31 January 2008

McCain Not Straight With People

NewMexiKen has a wonderful video clip showing just how two faced McCain has been on a variety of issues.

The clip doesn't even take on McCain's disavowal of Justice Alito as too conservative in early 2007 when speaking privately to Republican insiders, followed by his resounding support of Justice Alito as a model in later speeches. McCain has disavowed his early comments despite at least three almost identical accounts of his earlier statements from eye witnesses to it.

McCain's reputation as an honest man isn't matched by reality.

Don't Elect Coroners

Allegheny County, Pennsylvania (Pittsburg) no longer elects coroners. They stopped doing so in 2006, replacing the elected post with an appointed medical examiner office after a scandal involving elected coroner Cyril H. Wecht.

Do we have to wait for a similar scandal in Colorado before we see reform?

Colorado elects coroners on a partisan basis outside Denver and Broomfield, which are cities and counties that are granted great flexibility in how they structure their affairs than other counties. The coroner's main job is to determine the cause of death in cases where it is unclear or suspicious. The coroner is also the equivalent of a "Vice President" for the county Sheriff, although state law could easily vest that responsibility in someone else. A state constitutional amendment in 2002 authorized the legislature to establish training and certification requirements for the office, but this was only a partial solution.

Colorado has had some close calls. Not long ago a Montrose County Coroner, an EMT who won by a nose in the Republican primary, wrongfully accused the local hospital of murdering patients in connection with organ transplants based upon his personal internet research. The legislature had to respond to preserve the state's life saving organ donations system. Ouray's county coroner has such a small and hence underfunded office, that he has to drag bodies around in the back of his personal truck -- something a jury might not take kindly to in a murder trial.

While the job of coroner does involve a great deal of discretionary decision making in hard cases, there is no Democratic or Republican way to conduct an autopsy. The job is quintessentially technocratic, and to do it right, the job should be held by a medical doctor, ideally, a forensic pathologist. This is the kind of job where the merit system of hiring government employees under the civil service system can work very well.

The political process is prone to electing someone low on competence with strong partisan views about when life begins and ends, or someone who simply craves political power that answers to no one (the county commissioners are co-executives with the coroner, not the coroner's boss). In contrast, the political process is not particularly well suited to selecting technocratically qualified people who are good at resolving difficult homicide v. suicide v. accident questions from physical evidence in a credible way. Even if ideology isn't an issue, and the actually work can be delegated to underlings upon whom an elected coroner can rely, the need to raise funds and have connections in political parties in order to run for a partisan political office will almost inevitably create suggestions of improper influence in a determination of the cause of a high profile death sooner or later.

Also, Colorado simply has too many coroner's offices. Colorado has 64 counties in a state of 4.6 million people. Some, like Ouray, have only a few hundred people. Most have fewer than 100,000 people. Not every county needs, or can afford, the staff and equipment for it's own first rate medical examiner's office. Even large metropolitan counties need only a handful of professional staffers in the coroner's office, despite having the population of dozens of Colorado's more rural counties. The overwhelming majority of people die in circumstances in which the cause of their death is obvious and non-controversial, requiring no investigation or documentation of consequence.

Consolidation of coroner's offices would also allow credible medical expert based uniform standards for investigations of deaths to be established statewide, sparing the state scandals like the one it went though in the past few months over the state's failure to establish uniform standards concerning the preservation of physical evidence -- something that has harmed innocent people wrongfully convicted and cast doubt on valid convictions. Delegating responsibility for a government function to 64 different partisan elected officials who report to no one, with only minimal educational requirements, is not a good strategy for achieving uniform minimum science based standards and quality control.

If we must continue to elect coroners, we should do so on a non-partisan basis, either in each of the state's 22 judicial districts, the same regional level at which District Atttorneys who prosecutes almost all violent crime in the state are elected (with funding shared by counties in the district), or at the state level, like the attorney general, as a non-partisan state medical examiner.

Better yet, we could have an appointed state medical examiner's office, harnessing the resources of the entire state to get the best forensic pathologists and laboratory equipment available, with local offices set up in a manner driven by logistics rather than politics. The state medical examiner could be appointed by the Governor through the civil service system, using a method similar to that used for the state's judiciary (the Board that regulates the medical profession might vet nominees in the way that Blue Ribbon commissions do for judicial appointments). Despite this job's importance, it does not need to be a politically appointed policy making post in the Governor's cabinet.

Another side effect of this change would be to shorten Colorado's excessively long ballot, removing a post which voters are in a poor position to cast an informed vote upon anyway.

A bad appointed state medical examiner could be removed for cause like any other state employee, without the delay and cost associated with using the political process, or via impeachment, a little used safety valve that can remove any state employee from office in extreme circumstances that usually gives the accused an opportunity to rebut the charges in a forum other than the newspapers at legislative hearings on the matter.

Yes, this proposal would require a state constitutional amendment and voter approval. But, wouldn't it be worth it to act now in order to prevent some major problem down the line?

Super Tuesday Prediction #2

Our resident genius at Daily Kos is predicting, with a wealth of charts, maps, data and analysis to back up the prediction, an almost dead even Super Tuesday when it comes to delegate counts, with the single most important X factor left being this week's debate. The prediction for Colorado is a modest Obama win.

The Democratic nomination may have thinned out to the top two candidates, but who wins could be up in the air until the very end.

30 January 2008

Clinton v. Obama On Policy

I finally did my homework. I combed the web pages of Obama and Clinton on the issues last night and this morning. I read lots of blogs and articles comparing the two. When it comes to issues, I have read about 100+ pages more about what each of them stand for than I had until now, covering a fairly comprehensive range of issues. I'm not an expert, but I can now consider myself an informed voter when it comes to the issues in this race.

The conclusion I came to, which is widely shared in the media and the blogs, is that the policy differences between the two are minor. Their substantive agendas are close enough that only someone with a very intense niche interest in the particulars of how a policy agenda is implemented would have any reason to vote differently on that basis. There are issues that one talks about while the other does not, but given the whole of the record, it is clear that both of them share a wide consensus of a host of issues to a significant level of specificity forged in the furnance of the Democratic Caucus of the United States Senate.

Some of the biggest differences that I noted, and a NY Times article notes this as well, is that Obama has a greater focus in how his proposals are structured on simplicity and on behavioral economics (i.e. the impact of default options and how issues are framed on the economic decisions that people make). Clinton, in contrast, often proposals approaches that have a similar effect but tend to make one's eyes glaze over just a little.

Obama communicates his agenda better. He does a better job of capturing the values he is advancing with a proposal even when it is in a quite technical area of the law. This isn't entirely immaterial. Hillary Clinton's best known policy agenda, the health care plan she worked on while Bill Clinton was President, failed to a great extent because the public saw it as too confusing and because what it did was poorly communicated.

The differences in their voting records are likewise minor, and a good share of them reflect situations where one voted against a bill in a tactical effort to secure a stronger one.

Also, while there are very few outright contradictions, Obama does attach greater importance to improving the fairness and efficency of the economy by tweaking problems with the bankruptcy code.

Bottom line. The way to decide this race is not upon substantive policy issues.

Edwards and Giuliani Out

As I predicted, John Edwards and Rudy Giuliani have withdrawn from the Presidential race after the Florida primary confirmed that neither had a chance of winning. This leaves Hillary Clinton and Barak Obama on the Democratic side of the race (and yes, Mr. Mike 0% Gravel who doens't yet have a single pledged or superdelegate to his name and isn't likely to get any outside Alaska where he might manage one or two out of four thousand if he is still running), while John McCain, Mitt Romney and Mike Huckabee are the remaining viable candidates on the Republican side (there are a few non-viable Republican candidates like Ron Paul left too).

A brokered convention on the Democratic Party side of the race is now almost unthinkable. Given the proportional representation system used to allocate Democratic delegates to the National Convention, and the boosts that Obama will receive from a share of Edwards voters and from the momentum he captured by his decisive first place finish in South Carolina, I doubt that either candidate will come away from Super Tuesday on February 5 in a position to be declared the presumptive nominee. But, six days from now we will have a pretty firm idea of who the most likely Democratic nominee will be.

More practically, this leaves Democrats on Tuesday February 5, 2008 who check in from 6:30 p.m. to 7:00 p.m. at their caucus site easily determined from the website of the Democratic Party of Denver for Denver Democrats, with a short ballot to fill out -- only Clinton, Gravel, Obama and Undecided will be available as choices, making caucus math quite a bit easier than it might otherwise have been.

Edwards withdrawal is a two edged sword. Edwards supporters are not monolithic, and will definitely split in which candidate they support instead. Edwards has not endorsed either candidate, although he is believed to favor Obama personally. In the South, his continued candidacy has helped Obama (which is why Edwards sayed in) believe Edwards split the white vote with Clinton, while not cutting into Obama's 80%ish support in the black community, among both black men and black women equally despite a gender gap among white voters with women favoring Clinton. This is huge in the South where blacks much up a large percentage of the Democratic primary electorate. Obama needs a very large share of currently undecided voters and Edwards supporters to capture the nomination, but his recent showings of viability have already started to boost his showings in surveys. Obama has also shown a remarkable ability to bring new people into the political process to support him, while Clinton has done better with long time, established Democratic voters.

