29 August 2008

How Many Americans Are Rich?

About 47,000 people had a net worth of $20 million or more in 2004, the latest available year, according to new estimates by the Internal Revenue Service. . . . the number of people with a net worth between $10 million and $20 million [was] 79,000 people[.]

The IRS estimates that there are 231,000 people with net worths of $5 million to $10,000,000; 247,000 with net worths of $2.5 million to $5,000,000; and 846,000 people with net worths of $2 million to $3.5 million.

In all, there are 1.45 million Americans with a net worth of $2 million or more. The population of the United States is a little over 300 million. So, a net worth of $2 million puts someone in the 99.5th percentile.

Separate IRS data, released earlier this year, showed the nation's top 400 taxpayers by income reported total income of $85.6 billion on their federal income-tax returns for 2005 -- an average of nearly $214 million apiece. Just to make the cutoff to be eligible for this group of 400 required income of at least $100.3 million, up from $74.5 million for 2004.

From here (citing this story).

28 August 2008

Willing To Believe

So, I watched Barack Obama's acceptance speech, and a few other speeches, from Mile High Stadium (the actual process of getting in and getting out deserves a post of its own). Essentially, the event is a very long political advertisement, but it is an effective one. The audience was clearly swing voters who will see the event on television rather than the party loyal who where there. But, it has changed how I think about Obama, for the better.

Today's events really emphasized the extent to which Obama and Biden are positioning themselves as advocated of the working class and middle class in America, reaching out to people who may be inclined to be conservatives with a message that Obama's economic agenda is tailored to their needs. The notion that Obama is more familiar with the life of working people than McCain was driven home repeatedly. Biden likewise positioned himself as an advocate for the working class in a future Obama administration.

Unlike many Democratic Presidential candidates (Kerry, Gore and Dukakis among them), Obama manages to be smart without being cerebral or unemotional. Obama is informed by the views common among Brookings Institute and academic liberals, but makes moral arguments more often than purely rational ones. Obama is also, by far, the most powerful and effective speaker alive today in the Democratic Party, a contrast emphasized, for example, by a far more wooden speech from Al Gore, who came across as intelligent, but struggles to make emotional connections with his audience and grows histronic about problems that are bad enough without taking a "world is coming to an end" prespective on them.

Obama has firmly appropriated both the Clintonian "play by the rules" meme and the Clintonian "legal but rare" stance on abortion. Of a piece with these ideas was a strong empahsis on our mutual responsibility for each other.

Obama has also done an excellent job of appealling at a cultural and emotional level to people who may not have thought of themselves of Democrats in the past, without being crass or obvious about it.

Obama talked a lot about the role of his American grandparents and mother, who are white and from Kansas, noting that his grandfather was a World War II veteran put an American flag in his hand while waxing patriotic, and that his grandmother sacrificed economically for him and worked in war related industries while his grandfather was at war. For example, a passing comment explained that his success in the Illinois legislature was informed by the fact that many members of that body were a lot like his grandparents.

Country music got equal time with rock music. Repeated riffs of "Born in the U..S.A." subtly point out that McCain was not (McCain was a natural born citizen by paternity but born in the Panama Canal Zone).

Perhaps one of the most powerful messages that comes with Biden's selection as Vice President is that he takes the train home to his wife every night from Washington. This messenger as message statement was matched by a real emphasis on Obama's love for his wife and children. The emphasis on both Obama's own biography and that of Biden emphasizes McCain's less than impressive respect for family values in the life that McCain has lived without saying a word.

An emphasis on Obama as a man of faith, and the theme of faith in other speeches, coupled with a tolerant but definitely evangelical preacher from Florida's benediction also wordlessly make the point that McCain's recent claims to be an evangelical Christian are less than convincing. The evening was full of God and Country patriotism, spoken sincerely, along with plenty of biographical background that portrays Obama is a fundamentally decent and service minded person. The repeated mentions of Obama's relatively humble upbringing and long standing commitment to public service, most dramatically illustrated by his decision not to take the high paying jobs available to him as a top Harvard graduate, combined with the thoughtfulness of his oratory, undermine the Obama as rockstar meme.

A very long list of former admirals and generals on the stage in support of Obama spoke more loudly than words could. Also powerful on the foreign affairs front, at an emotional level, were vivid descriptions of how Obama behaved on an official tour of Africa.

A brief mention of Obama running the Harvard Law Review neatly and quietly invited comparison with McCain's miserable academic record in the Naval Academy. One can be comfortable that the disparity between Obama and McCain in brain power will come out in the debates. McCain is far more prone to putting his foot in his mouth than Obama.

Today's also also made a distinction between Obama as a man with the courage of his convictions, even when they are unpopular, which have been proven out by history; in contrast to McCain as a Bush loyalist who has flip flopped to more conservative positions on those few issues where he opposed Bush in the past. For example, while every other speaker was unwilling to discuss anything beyond the safe political territory of renewable energy, Obama took a position, not necessarily popular with all environmentalists, pledging to make progress with "clean coal" and nuclear power as well. Likewise, Obama made several specific proposals to reform a bankruptcy law that Biden recent was instrumental in moving through Congress. Similarly, his voice of support for a reasonable interpretation of the Second Amendment right that still conveys real individual rights, was contrasted with the fact that McCain was, until recently, an enemy of the NRA. Whatever the merits of those positions, it illustrates the fact that Obama is willing to take political risks in support of potentially unpopular ideas.

Indeed, Obama mounted a steady attack, without naming any names or pointing any fingers, on the blogosphere's greatest frustration with the current Democratic party establishment, namely an attitude of defeatism and unwillingness to use the power that they do have to take bold action.

