, Gerken is right to insist that politicians pay a lot more attention if a policy initiative can somehow penetrate the fog that surrounds their constituents, who generally don't have much of a clue about what’s going on.

So what’s a poor legal-policy wonk to do? How is he going to grab the attention, of his new audiences?

This is a general problem-- ­ ask any tax lawyer or environmental lawyer or intellectual property guru.

As someone who sees himself very much as a progressive legal scholar and legal-policy wonk, this is huge. It is hard enough to decide what is good policy, and it is harder still to secure the power needed to make it into law.

After you spend a sufficient amount of time in the pseudo-utopian world of trying to make sense of what is good public policy, you start waking up to the fact that many of approaches that this mode of thinking leads you naturally into, like proposals for amendments to the United States Constitutions, or bold, theoretically pure liberal legislation, is a theoretical dead end in the sort to medium term.

Gay rights activists, for example, have known since the Stonewall riots in 1969, that passing laws banning employment discrimination on the basis of sexual orientation was the right thing to do. This is been clearly the right thing to do as a matter of public policy in the larger realm of legal-wonkdom since, at least, the mid-1980s. Colorado only finally got around to making this law in 2007, however, and achieving this at the national level is still on the "to do" list, and we continue to this day to discharge gay soldiers from the U.S. military, right in the middle of conducting two regional wars in Iraq and Afghanistan respectively.

Alas, Ackerman's suggestions, as well as those of Gerken, to whom he is reacting, are less inspiring than their joint identification of the problem.

Gerken's construct of the conflicts within the progressive movement are also on target:

[T]he structure of the reform process determines what kind of reform gets passed. Or, in the case of the United States, the structure of the reform process means almost nothing gets passed. Rather than continuing to fight reform battles on this hostile turf, we should focus on changing the underlying terrain.

The most effective way to change the terrain, in my view, is to blend ideas from the two major intellectual camps in my field. On one side are the participatory democrats, who favor bottom-up, grass-roots reform. On the other side are the competitive democrats, who subscribe to an elite-centered vision of politics and chide the participatory theorists for ignoring the role that power and elite incentives play in shaping electoral politics.

If we want to create a virtuous cycle for reform, we must combine elements of these two theories. We should take advantage of the many ways in which political elites generate political energy -- serve as "conversational entrepreneurs," to use Robert Bennett’s term -- and redirect that energy into a conversation about reform. And we should make it easier for citizens to take part in that conversation. As I noted yesterday, these two strategies are mutually reinforcing. If partisan self-interest is redirected toward reform, political entrepreneurs have an incentive to find new ways to frame, and draw citizens into, reform debates. If citizens become more engaged in reform debates, political elites will have more incentive to care about reform.

As in many things, of the two groups of "lowercase d" democrats described above, I am inclined to think that Joseph Schumpeter, who is the central intellectual figure among the "competitive democrats" is closer to the mark than his opponents.

I am, for example, deeply impressed by the extent to which supposedly participatory democratic institution, like the citizen initiative and the caucus process, are dominanted by political elites. I am also impressed by the degree to which public protest is an ineffective means of bringing about political change absent the most extreme circumstances.

I worry about pure grass roots reform efforts not only because they often don't work as advertised. I also distrust grass roots effort at specific legal reforms in fairly obscure areas, because, while the grass roots are good at knowing that the system is broken, the man on the street is far less adept at proposing thoughtful solutions to those problem that will actually work. Uninformed intuition is often a poor guide to predicting the impact that specific legal reforms will produce.

The most recent case in point is Amendment 41 in Colorado. Amendment 41 was widely supported by Colorado voters in 2006 who agreed that its basic premise that it is constitutional and proper and desirable to remove opportunities to secure private personal gain from political office, was sound. But, because it was drafted in an overly expansive and ham handed manner, it has fiercely divided people of good will with similar political values, and has become a political liability, rather than a political triumph for reform. The fact that even many relatively sophisticated political players failed to see the flaws in how it was drafted illustrates the perils of relying on the grass roots to implement specific political changes.

Instead, my credo of tactics includes some of the following:

1. Secure reform by the most innocuous means possible. Don't use a constitutional amendment when an executive order or change in regulation or local ordinance will do.
2. In times of divided government, focus on reform in areas with weak partisan implications; in times of partisan control, focus on reform in areas where there is widespread consensus within the ruling party.
3. Approach problems in ways that reduce the importance of hostile institutions. If the courts are hostile, find non-legal solutions; it the federal government is hostile, fine state and local solutions; if state and local government is hostile, find federal solutions; if government is hostile, find private solutions.
4. Involve multiple people with deep policy expertise in the nitty gritty of preparing detailed reform measures.
5. Use generalized discontent to public policy failures as a impetus to develop groups of informed laypeople and experts to suggest specific reforms and provide a theoretical explanation for what is wrong with the status quo.
6. Educate politicians regarding policy issues sufficiently to allow them to artfully articulate calls for reform as political issues.

Resident Evil

Vice President Dick Cheney, and his counsel, David Addington, are the drivers behind almost everything evil that has been done in the administration of George W. Bush. This is the conclusion of Marty Lederman at Balkinization who makes the argument persausively, supported largely by continuing coverage of Dick Cheney at the Washington Post (emphasis in the original):

[A]s we have recounted in the NSA/FISA matter and elsewhere, and as Gellman and Becker elaborate at great length, virtually any time Cheney and Addington adopt an extreme position, they are met with strong resistance from many conservatives within the Bush Administration -- including many important players at DOJ (Ashcroft, Comey, Goldmsith, Philbin, Olson, Clement, etc.), and elsewhere (Rice, Gates, Powell, Bellinger, Waxman, Kavanaugh, Berenson, etc.) Not to mention huge swaths of the intelligence agencies, the State Department, the uniformed military (especially the JAGs), et al. If you have any friends who have served in this Administration, you know that there are countless very conservative supporters of this President within the government who have constantly been at loggerheads with Cheney and Addington, and who simply cannot believe the positions adopted by (and, frequently, the terrible misjudgments of) the Vice President's office. And they are even more incredulous that those positions have, rountinely, become state policy, no matter the amount or intensity of dissent from other components of the Administration.

And yet . . . the Vice President does consistently prevails in the internal debates. He wins virtually every battle -- or at least bollixes things up sufficiently to prevent others from prevailing. . . .

This is the great mystery of the Bush Administration, and the question that no one, including Gellman and Becker, has answered: It's not very newsworthy that the Vice President has strongly held views, and that he fights hard for them. (So did Vice President Gore.) Nor is it even terribly notable that he is constantly opposed by others in the Administration. What is remarkable is that time and again, Cheney wins. . . .