A lot of suggestive evidence from sources like shifts in support in Daily Kos preference polls, the demographics of South Carolina Edwards supporters, and the impact the gender gap in favor of Clinton has on relative support for Obama and Edwards in Florida according to exit polls, suggests that the Edwards vote should shift at least 60-40 in favor of Clinton. But, ideologically, Edwards like Obama is favored by the liberal wing of the Democratic party, so ideologically, it makes sense for the balance to tip towards Obama. The Kennedy endorsements with week, with the more famous Kennedy's endorsing Obama and some lesser known ones endorsing Clinton, illustrated this leaning. I would certainly suspect that Edwards superdelegates will go disproportionately for Obama, rather than Clinton, not that it matters all that much, because Edwards had far fewer superdelegates to start with than his two main rivals for the Democratic nomination.

Of course, even a 50-50 split of the Edwards vote leaves Obama behind Clinton given the polling in Super Tuesday states. Clinton supporters tend to be pretty sure of their choice relative to other supporters, so in addition to Edwards suppporters Obama needs a big chunk of undecided voters as well. It is going to take powerful momentum between now and Tuesday for Obama to pull out front runner status, and as Markos at Daily Kos has remarked, Hillary Clinton is close to unflappable on the campaign trail -- her biggest campaign gaff in the past couple of weeks has been, the mixed blessing who is her husband's over zealous campaigning on her behalf.

An eyeball look at the detailed state by state data in this Daily Kos diary, modified by knowledge now of an Obama uptick in the polls since that post was made a couple of weeks ago, and the Edwards withdrawal from the race, leads me to predict that on Super Tuesday, Obama and Clinton will split pledged delegates almost exactly evenly, leaving the race to be decided by the late primary states.

Most people in a better position to know than I am who have chimed in on the Republican nomination race think that McCain's winner take all first place finish in Florida, and the withdrawal of Rudy Giuliani accompanied by Giuliani's endorsement of McCain, give McCain a serious boost going into Super Tuesday. But, McCain has had a number of outbreaks of foot in mouth disease recently, will be facing a string of primaries in which only Republicans (and hence not independents) can vote that will hurt him with the moderate wing of the Republican party to whom he allegedly most appeals, and is reportedly short on money compared to his rival Mitt Romney (and in the general election as well).

Huckabee's fourth place finish in Florida with a mere 12% of the vote, his failure to win South Carolina which is home to many voters in his evangelical Christian base, and his failure to take either of the top two slots in New Hampshire, makes his long ago first place finish in Iowa look like a trial balloon that has burst. I expect Huckabee's support to lag from the most recent polls in Super Tuesday and the event itself, although where his supporters go is a hard question, as neither McCain nor Romney have impeccible conservative credentials, or a populist streak. Huckabee has announced that he will stay in the race for Super Tuesday, and polls indicate that he could win as many as four of the couple dozen states in play that day. But, momentum is against him doing even that well, and a less than 20% win rate does not a nominee make.

Huckabee's only viable winning strategy is to win enough delegates to force a brokered convention in Minneapolis-St. Paul this Septemeber and to emerge as a compromise candidate between the dominant McCain and Romney camps. But, the fact that a decent share of Republican primary states are winner take all, and the smaller share of superdelegates in the Republican convention, means that Huckabee will be hard pressed to get enough delegates to deny the front runner majority support. Winner take all primaries are strongly biased in favor of candidates who would otherwise be mere plurality candidates.

Rumor has it that Bloomberg, the liberal Republican Mayor of New York City, is also thinking of throwing his hat into the ring with an independent run, and the possibility that Ron Paul will quite the Republican race to become the Libertarian Party nominee at a convention in Denver in August, has still not been foreclosed.

In Denver, meanwhile, enthusiasm for Obama is huge. He came to speak this morning at Magness Arena on the University of Denver campus and I even got a ticket to attend the 8:30 a.m. rally and started to go. A line to get in probably a mile and a half long and four or five people wide dissauded me. I'll read about it in the paper. Hillary Clinton will appear at the University of Denver this evening.

The Odds Of Winning

At this point, I give Clinton about a 60% chance of winning the nomination (with the other 40% chance being an Obama nominee), and McCain likewise about a 60% chance of winning his nomination (with Huckabee having no more than a 5% chance and the 35% balance to Romney).

While current surveys show both McCain-Clinton and McCain-Obama to be statistical ties, I think that close examination of the candidates and a general disgust with Republican rule will tilt the balance to something like a 55% chance for either Democratic nominee over McCain in a general election.

Both Clinton and Obama would fair far better against either Romney or Huckabee in a general election. By my estimation, either Democrat would have a 60%-65% chance of winning against one of these opponents.

Readers are welcomed to do the math an convert this data into tables and bookies odds as an exercise.

29 January 2008

Religion and the Death Penalty

[I]t can be said that the death penalty is more likely to be imposed by a religious people. The reasons for this are not obvious. It may be that the religious know what evil is or, at least, that it is, and, unlike the irreligious, are not so ready to believe that evil can be explained, and thereby excused, by a history of child abuse or, say, a "post-traumatic stress disorder" or a "temporal lobe seizure." Or, again unlike the irreligious, and probably without having read so much as a word of his argument, they may be morally disposed (or better, predisposed) to agree with the philosopher Immanuel Kant — that greatest of the moralists — who said it was a "categorical imperative" that a convicted murderer "must die." Or perhaps the religious are simply quicker to anger and, while instructed to do otherwise, slower, even unwilling, to forgive. In a word, they are more likely to demand that justice be done. Whatever the reason, there is surely a connection between the death penalty and religious belief.

European politicians and journalists recognize or acknowledge the connection, if only inadvertently, when they simultaneously despise us Americans for supporting the death penalty and ridicule us for going to church. We might draw a conclusion from the fact that they do neither. Consider the facts on the ground (so to speak): In this country, 60 convicted murderers were executed in 2005 (and 53 in 2006), almost all of them in southern or southwestern and church-going states — Virginia and Georgia, for example, Texas and Oklahoma — states whose residents are among the most seriously religious Americans. Whereas in Europe, or "old Europe," no one was executed and, according to one survey, almost no one — and certainly no soi-disant intellectual — goes to church.

From here by Walter Berns of the Weekly Standard.

Another View Of Medical Malpractice Lawsuits

Rebutting the President's State of the Union Address statement about medical malpractice suits, a Plaintiff's personal injury lawyer argues that: "[T]he medical tort system works." The backup to that assertion is mostly here.

I'm not so sanguine about the state of the medical tort system, despite having represented Plaintiffs in medical malpractice cases myself, although the problem is not junk lawsuits. In my view, some of the biggest problems are that:

1. The vast majority of serious medical mistakes go uncompensated.

2. The transaction costs involved in litigating medical malpractice cases are immense relative to the fairly modest net compensation ultimately paid. The uncertainty and emotional toll these cases take on practioners and patients alike is also immense.

3. In cases with serious injuries that require ongoing treatment, the system often ill designed to place an accurate value on future medical expenses which are inherently hard to predict.

4. The system's exclusive focus on compensation does a poor job of removing bad doctors from practice. "From 1991 to 2005, only 5.9 percent of doctors were responsible for 57.8 percent of malpractice payments. Each of those doctors made at least two payments." Many of these doctors keep practicing medicine anyway, without even any disclosure of the risk to patients, because the professional grievance system that controls medical professional licensing is, like most such systems in all professions, frequently underfunded, lenient and toothless.

Of course, part of the concentration of claims is that risks are unequal by specialty (tracking largely the consequences of mistakes rather than the likelihood of mistakes) as reflected in premium rates for malpractice insurance (citations omitted):

[A] large insurer in Minnesota charged base premium rates of $3,803 for the specialty of internal medicine, $10,142 for general surgery, and $17,431 for OB/GYN in 2002 across the entire state.

In contrast, a large insurer in Florida charged base premium rates in Dade County of $56,153 for internal medicine, $174,268 for general surgery, and $201,376 for OB/GYN, and $34,556, $107,242, and $123,924, respectively, for these same specialties in Palm Beach County. In addition to the wide range in premium rates charged, the extent to which premiums increase over time also varies by specialty and geographic area. Beginning in the late 1990s, malpractice premiums began to increase at a rapid rate for most, but not all, physicians in some states. For example, between 1999 and 2002, the Minnesota insurer increased its base premium rates by about 2 percent for each of the three specialties, in contrast to the Florida insurer that increased its base premium rates by about 98, 75, and 43 percent, respectively, for the three specialties in Dade County.

Colorado's medical malpractice insurance premiums for obstericians and gynecologists, a high risk specialty, was on the order of $30,000 per year in 2002 and was stable in price over previous decade, as of 2007, that premium was a little over $50,000 a year, and the average premium for physicians in the state is on the order of a third to a quarter of that rate.

Medical malpractice insurance in the state is nearly a non-profit monopoly. "COPIC Insurance Company - which covers more than 80 percent of privately insured Colorado physicians" insures over 6000 physicians in the state. The COPIC, which is owned by a trust established by the Colorado Medical Society and strives to provide refunds similar to a cooperative or mutual company, had about 35% market share in 1986, gained about 20% market share in 1986-1987 in the face of rate hikes by competitors, and moved to its current dominant position in 2001 when St. Paul Companies withdrew from the market.