The fact that much of Obama's message was subliminal doesn't make it any less persausive, even when you do consciously pick up on that messaging. Obama effectively did make the case that he was better on the issues, particularly for working class and small business owning conservative voters. But, Obama also strongly made the case that he was a more virtuous man and was more endowed with common sense than his opponent, despite disavowing personal attacks with his words and only attacking personally by implication by emphasizing parts of his biography where McCain is weak. The attacks themselves have been left to be made by others. McCain is a poor cultural fit for many independents and Republicans, and Obama has with measured but unannounced precision taken full advantage of this fact.

I willing to believe that Obama isn't just another politician and is the right man to be our next President, not simply because his is a Democrat with whom I agree more closely on the issues, but because he seems to have both intelligence and a sound moral compass. I'd like to hope that when the campaign is over that most of the nation will agree.

27 August 2008

Winning In Afghanistan

The Taliban are growing stronger in Afghanistan. This is not a good thing. But, this doesn't mean that in order to "win" in Afghanistan that the Taliban must be utterly defeated.

A key complicating factor in the Afghanistan counterinsurgency is that to an even greater degree than in Iraq, we are there in a strictly supporting role to a weak civilian government. So, we can't call all the shots in the way that a genuine occupying army can, despite being treated like an occupying army by insurgents. The upside of this, however, is that unlike an army fighting a traditional counterinsurgency, our primary objective is not the "defeat" the insurgents.

We went to war with the Taliban, simply because they were using their position of power in the country to aid and abet al-Queda by failing to take sufficient action to stop al-Queda. Almost everyone in the world agreed that they were doing a really horrible job of running their country, but that isn't why we went to war with them.

Terrorists and the Taliban are not the same -- the Taliban didn't make any serious effort to pick a fight with the U.S., but they were unable and unwilling to get out of the way fast enough to let a 9-11 enranged world secure vengence against their allies. As long as a government in Afghanistan prevents the country from being desirable as a permanent terrorist planning and training base, it is really none of our business what kind of government ends up in power in Afghanistan.

If Afghanistan doesn't degenerate into anarchy again, creating a terrorist training camp safe zone, and so long as U.S. troops are free to take action against terrorist groups in the area, it really doesn't matter to us if the Taliban insurgency continues for another 30 months or another 30 years. As backward as the Taliban were, they weren't our primary enemy, and now that they are out of power, they are simply an inconvenience that is making it harder for us to leave. Our goal with respect to the Taliban was to deny them the ability to protect terrorists and this mission was accomplished five years ago.

As long as the current regime remains is in good enough shape to continue to deny the Taliban the ability to rule the country, we don't have to "win" the fight against the Taliban, we only have to win the war against the terrorists. When the current regime is strong enough to stay in power on its own, without being propped up militarily, we can leave.

The apparent consensus from intelligence sources, as the media and politicians report it anyway, is that the terrorists long ago fled Afghanistan in favor of tribal areas of Pakistan not under full central government control, and other anarchy ridden parts of the planet. We've mostly won the war against the real terrorist in Afghanistan and are now simply in the business of having some government in place there that is secure enough to keep them from coming back.

The Kosovo Precedent In Georgia and Moldova

Russia, following the U.S. precedent of recognizing the sovereignty of Kosovo over the objections of Russia, is unilaterally recognized the sovereignty of of South Ossetia and Abkhazia on Tuesday, which are autonomous regions within the former Soviet Republic of Georgia.

Russia won a one week war with Georgia over the South Ossetia during the 2008 Olypmic games that extended to Georgia proper. Russia had previously provided military support to the de facto government of the breakaway region for a couple of years or so, and the fighting started when Georgian troops tried to retake control of the region. The U.S. has supported militarily and otherwise the pro-Western government that controls the bulk of Georgia. Georgia was also one of the biggest supporters of the "Coalition of the Willing" supporting the U.S. in Iraq (second only to the U.K. and comprising roughly 43% of the non-English speaking foreign troops) but has withdrawn its 2,000 troops as a result of its recent war at home.

Omniously, Russia is now suggesting similar military action in separatist areas of the former Soviet Republic of Moldova. Russia's ambassador to Moldova has cited Georgia in saber rattling in connection with the Russian supported Moldovan region of Trans-Dniester

[The] Moldovan region of Trans-Dniester, which is mainly populated by Russians and Ukrainians, differed from that of the Caucasus. . . .

Unlike the Georgian regions, neither Trans-Dniester nor the rest of Moldova, whose population is mostly Romanian-speaking, borders Russia.

Trans-Dniester, a long strip of territory on Moldova's eastern border with Ukraine, broke away from Moldova in 1990 and a war between Moldovan forces and separatists in 1992 left 1,500 people dead.

It is not recognized internationally, but is supported by Russia, which has 1,500 troops stationed there to guard weapons storage facilities left by the Soviet military. . . .

[Russia's ambassador] said, "Moldova should draw its own positive conclusions after the conflict in South Ossetia."

"It is simply impossible ... to have Moldova behave in a similar way to Georgia," he said in Russian.

"I believe that (in Moldova) the leaders will use their wisdom ... to not allow such a bloody and catastrophic trend of events" here, he said.

But he added he was glad "there is no intention to escalate the situation in the security zone (a demilitarized area along the Dniester River) and I believe that there shouldn't be any."

Russia's President Medvedev met with Moldova's President Vladimir Voronin on Monday in the Black Sea port of Sochi to discuss Trans-Dniester.

After the meeting, Voronin said the issue would only be solved through negotiations. He said a solution to the conflict will be drafted based on current law that gives Trans-Dniester gives broad autonomy but within Moldova's borders.