Gellman and Becker provide part of the answer -- namely, that Cheney and Addington are more astute and clever and ruthless than everyone else: "The vice president's unseen victories attest to traits that are often ascribed to him but are hard to demonstrate from the public record: thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government. On critical decisions for more than six years, Cheney has often controlled the pivot points -- tipping the outcome when he could, engineering a stalemate when he could not and reopening debates that rivals thought were resolved."

But the larger explanation, of course, is that Cheney wins internal battles because the President constantly sides with Cheney over all his other trusted advisers. . . .

And so the $64,000 Question is: Why has this President, unlike every other, so uncritically deferred to the Vice President, even where the rest of his Administration is begging him not to do so? . . . I suspect it has something to do with the fact that the uncompromising nature of the Cheney and Addington worldview appeals to the Manichean side of Bush that emerged in full force post-9/11.

26 June 2007

Establishment Clause Narrowed In Practice

In Flast v. Cohen, 392 U.S. 83 (1968), the U.S. Supreme Court established that when Congress appropriated money for religious purposes, that taxpayers have standing to challenge that appropriation as an unconstitutional establishment of religion under the First Amendment to the United States Constitution.

Yesterday, in the case of Hein v. Freedom From Religion Foundation, Inc., the U.S. Supreme Court held that taxpayer standing to sue does not exist when the Executive branch spends money for religious purposes that could violate the Establishment Clause, if the Congressional appropriation that the funds come out of do not include a Congressional direction or suggestion that they be spent for religious purposes.

Chief Justice Roberts, and Justices Alito and Kennedy, joined the plurality opiniono. Kennedy concurred to remind the President that he has an independent obligation not to engage in the establishment of religion, even when no one can sue him over it. Justices Scalia and Thomas concurred in judgment, but would have overruled Flast and held that taxpayer standing is never sufficient to bring suit to enforce the Establishment clause.

Justices Souter, Stevens, Breyer and Ginsberg in dissent, would have upheld taxpayer standing any time that any branch of the government uses taxpayer funds to establish religion in violation of the First Amendment.

In short, the majority has left the Establishment Clause of the First Amendment as a right without a remedy in most cases. Justice Alito concludes his plurality opinion in the case by arguing that if there was a gross abuse of discretionary spending by the Executive branch, that Congress could swiftly step in, or that a basis for suit other than taxpayer standing could be found. But, his argument isn't terribly convincing.

The Establishment Clause is a limitation on Congressional power, not a privilege it jealously guards against Executive branch intrusion, so it has little incentive to limit the Executive branch and every reason to ignore Executive branch misconduct, if Congress shares the religious convictions of the Executive branch and would act on those Congressional religious convictions if the law did nont prohibit it from doing so. And, while it is possible to conceive of cases where a basis for standing other than taxpayer standing should be allowed, it is not obvious why this should be required. This ruling certainly leaves open the likelihood that in many cases there will be no remedy for executive branch establishment of religion, with the implicit consent, but not the direction, of Congress.

This is particularly a concern because there is no universal alternative to taxpayer standing in U.S. law. Most modern constitutions give someone, often a figurehead President or independent attorney general, or ombudsman, standing to enforce any actual constitutional violation, without regard to their personal harm. The U.S. Constitution, largely as a consequence of being one of the first democratic constitutions, does not. Moreover, since standing is an issue of Article III subject matter jurisdiction, it isn't clear that Congress has the power to create such standing, even if it wants to do so.

Statutory Damages in Copyright Cases

Offense: Company made karaoke cover versions of 26 songs on 74,734 CDs.

Actual damages: $28,152

Statutory damages: $806,000

On top of the damages award, the Plaintiff also gets attorneys’ fees.

This presents the same issues, in a different context, as Pearson v. Chung, blogged yesterday. It isn’t at all clear why the law should award, on top of attorneys’ fees, statutory damages that far exceed the compensatory damages suffered by the copyright holder.

The ratio of statutory damages to compensatory damages is almost 44:1 to 35:1 depending on how you calculated it. Anti-trust violations, by comparison, give rise merely to treble damages, which is also the limit on punitive damages under Colorado law.

25 June 2007

An Old Colorado Drought

New tree-ring records of ring-width from remnant preserved wood are analyzed to extend the record of reconstructed annual flows of the Colorado River at Lee Ferry into the Medieval Climate Anomaly, when epic droughts are hypothesized from other paleoclimatic evidence to have affected various parts of western North America. The most extreme low-frequency feature of the new reconstruction, covering A.D. 762-2005, is a hydrologic drought in the mid-1100s. The drought is characterized by a decrease of more than 15% in mean annual flow averaged over 25 years, and by the absence of high annual flows over a longer period of about six decades. The drought is consistent in timing with dry conditions inferred from tree-ring data in the Great Basin and Colorado Plateau, but regional differences in intensity emphasize the importance of basin-specific paleoclimatic data in quantifying likely effects of drought on water supply.

From Geophysical Research Letters (May 24, 2007).

Clueless Doc?

Joseph and his wife, Sarah, had only nine hours to prepare for the arrival of their daughter, born May 22 at Memorial Hospital North.

They got the shocking news Sarah was pregnant around noon that day. They were excited, thinking Sarah was maybe a couple of months along. But by that afternoon, they were checking into the hospital, and their surprise full-term baby was delivered by Caesarean section at 9:22 p.m. . . .

“All the usual questions are, ‘well didn’t you miss a period?’ Well, yes, I missed several, but I’m used to that. I had no cravings. No morning sickness.”

She also didn’t have the obvious pooched-out belly, and she’s not a particularly large person who might disguise a pregnancy. She was really tired, but she attributed that to the rigors of caring for 3-year-old Adrianna, who was adopted. . . .

The Terrys believed they couldn’t have children. Sarah Terry has polycystic ovarian disease, which can cause infertility. Sufferers often have irregular or absent menstrual cycles and typically carry extra weight in the belly and hips.

Not only did friends and family not notice Sarah Terry was pregnant, the fact even escaped a doctor. Sarah Terry had an annual exam in March, and the possibility of pregnancy wasn’t mentioned, she said. She also had a mammogram in April.

From The Colorado Springs Gazette via Out in Left Field.

Quote of the Day

It is irrational that Mr. Angelos will be spending 30 years longer in prison for carrying a gun to several marijuana deals than will a defendant who murdered an elderly woman by hitting her over the head with a log.

- United States District Court Judge Paul G. Cassell (Utah), who sentenced both men on the same day (Angelos to 55 years, the murderer to 22 years).

Pearson v Chung

The Result

Roy Pearson, an administrative law judge in the District of Columbia, sued Soo Chung, a South Korean dry cleaner, for tens of millions of dollars, over a $10.50 pants alteration and a "satisfaction guaranteed" sign on their store.

He lost. Completely. It was a defense verdict from the judge and the dry cleaner's will get their costs. Pearson had even withdrawn his claim for the pants themselves, so he didn't even get the $1,500 for the pants that many observers thought that he might.