5. The corporate practice of medicine doctrine often operates here, like the intentional violation requirement in civil rights cases, to insulate the party in the best position to implement systemic reforms from liability, blunting the incentives to make these kinds of reforms. There is strong circumstantial evidence that the most important sources of medical mistakes are bad systems in complex practices, but the medical tort system forces doctors and medical mistake victims alike to pin blame on the negligence of particular individual practioners. Only anesthesiologists, of all the medical specialties, had made a serious collective effort to improve quality control in a systematic way. The other big advances in systems that reduce medical mistakes have been made by large medical enterprises in which physicians are employees rather than independent contractors or owner-operators, like Kaiser, Mayo Clinic and the Veteran's Adminstration, or by practice groups within medical enterprises like select trauma centers.

What did the anesthesiologists do?

In 1985, the American Society of Anesthesiologists launched APSF as a stand-alone organization devoted to patient safety through safety research and improvement. Markedly different from other medical organizations, the foundation allows not only anesthesiologists, but also nurses, insurers, and companies that develop products for the specialty to be members.

"Leaders in the medical specialty need to accept and endorse patient safety initiatives that are relevant to their specialty," Stoelting advises. "Opportunities to include industry as a partner for patient safety need to be sought and nourished. Funds to support safety research need to become available from medical specialties and corporate partners."

Because of the strategies implemented by APSF, patient deaths due to anesthesia have declined from 1 per 5,000 cases to 1 per 200,000 to 300,000 cases, according to studies compiled by the Institute of Medicine. As the death rate declined, so did the claims rate. Thirty-five years ago, nearly 8 percent of all medical malpractice claims were filed against anesthesiologists. From 1985 to 2001, claims dropped to 3.8 percent.

6. Rightly or wrongly, neither Plaintiffs nor Defendants perceive the system to be fair much of the time.

I'll save solutions for another day.

Posner On Taxes And Economic Growth

There are striking differences in tax burdens across nations, as explained in a recent report by the Organisation for Economic Co-Operation and Development. Measuring the tax burden in 2006 as the percentage of gross domestic product that is collected in taxes, the report arrays 20 countries from top to bottom. At the top is Sweden, with a tax burden of 50.1 percent; at the bottom is South Korea, with a tax burden of 26.8 percent. . . . The curious thing about the OECD data is that prosperity, economic growth, and other measures of economic well-being do not seem closely correlated with the tax burden.

Via the TaxProf Blog.

Posner's blog partner Becker argues that this has a lot to do with the long term incidence of taxation on capital.

I suspect that the explanation is probably simpler. In high tax countries a great deal of the tax burden is attributable to social insurance taxes that fund retirement spending, higher education and health care spending from the public sector. In low tax countries, I suspect that economic and social custom constrains families and most economically important firms to provide services and social welfare benefits that aren't formalistically considered to be government spending, but are provided by government in high tax countries. Indeed, in countries like Japan, economically important firms also provide a private sector equivalent of unemployment insurance as well, with the lifetime employment system.

To a great extent, what economically unimportant firms in the small business sector in countries with weak social safety nets like Japan and the United States do, doesn't matter for purposes of macro-economic trends of economic growth and prosperity.

Also, good measures of prosperity factor in notions like the fact that the United States has a large underclass that has a standard of living measured by things like health care outcomes, access to education, leisure and economic security that is below that of people in comparable percentiles of affluence in almost all of its first world peers. In Japan that underclass is much smaller largely because the country is far more homogeneous and economically equal than in the United States.

DMCA Jurisdiction

A take down letter directed at an E-Bay merchant with a disclosed geographic location suffices to create jurisdiction over the person sending the letter in the courts of the merchant's state in the 10th Circuit.

Shorter SOTU

The full text of the State of the Union address delivered Monday is here, but the real version is burdened by Washington speak, political conceits and unnecessary applause. So here is the shorter version:

Things have been getting better because Americans are great. But our economic future is uncertain.

Let's cut taxes and furthermore let's not let tax cuts expire. Taxes are bad and I'll veto them.

My budget make 151 cuts for a total of $18 billion and the budget will be balanced several years after I'm out of office.

It is the policy of the executive branch to ignore the intent of the legislative branch when implementing the budget.

I want to reorganize the federal housing bureaucracies and allow state housing agencies to issue tax-free bonds to help homeowners refinance their mortgages.

End the bias in the tax code against those who do not get their health insurance through their employer, encourage health savings accounts, develop association health plans for small businesses, and promote health information technology. Medical malpractice plaintiffs lawyers screw everything up, so we should make it harder for victims of medical malpractice from bringing lawsuits.

The No Child Left Behind Act is great, and so are private schools despite the fact that they are going out of business in droves. Let's spend $300 million to send kids to private schools because public schools suck.

Free trade rocks. Please pass trade treaties with Colombia, Panama and South Korea, because we don't make imports pay tariffs but other countries tax our exports which isn't fair because American stuff is the best stuff. Free trade will end terrorism and drugs and put politicians I don't like in other countries out of work. Americans will lose their jobs as a result so we should send them back to school to get new jobs.

Clean coal, renewables and nuclear power are the answers to our energy problems. So are better batteries and biofuels and energy efficiency. We should spend money for environmental measures in India and China.

Spend money on physical sciences research. Medical research is O.K. too except that medical researchers are unethical scum who want to destroy, buy, sell, patent and clone human life, all of which are evil.

Please vote in my ultra-conservative judicial nominees.

We should use federal funds to support religious charities.

Katrina screwed New Orleans so I'm going to hold a diplomatic meeting there.

We spend too much money on old people and sick poor people.

The solution to immigration is a big fence on the Mexican border, more border patrol agents, more raids on workplaces, guest worker programs, and "a sensible and humane way to deal with people here illegally."

Democracy abroad is good and extremist Islamic terrorists are evil.

The war in Afghanistan is a good thing for the Afghans because the bad guys are terrorists, so I'm sending 3,200 more troops.

We sent more troops and civilian aid officials to Iraq because the bad guys there are terrorists and they were winning. Now we're winning and the Sunni Iraqis are fighting terrorists and the Iraqi government has more troops. Everything is much better in Iraq now. Soldiers are great, keep funding the war in Iraq. And, we're slowly ending the surge. Everything is going to work out in Iraq even though its fucked up now.

Peace in Israel would be great.

Iran's rulers are irrational evil people who live terrorism and want to blow us to bits with nuclear weapons. Fuck with us and will fight back.

Terrorists are out to get us, but fail because we violate civil liberties by illegally spying on you. If we have to stop illegal spying the terrorists will get us.

Genocide in Sudan is bad. We should bribe countries to be democratic, end corruption and respect the rule of law. Lots of people would starve if we weren't so generous. We should buy crops that aren't made in America to help farmers abroad. We should spend lots of money money to fight malaria and AIDS.

We should more on Veterans and reform the VA and being nice to military families.

Everything's going to turn out fine.

Nothing surprising here.

28 January 2008

Securities Arbitrator Bias

[A]rbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than other arbitrators. This relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. We report that ideology also correlates significantly with arbitration awards - arbitrators who donate money to Democratic political candidates award greater compensation than arbitrators who donate to Republican candidates.

From here.

Dramatic Declines In Army Recruit Quality

About 71 percent of the Army's 67,398 recruits last year had at least a high school education . . . That's down from 83.5 percent in 2005.

The Department of Defense has set a goal of 90 percent of recruits having at least a high school diploma, citing research that shows most of those recruits finish their first enlistment.

Figures for Colorado roughly track with those of the nation. Three years ago, 83 percent of Army recruits from Colorado had at least graduated from high school. Last year, the figure fell to 69 percent.

From here.

The obvious inference is that the heavy demands of the Iraq War have impaired recruitment efforts.

Why vaccinate?

In a large study of more than a million Swedish children's medical records:

Psychosis risk was almost tripled by childhood mumps exposure and was over 16 times as high after cytomegalovirus exposure.

Childhood mumps risk can be virtually eliminated with vaccination. Cytomegalovirus is a common and often mild form of herpes.

The study is one of the first to show a link between an infectious disease and a mental illness (in this case schizophrenia). Schizophrenia, of course, has strong genetic links as well, but viral infections of the central nervous system may be an alternate or triggering factor in the manifestation of the mental illness.

26 January 2008

Obama Wins South Carolina

Obama has won South Carolina's Democratic primary by a decisive margin. Clinton is in second, and Edwards came in third -- meeting threshold.

Also notably Clinton is slipping vis Obama in national polls, a trend likely to continue in the wake of South Carolina's demonstration that Obama can still win states in the Democratic primary and caucus process.

Leading up to Super Tuesday, there are really only two big pieces left to fall in place. What will observers make of Florida's delegateless primary on Tuesday? What will Edwards do and when?

After today, Edwards has clearly established that he can't win this race in any way other than through a brokered convention, and will be hard pressed to force one of those. He came in second place in the early Midwest primary (Iowa), and third place in the North (New Hampshire), the West (Nevada) and the South (South Carolina). Edwards has not bested Obama in a single primary so far, and also trails the other two Democratic candidates in national polls (I ignoring Mike Gravel for the moment -- he has yet to break 1% in a primary or caucus, and less than 0.5% of the funds raised of Clinton and Obama, and doesn't have a single pledged or superdelegate to his name).