Tensions between Russia and Moldova rose when an earlier proposal from Russia was rejected by the Moldovan government.

Georgia and Moldova aren't the only post-Cold War territorial disputes that retain potency.

Ukraine is fiercely divided between its Western and Eastern regions. As I noted in a previous post about their 2007 elections, "the 'blue' regions are overwhelmingly Orthodox and Russian, while the 'yellow' regions are Catholic (outright or Eastern-rite) and anti-Russian. Indeed, some territories - the Donbas and Crimea, for instance - were Russian lands given to Ukraine by Communists." These factions have backed away from talk about division of the country, unilateral succession or civil war that was seriously mulled in 2004 in the heat of a disputed election.

The disputed Transnistrian region of Moldova runs East along the Ukraine's southern boundary from a place starting just east of the approximately boundary between Ukraine's pro-Western West and pro-Russian East. The de facto independent region is ethnically diverse and has roughly the population of Denver proper and has a land area a little smaller than Grand County, Colorado.

Most of Moldova is Romanian speaking, and Romania's desire to strengthen its ties with NATO and the West could help it serve as a patron for Moldova proper among other Western powers in resisting Russian influence. The fact that no country other than Russia has recognized Transistria illustrates how tenuous its power is in this region, particularly while pro-Western forces have the upper hand in the Ukraine, which also feels threatened by Russia's growing expansionist tendencies.

The Caucuses

Russia's assertion of supremacy in Georgia's two autonomous regions seems likely to hold. The locals seem to have no love of Georgia, the regions abut Russia proper, Georgia lacks the military might to challenge the situation, and Georgia's allies aren't willing to risk invoking Russia's nuclear capability. Geographically, Georgia is also capable of continuing as a geographically contiguous functional unit without these two regions. The autonomous region of North Ossetia-Alania (formerly North Ossetia) seems to have found a separate peace with Russia to secure unification with South Ossetia, despite having mixed feelings in the 1990s about continued involvement with Russia, although it may now want to join South Ossetia whose independence Russia has recognized (although South Ossetia might be happy to join North Ossetia and in the same vein join Russia as part of that autonmous Russian region).

Other conflicts in the region are less easily resolved.

The Chechnyians fought a long bloody war to leave Russia that has lulled into a low intensity guerilla war after major combat ceased in 2005, and other caucasian autonomous regions within Russia (like Dagestan, Ingushetia) are also restive. Chechnyia is landlocked which makes independence difficult to sustain unless it manages to secure support from less restive Dagestan. The inclinations of other autonomous Russian regions in the area such as Kalmykia, Karachay-Cherkessia, Kabardino-Balkaria is unclear.

Azerbaijan has issues with autonomous regions similar to Georgia already territorially discontinuous, with an autonomous region loyal to the central government and suffering from an Armenian blockade called Nakhchivan (population roughly 383,000 and area roughly the same as Colorado's Routt County) bordered by Armenia to the north and east, Iran to the south and southwest, and Turkey to the west. Armenia is basically in the same position vis-a-vis Azerbaijan as Russia was with Georgia; Nagorno-Karabakh, along with 7 other districts in Eastern Azerbaijan's southwest, have been occupied by Armenia since the end of the Nagorno-Karabakh War in 1994. As a result of the war, Nakchivan is more ethnically Azerbaijani than it once was, while Nagorno-Karabakh, which now has about 138,000 residents and is also about the size of Colorado's Grand County, has gone from being about 76% Armenia at the end of the Soviet era to being 95% Armenia now.

Turkey and Iran have largely kept aloof from the conflicts in these regions (although some of the restive forces have sought to institute Islamic Republics on the model of Iran and possibly with Iranian support). However, "In 1993 Turkey sealed its border (though not its air links)" with Armenia "after Armenia occupied a chunk of Azerbaijan in a war over Nagorno-Karabakh." (From here, citing The Economist.) But, both of these countries face Kurdish dissent in the general area.

Clean Breaks From Russia

While Estonia, Latvia and Lithuania have made relatively clean breaks from Russia and turned toward the West, which only intermittenly urges respect for the rights of Russian identified people in the country, Belarus has retained strong tied to Russia and could easily reunite with it.

The former Soviet Republics in Asia: Kazakhstan, Kyrgyzstan, Uzbekistan, Turkmenistan, and Tajikistan appear to have no serious territorial disputes and to have largely settled into petty dictatorial regimes on a neo-Soviet model. Their independence does not seem to be threatened by Russia, in part because they are firmly allied with it.

Beyond The Former USSR

Meanwhile, while most of former Yugoslavia has sorted itself out, with Kosovo and Montengro being the most recent seemingly stable resolutions, the former Yugoslavian Republic of Bosnia remains effectively divided between a Serb Republic and a Bosnia-Croat federation, which have de facto independent regimes from each other.

Poland's territorial integrity isn't at issue, but recent Russian diplomatic sparring over Western plans to put air defense systems in the country because they feel they are being caged in by the West, has also raised tensions in the region that could lead to war.

A Grand Bargain?

Could there be a grand bargain to resolve almost all of these disputes, as much as possible by recognizing realities on the ground?

It might begin by allowing the Serb Republic in Bosnia to gain independence from Bosnia and join the rest of Serbia if it wished, in exchange for Russian and Serbian recognition of Kosovo's independence.

The world, including Georgia, would recognize the independence (and freedom to join Russia if they wished) of South Ossetia and Abkhazia.