Attorneys' fees motions are pending; Pearson will clearly get no attorneys' fees, the dry clean has a decent shot at recovering his attorneys' fees for vexatious litigation and implied in prior court rulings and today's ruling. There were also implications that his claims lacked factual support and legal justification (i.e. that they were groundless and frivilous).

Almost everyone in the world who has heard about this case agrees that it is a sound ruling, although most incorrectly believed that there was a tiny claim for compensatory damages for that pants themselves present. May links above are to the Wall Street Journal which provided a full text ruling in the case on its website. Many people, are surprised that the case got to trial at all, however.

The Pre-Trial and Trial Proceedings

Like most famous tort reform cases, when all is said and done the result produced by the court system are not that extreme.

The clearly outrageous claimant who should have known better lost. An appeal wasn't necessary to get that result, although one suspects that Pearson will bring and lose an appeal in this case, as he has not shown a penchant for being a reasonable person. If Pearson ultimately ends up footing the dry cleaner's legal bills, as seems likely, this case may even turn out to be an economic wash in terms of direct costs for the dry cleaner.

The trial court was not particularly slow in handling the case. It was filed June 7, 2005, and arose out of an incident in May of 2005. It was resolved just over two years later. This is hardly fast, but with up to $67 milliion in dispute, haste wasn't in either party's interest.

Two key claims were knocked out prior to trial:

1. Common law fraud claims related to an "All Work Done on Premises" sign. These were dismised in a Motion for Summary Judgement on May 16, 2006, about eleven months after the case was filed.

2. A claim that Pearson represented persons other than himself as a private attorney general. This was ruled out by a court order on November 20, 2006.

The trial, of just two days (June 12-13), was not outragously long or involved by civil litigation standards. According to the ruling:

At trial, the plaintiff presented the tesitmony of nine witnesses [including himself] . . . The defendants presented three witnesses . . . The plaintiff offered more than 100 exhibits, of which 66 were admitted into evidence; the defendants offered four exhibits, all of which were admitted into evidence.

A number of claims were kicked out in pre-verdict proceedings:

1. Claims related to a "Same Day Service" sign. It was dismissed at close of Plaintiff's case for lack of proof.

2. Claims for conversion or negligence related to the pants. The Court found that Pearson dropped the claim on the eve of trial.

By the time that the defense presented its case at trial, all that was left were statutory consumer protection and common law fraud claims related to the posting of a "satisfaction guaranteed" sign, seeking statutory, compensatory and punitive damages and injunctive relief.

The Court found at trial that Pearson hadn't even met his burden of proof to show that he didn't get his pants back, let alone show any intentional fraud, and that even his own witnesses did not back his case. The Court also found that "nothing in the law" supports Pearson's position regarding what a "satisfaction guaranteed" sign means. Those findings of fact doom any effort Pearson may make to appeal this case on any ground.

Lessons Learned

This case is still a cause celebre for tort reformers, and rightly so.

First, it is worth noting that more witnesses, more exhibits and more briefing do not inherently make a case stronger.

The findings of fact also foreclose legal analysis of the most interesting legal question in this case. Suppose that the dry cleaner really had intentionally cheated Pearson. Would he really be entitled to $54 million or more? U.S. Supreme Court precedent suggests otherwise, but that precedent wasn't clear enough to constrain the risk faced by the defendants before they had to roll the dice and go to trial.

The biggest problem with this case is the lack of clarity in what constitutes a separate offense in a consumer protection act claim for statutory damages. If statutory damages were limited to one statutory amount per party in cases brought by an individual, this would have been a $3,000ish case. Statutory damages are designed to provide more than de minimus compensation for almost nominal claims, not to provide major compensation for nominal cases.

The problem comes up with frequency in other areas of law too. Some of the harshest criminal sentences concern cases where a number of incidents that are part of a common plan or scheme are treated as separate offenses and given consecutive sentences.

It is also hard to tell why the claims related to "same day service" and "satisfaction guaranteed" signs weren't thrown out at the Motion for Summary Judgment stage, a year earlier, although it is easy to see why the case went to trial once those claims were upheld at the Motion for Summary Judgment stage. A denial of a motion for summary judgment cannot be appealed. It turns out that there was no evidence to back a "same day service" sign claim, and that the "satisfaction guaranteed" sign meant something very different than what was alleged under the law. If those claims had been thrown out, this would have gone to trial as a $1,500 case, not a $54 million case, and it wouldn't have made headlines.

Delaying a ruling in favor of the dry cleaners on these claims by a year is what brought this case notoriety. So too, does the failure of the court (in part because there is no good procedural way to do it) to lay out the relevant law prior to trial on matters where there are disputed issues of fact. On claims not resolved by motions for summary judgment, parties generally aren't given definitive legal rulings until after all or most of the facts are in. This means parties preparing for trial have to be ready for anything and have a moving target to case in terms of what they must prove in any case that is remotely novel. An advanced ruling on what "satisfaction guaranteed" means would have significantly changed the climate of the trial and the sense that the Court wasn't being proactive enough in controlling the case.

Pre-trial motions in limine regarding admissiblity of evidence are routine, but pre-trial motions regarding legal standards to apply to a case are far more rare. They shouldn't be.

Hat Tip to How Appealing for the links.

22 June 2007

Abortion in Practice

A recommended diary at Daily Kos explains what is involved in the medical procedure of obtaining a surgical abortion on the day it is obtained, from a lay person's perspective.

21 June 2007

Annoying Things

Annoying things:

* Low flow toilets.
* Using phone cards from non-pay phones.
* Hearing advertisements prior to making phone card calls.
* Shampoos for men that smell like turpentine.
* The blogger autosave function.
* Parking meters that don't accept nickles and dimes.
* Advertisements before movies you paid to see.
* Political candidates without websites.
* Removable stereo controls.
* Books on CD with fifteen minute tracks.
* Voice mail.
* Multiple co-pays for a single doctor's office visit.
* Voice activated phone bank menus.
* Advertisements for car models that don't exist (Go Toyota did it for two days running).
* French cuffs.
* Robocalls.
* Flickering flourescent lights.
* Hand grenade car stickers.
* Hotmail's delete function (it shrinks the number of messages you can consider each time).
* Artificially low speed limits on arterial streets (especially Alameda Avenue from University to South Cherry Steet in Denver).
* Discontinuous streets that share the same name.
* Drive time radio talk between songs.
* Store discount cards.
* Department store credit cards.
* T-Mobile Hot Spot Wi-Fi.
* Sarbanes-Oxley motivated impossible to memorize password requirements.
* Privacy notices with no obvious customer choice options.
* "I am who I say I am" affidavits in real estate closings.
* Plate sharing charges at restaurants.
* Merchant imposed minimum credit card charge requirements.
* Denver's 20th Street post office's policy of not collecting mail from the mail boxes in front of the post office after 5 p.m. when the post office closes at 8 p.m.
* Pennies.
* Computer systems that don't accept hyphens in names.
* Computer systems that don't parse two letter surnames.
* Customer service workers who don't know what the word "hyphen" means.
* People who don't pronounce the "h" in words like "human" and "Harvard".
* Stores that issue coupons with expiration dates and requirements posted that aren't actually enforced.
* Pens that stop working when you can see they still have ink left.
* Camera phones.
* High calorie foods advertised at "fat free" or "carb free".
* Hillary Clinton's campaign theme song.
* The telephone excise tax refund form (never before has some much documentation been required for so small a refund).
* The 9/10th of a cent a gallon added to gas prices.
* Collectible coin advertisements.
* Door to door solicitations.
* Car alarms
* Laptops that go into sleep mode just before shutting down.
* Plastic packaging that can only be opened with scissors.
* DVDs that skip or freeze up.
* Error messages when the only apparent problem is that you have to click O.K. to make the error message go away.