Exit polls in South Carolina and some anecdotal evidence from Daily Kos polls both indicate that Edwards votes seems likely to break more for Clinton than for Obama, although Edwards supporters will not be monolithic. Edwards himself is believed to favor Obama over Clinton.

Sometime between now and Wednesday (after the Florida primary) would be a natural time for Edwards to withdraw from the race. Will he? If Edwards does withdraw prior to Super Tuesday, there will almost certainly not be a brokered Democratic primary. An Edwards withdrawal would also keep a very close Clinton-Obama race close, making even the latest primaries relevant. But, only one person really knows what he will do.

25 January 2008

Process v Merits

This case is presents a classic clash of process values v. the merits of a dispute.

The lawyers for the people bringing the lawsuit blow a deadline for responding to a motion for summary judgment. The essence of the motion is that there was no expert report filed to show that malpractice was committed. The lawyers who blew the deadline brought a motion to reconsider and in the last pleading filed in connection with that motion before the judge ruled, submitted the missing expert report which probably would have brought the case to a trial on the merits had it be timely filed.

While not handled optimally (the summary judgment response deadline should have been calendared, and an extension of time sought if a response wasn't ready at that point), it is quite possible that the underlying problem was that it was taking longer than hoped to find a doctor willing to offer an expert opinion, even though one was ultimately found. This difficulty moreover, may have flowed from needing to get the case filed before all the ducks were lined up in a row to meet a statute of limitations.

At any rate, the defendant doctor wins on a technicality, and we will never have anyone decide the merits of a case despite the fact that both side ultimately got expert reports to support their positions.

I don't think anyone doubts that, at some point, enough is enough, and that the demands of a smoothly functioning justice system calls for some civil litigations to be resolved based upon procedural grounds rather than substantive ones (in criminal cases and particularly in death penalty cases where there is a right to competent counsel because the defendant is indigent, this observation is far less obvious). Indeed, the default judgment is overwhelmingly the most common way for civil lawsuits to be resolved, and while some of those default judgment undoubtedly are due to bureaucratic ineptitude by defendants who had meritorious defenses, there is also little doubt that a large majority of default judgments involve cases where the claim made is justified or close to justified.

There is also, however, a doctrine in civil procedure that disfavors resolving cases on procedural grounds when there is a bona fide claim to reach another result on the merits.

The case decided yesterday resolved that question based upon precedents that give trial judges wide latitude when a particular kind of procedural mistake is made by a party in a civil case. But, this formalistic resolution, while practical and probably a correct ruling in light of past precedents, is also unsatisfying. What should illuminate the decision?

Why should the response in this case, where there are two active litigation teams, be to award the defense their attorneys fees incurred as a result of the delay and the need to bring a summary judgment motion, and a continuance of the trial date, if desired, rather than a dismissal? Is a procedural default mid-case that is demonstrably remediable really a sound basis for denying relief on the merits to a party?

Also, the equities in this case would be very different if a sworn expert report hadn't been filed in the trial court before a final decision was made by the trial judge who felt compelled by precedent to ignore it. Does a rule that allows a trial judge to ignore a last minute save of this kind really make sense? It is one thing to be a day late and a dollar short. It is another to deliver all the goods a day late.

SEC: Trust Us

Paul S. Atkins, is one of three current members of the Securities and Exchange Commission. The two Democratic seats are vacant. He notes in a Wall Street Journal op-ed column that in the wake of the U.S. Supreme Court's decision in Stoneridge that the SEC can, but has the exclusive right to, bring claims against aiders and abetters of securities fraud.

Basically, his plea is for the public not to worry about the Stoneridge decision because we can trust the SEC to do the right thing much more than trial lawyers for individual securities plaintiffs. He also argues that the SEC should pull its punches even when it brings cases.

The trouble is that his column undermines any reason to trust him, and by association, that SEC which can't act without his vote which is necessary for the three votes it needs to act. This is a clearly anti-securities law member of the commission in a fox guarding the hen house situation. He states:

Although some have called Stoneridge "anti-investor," the Supreme Court's decision actually protects shareholders from creative and unpredictable new ways to extract large settlements, which always include an ample portion for the lawyers.

At issue was whether companies can be held liable in class actions for securities law violations committed by companies with which they do business, the primary violators. Because the law permits private plaintiffs to recover only against primary violators and not secondary violators, the Stoneridge plaintiffs attempted to portray the defendant-companies as primary violators under the theory that they participated in a "scheme" to defraud.

In Stoneridge,the Supreme Court held that investors in one company cannot sue other companies for securities fraud unless those other companies did something that the plaintiffs specifically relied on when making investment decisions. The court warned that if it adopted the plaintiffs' concept of reliance, the "cause of action would reach the whole marketplace in which the issuing company does business." In other words, had Stoneridge gone the other way, plaintiffs would be able to reach into the pockets of customers, vendors and other firms that simply do business with companies that defraud investors.

Regardless, Stoneridge sparked an outcry from those arguing that in the name of "fairness" and "justice" someone should be forced to pay if the primary wrongdoer cannot. This outcry could lead to demands on Congress to rewrite the securities laws to give plaintiffs like those in Stoneridge what they could not get in court -- the ability to reach into a deep pocket regardless of culpability. But justice is not merely finding someone who can pay. Exposing one company to class-action lawsuits because another company defrauded its investors is not fair or just to shareholders who shoulder the burden of class-action settlements.. . . .

The SEC has tremendous leverage to obtain settlements and assert novel bases of liability in court. But the SEC must resist efforts -- internal or external -- to broaden securities laws beyond their existing boundaries, even when those efforts are driven by a desire to see harmed shareholders recompensed. By respecting legal boundaries and not "pushing the envelope," the SEC provides predictability to investors, individuals and companies as to unacceptable conduct.

Atkin's is horribly dishonest about the nature of Plaintiffs' claim here and ends up arguing against a straw man. This is not about "ability to reach into a deep pocket regardless of culpability." Indeed, the U.S. Supreme Court did not argue that the Defendants were not culpable (instead, it suggested that they might be subject to liability by the SEC). What Stoneridge does is insulate parties who have demonstrated culpability from private liability, leaving enforcement to the whims and prejudices of a government agency currently controlled by those who want to coddle those who perpetrate corporate fraud (another key SEC initiative right now is to limit liablity for auditors who engage in securities fraud).

The Plaintiffs sought liability on the basis that parties that had not actually uttered a false statement were nonetheless liable because the have actively and with malice participated in orchestrating a scheme that culminated in the false statement. No one has every asserted that merely due business in the ordinary course with a securities fraud violator is itself a basis for liability. Neither aiding and abetting liability, nor scheme liability, poses any risk to a party who does not have an intent to help defaud the public.

The conservative argument that immunity for private liability for people who can be proven to be engaged in fraudulent activity simply because they aren't the spokesperson for the conspiracy to defraud is good for the economy and for the capital markets is piffle. Accurate information is absolutely essential to the good functioning of the markets, and any sign that the U.S. is backing away from a commitment to stamping out fraud hurts out markets.

Kucinich Out

My radio informs me that Kucinich has withdrawn from the race for the Democratic Presidential nomination in the face of pressure to focus on getting re-elected in his own Congressional district and in light of the fact that he has no realistic chance of getting more than a handful of delegates to the Democratic National Convetion, out of several thousand. This is unexpected, but not very consequential.

This leaves in the race Clinton, Obama, Edwards and Gravel. Gravel's performance in polling and the delegate count is even weaker than Kucinich's -- he is a non-entity in the race whose eventual departure will be largely irrelevant.

Edwards seems unlikely to make it out of third place in South Carolina or really, anywhere else, and hence he is almost certain to not secure a majority of delegates to the Democratic National Convention. His only shot at the presidency is to receive enough delegates to force a brokered convention by denying either Clinton or Obama a majority, and then to emerge as the compromise candidate among the national convention delegates in Denver in August. Needless to say, this is a very long shot, and it isn't clear if he will, as a result, drop out of the race, or will stay in until the Convention.

Clinton and Obama, of course, have vigorous campaigns with a real shot of winning a majority of the delegates at this point, although Clinton is the leader in both national polling and state by state polling aggregated into national totals, at this time.

Kucinich supporters, who make up as much as 4% of the likely primary voter/caucus attendees in some places are probably the least likely to offer their support to Clinton now that Kucinich is out. Obama, Edwards and Gravel will also probably benefit to some extent from Kucinich's withdrawal.

23 January 2008

Unpublished Opinions

Most appellate court decisions in Colorado are unpublished. The decision not to publish several of those cases, on the very face of the caption, in tomorrow's batch of rulings from the Colorado Court of Appeals, seems questionable. Some cases with wide public interest ought to be published even if they don't state profound new legal principles. The cases in question are:

06CA1636 Brenda E. Tibbitts v. Michael Combs and Deborah Combs

A high profile multi-million dollar ex-polygamist case widely covered by the press in previously rulings.

06CA2432 Elton Deville v. Jim Betus, Loveland City Police Department, and City of Loveland

Probably a civil rights case.