Ukraine could be split along the lines that already exist politically, with Eastern Ukraine joining Russia as an autonomous republic, and Western Ukraine remaining fully independent and on a fast track to join Western Europe including the E.U. At the same time, Transistria could join Russia as another autonomous Russian Republic (continguous with the split of Ukraine), while Moldova would cede it in exchange for peace and stability.

Belarus, could, if it chose freely to do so, perhaps in a referrendum, join Russia as an autonomous region.

Ingushetia, Chechnyia, and Dagestan could each be granted independence from Russia. And, Armenia could lift its blockage of Azerbaijan in exchange for sovereignty over Nagorno-Karabakh and a thin sliver of land to provide access to the otherwise landlocked enclave, while providing a guarantee of safe passage over its territory from Azerbiajan proper to Nakhchivan.

The deal as a whole could end most of the territorial disputes and military conflicts remaining in Europe in a stable way, and would also make countries like Western Ukraine, rump Georgia, Bosnia, and rump Moldova easier to govern. The deal would also virtually eliminate the terrorism that Russia has had to endure, and generally, would make Russia easier to govern which in turn would reduce the perceived need of Russian leaders to shift to a more authoritarian form of government. From Russia's perspective, the deal as a whole would also be a plus because gaining parts of Ukraine and Moldova back would be a big gain to achieve at the cost of giving up some restive caucasian regions.

Ideally, the deal would also be accompanied by arms control treaties.

Tax Incentives And Charity

Tax incentives impact how much people give to charity, and are stronger among high income people. One of the most thorough empirical studies of the matter estimates quantitatively the sensitivity of charitable giving to tax incentives in the the past several decades.

The researchers estimate (as I read it based on a quick read of the article) that a long term 10% increase in the after tax cost of making a charitable gift with reduce charitable giving by about 7%. A temporary 10% increase in the after tax cost of making a charitable gift, counterintuitively, reduces charitable giving only about 5%.

Lower overall taxes have mixed effects. On one hand, lower marginal tax rates increase the after tax cost of making a tax deductible charitable gift. On the other hand, lower marginal tax rates increase income which tends to increase charitable giving by a portion of the income gain. A permanent 10% increase in anticipated lifetime after tax income tends to increase charitable giving by about 9%.

The research generally supports the notion of the "permanent income hypothesis" which is that people are more responsible to anticipated changes in their lifetime income than they are to their short term incomes. For example, students generally live above their current means because they anticipate earning more when they graduate, and people who perceive themselves as being temporarily underemployed spend more than those who perceive themselves as currently being fully employed.

The study focused on the impact of income taxes, and thus, it is hard to determine how applicable it is to the impact of the estate tax on charitable bequests.

Golden Contracts

A 6th Circuit Court of Appeals decision contains a brief history of gold coin payment clauses in contracts and addressed the convoluted issues of contract law and federal law that determines when they are enforceable.

Rocky Mountain Cooking

“Some people who grew up in high altitude areas think the dip in collapsed cakes was designed as a reservoir for frosting."

Via NewMexiKen.

26 August 2008

Footnote On Wikipedia

Wikipedia covers some topics better than others. I cite it for several manga related terms in my previous post.

One of the reasons that I do so is that while Wikipedia often lacks depth when covering more traditional academic subjects, it is frequently the most euridite, sophisticated and accurate source of information on popular culture, its sub-genres, its archetypes, and its history and influences.

Presumably, this is because people with an interest in popular culture tend to be more comfortable with and reliant upon media like Wikipedia, while more devotees of and commentators upon more traditional academic high culture are either dead, or tend to be older.

A Few Days In August

Everyone else is going crazy about the Democratic National Convention held this year in my hometown.

Why Don't I Care About the DNC?

I'm not sure why the convention is such a big deal, although the physical proximity of so many powerful people is somewhat notable and does make some allowance for security a necessity.

I've never been a huge fan of meeting celebrities in person (why pay to meet a star in person when you can watch one make a better prepared performance for less on the silver screen or your TV), live political oratory (I even prefer to read the State of the Union address the day after in transcript form), empty parliamentary procedure (in real life it is impossible to hold a deliberative democratic meeting with several thousand people or more present), or endless successions of parties (we have fraternities and night clubs for that).

Little of importance will be decided this week by the delegates. The real grass roots Democratic events in Colorado this year took place at the caucuses (in February), the county and multi-county assemblies that followed, and the primaries earlier this month. Elections matter. Conventions don't.

We've know who the Democrats will select to be their nominee, and listened to the concession speeches of each of the other serious candidates, months ago.

Political party platforms produced in the Convention process have less utility than the toilet paper used by their drafters while they are being written. The ad hoc candidate political promises crafted in smoke filled rooms and proclaimed in stump speeches and on candidate websites matter far more.

Speeches at the convention rarely proclaim anything that the politician or quasi-politician making it hasn't revealed at fundraisers, rubber chicken dinners, and legislative speeches, dozens of times before the convention.

Most party housekeeping chores at the convention have been crafted by obscure people on more obscure committees long in advance and will simply be ratified this week. Those that are not pre-ordained defer, appropriately, to the wishes of our nominee.

The really important event of the week, the selection of a Vice Presidential nominee for the Democrats, Joe Biden, happened by text message and rumors leak before the convention even started, with no grass roots input. This choice deserves its own post, but unless you are from Delaware, the Vice Presidential pick doesn't add much to the festivities. Exciting is not an adjective one strongly associates with Biden.

Of course, unlike me, lots of people involved in politics love parties and find the convention to be a rare and invaluable opportunity to network with people they have few other national opportunities to meet. The convention also reminds Democrats how much they have in common, building unity after a bruising primary season. But, honestly, political conventions themselves aren't any more meaningful in the United States than they are in China or were in the Soviet Union. If anything, they matter less.