Eric Goldman on Dumb Laws

Eric Goldman offers selected dumb laws at this blog:

* New Mexico's proposal to declare Pluto a planet when it "passes overhead through New Mexico's excellent night skies." This alone wouldn't make the list, but when combined with the simultaneous proposal to declare the bolo tie the official tie of New Mexico, I start thinking I should move to New Mexico because clearly they don't have any real problems to preoccupy legislators.

* New York's proposal to ban domain name sales to terrorists.

* Utah's clueless attempt to ban keyword advertising.

Given the amount of vitriol I've directed at the Utah law, you might think Utah has already sewn up the prize. But the year is still young, and legislators are still busy. Consider HR 2553, proposed by Rep. Watson (D-CA). The main operative provision of this law requires our foreign embassies and consulate offices to "schedule public showings of American films that showcase American culture, society, values, and history." According to the Hollywood Reporter, Rep. Watson thinks that "wider worldwide exposure to classic Hollywood fare will help convince people that the American way is not evil."

Despite the scorn it receives from Mr. Goldman, I actually think that Watson is on the right track, but doesn't go far enough.

Consider. There are many places in the world with regimes whose policies we really, really deeply disagree with, like Iran and China and Burma and Saudi Arabia, that don't protect free speech and freedom of the press. In these places are huge blackmarket industries in the business of distributing American ideas in the form of movies, music and books, to the general public, to the great consternation of the authoritarian governments in charge of those countries.

What do American dipolmats in those countries, like idiots, do? They reinforce these authoritarian regimes censorship policies by insisting that the regimes shut down the black market in bookleg copies of American media.

This may be in the interest of the American media industry, although honestly, I doubt that many of these places would purchase much of this media on the legitimate, royalty paying market, because the regimes there don't want people to have access to this media. China, for example, routinely censors news from such scandalous sources of Reuters.

But, this is a policy that is not in the American national security interest. The American national security interest is in getting people in oppressive regimes to think more like Americans and less like feudal serfs. The black market media industry in these countries does that in spades, with more street credibility than an official government propoganda effort by American diplomats ever could.

Hence, my proposed policy: Rather than trying to shut down bookleg media distribution to customers in oppressive regimes, we should establish a formal exception to American copyright laws for this media, and should encourage this kind of activity. For example, maybe we could pay the NSA to set up a free bootleg download service accessable from the internet in these countries, maybe the Navy could have submarines provide free Wi-Fi to areas under dictatorial regimes, and maybe the CIA could smuggle bootleg media into these countries. A generation from now, it would look like a very wise investment.

Law Enforcement Lies

Most people don't know this (I didn't until I took criminal procedure in law school). But, in a nutshell, under the law, police are allowed to lie to suspects when they are not in court, but are not supposed to lie in court. In contrast, district attorneys and public defenders and judges aren't supposed to lie at all, nor are they supposed to have staff lie on their behalf. The Legal Theory Blog today features an article that largely supports this status quo.

In other words, in interrogations, police are allowed to do things that would be felony perjury if done when the policeman is being interrogated in an internal affairs investigation, or is in court.

Personally, I'm not convinced that this status quo is a good thing. When the legal system tells police that they have a license to lie in pursuit of law and order some of the time, I believe that this has a corrosive effect on public trust in the police, and on police perception that they must tell the truth in court. It also reinforces the "blue wall of silence." Scandals in which police, for no personal gain of their own, have lied in court in an effort to convict people whom they believe are guilty are not uncommon, and I believe, are not unrelated to the fact that they are often permitted to lie for the same purpose prior to getting to court.

(I think a similar phenomena may be at work with physicians who widely believe that it is O.K. in some circumstances to lie to patients to protect their morale because of the belief that this is important to patient health.)

20 June 2007

Reader Warning

What's My Blog Rated? From Mingle2 - Online Dating


This rating was determined based on the presence of the following words:

murder (30x) death (29x) drugs (8x) dead (4x) pain (3x) sex (2x) hell (1x)

Go figure.

Pan's Labyrinth and Mandrake

The movie Pan's Labyrinth, is the story of a girl living with a stepfather in the late days of the Spanish Civil War, who may be a lost princess of a pagan underworld. The girl sees all sorts of things that everyone else does not. One prominent way in which the "real world" and her fairy world in the movie interact is through the actions of a mandrake root. These roots have long magical associations as a result of their appearance.

But, I find it notable to discover that mandrake is also, in the proper dose and form a "deliriant" or true hallucinogen, so called "because they do cause hallucinations in the proper sense: a user may have conversations with people who aren't there, or become angry at a 'person' mimicking their actions, not realizing it is their own reflection in a mirror."

Mathematics As A Mature Discipline

I was a mathematics major in college, and something of a mathematics prodigy before then. I finished vector calculus, linear algebra, discrete mathematics and a year of college physics before I graduated from high school. Thus, to fill out my hours to complete my math major, I had to take more than the usual share of upper level courses. But, there is almost nothing I studied in college (with the exception of a couple credit hours on fractals and chaos) that wasn't settled knowledge in the field of mathematics by the time Leohhard Euler died in 1783. The truth of the matter is that we could have gotten a man to the moon almost entirely using pre-Euler mathematics.

Statistics is a somewhat younger field, but only a little. William Gosset at Guiness Brewery in Dublin invented to t-test in 1908.

Scholarly work in mathematics tends to produce the shortest papers of any field, and a good tenured professor will be lucky to publish a dozen papers in a lifetime. For example, one institution, notable only for being so explicit, requires one published article, and a second significant scholarly work possibly short of a published article to grant tenure. Unlike most scientific fields, the number of papers in the leading mathematics journal has plummeted since the 1970s to just 11 per year, although many new journals have been established in this field as in others. The average mathematics journal article, while longer than 6 page average of 1970, is still under 27 pages.