06CA2511 Brad Farkas v. City of Boulder, a Colorado home rule city; Frank Bruno, in his official capacity as City Manager; Boulder City Council; Boulder Landmarks Preservation Advisory Board; Scott Woodard; and Mapleton Place LLC

A case of considerable interest to the general public in Boulder.

06CA2651 Aaron Fink v. Senate Majority Fund, a Colorado limited liability company and Office of Administrative Courts

A campaign finance case, a field where almost every case makes new law in some respect because there are so few decided cases. Also, notably, the Colorado Secretary of State doesn't list this as a decided case.

Solving Colorado's Election Crisis

A number of changes to state law (a few of which would also require tweaks in the state constitution or federal law) can be done to solve the problems with how Colorado runs its elections.

They include:

Simplify voter registration and limit bad faith challenges.

* Maintain a statewide voter registration database to prevent multiple registrations for one person in the same state.

* Allow election day voter registration.

* Allow voter registration over the Internet in most cases.

* Presume that anyone who has ever previously been registered to vote in the United States, or has served in the United States military, or has served on a jury in the United States, who registers to vote signing a statement that they are age eighteen or older and a U.S. Citizen, is currently age 18 or older and is a U.S. citizen until proven otherwise.

* Require any challenges to voters who have been registered to vote for at least one year on any basis other than residency or current incarceration in a prison to be filed and served on the person challenged not less than six months prior to the election involved.

* Require challengers to compensate anyone unsuccesfully challenged to compensate the person challenges for the costs, reasonable attorneys' fees, and lost income suffered to rebut the challenge, plus an additional amount equal to compensation for one day as a juror in the state.

* Allow anyone who shows up at a polling place that does not appear to be that person's registered address to vote on a provisional ballot, and then if the polling place is later determined to be the wrong one, invalidate that person's provisional ballot only with regard to those races the person would not have been entitled to vote in had the person appeared at the proper polling place.

* Auomatically send a deregisration notice in the paperwork for new inmates at state prisons.

* Allow parolees to vote, thereby simplifying the process of purging voter lists of felons and reviewing eligibility to vote when processing voter registration. Under this rule, any U.S. citizen resident who can show up at a polling place can legally vote. This also encourages parolees to integrate themselves back into society.

* Limit to a civil fine the penalty for negligently voting when not allowed by law to do so.

Improve mail-in ballot procedures and mandate hybrid elections.

* Send every active registered voter a mail-in ballot in every election, but allow anyone who is shown to have had a ballot sent to them by mail which is not marked as received to vote at the polls without having to present the mail-in ballot allegedly sent to them on election day. Mail ballots received on election day would be held until after the polls are closed and not counted until checked against the list of people who voted in person that day.

* Use envelopes to both deliver and return mail-in ballots that are large enough to eliminate the need to fold the ballot, using multiple pages of ballots if necessary.

* Mandate prepayment of return postage for mail-in ballots.

* Place someone on an inactive voter registration list only if the person has been registered to vote for nine or more years, and (i) the person has not voted any election or particpated in any causus in the last nine years, (ii) mail addressed to the voter at the registered address from election officials has been returned as undeliverable, (iii) a change of address form is filed by the person with the post office, or (iv) an election official has determined that the person no longer resides at the address after physically appearing at the address and obtaining affirmative evidence that the person no longer resides at that address.

Soften the bite of identification and residency requirements.

* Allow alternative options for proving identification other than a state ID or driver's license. Allow voters who have no proof of identification at all to cast provisional ballots then establish their identity after the fact.

* Provide state IDs free of charge to people who do not have driver's licenses and have the identification bureacracy make home calls to provide ID to people who can't easily come to a driver's license bureau.

Accomodate voters with special needs more intelligently.

* Shorten ballots by printing each ballot entirely in a single language, and then allowing voters, when they register to vote (or at any time thereafter) to designate a preferred ballot language. This also has the virtue of making it far less expensive to accomodate non-English speakers who are small in number in a jurisdiction.

* Establish a state office for assisting local governments in translating election documents into languages other than English, for every language in which there are at least 50 requests statewide for a ballot language.

* Allow governments to comply with the ADA for election purposes by allowing them to have at least one ADA compliant location in every county and every state house district where anyone who wishes may vote without an advanced request for accomodations on the same basis that they could if they voted in their precinct.

Certify voting equipment early.

* Require voting equipment to be certified long before the elections in which it will be used.

Shorten the ballot.

* Exclude uncontested races from the ballot to simplify the ballot, even if this means that the write-in option is sacrificed. If there are no ballot issues or contested candidate elections on a given primary or general election day in a particular jurisdiction, cancel that election entirely for the affected precincts and notify voters in those precincts of that fact in advance by postcard.

* Do not allow ballot issues or non-partisan races to appear on the ballot in partisan primary elections.

* Find an alternative to automatic retention elections to determine if judges should be retained in office, a process that requires a massive amount of electoral system energy, while retaining 99% of judges. There are better ways to screen judicial performance that don't impose such as huge burden on the electoral system, such as allowing recall elections from time to time when there is actually a problem with a judge, or requiring some level of dissent (perhaps two people, or one-third of the members) on the committee that votes to recommend or not recommend retention of a judge before an election is held.

* Stop electing the state treasurer, county treasurers, county coroners, and county surveyors, all of whom have ministerial responsibilities amenable to civil service examinations or a merit based interview process, rather than policy making authority. Contrary to the beliefs of the early 20th century progressives, insisting that someone be a politician to hold an office is not a good way to assure that they will be honest and independent.

* Stop electing the members of the University of Colorado Board of Regents and instead find an alternate way to select the members of that Board as we do for similar boards of all other higher educational institutions in the state.

Colorado's Election Crisis

Two weeks from yesterday, Colorado's Republicans and Democrats will hold a caucus to start the selection process for delegates who will select nominees of the major political parties in 2008, and also start the process of nominating candidates for various other federal, state and local offices.

Contrary to all reason, the Colorado Secretary of State, Republican Mike Coffman, set the transition date from county based voter registration data bases to a statewide voter registration database for late December, between two critical dates for certifying voter lists for the caucuses, rather than after January 5, 2008, when the voter lists would have already been certified, or far earlier in the year, when the lists could have been corrected without putting pressure on IT professionals to fix transition problems swiftly. I was one of many people who personally warned election officials that it was likely that there would be problems in this transition.

There were. The chickens have now come home to roost. The party affiliation of voters in the voter registration lists in the statewide database has been corrupted and the data are inaccurate. Voters are not currently in a position to confirm that they are eligible to participate in a political party caucus or confirm that their records have them listed in the precinct where they think they will caucus.

Denver's Particular Problems

Meanwhile, in other breaking news today, Denver's Clerk and Recorder has formally announced her plans to conduct Denver's election in November of 2008, in the wake of Colorado's Secretary of State Mike Coffman's apparently erroneous decision to decertify Denver's voting machines. The plan is as follows:

Denver’s voting model will consist of the following elements, based upon the committee recommendations:

Where will people vote?
o At combined precinct polling places
- Denver has 426 precincts that would be combined into approximately 175 polling locations
o At early voting sites
- Sites would be open for 10 days prior to the August 12, 2008 primary election
- Sites would be open for 15 days prior to the November 4, 2008 general election
o Through mail-in ballots
- Ballots will begin to be mailed 32 days prior to election day
- Mail-in voters may opt to be put on a permanent or election-specific mail ballot list

How will people vote?
o Paper ballots
o Direct Recording Electronic (DRE) touch screen voting machines will be available at each voting location for use by the disabled community, to be in compliance with the federal Help America Vote Act

How will votes be counted?
o Ballots will be counted at a central location on Sequoia 400c central count ballot scanners OR
o Ballots will be counted at the polling place on Sequoia Insight precinct scanners.

The biggest real problems with the clerk and recorder's plan for Denver involve the "where to vote" question and are two-fold.

First, after a disastrous experience moving from traditional local precinct voting to "vote centers" where anyone can vote at any of a number centralized locations in the City, following Larimer County's successful transition to that model (Denver vote center disaster occurred mostly as a result of faulty voter registration confirmation software), the election day system has moved to a worst of both worlds model.

Unlike the traditional precinct voting locations, the new "super-precincts" will often be at places unfamiliar to long time voters. This is driven by the Americans with Disabilities Act. Ironically, rather than helping disabled voters, who are disproportionately elderly, it will hurt them, by forcing many to abandon the familiar voting location patterns they have followed for several decades in many cases.

Lack of familiarity with your voting location is a high stakes matter this year, because unlike elections run under the "voting center" concept, which some voters may incorrectly believe is still in force in 2008, this year with super-precincts if you don't go to the proper location you don't get to vote.

The new super-precincts will also be confusing places on election day. Typically on a Presidential election day large numbers of people only dimly familiar with how voting works as a practical matter because they only vote every four years will throng out the doors of each of the super-precincts. Out of sight inside will be several different precinct voting lines, and in order to vote, voters will need to check in at the right line. Since few voters, especially those who vote infrequently, know their precinct number, the room for confusion and getting in the right sign up location is great.

Thus, super-precincts are a problem waiting to happen, and furthermore, one whose precise difficulties are unlikely to be apparent until election day when it is attempted for the first time in Denver.

Second, while the clerk and recorder's plan calls for voting both on election day and by mail-in ballot, Colorado law does not currently allow for a full fledged hybrid election in that form.