One could produce the same formal political outputs as the conventions do without holding a convention at all, except in the very rare circumstance where there are multiple candidates who can win, or the departure from the race of the leading candidate after he or she has won the nomination.


I find the notion of "Recreate '68" ironic. The reforms instituted at that convention are what have made all subsequent ones little more than politically irrelevant eat desert first (and twice) coronations, while we actually anoint a new leader many months later is a typically less elaborate event in January of the following year.

The number of protesters has been about 2-3% of what security and protest planners had predicted, the rhetoric at the big protest concert is scarcely different from that heard in committee meetings inside the convention perimeter, and the hundred or so folks who have been arrested so far seem to be mostly folks who put "get arrested at a political protest" on their summer to do list, along with an inevitable sprinkling of innocent bystanders in the wrong place at the wrong time (like one of the librarians I recently heard retelling her experience).

As I privately told many people well in advance, I didn't expect the protests to amount to much because (1) the Democratic party is firmly in favor of withdrawing from Iraq (a position even John McCain has little choice but to adopt given a strong sentiment of the allegedly legitimate government in Iraq to be rid of us), (2) there isn't a draft, (3) politically interested adults age 18-21 can now vote, and (4) national political party conventions are politically irrelevant, since all the important decisions are made in advance either by the political campaigns or by the voters. There is, and always will be a generation gap, but this time around, the political leader favored by the young is at the podium, not leading angry crowds in the parking lot.

Life Goes On

Anyway, every now and then I have a weekend where I don't go into the office. With everyone else crazed about Democratic National Convention event planning, this was one of those weeks when it paid to stay away.

With my daughter, I bought shoes for cross country, and lightly supervised her latest spur of the minute initiative, almond biscotti (yum). With my son, I bought football cleats and tossed a pigskin for a while (not that I have wisdom to offer on that front, I never even played football in gym). With my wife . . . wait a second, this is a work safe, family friendly blog.

Everyone (except the cat, who prefers napping, and the fish, who prefers swimming) has found time to read. The Olympics went out with a wimper. Hey, after women's beach volley ball is over, what's the point anyway? (I suppose that there are platform diving and gymnastics, but those athletes are all jail bait.) Our television, which is on its death bed, is likely to follow soon after, and we are in no rush to replace it.

My law partner's dog Turk, with whom I'd become well acquainted, passed at a ripe old age in dog years.

For some reason, interest in cultural currents from Japan has overtaken our family. My son is a stalwart devotee of Pokemon, as are several other boys at his school. I've recently become hooked on anime and manga, mostly shojo manga (some more properly called josei or yuri) and their English language imitators. My dear wife has meanwhile sought to bring our children an Americanized version of the Japanese Bento Box for lunch. My daughter seems to have resisted Japanese cultural influences, perhaps due to a inoculation of Hello Kitty earlier in her life, but who knows how the world will turn.

It isn't that politics, at every level, doesn't have a place. Last week, the Democratic Party of Denver discussed a budget for another year, preparing to soldier away for another year. Today, I cast my ballot for the Board of Directors of the American Humanist Association, of which I am a member (their ballot, unlike those of corporate America, offers multiple choices and enough information about each candidate to make some semblance of a meaningful choice, even if a nominating committee ultimately controls whom you may vote for in that process). People are busy organizing for the small number of close races in the 2008 general election, which are very important, and for the myriad ballot initiatives we will have to consider in the fall.

But, sometimes the personal isn't political. A few days in August is as good of a time as any to collect and recenter, to meditate and to sharpen the saw. In my humble opinion, the academics and the Jews have it right, by choosing to start the year in early September, give or take a week or two. It is time to make new beginnings and to decide how to begin anew.

25 August 2008

Anime, Copyright and Economics

An interesting law review Note examines the tendency for high quality uncompensated fan dubbing of anime (i.e. Japanese animation films) to lead to the commercial failure of poorly dubbed anime which are licensed. The Note asks if there is a room for considering the unlicensed fan dubbing to be fair use.

The issue is a variant on a related issue, which is copyright liability for translations when the owner of the original work refuses to make a timely translation of the work into the translator's language. Some countries provide express exemptions from liability or mandatory license regimes to address this issue. Essentially, what fandubbers are doing in the cases discussed by the Note, is the same thing, to the extent that the commercial translation is too shoddy to capture the original work.

The article is also a good example of the power of the Internet (which is a typical means of distributing fan dubbed work) to coordinate and harness uncompensated work for which the Linux operating system, wikipedia, the blogopshere, and web fiction (partiuclar webcomics, often in the Japanese manga tradition) are other important examples.

22 August 2008

Gary Wall Case Update

I previously noted that Routt Count, Colorado (home to Steamboat Springs) Sheriff Gary Wall, a Democrat, was facing DUI charges and putting up an unprecedented defense effort. The Steamboat Pilot has collected their stories on the case at their website. Routt County has about 20,000 permanent residents, but like most resort communities in Colorado, has a far larger population during ski season.

A July 17, 2008 report stated that, after three days of trial and jury deliberations that:

Routt County Sheriff Gary Wall was found guilty of driving while ability impaired, failure to dim his headlights and prohibited use of a weapon Wednesday in Routt County Court, where a six-member jury rendered its verdict after a three-day trial.

DWAI is a lesser charge than driving under the influence of alcohol, a charge Wall faced after an incident Oct. 27, 2007, when a Colorado State Patrol trooper pulled Wall over at U.S. Highway 40 and Walton Creek Road for failure to dim his headlights. The sheriff was subsequently charged with that traffic violation, the weapons violation and suspicion of DUI. It is against the law to be in possession of a firearm while under the influence of alcohol.