In law, in contrast, articles of about 50-70 pages are the norm, and typically, and a productive scholar is expected to have published several of them before securing tenure, and to published several dozen of them in a career.

He'll Probably Lose

The significance of this case can hardly be gainsaid. The Executive Branch argues, and the lower court held, that although Congress has not suspended the Great Writ of Habeas Corpus for U.S. citziens, the United States military may nonetheless detain an American citizen in an overseas American prison indefinitely, or dispatch him to his death at the hands of another sovereign, with no obligation to demonstrate the lawfulness of either his imprisonment or his threatened transfer.

From here.

Who is this guy and what precedent is he seeking to overturn?

The case involves Mohammad Munaf, a native of iraq who became a U.S. citizen in 2000. He is now being held in a U.S. military prison, Camp Cropper, near the airport in Baghdad, Iraq. The military maintains that he is being held, not by U.S. forces, as such, but rather by the international coalition of military forces operating in Iraq. It is that situation (along with Munaf's conviction in an Iraqi court, followed by a death sentence) that has led the U.S. government to insist that American courts have no authority to hear a challenge to Munaf's detention and his impending transfer to Iraqi officials to carry out the death sentence.

More here.

U.S. citizenship doesn't mean much when your dead. You can't even vote; unless you live in Cicero, Illinois. Maybe they'll bury him there. I'll bet he'd vote for the Democrats and be a reliable voice for organized labor. On the plus side, he got more due process than Jose Padilla, Ali Saleh Kahlah al-Marri, and Yaser Esam Hamdi.

19 June 2007

A Bad Day At The Office

As the New York Sun (via How Appealing) explains:

A federal judge is fining two law firms for withholding information about an insurance policy that covered the World Trade Center at the time of the September 11, 2001, terrorist attacks.

The sanction, of $1.25 million, is against the firms Wiley Rein LLP and Coughlin Duffy LLP, as well as their client, the Zurich American Insurance Company. . . .

One sticking point during the litigation was the extent of coverage that the Port Authority of New York and New Jersey received under an insurance policy. . . .

During the high-stakes litigation, Zurich American and its attorneys initially kept hidden a copy of a 62-page policy that an employee at the company had printed out on the day of the attacks, Judge Hellerstein wrote in yesterday's decision. This hidden policy suggested that the insurer was responsible for coverage of both the Port Authority and another leaseholder, Westfield Corporation, Judge Hellerstein wrote.

Given the existence of this document, Judge Hellerstein wrote that Zurich's courtroom contentions about the insurance coverage it owed "were either dishonest, or objectively unreasonable, or the product of a failure to make reasonable inquiries."

The full opinion is here.

The award was about half of the attorneys fees the claimants attributed to the cover up of the documents, and the judge correctly noted that parsing out attorneys fees by sub-issue in a big case is extremely difficult to do practically. The judge tried to do rough justice.

Next question. Do the attorneys called about by the judge for hiding and destroying documents face attorney regulatory charges for their actions? The opinion certainly provides ample grounds for doing so, and indeed, may even collaterally estop the attorneys from challenging their wrongdoing in a regulatory context.

This case catches the attention of those of us who do civil litigation, because about 90% of any big civil litigation case is discovery practice, which is what the lawyers involved abused here. Moreover, the court found that even the pleadings submitted by one of the law firms, which are usually held to a low standard, were so wrong on the facts that sanctions were warranted. If the hidden document had been disclosed at the point in the litigation where it was supposed to have been disclosed, that part of the case would have been done in weeks, instead of five years later, avoiding large numbers of depositions and massive document discovery.

Anthony Sebok at Findlaw discusses at some length and with insight the downside of the current low standard, even when it isn't abused, in the context of two high profile cases, a suit by tort reformer Bork against the Yale Club asking for punitive damages where they clearly aren't warranted, and a suit by a District of Columbia administrative law judge asking for excessive punitive damages in connection with a dry cleaning mishap that allegedly left him without the suit pants he brought in for alterations.

Colorado Sentencing Reform: Kidnapping

Current Law: First degree kidnapping (CRS 18-3-301) can be either a class 1 felony, or a class 2 felony. Second degree kidnapping (CRS 18-3-302) can be either a class 2 felony, or a class 3 felony, or a class 4 felony.

I. Class 1 felony kidnapping requires an intent to force the victim or another to make a concession to secure a release, and a serious bodily injury or death to the victim, but there is no death penalty if the person is liberated alive prior to the conviction. It must be forcible, entice or persuades, or an imprisonment or forcible secreting. The punishment is life in prison without parole or death (except as noted).

II. One kind of Class 2 felony kidnapping requires a knowing seizure without consent or lawful justification if the person kidnapped is the victim of a sex offense or a robbery. The punishment is 16-48 years in prison plus 5 years of mandatory parole.

III. Another kind Class 2 felony kidnapping requires an intent to force the victim or another to make a concession to secure a release, and applies if the victim is liberated unharmed. The punishment is 16-48 years in prison plus 5 years of mandatory parole.

IV. Class 3 felony kidnapping requires an intent to sell, trade or barter the victim for consideration, either by knowingly seizing someone without their consent or lawful justification, or takes, entices or decoys a child not his own with an intent to keep a child from a parent or guardian. The punishment is 8-24 years in prison, plus five years mandatory parole.

V. Another kind of Class 3 felony kidnapping involves knowingly seizing someone without their consent or lawful justification with a deadly weapon or imitation deadly weapon or representation that the perpetrator is armed, but not in a robbery or rape. The punishment is 8-24 years in prison, plus five years mandatory parole.

VI. Knowingly seizing someone without consent or lawful justification not in the categories above is a class 4 felony. Thus, this is without weapons, rape, serious bodily injury, robbery, an intent to force a concession to secure a release, or an intent to sell, trade or barter the victim. The punishment is 4-12 years in prison plus 3 years mandatory parole.

There are about 348 people in prison in Colorado for kidnapping. Ten are serving life sentences (presumably for class 1 felony kidnapping). The average sentence of those in for class 2 felony kidnapping is 31.3 years.

Proposal: Kidnapping – Clarification and Revision of Offense Grading.

Repeal CRS 18-3-201 and 18-3-302 as enacted.

First Degree Kidnapping would be CRS 18-3-301 would provide in a single section for all forms of kidnapping other than felony 4 kidnapping in CRS 18-3-302.

Felony one status would apply in any case where the victim was killed, or has not been liberated alive at the time of the conviction.

Felony two status would apply in cases of rape or serious bodily injury or robbery (since serious bodily injury should be less serious than death or likely death, but more serious than cases where the victim is not harmed).

Felony three status would apply in cases of (1) an intent to force the victim or another to make a concession to secure a release, (2) an intent to sell, trade or barter the victim for consideration, (3) use of a deadly weapon or imitation deadly weapon or representation that the perpetrator is armed, (4) an intent to physically harm the victim that does not in fact produce serious bodily injury.