You must either affirmatively request a mail-in ballot (either for this election or by having joined the permanent mail-in ballot list), or you must either early vote or vote on election day. If a mail-in ballot has been requested, Colorado law imposes an elaborate process involving a replacement mail-in ballot if you have lost track of it by election day or never received it.

The Clerk and Recorder cannot under current law simply mail a ballot to every active registered voter, and also allow anyone who wants to do so to vote in a polling place on election day.

The Clerk and Recorder is appropriately concerned about the problems involved in an all-mail ballot.

The requirement of current law that voters provide their own return postage amounts to a small poll tax that can suppress marginal voters. There is also a long history of the elections division incorrectly informing voters or failing to inform voters at all regarding the proper postage for a return envelope. Voters are required to pay their own postage despite the fact that it would actually be cheaper, according to the clerk and recorder, to pre-pay all return envelope postage and get a bulk rate, rather than paying insufficient postage bills on ballots sent in with insufficient postage.

The active voter list is also defined too strictly under existing law. Someone who was discouraged from voting by long lines in 2006, hasn't voted since because they aren't interested in local races, and flicked some postcards sent at a time when no one is thinking about elections anyway into the junk mail pile, is an inactive voter who would not receive a mail-in ballot under current law. While very few responses were received to reactivation postcards, it is also true that very few were returned as undeliverable. A voter who didn't vote in 2006 and hasn't voted since is inactive and won't receive a mail-in ballot without requesting one even if that person is a valid registered voter, the person has not moved, there has been no change of address filed with the post office, and the person voted in the 2004 Presidential election. Eventually, a statewide voter registration database will be a partial solution to that problem, but the benefits will mostly accrue after the 2008 election.

But, this doesn't mean that the current super-precinct solution is a good one.

No one is seriously opposed to voting with paper ballots that are then optically scanned, as planned. The system is easily audited (which makes it hard to fake and easy to recount), makes the intent of the voter clear, and is only slightly more prone to mistakes by voters trying to cast their votes than voting machines. Colorado's long ballots make the old fashioned and less accurate alternative of hand counting ballots impracticable.

But, the City doesn't have nearly enough scanners or space or volunteers to count the massive surge of ballots expected in a Presidential election in a timely fashion, and even the Clerk and Recorder does not appear to have decided if the ballots will be counted locally in the super-precincts, or centrally. Colorado law is unclear about the procedures that apply if paper ballots are counted centrally, rather than at precincts, which leaves open the possibilities of challenges or problems related to the novel approach of counting paper ballots cast of precinct voting places centrally as one does in a mail-in ballot scenario. But, if the City can't afford to put an optical scan reader in all 175 precincts, it has no choice but to count ballots centrally, and it doesn't have the equipment to do a precinct based count with optical scanning machines now, about nine months from when early voting starts in the November election, and just a few months from the August primary election for state and local offices, in which many races will be contested in Denver this year, mostly due to term limits that have created open seats.

There are internal problems for the election division as well. The old Denver election commission was abolished and replaced with an elected clerk and recorder after the disastrous 2006 election (which fortunately probably didn't change the outcome of any races despite the problem because key races weren't close enough for the problems to make a difference). But, the November 2007 election while it didn't have large numbers of discouraged voters (in an off year school board election with no statewide ballot issues), did utterly overwhelm the ability of the election division to count the votes despite the relatively minor scale of the election, cast doubt on the ability of the election division to manage its largely volunteer staff of election judges, and did reveal continuing serious problems with information technology management in connection with the elections.

Denver's Election Division has nine vacancies in its quite small office (about 16 FTE) and is in the midst of a wholesale reorganization. It admits frankly that the office currently lacks the resources to count ballots in a timely manner at this time in a Presidential election with heavy election day voter turnout.

In sum, it is unambiguously clear that the extremely important 2008 Presidential elections in Denver will involve big changes with an untested group of people implementing them. And, this is a warning sign for a high probability of disaster.

Why does this minutiae matter?

All these little details matter because the partisan breakdown of Colorado's elections for President and U.S. Senate are largely a function of turnout in heavily Democratic Denver.

Of course, massive voting machine decertification and state voter registration problems may also screwed up many other counties in the state of varied partisan makeups. But, most small counties in the state have small numbers of experienced voters who have stable lives and whose turnout is very high. Their small scale also permits the election process to be kept simple. And, other large counties also, by and large, have less fickle voters less likely to be tripped up by minor or subtle flaws in the system.

Denver's voters, in contrast, tend to be the least experienced and most fickle in the state. Tens of thousands of Denver voters choose to vote only in Presidential elections, and are easily dissuaded from voting by relatively minor barriers to voting. Relatively few Denver voters request mail-in ballots. Marginal voters are overwhelmingly Democratic leaning. No other county in the state has such a daunting get out the vote challenge or a great need to have a smoothly running easy to use election system.

Colorado has historically been a "purple" state, so the likelihood that the top of the ticket partisan federal races for President and U.S. Senate in Colorado will be close enough for Denver turnout to make a difference is high. The U.S. Senate is closely divided on partisan lines, so Colorado's vote could easily tip the balance of that chamber of Congress. The last two Presidential elections have been decided by razor thin margins, so there is a real possibility that states like Colorado that have been swinging from red to blue across the board, could tip the balances in the Presidential election as well.

In other words, the ability of the Colorado Secretary of State, the Denver Clerk and Recorder, and the Colorado General Assembly (aided or hindered by the veto pen of the Governor) to get their act together to make the 2008 Presidential election run smoothly in Denver, could decide which part rules the critical levers of power in this country for years to come.

Alas, this time around, the seemingly simple ministerial task of running that election is anything but, and securing the smoothly implemented high turnout election which should be a foregone assumption will be anything but. We will be nail biting until the very end this year.

Obama On Kenya

Obama has written a letter to the editor of a Kenyan paper on their current crisis. His words are those of a poised statesman and I'm encouraged by his judgment.

(No, I haven't made up my mind between Clinton and Obama yet. But, I'm continuing to learn more and would be happy with either as a nominee.)

Obama leads in South Carolina polling

A summary of the recent polls, which are quite consistent with each other, shows Obama with a solid first place position in South Carolina, followed by Clinton who in turn has a solid lead over Edwards. The Democratic South Carolina primary is this Saturday and is the last vote that counts before Super Tuesday on February 5. Florida has its primary on January 29, but no delegates will be awarded and the candidates have pledged not to campaign there. All of the major candidates, however, will be on the ballot in Florida, something that wasn't true in Michigan.

A win in South Carolina could give momentum to Obama, who has been lagging in polls in a number of key Super Tuesday states like California and New York. The race might also finish off Edwards who needs a strong showing in South Carolina to be credible.

Chasing A Higher FICO Score

The past weekend, I read a story in the Denver Post about the latest credit scoring formula. Monday night, as is often the case, I had a bout of insomnia, and attended to a number of financial chores that I handle irregularly.

I prepared a family balance sheet based upon the end of year statements from banks, retirement accounts, the mortgage company, and so on, that we had recently received. Then, still not sleepy, I decided to use the Denver Post link to obtain free annual credit reports from the three major credit reporting agencies, a step provides a warning sign to pick up identity theft and an opportunity to catch any mistakes in our credit report.

All three reports contained mistakes. I'm unlikely to correct any of them, however, because none of the mistakes appeared material. They weren't the kinds of mistakes that looked likely to hurt my credit rating.

I also paid to get my credit score from each company. Two of the companies charged me $8 each for the information, while one charged me $6. The total expenditure was $22, something I normally hate doing, but figured was worthwhile given that interest rates have gone mad and might create a refinancing opportunity for my mortgage at some point.

Assigning credit scores is not a science. Equifax uses a scale that goes up to 850 (apparently it hasn't implemented the latest Fair Issacs scoring model yet). TransUnion and Experian used a scale that goes up to 990. None of the agencies gave me the same score, although the TransUnion and Experian scores were quite close. Scores in turn are used to sort you into several general categories (not necessarily equal in number of members). The top three are various grades of "prime" credit (one agency uses words, while the other two use letter grades). The lower categories are gradations of bad credit to which the infamous "subprime" label attaches. It does turn out that all three agencies put me in the same general grade of credit.

Particularly interesting, however, were the explanations for the scores as I didn't receive a "perfect" score (almost no one does). Both of the companies using the newer FICO scoring system had the same four reasons.

Two of the reasons flow my mortgage. FICO's system thinks that it is too small and that too little has been paid down on it. FICO's system is wrong, mostly because it lacks or isn't using, other key pieces of information, which are the value of our home, the amount borrowed initially when we bought our home, and our income. We have refinanced our home about three times since we bought it as interest rates fell (and have been better off in the end for having done so each time dropping the percentage rate several percentage points and getting a fixed rate for the lowest rate with only modest transaction costs each time). Each time, we only refinanced the current balance due and paid for the fees out of pocket, rather than pulling money out of the house. We also didn't buy the most expensive house we could afford, instead opting for a larger down payment.