For the DWAI conviction, Wall faces maximum penalties of up to 180 days imprisonment, a fine of up to $500 and as many as 48 hours of community service, according to state law.

Had Wall been convicted of DUI, he would have faced a one-year suspension of his driver’s license — on top of the yearlong revocation he received for refusing any tests of his blood alcohol level that night. He also would have faced penalties of up to a year imprisonment, a fine of up to $1,000 and as many as 96 hours of community service. . . .

The DWAI and failure to dim headlights convictions are traffic misdemeanors. Failure to dim carries a maximum fine of up to $100. The prohibited use of a weapon conviction is a Class 2 misdemeanor and carries maximum penalties of 18 months imprisonment, $5,000, or both.

A hearing to determine Wall’s penalties has not been set. Williams said he wants Wall to complete an alcohol evaluation before that hearing.

Asked whether he would appeal or take any other action in the wake of Wednesday’s verdict, Wall said “I’m going to have some things to say” and “I have some issues that we’re going to address.”

He said he is not considering resignation.

“Absolutely not. There’s no chance of that happening,” Wall said. “As a matter of fact, the chances are, if my health is good, I’m going to run for re-election to continue what I’ve accomplished.”

Wall was elected to a four-year term in November 2006.

Days after the traffic stop in October 2007, a state official said Wall’s citations would not hinder the sheriff’s peace officer certification, which then was pending.

John Kammerzell, director of the state’s Peace Officer Standards and Training Board, said only felonies and a few select misdemeanors can jeopardize an officer’s POST certification. Wall cannot be removed from office except through a recall election.

I haven't found any source indicating when sentencing will take place. A little more than a month has elapsed since the trial, and misdemeanor cases are generally placed on quicker dockets than felony cases, although, of course, this case is special because it involves a sitting county sheriff.

I am surprised that it is so hard to revoke an officer's POST certification.

Wall claimed that he "drank only one glass of red wine at the Steamboat Springs Chamber Resort Association centennial celebration he was returning home from that night," but refused to answer questions from the law enforcement officers on the scene, and refused to take a blood alcohol test. Wall claimed he thought that law enforcement officers were trying to frame him. While these are good lessons for someone trying to mitigate their losses when facing a DUI charge, they don't speak well of Wall's respect for the integrity of law enforcement or his own integrity.

Wall's driver's license was revoked for a year because he refused to submit to a Breathalyzer test, an administrative decision upheld on administrative appeal.

A Routt County deputy who testified against his boss at the trial felt compelled to resign from his job afterwards.

As in independent elected official, a sheriff in Colorado has great control over his office, but must receive budget authority from the elected county commissioners, who have feuded with Wall, and cannot prosecute cases without the concurrence of the elected district attorney. One source of tension has been his vocal opposition to the war on drugs.

In periods where the sheriff is incapacitated or unable to act, the county coroner serves as acting sheriff in Colorado.

Abusive Lying Cops Kept Away From DNC

Two Denver police implicated in an unjustified violent assault on a 58 year old bicyclist (who also happens to be married to a newspaper op-ed writer) and then lying about it in court, lies revealed in a videotape, have been assigned to duties away from the Democratic National Convention by the Denver Police Department. One is on desk duty. The other is in an "alternate assignment."

Previous coverage of the story at this blog is found here.

Let's hope that the news about this case continues to be good.

What Helps Kids Deal With Traumatic Events?

Evidence indicates that individual and group cognitive-behavioral therapy reduces symptoms of PTSD, depression, anxiety and related behavior problems in traumatized children and adolescents . . . . Cognitive-behavioral techniques include discussing or writing about traumatic experiences, learning relaxation techniques and replacing paralyzing fears with more realistic assessments. Weekly sessions can extend over one to three months.

[There is] insufficient evidence to recommend any of five other treatment approaches — play therapy, art therapy, drug therapy, psychodynamic therapy or psychological debriefing.

Play therapy and art therapy encourage youngsters to express and control traumatic experiences through these activities. Drug therapy typically prescribes antidepressant or anti-anxiety medication to young trauma victims who have PTSD. Psychodynamic therapy focuses on understanding and changing unconscious reactions to traumatic events. Debriefing consists of group discussions and education conducted one to three days after a traumatic event. . . .

Researchers should also examine social interventions . . . . Disrupted social networks in the wake of disasters powerfully provoke psychological problems in children . . . Social interventions include providing family reunification services, restarting formal or informal schooling, creating group activities for isolated children and recruiting teens for relief efforts.

From here.

Eye-movement desensitization reprogramming, a controversial trauma treatment, which includes cognitive-behavioral therapy elements, does not appear to offer any benefits compared to ordinary cognitive-behavioral therapy.


After a child or teen experiences trauma, the child should, probably with professional assistance individually or in groups, in weekly sessions over one to three months, discuss or write about traumatic experiences, learn relaxation techniques and learn to replace paralyzing fears with more realistic assessments. Also, one should reunify families, restart formal or informal schooling, create group activities for isolated children and recruit teens for relief efforts.

The cited article doesn't mention the fact, but it also bears noting that some kids are genetically predisposed to deal reasonably well with traumatic events, while other kids are genetically predisposed to be psychologically crushed by traumatic events.

21 August 2008

I'm bitchy. Who knew?

I have it on good authority from the Internet, here, and here, that I am bitchy. And, if it's on the Internet it must be true. Who knew? (Honestly, in context, it was all said in good fun, and I don't take offense.)