Second Degree Kidnapping would be CRS 18-3-302 and would simply say: “(1) Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification commits second degree kidnapping. (2) Second degree kidnapping is a class 4 felony.”

Why? The difficult part of the statute is distinguishing between Class III cases and class IV cases, which describe very similar offenses but have very different punishments and opts for the lesser punishment in these casees. Another problem is that if there is no intent to force a concession, but there is serious bodily injury (e.g. seizing someone to beat them up without weapons, without even telling anyone), the offense level is a mere class 4 felony. This clarifies which statute applies to which case and increases punishments for serious bodily injury cases.

Colorado Sentencing Reform: Homicide

In Colorado, there are types of homicide which can be a basis for criminal penalties. They are:

* Murder in the first degree, a class 1 felony punishable by life in prison without possibility of parole or death. CRS 18-3-102. First degree murder must be one of the following: (1) intentional and premeditated, (2) in connection with certain felonies, (3) an execution procured through perjury, (4) produced by extreme indifference to human life, (5) a child under age eighteen dies from using illegal drugs sold to the child on school grounds, or (6) a child under age twelve is knowingly killed a person in a position of trust.
* Murder in the second degree, a class 2 felony punishable by 16-48 years in prison plus 5 years of mandatory parole in the usual case, and a class 3 felony punishable by 8-24 years in prison plus 5 years of mandatory parole when committed in the heat of passion after provocation. CRS 18-3-103. A second degree murder must be committed knowingly.
* Manslaughter, a class 4 felony punishable by 2-6 years in prison and 3 years of mandatory parole, or 4-12 years in prison and 3 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact. CRS 18-3-104. Manslaughter must either involve recklessly causing a death, or involving intentionally causing or aiding another person to commit suicide.
* Criminally negligent homicide, a class 5 felony punishable by 1-3 years in prison and two years mandatory parole. CRS 18-3-105. Criminal negligence homicide must involve criminal negligence.
* Vehicular homicide, a class 4 felony punishable by 2-6 years in prison and 3 years of mandatory parole, or 4-12 years in prison and 3 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact, if caused by reckless driving (the same as manslaughter), and a class 3 felony punishable by 4-12 years in prison plus five yeas of mandatory parole, or punishable by 8-24 years in prison plus 5 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact, if the driver was legally drunk or under the influence of drugs without regard to intent.

On the whole this is a reasonable fair way to grade homicides. But, the first degree murder statute is inappropriately harsh for several types of homicide that it covers, and is too lenient in one case. My suggestions are as follows:

1. First Degree Murder – Affirmative Defense To Felony Murder. CRS 18-3-102(2).

* Expand Affirmative Defense To Felony Murder in CRS 18-3-102(2).


Currently, everyone who participates in the crimes of arson, robbery, burglary, kidnapping, sexual assault, or escape, is guilty of first degree murder if a non-participant dies in the course of the crime or immediate flight therefrom, regardless of who causes the death. In short, it imposes vicarious death penalty liability on all participants in the crime regardless of their intent.

An affirmative defense is allowed if there were other participants in the crime, that person didn't commit or call for the homicide, the person was unarmed, the person had no reason to believe anyone else was armed, the person didn't intent to and didn't believe that anyone else was likely to do something resulting in death or serious bodily injury, and he tried to disengage when he learned that someone else had a deadly weapon or was likely to cause death or serious injury.

Shorter version: There is an affirmative defense if you had no reason to think anyone would get hurt and tried to get out of participating when you learned otherwise.

Keep: (a) not the only participant, (b) didn’t cause or solicit, request, cause or aid homicide, (c) not armed with a deadly weapon, and part of (e) stating "did not engage himself in or intend to engage in . . . conduct likely to result in death or serious bodily injury."

Remove: (d) No reasonable grounds to believe that any other participant was armed; part of (e) has no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; (f) disengaged about discovering others armed or intended to engage in.

Why? Minor, non-combatant players are bad, but not felony murder, irredeemably bad. Case in point: People v. Auman. Mere association with bad people does not make culpability rise that much, although it may justify sentencing at the high range of the underlying serious felony offense.

Conspiracy to murder (which would be a class 2 felony), is still available in appropriate cases. Conspiracy is established when ”with the intent to promote of facilitate its commission, he agrees . . . that they . . . will engage in conduct which constitutes a crime . . . or to aid the other person . . . in the planning or commission of a crime[.]” Conspiracy is an offense one level below the offense you conspired to commit.

2. First Degree Murder – Drug Deal Related Deaths. CRS 18-3-102(1)(e).

* Downgrade drug deal related deaths from sales to minors to manslaughter, and eliminate the requirement that drugs be sold at school.


Transfer CRS 18-3-102(1)(e) (deaths resulting from sale of drugs to minors on school grounds) from first degree murder statute to manslaughter statute as a new CRS 18-3-104(1)(c).

Also, remove the language of existing 18-3-102(1)(e) to limit the offense to situations when the drug transaction takes place “on school grounds as provided in section 18-18-407(2)”.


First part: Eliminating the requirement to prove intent by basically saying that any death in that situation is conclusively presumed reckless, which this would do, is reasonable. But, this situation isn’t as culpable as premeditated murder. The vast majority of the time, illegal sales of drugs to minors do not result in death, and to scapegoating someone who happens to be the one guy in a hundred whose young customer ends up dead from an overdose is as irredeemable as an assassin or serial killer or murder-rapist, is overkill.

Second part: Selling drugs to a minor is no less culpable if it is done in a public park or across the street from a school or a recreation center or a church or a movie theater, than it is when done on school grounds.

3. First Degree Murder – Children Killed By Persons In A Position Of Trust. CRS 18-3-102(1)(f).

* Downgrade knowing murders of children by persons in a position to trust to second degree murder.


Strike CRS 18-3-102(1)(f) which provides that first degree murder is committed if a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

This has the effect of making a crime under CRS 18-3-102(1)(f), instead a crime under CRS 18-3-103(1), which is second degree murder, without further statutory amendment. The maximum sentence for second degree murder is 48 years. The minimum sentence for second degree murder is 16 years. A defendant can get no more than a 25% sentence reduction for earned time when sentenced for second degree murder. Thus, the minimum sentence if there is good behavior in prison for a second degree murder convict ranges from 9 to 36 years, depending on the sentencing judge’s decision. A lower sentence can be imposed in cases involving th heat of passion after a highly provoking act.

Why? It is still possible to impose a very long sentence for second degree murder. But, significant mitigating considerations are present for many murders in category CRS 18-3-102(1)(f), and a sentencing judge should not be deprived of all opportunity to offer mercy (as is the case in a first degree murder case). Likewise, someone who commits a crime in CRS 18-3-102(1)(f) is rarely beyond all redemption, such as the public needs to be protected by life in prison without parole or a death sentence.