The FICO system appears to be implicitly assuming that people normally buy the most expensive house that they can afford with very little money down, and that the starting balance of the current mortgage reflects the money initially loaned to buy the house. The FICO system appears to disregard equity accumulated and lending approved for higher principal balances in the past, under previous iterations of someone's mortgage. But, if you refinance you home a number of years into the loan, experience appreciation in your home value over the period after you buy your home, make significant renovations which are financed with debt, or have a larger than minimum down payment, the system appears to assume that you have less equity than you do and hence underestimates your creditworthiness.

Needless to say, I don't plan on borrowing money I don't need, secured by my home to make myself more creditworthy. So this is a flaw that will have to be fixed with others parts of a credit application should I need credit in the future.

The other reason, expressed in a couple of different ways that amount to the same thing, apparently given high importance under the new scheme, is that my monthly credit card balances on the card I use, are fairly close to my total available credit with those creditors. According to the Denver Post, the best approach under the new system is as follows:

• Don't use all your available credit. A good ratio is 25 percent of what you have.
• Don't close accounts you're not using unless you really don't need them. It raises your use-to-limit ratio.

I'm mostly a convenience credit card user. I hate carrying a bulky checkbook in my pocket, I like being able to monitor my spending each month with an itemized statement of my purchases, and we get rewards for spending on the credit card. I avoid using more credit cards than I have to, mostly using just one, so that I don't get the statements confused and have a consolidated record of my spending. But, our spending is fairly stable from month to month, so we've never bothered to ask to have our fairly low credit limit increased because we rarely run up against it.

It turns out, however, that this is quite bad for your FICO score. So today, I made the simple call to the credit card company saying, "hello, I'm a good customer who pays your bill on time, could you please increase my credit limit." Minutes later, they did, and I suspect that my FICO scores have surged as a result.

Credit limits relative to outstanding credit are a bad basis for FICO scores. It is easily manipulated, in just the manner that I just did. It is also injects inherently circular reasoning into the system. Someone who is relying almost exclusively on your FICO score to determine whether or not to grant you credit is using an instrument based in part on their own credit decision. Finally, it is worrisome in that the system injects the prejudices of bank officers involved in setting credit limits for customers, rather than mere payment experience, into decision making tools that are often used in areas far afield from actual credit transactions. For example, FICO scores are used to underwrite insurance policies, a controversial practice with merits on both sides of the argument that the Colorado General Assembly is considering a bill to ban this year.

22 January 2008

Limiting Juvenile Life Imprisonment

The Colorado General Assembly will be considering a bill this session, SB 08-66 that ends life imprisonment for juveniles tried as adults who are convicted of felony murder if they are not participants in the actually killing. Instead, these juveniles would be subject to second degree murder penalties, which involve very long prison sentences, but not life in prison.

Juvenile lifers in Colorado are disproportionately convicted under the felony murder statute.

Quite frankly, the reform proposed by this bill would be appropriate in all felony murder cases, but legislation is an incremental affair, and this very modest measure of mercy for juvenile offenders is a good step to take.

W on the Second Amendment

The Solicitor General's brief in the District of Columbia Second Amendment case sets forth this conservative administration's position on the constitutional bite associated with the Second Amendment. The quote below is from the table of contents of the brief:

A. The Second Amendment protects an individual right to possess firearms, including for purposes unrelated to militia operations
1. The text of the Second Amendment, and its placement within the Bill of Rights, strongly indicate that the Amendment protects an individual right.
2. The Second Amendment’s reference to the necessity of a “well regulated Militia” does not limit the substantive right that the Amendment secures.
B. Like rights conferred by surrounding provisions of the Bill of Rights, the individual right guaranteed by the Second Amendment is subject to reasonable restrictions and important exceptions.
1. Congress has authority to prohibit particular types of firearms, such as machineguns.
2. Congress has substantial authority to ban the private possession of firearms by persons whom Congress deems unfit to keep such weapons.
3. Congress has authority to regulate the manufacture, sale, and flow of firearms in
C. The Court should remand this case to the lower courts to permit them to analyze the constitutionality of the D.C. laws at issue under the proper constitutional inquiry.

Thus, in a nutshell, there is an individual right, but it may be "well regulated." The brief asks for a remand based upon its analysis, effectively punting on the issue of the constitutionality of the District's especially strict municipal ordinances, while establishing a standard that would uphold essentially every federal gun control law as constitutional as a reasonable regulation of the right.

The Mess in Texas

Texas has a serious problem with bad judges these days.

The Case For the Navy

Robert D. Kaplan, writing for the November 2007 edition of The Atlantic, in an article entitled "America's Elegant Decline" makes the case that the U.S. Navy is too small. He argues that "'Regular wars' between major states could be as frequent in the 21st century as they were in the 20th."

I think he's wrong, but it always pays to listen to those who make an intelligent and reasoned case disagreeing with your own views. I'm pressed for time at the moment, but will discuss his analysis and the problems with it, If I can.

21 January 2008


The Kingmakers in the 2008 Presidential race at this juncture are Fred Thompson, Ron Paul, John Edwards, and Rudy Giuliani. None of the four candidates have a realistic chance of winning the Democratic party or Republican Party nominations at this point. But the timing of their decisions to drop out of these races (particuarly in the next few weeks) and in Ron Paul's case, his decision about whether or not he seeks a Libertarian Party nomination, could decisively impact the outcome of the overall Presidential race and the race for the nomination in each of the major parties.

The Democrats

The Democrats had their third primary that counts, in Nevada, over the weekend. Clinton did slightly better than Obama, while Edwards secured just 4% of the state delegates and Kucinich was trounced by uncommitted.

This leaves the score at Iowa Obama-Edwards-Clinton; New Hampshire Clinton-Obama-Edwards; and Nevada Clinton-Obama-Edwards. The only other Democrats still formally in the race of Kucinich and possibly Mike Gravel. Neither has a prayer of winning the nomination, and Kucinich himself, as a superdelegate, is his only spot on the delegate board. In Michigan which had a primary that didn't count where candidats didn't campaign and only Clinton and Kucinich of still in the race candidates were on the ballot, Clinton obviously won, but uncommitted received a healthy minority of the vote.

Next up for the Democrats is the South Carolina primary this Saturday. Polling of that contest shows Clinton and Obama neck and neck for the lead, while Edwards trails well back in third place despite the fact that he was born there. Super Tuesday state and national polling also show Edwards firmly in third place in the race, and unlikely in most cases to make the 15% threshold needed to earn delegates in each Congressional district and states.

Another Democratic primary that doesn't count in the Presidential race will be held in Florida on January 29. Its clouded status makes it a poor forum for Edwards to regain momentum going into the Super Tuesday contest on February 5.

Thus, the race for the Democratic nomination is likely to result in a win for either Clinton or Obama. It is still a horse race, and in South Carolina that race will be mostly about gaining momentum for Super Tuesday, particularly for Obama who is currently, ever so slightly, the underdog in the race.

The bulk of the Democratic delegates will be selected during a period with two dominant, reasonably equally matched candidates, and a proportional representation system with a threshold that eliminates neither lead candidate in any state, but disregards eliminated candidates, mitigates spoiler effects when it comes to obtaining a majority of the delegates. The balance would have to be very fine between Obama and Clinton for the rest of the primary and caucus process for there to be a brokered convention in Denver in August at this point.

A pre-Feb. 5 withdrawal by Edwards, should he be unsuccessful in South Carolina and perhaps also Florida, would probably help Obama, quite possibly enough to tip the balance in his favor by incresing the number of delegates awarded to Obama on Super Tuesday with supporters whose vote otherwise wouldn't count at all due to the effect of the 15% threshold. (This Daily Kos diary has data suggesting that 60-65% of Edwards voters would break for Obama, but that Edwards may help, or at least not hurt, Obama by staying in Southern states with a strong racial divide in voting patterns and large black populations). But Edwards hasn't telegraphed in any way an intent to do so in advance of these last firewalls for his campaign, and Markos has indicated that Daily Kos polling suggest that more Edwards supporters than expected might favor Clinton as a second choice.

The Republicans

Romney secured majority support in Nevada, in large part on the strength of the Mormon vote, followed by Ron Paul with about 14%, McCain with about 13%, Thompson and Huckabee (not necessarily in that order, I don't recall) at about 8%, and Giuliani with a rocking 2% of the vote. McCain's finish deep in third place was a bit embarassing, considering that he hails from neighboring Arizona, even if he didn't campaign too hard there.

In South Carolina, McCain edged out Huckabee 33-30 on the strength of the veteran's vote. Romney and Thompson each got about 12% give or take a point, I don't recall in what order. Giulani got 2%.

The outcome of the earlier Republican races are: Iowa Huckabee-Romney-Thompson-McCain . . . Giuliani; Wyoming Romney (dominant); New Hampshire McCain-Romney-Huckabee-Giuliani; Michigan Romney-McCain . . . . Giuliani.

Polling shows Giuliani in second place far behind McCain in his home state of New York. In Florida, McCain leads Giuliani who leads Huckabee and Romney, but all four men are in a statistical dead heat.

Analysis of these facts, confirmed by the delegate count to date in the Republican race so far, shows McCain, Rommney and Huckabee in a tight contest for the nomination with no close runners up.

Giuliani seems very likely to wash out and is probably losing momentum in Florida in the wake of his poor showings in Nevada and South Carolina as I write. I suspect that Giuliani will withdraw from the race after a disappointing showing in Florida. A pre-Florida withdrawal would help Romney significantly, but seems unlikely. A post-Florida Giuliani withdrawl would help Romney in the Mid-Atlantic states.