Another Internet source, however, concludes that I am merely 45% bitchy. But the second source, surprisingly, reveals that I am also a woman. You learn new things every day on the Internet.

You Are 45% Bitchy

Generally, you're an average woman, with average moods. But sometimes... well, watch out!

Sometimes, you let your mean side get the better of you. And you enjoy every minute of it.

20 August 2008

Denver Police Paranoid

If a report today at Time magazine's blog is right, the Denver Police Department has made it official city policy to treat as suspicious of all sorts of ordinary items, like bricks delivered to construction projects, bicycles and maps, in the run up to the Democratic National Convention.

It is time for Mayor Hickenlooper to get on the phone with the Manager of Public Safety and explain to him how stupid he is making our city's finest look. This kind of security theater does not enhance public confidence in the security measures being taken. Instead, it suggests that police are utterly incapable of distinguishing between harmless people going about their daily business, and people who are about to commit violent violations of the law. This kind of stupidity emboldens and provokes anyone who would want to carry out the kinds of violent protests the city is allegedly trying to forestall.

In Astronomy, Size Matters

We observe, in astronomy, a far narrower range of phemonena that fundamental physical theories suggest are possible, and even likely. In many of these, scale, is a critical factor.

Science News notes that:

The heftiest black holes are up to billions of times the mass of the sun and lie at the heart of almost all galaxies. The least massive black holes, which are about 10 times the mass of the sun, form when massive stars blow up in supernova explosions. Mid-sized black holes are thought to form when small black holes sink to the center of a globular cluster and acquire mass.

But, to date, no one has been able to find those mid-scale black holes.

The most recent efforts of astronomers to locate a medium sized one "weighing thousands of times more than the sun" in the places where theory predicts that one might be located, was a bust, revealing only a small black hole. The odd absence of medium sized black holes is not the only interesting size related fact in the science of galaxies and black holes.

Nothing in the theory of general relativity itself compels this result.

As a previous post at this blog noted, the size of the larger black holes is also far from random. The bluges at the core of galaxies are always "500 times as massive as the giant black holes at the hub of their galaxies."

Current theory also provides (in accord with empirical evidence) that "no black hole can become heavier than about 3 billion times the mass of the sun." This also, by implication, places a cap on the maximum size of a galaxy.

Inferred dark matter distributions in galaxies are also exceedingly regular, and can be described with great accuracy empirically by a very simple formula (a modification of the formula for gravity) developed by Milgrom in his MOND theory. No one claims that the simple formula itself is universal or that gravity really works just that way. The simple formula is not relativistic and does not generalize to galactic clusters. But the fact that effect of dark matter distributions in almost every galaxy can be described to fine level of detail with a formula just a couple of lines long is remarkable. There is nothing obvious about the leading cold dark matter theory currently used to explain this phenomena that says that this must be true.

Furthermore "the modern-day universe consists mainly of two galaxy types—young-looking, disk-shaped spirals like the Milky Way, and elderly, football-shaped ellipticals. Ellipticals have a reddish tinge—an indication that they are old and finished forming stars long ago—while spirals have a bluish tinge, a sign of recent star formation. . . . 'red and dead' ellipticals nearly always tip the scales at masses greater than the Milky Way, while the star-forming spirals fall below that weight." This division has existed, at least, for half of the age of the universe.

This suggests, interestingly, that galaxy shape may be a function of central black hole size. While there is nothing terribly astounding about a link between size and shape in physics, there is no obvious reason that there should be two distinct clusters of size and shape in galaxy size either.

Post Script

Gravity is the dominant one of the four fundamental forces believed to be at play in the phenomena observed by astronomers. The inability of gravity as described in the theory of general relativity to explain the behavior of visible matter is also central to the two great unexplained cosmological phenomena, dark matter, the leading form of which requires a particle not yet disovered by quantum physicists, and dark energy.

Gravity and the related notion of inertia are also associated with the only two particles in the standard model of particle physics, the Higgs boson and the graviton, which are predicted but have not yet been discovered.

Gravity is the only fundamental force for which there is no established quantum description. General relativity and quantum mechanics, while both exceedingly accurate and functional in the domains where they are commonly used, are theoretically inconsistent. The biggest question in quantum mechanics today is how to integrate gravity with the rest of quantum mechanics to create a theory of everything.

One of the biggest "problems" with the standard model of particle physics is that it has large numbers of constants in it that seem to follow some general principles but have no theoretical explanation. Most of those constants are particle masses. Mass, of course, is the property of a particle which describes how it is influenced by gravity and inertia.

Some of science's greatest insights on the nature of time and space themselves are derived from the theory of general relativity, which is also the most accurate known description of the force of gravity.

The gravitational constant is the least accurately known of the fundamental physical constants.

When one starts to look at the major unsolved questions in fundamental physics, all roads lead to gravity. It seems likely to me that all of these questions have a common solution. With the amount of great minds and massive sums of money devoted to solving these questions, we may even find this solution in my lifetime, or at least, in the lifetime of my children. This insight will not be the "end of science," but it may be the end of fundamental physics.

Colorado Divorce Law Feedback And Analysis

My post on Improving Colorado Divorce Law last Saturday has received nine comments as I write this post, corroborating my first two sentences in that post that:

Probably no area of Colorado law produces more dissatisfaction with the judicial process than domestic relations law. A large share of active online critics of judges and the courts have had unhappy family law experiences.

One pitched products on how to tell your children above divorce. The other eight share in common a profound rage at participants in the process (and not just, or mostly the ex-spouse), a deep sense of having been wronged by the system, and a profound sense that the system is unfair, to them and to others similarly situated.