Your typical defendant under CRS 18-3-102(1)(f) will include inexperienced first time mothers who cause a neonatal death, a parent in an extremely stressful situation with many kids who snaps in the sudden heat of passion, and the like. While some defendants may deserve long sentences associated with typical second degree murders (the average sentence in Colorado for second degree murder is 33 years with possibility of parole after 75% of the sentence has been served if there has been good behavior in prison), a judge should have the flexibility to impose a sentence as low as the mandatory minimum for second degree murder which is 9 years when earned time is taken into account.

Nine years is still a very serious sentence in a case where there are so many mitigating factors that a judge imposes a minimum sentence. Similarly, when there are serious aggravating factors such that the judge feels inclined to impose a maximum sentence of 48 years, the fact that the defendant will return to society no sooner than 36 years later is enough to protect society.

4. First Degree Murder – By Lifers. CRS 18-3-102(1).

* Making knowing murders by lifers eligible for the death penalty.


Add a new paragraph to subsection (1) of first degree murder statute that applies “if a person in prison who is serving a sentence of life imprisonment, with or without possibility of parole, or any other sentence with a possibility of parole at a date after the date when that person would die if that that person lived a length of time equal to their life expectancy at the time the crime is committed, unless the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person, but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the exception for a sudden heat of passion shall not apply.”

Why? The possibility of the death penalty is appropriate to serve a deterrent when no other punishment can serve as a meaningful deterrent.

5. Neonatal Murders.

* Mothers who have given birth in the last 36 hours should be conclusively presumed to have acted with an intent that is not more than reckless in homicide cases.

Proposal: This is a limited exemption from second degree murder liability for women who are technically knowing when they kill, but are in extreme circumstances in the throes of childbirth and should not be held to the same standard. Note that this does not change the criminal liability of a partner or other person present who did not experience the childbirth. It would be appropriately included in CRS 18-3-101 in the definition of "after deliveration" and "knowingly".

Why? Sentencing approaches in these cases vary dramatically, even when the facts are very similar, and the decision should be made by the legislature, not by individual prosecutors. Under current law, neo-natal homicides by mothers are routinely charged as first degree murder in some jurisdictions. But, this change still allows a charging decision, and a lesser included offense determination by a jury of reckless homicide, criminally negligent homicide or no criminal offense.

A woman who has just experienced child birth, quite likely in a neonatal homicide case, alone, is extremely exhausted, has experienced intense pain for prolonged period of time, is physically depleted, is experiencing unfamiliar and intense hormonal effects, and is, in short, not in her right mind. Culpability in these cases is lower than in cases where a child is abused and killed long after a child birth. Again, lesser culability does not mean no culpability in cases like these.

Colorado Sentencing Reform: Overview

Colorado's criminal laws are not perfect. The number of people in prison in the state has doubled in the past ten years.

Even more importantly, in my view, the state's criminal code fails to appropriately grade a number of offenses. Relative to the standard set by other offenses in the criminal code, some offenses are graded too seriously relative to the seriousness of the crime, while others are graded to leniently. In my view, too harsh punishments are more common, however.

In the series that follows, I'll review in detail those grading decisions in the state's substantive criminal code that are off and suggest alternatives in various categories.

None of the proposals are decriminalizations. All conduct that is a crime now, remains a crime. The only changes are adjustments in the punishments for the crime.

The prison population breaks down as follows in Colorado by offense:

Prison Population In Colorado By Type of Offense

Homicide 9.5%
Kidnapping 1.8%
Assault (including vehicular assault) 8.4%
Robbery 6.7%
Burglary 7.4%
Theft (including car theft) 9.9%
Trespassing/Vandalism 2.4%
Fraud and Forgery and Embezzlement 1.8%
Arson/Weapons/Explosives 0.7%
Menacing 3.2%
Sex Offenders 11.4%
Child Abuse 2.1%
Drugs 20.3%
Escape/Contraband 6.9%
Traffic 1.0%
Habitual Non-Violent Felon 3.1%
Miscellaneous Non-Violent Crimes 3.3%

18 June 2007

Gift Tax Reform

Lots of scholarly articles analyse a problem well, but propose solutions that don't do a good job of addressing the problem. But, this recent article on gift tax reform (the poor, but resiliant cousin of the estate tax) is not one of them. It correctly identifies why the gift tax is important, what is wrong with it, and how the biggest problems in the gift tax system can be fixed.

Reducing Traffic Law Violations

Traffic violations can be dramatically reduced with simple innovations, like longer yellow lights, and reasonable speed limits. This would probably reduce accidents as well.

The Death of the $500 Bill Remembered

In 1969, the United States ceased printing currency in denominations larger than $100. Before then, there were $500, $1000, $5000 and $10000 bills in circulation. A few legacy bills are still out there. But, for the most part, they are collectors items and are removed from circulation when they make their way back to a bank. The combined value of the bills larger than $100 still in circulation is dwarfed by the value of bills of types that are still printed.

A dollar in 1969 was worth about five times as much as it is now. In 1969, a $100 bill was worth about five hundred 2007 dollars. Today's $100 bill is worth about what a $20 bill was in 1969. Today's $5 bill is worth about what a $1 bill was in 1969. And, today's quarter is worth about what a nickle was in 1969. We hope you haven't been keeping your life savings under the mattress, because its value is falling every year.

There is no indication that anyone plans to introduce large denomination currency to the United States in the near future. The government's desire to fight tax fraud, illegal immigration and money laundering outweighs the utility of large denomination currency for most policy makers. As it is, cash transactions of $10,000 or more (or smaller cash transactions "smurfed" into multiple smaller transactions an effort to avoid this rule) must be reported to federal authorities, even though they are legal.

There is also no strong push from business interests to introduce large denomination currency amounts. As it is, most $100 bills in U.S. currency are used abroad, often in the black market cash economy, or in countries with ill developed banking industries like Russia and Kosovo. And, the introduction of the widely accepted 100 euro and 500 euro notes has reduced the demand for United States $100 bills in the foreign black market cash economy. Many U.S. retail merchants do not accept bills larger than $20, and cash machines also almost never dispense either $50 bills or $100 bills. Credit cards are now used in most situations where $100 bills used to be common in the United States. Almost nobody buys a case of wine, or a set of new tires for their car in cash. A few people do buy a weeks worth of groceries or a tankful of gas in cash, but the numbers are falling. Cases of eccentric people paying their doctors and lawyers with cash have become the stuff of water cooler talk and urban legends.

If the $100 bill were discontinued today, few people would notice a change in their day to day lives, and pizza deliverers could all breathe a sigh of relief at not having to make immense amounts of change for customers.