Thompson had stated that he would make his stand in South Carolina. His failure to make it into the top two in any race to date, and poor polling on the horizon in Florida could push him out of the race. The likely beneficiaries of a Thompson withdrawal would be Huckabee, first and foremost, and McCain to a lesser extent. A Thompson withdrawal now would likely vault Huckabee into a solid first place in Florida and give Huckabee momentum going into Super Tuesday, while a second or third place showing in Florida behind McCain, would deflate Huckabee's candidacy going into Super Tuesday and quite possibly finish him off on Super Tuesday where he already faces the problem that his popularity is decidedly regional.

So, if Huckabee stays strong, the GOP race will be decidedly a three way race even after Super Tuesday with a brokered convention in Minnesota a strong possibility for the Republicans. But, if Huckabee weakens in Florida, it will likely become a two way race between McCain and Romney with Romney serving as the "anti-McCain."

The General Election

Current polling shows neither Clinton nor Obama with a strong electability edge in head to head races against likely Republican nominees. Both would have tight races against John McCain, and trounce all other likely Republican nominees given current polling. Opinions, of course, can change, something that New Hampshire taught all who are too reliant upon polls.

Turnout was high in Nevada with about 110,000 Democrats to roughly 42,000 Republicans. Democrats also had very strong turnout compared to the Republicans in Iowa and New Hampshire. This is despite the fact that the Republicans have more and more varied choices in their races, and in Iowa, at least, a less time consuming process to participate in. This suggests to me that Republicans are far less excited and mobilized to support their candidates than Democrats.

Democrats also have options to unify themselves at the national convention, such as having the winner name the runner up at VP that aren't nearly so viable for the Republicans. Clinton and Obama don't represent fundamentally different ideological wings of the party, although they do have nuanced of ideological differences. A Clinton-Obama or Obama-Clinton ticket could heal over sour wounds from the primary and caucus process.

In contrast, the Republican candidates represent isolation fragments of their coalition, and makes it hard for them to develop majority coalitions in the general electorate if nominated.

Huckabee's Christian conservatism makes him the darling of the evangelical wing of the party, while his populist stances on economics and granting pardons, and utter ignorance when it comes to foreign policy, makes him a candidate that many Republicans who have a hard time holding their noses to vote in favor of in the general election.

Many of the Republican Party's Evangelicals, in turn, aren't comfortable with a Mormon like Romney, and also don't trust the big money wing of the party that he represents, or his history of flip flopping on issues like abortion and gay rights. New England is not the cultural center of the Republican party.

McCain's willingness to break with his party on campaign finance reform and to buck the President on torture has alienated Republican party purists. McCain's ardent support for the Iraq war won't help him with independent voters once his stances get more attention in a general election fight -- this is the guy who wants to send more troops to Iraq and stay there for 100 years. McCain's support in the Rocky Mountain West, which should be strong, is very soft. And closed primaries in places like California, hurt McCain whose maverick stances and character have impressed independent voters more than partisan ones.

Also looming over the Republicans is the question of Ron Paul. Ron Paul has done decently as a second tier candidate for the Republican nomination but clearly isn't going to win that nomination. But, Paul could spurn Minnesota and come to Denver instead for the Libertarian Party Convention, which would surely nominate him for their ticket. As a fairly strong libertarian candidate, yet not moderate enough socially to win over many Democrats, Paul could easily become the GOP's Ralph Nader in 2008. In a year where even the strongest Republican possible nominee electorally, McCain, is running neck and neck with the possible Democratic nominees, the spoiler effect of a Paul campaign, even if it was modest enough, could tip the balance to the Democrats.

Tim Masters To Go Free

Tim Masters was age 15 when he was arrested for the murder of Peggy Hettrick and is now 35.

Masters will be freed from prison tomorrow after serving 9 1/2 years for a murder he didn’t commit.

Via Jeralyn Merritt writing for Elevated Voices at 5280.com.

The Case

Masters was arrested in 1998 for the 1987 murder. The fact that this murder was a cold case, despite the fact that Masters was identified as a suspect almost immediately, is evidence of the weakness of the case, as is the fact that no new physical evidence or lay testimony appears to have been developed in the meantime. Masters was tried as an adult, convicted and sentenced to life in prison in 1999. The evidence in the underlying case was weak based largely on circumstantial evidence and character evidence. The Rocky states:

He was finally arrested and convicted largely on the basis of a forensic psychologist's conclusions about violent writings and drawings Masters had produced as a teenager - including one the doctor believed amounted to a recreation of the crime.

The conviction was affirmed by the Colorado Court of Appeals (in 2001) and the Colorado Supreme Court (in 2002 in a 4-3 decision) (the following press release by the prosecution followed the affirmance).

This is a classic case in which several features of the criminal justice system: the scrict proof beyond a reasonable doubt standard, limitations on the introduction of propensity and character evidence, limitations on expert testimony with a weak scientific basis, appellate review and the legal duty of the prosecutor to disclose exculpatory evidence should have worked in Masters' favor, but failed to prevent his conviction or vacate it promptly.

Justice Bender's dissenting opinion from the Colorado Supeme Court in that case began:

The majority approves the mass admission of over a thousand pages of the defendant’s writings and drawings, many of which are repulsive and antisocial and others which are a high school student’s routine notebooks, assignments and doodles. Most of these writings and drawings have nothing to do with this grisly murder but instead paint the defendant as a boy obsessed with violence. Although I believe that proof of some of the defendant’s fantasies is admissible, many are not. The sheer volume of the inadmissible evidence so overwhelmed the admissible evidence that the defendant could not have a fair trial.

In my view the majority’s opinion, which admits all of the defendants’ writings and drawings, does great injustice to the purposes of C.R.E. 404(b) and opens doors to impermissible character evidence that previously had been closed. Because there exists a substantial risk that the defendant was convicted not for what he did, but for who he is, I respectfully dissent.

Justice Bender also noted that "The tendency of juries to overvalue other acts evidence is supported by empirical studies."

Masters will be freed after a post-conviction proceeding that unveiled prosecutorial misconduct, mostly in the form of failing to disclosure exculpatory evidence to the Defense. An appeal of a ruling exonorating Masters is unlikely.

Who Did It?

There are other possible suspects whose guilt was not aggressively pursued in the case. The most likely of the suspects are (1) Dr. Richard Hendrick, a surgeon now dead after committing suicide in 1995 while under investigation for a sex offense, and (2) Donald Long (Department of Corrections Profile here), a serial killer who committed several women with similar M.O. while in the area and is now incarcerated for life without possibility parole (in theory there might be a parole date well past any realistic life expectency for him), who was incarcerated shortly after the Hettrick murder at which point the spree of similar killings stopped.

Neither man is a threat to the public now. Hendrick is beyond the criminal justice process. Securing a subsequent conviction for first degree murder and then a death penalty sentence for Long would be expensive and rather unlikely to produce an actual execution given the sketchy evidence in the case, absent a new confession. Also, the fact that there are two strong suspects in the case, and a third suspect who was convicted and then exonerated, would likely create reasonable doubt in any effort to prosecute anyone other than these two suspects.

Now What?

There is no word on what compensation, if any, Masters may receive for his tragic wrongful conviction and incarceration.

The case to get him released established that his constitutional rights were violated by the failure to the prosecution to reveal exculpatory evidence to the defense in a manner that resulted in the wrongful conviction. But, prosecutors have wide immunity from criminal prosecution, the statutes of limitations in civil rights cases are sometimes applied grudgingly, and the recoveries for wrongful convictions in cases in the absence of a successful civil rights suit is often pitiful.

From the Rocky:

Sunday, Masters and his attorneys continued making plans for Tuesday's court hearing. David Wymore and Maria Liu went shopping, picking out slacks, a white dress shirt, a tie and a sport coat, and making arrangements for him to change out of his jail jumpsuit and into the dress clothes before the hearing.

In Buena Vista, where Masters was moved into a secluded unit by Colorado Department of Corrections officials, he was packing, putting the belongings he wanted - including family photographs - in box that will be mailed to him. He's leaving his 13-inch television and coffee pot behind.

"I don't need any of that on the street and I don't need any DOC clothes," he said.

He heads outside owning a '69 Chevy in unknown conditions he owned before he was incarcerated -- he spent eight years as a Navy mechanic before he went to prison, leaving him some skills.

Now, he must rebuild a career for himself, he must rehabilitate his reputation (harmed by the material revealed in the trial and his long experience as a prison inmate, even though he has since been exonerated of the crime itself), and make up for lost time in lost experience, in lost financial standing, and in lost trust and optimism about life. The State of Colorado owes Tim Masters a great deal. What will it do to make good on this moral obligation and correct the harm caused by its own mistakes, some of which were not so innocent?

Other Colorado Juvie Lifers

There are 48 juveniles serving life sentences for crimes allegedly committed as juveniles in Colorado, many based on felony murder charges which amounts to guilt by association with people who commit murder. Masters was one of the youngest at the time the crime was allgedly committed. I assume, but don't know, that Colorado's direct file statute which allows prosecutors to prosecute juveniles as adults without a judge's approval, was an important factor in the adult status of the charges against Masters.