Personally, my use of cash is pretty much limited to parking, bus fare, eating out, mocha, movies, convenience store purchases, and postage for a letter or two. It is no longer unusual for me to make a purchase of $3 to $5 with a credit card, and I try to do so when I can because it creates a better paper trail of my spending for budget purposes and counts towards a reward program on the card. In Cherry Creek you can even put $1 of parking on your credit card, which makes sense, as I rarely carry large quantities of change around with me.

The only time in my life I ever used a large quantity of $100 bills was to transfer funds from an old checking account to a new one when a moved once. I could have used a cashiers check, but I avoided a fee by using cash and it was a kick to have a few thousand dollars worth of hundred dollar bills in my hands for once in my life. Of course, if I had been unfortunate enough to be stopped by police at that moment, life could have gotten complicated very fast, and I almost certainly would have been presumed to be a drug dealer. Also, the cash very likely would have showed traces of cocaine or heroin on it from prior users, further implicating me in wrong doing.

The biggest casualty of inflation and the new currency regime in the United States has been not the big bills, but the smaller ones. A frail $1 bill is worn out in six months of circulation and has to be replaced, while coins last decades. But, Americans have gotten out of the habit of carrying sturdier, but heavier coins in their pockets. Given a choice between a variety of attractive $1 coins and the lighter weight $1 bill, Americans have overwhelmingly opted for paper. If we were starting from scratch today, the $1 bill almost certainly wouldn't have been introduced because it is so short lived, but going forward the inertia is significant.

So, today, I rememeber the demise of the $500 bill, but I don't mourn it.

Self Government

One of the most persistent assumptions of conventional wisdom in modern Western foreign policy, with the most catastrophic consequences, has been the assumption that parliamentary self-government will always work if put into place.

We know from experience that this is not true.

The success of parliamentary self-government has been underwhelming in Iraq, not just this time around, but also the last time that it was imposed.

Parliamentary self-government has not worked especially well in most post-colonial regimes where it was imposed. India has managed with heroic efforts, but only with lots of close calls, a national schism, and considerable pain as a result of government mismanagement. Turkey has managed, but only with not infrequent threats of military intervention.

Parliamentary self-government has failed from Russia, to Spain, to Africa (both North African nations like Algeria and Egypt, and Sub-Saharan nations like Liberia and Nigeria), to Latin America, to the Middle East, to Asia, to Oceania, parliamentary self-government has almost always devolved into military coups, dictatorship, one party rule, civil wars or a combination of these political arrangements.

East Timor, touted as the paradigm of an imposed parliamentary self-government solution, is managing only with a massive infusion of international aid and international peace keeper enforced law and order.

Thailand was able to escape a parliamentary government failure only with the intervention of a monarch, and even then has been a hit or miss proposition.

Russia, another nation new to parliamentary government, is widely observed in the world scene to be backsliding into its less democratic Soviet ways.

Even those countries well known for their formative efforts at democratic self-government have had their rough spots. Democracy failed the first time around in France, and we are now on the “Fifth Regime” there. The United States had to extra-constitutionally ditch its first constitution, the Articles of Confederation, and endure a bloody civil war. The United Kingdom had to see the Glorious Revolution triumph with the supremacy of Cromwell’s Republic, only to fail again and return to a constitutional monarchy. The good guys lost in the Spanish Civil War leading to a generation of autocratic rule. Germany and Italy both succumbed to fascism, before returning to their pre-World War II status as parliamentary governments, and Italy spend a couple of generations coming to terms with corruption and the mob before it got its act together again.

It isn’t that all first time parliamentary democracies fail. Japan’s dominant party system, and the legitimacy created by having a constitutional monarch, helped it make its post-World War II transition to parliamentary government relatively painlessly. But, that was hardly a foregone conclusion. Nearby South Korea’s path to parliamentary self-government was not nearly so smooth, nor was that of Taiwan, Indonesia or the Philippines. Hong Kong secured prosperity and a liberal society at the expense of any meaningful self-government at all. Singapore, likewise, has been no model of democratic self-government.

This is all, by no means a call to ignore the faults of the military junta, the dictatorship, the one party state, civil war or colonialism. But, we need to recognize that while a successful parliamentary democracy may be the best form of government known to man, that an unsuccessful parliamentary democracy is merely a stepping stone to tyranny.

A modern constitution and parliamentary elections may be a necessary condition to a modern working parliamentary democracy, but they are not a sufficient condition. Making self-government work takes political skill, public administrative acumen, legitimacy, and a variety of institutions of civil society to function passably.

While the “best” system may be a true pluralistic multiparty democracy, simply pulling off a dominant party system in which the underdog parties are not banned, an inclusive one party system, a weak constitutional monarchy, or a colonial regime may be desirable alternatives to a failed experiment in pure constitutional government. While both Iran and China are soundly criticized for their failure to live up to international democratic self-government norms, both have more genuine democratic self-government than countries we count as allies, like Egypt and Saudi Arabia, and both are moving generally in the right direction from their more turbulent national nightmares of the 1970s. Neither, for example, has fallen into the trap of North Korea, which has evolved into an insular monarchy without the dignity and sense of obligation to the nation that the title affords.

Our biggest failure in Iraq was invading at all. But, our next biggest failure was our naive assumption that a modern Western parliamentary democracy could be put in place to replace Saddam’s regime with a minimum of fuss. We are now in the awkward position of having ceded our own authority to govern Iraq, without having put in place a functional and legitimate local civilian replacement.

Republican insistence on staying the course is largely driven by the probably correct assumption that without a U.S. military presence, that the Iraqi civilian government will fall apart, probably sooner than later. It looks a lot like the South Vietnamese regime just before it fell. Democratic and popular urges to withdraw, likewise, are largely driven by the observation that the situation isn’t getting any better, so we may as well bite the bullet now rather than later and cut our losses. Are they right? I don’t know. But, I do know that unless Iraq is better prepared to run itself before we leave that it will fall apart. The successor regime will probably be worse that the one we removed.

Most Influential Liberal Solo Blog in Colorado

Why be #11 when you can change the category and be #1? Non-Prophet noted the latest Colorado blog ranking/RSS feed outfit, which calls Wash Park Prophet the #11 most influential political blog in Colorado. Cull the conservative blogs, cull the group blogs (although a couple have essentially one primary author) and voila, Wash Park Prophet is the #1 most influential solo liberal blog in Colorado. Hooah!

FWIW, I contribute diaries to at least three of the so called most influential liberal group blogs in Colorado as well.

No Right To Attorney In Collateral Review

The U.S. Supreme Court has declined a chance to review its holding that there is no right to an attorney for a collateral review of a conviction, even in a death penalty case. This means that despite the fact that there is a constitutional right to habeas corpus, the right is all but useless to the large number of prisoners who have no attorney, because elaborate procedural rules in habeas corpus are beyond the abilities of most prisoners (who are mostly ill educated). It also means the ineffective assistance of counsel in habeas corpus cases is not a constitutional violation.