Almost all of these critics, and they are typical of the far more that I have heard from over the years, have personalized their grievances with the system by attributing it to unethical conduct by individuals involved in the process. As Dale Kim Thorup summed up the point of many who are fervently unhappy with the current system, "it's the other 98% that ruin it for the 2% of honest lawyers, magistrates, and judges in Colorado and across the Country."

Parenting disputes are the focus of these complaints, although concerns about biases in financial matters (particularly maintenance awards) and concerns about how the contempt power is used in these cases also draws concerns.

It is, indeed, easy to personalize these grievances. While divorce isn't the heart of my practice, over the years, I've represented clients in divorce courts before many of the judges who handle divorces in the state (first, on the Western Slope, and later on the Front Range). Many judges in domestic cases do approach their cases with a demeanor that can be interpreted as biased or lacking respect for due process. There is a meaningful gap between how it seems as if the system should work in the statute books, and how it plays out in courts. Few judges are really good at handling domestic cases.

Nonetheless, my focus is on process and not on personnel. Part of this focus is practical. Removing a judge in Colorado is a difficult thing. It happens. Often, it happens quietly with no formal assignment of blame, as a judge retires before retirement age while facing institutional pressure to do so. In rare cases, a judge is removed from office. But, the vast majority of district court judges in Colorado, who hold the power in this area of law, are lifetime appointees for all intents and purposes. Even a substantial increase in the rigor in which judicial retention evaluations are conducted is unlikely to more than marginally change this fact.

The other part of this focus comes from the fact that concerns about the professionalism by the officials who make or influence decisions in the divorce process, expressed almost uniformly by a very vocal minority about a large share of the professional officials involved, and heartfelt by a large number of people who keep silent, are so widespread. Outside of the domestic relations context, it is rare for people to have so strong feelings about so many judges and judicial officials.

For example, consider U.S. District Court for the District of Colorado Judge Nottingham, who is well known for his unconventional approach to handling his docket, with strict standards of litigants, and hearings at inconvenient times used to punish litigants who seem to be acting unreasonably for instance. Before he gained national notoriety for alleged indiscretions in his personal life, it was certainly widely known among court watchers that he handled his courtroom in an unusual way. But, while some litigants have felt aggrieved by this approach, at least as many have greatly respected him for running a tight ship.

In contrast, it isn't uncommon for beneficiaries of the rulings of judges whom some litigants criticize for being biased to be almost embarrassed at their good fortune. Certainly, often, litigants in domestic relations cases who receive favorable rulings sometimes feel elated, vindicated and protected. But, even then, the feelings are often personalized to the judge, rather than being attributed to the system. The strong tendency to personalize, in both positive and negative ways in domestic relations cases isn't limited to unrepresented people (who make up an unusually large share of domestic relations litigants), either.

Ordinary criminal cases, and non-domestic civil cases, particularly those that don't involve civil rights, rarely elicit such strong personal reactions to the judge presiding. Sure, incarcerated individuals do make up the lion's share of people making formal grievance complaints about judges and seeking extraordinary review of court rulings against them. But, being incarcerated, they often have extraordinary amounts of time on their hands, face extreme boredom if they don't find some purpose for themselves, and have nothing to lose.

Trial court judges in Colorado, at least in urban areas, typically have rotating dockets. They spend a year or so at a time handling a certain kind of cases. A judge typically spends a year or two handling domestic cases, then the next year or two may handle civil cases or criminal cases instead. The fact that the very same judges who elicit only modest complaint about their professionalism when in civil or criminal assignments often are targets of immense outpourings of vitriol on domestic dockets, suggests something about the nature of the problem.

Even if a significant number of domestic relations judges do indeed, on occasion, act in ways that create an appearance of bias or disregard for due process, these judges don't start out that way. And, the problem isn't limited to judges. Child and family investigators, who often act in a quasi-judicial role with regard to parenting issues, are targets of the same concerns. The current structure of the system sets up decision makers to be in bad positions that open them up to this kind of criticism, or pressure/tempt them into acting in ways that can be perceived badly.

As I pointed out in my previous post, one of the reasons that decision makers appear biased is because they are forced to be biased. Many of the legal standards that the law demands that they apply, particularly those relevant to parenting and to maintenance, are inherently subjective. When one applies a subjective legal standard, one must by definition express a point of view on that subjective question which reveals a personal bias in favor of one view of the meaning of the relevant legal standard, and against another view of that standard's meaning. The considerable discretion afforded judges in these cases moreover keeps appellate courts from meaningfully intervening in resolving differences between judges regarding how these subjective legal standards are applied.

The only area of the law where a judge, acting alone, has comparable unfettered and ill guided discretion is state court criminal sentencing, and even there, sentence grading by offense, wider consensus on what constitute aggravating and mitigating factors, prosecutorial recommendations, presentence reports, and norms that favor middle range sentences in ordinary cases, leave judges with options that appear more impartial in most cases.

In contrast, the "best interests of the child" has a very different meaning as applied, on a consistent basis, before different judges and CFIs. To a great extent, the differences arise from the personal views of those individuals about what is in the best interests of children. The layman's way to describe those differences is to say that the individual involved is biased. Yet, judges and CFIs have an imperative to make decisions when the parties can't agree. And, litigants, naturally enough, are very unhappy when they end up having their cases handled by an official whose views make an unfavorable result for that litigant more likely than it would be before some other official in the same job.

Also, when judges and CFIs have little clear binding legal authority with which to justify their application of a vacuous legal standard like the "best interests of the child" to a particular set of facts, respect for their decision tends to be undermined. The very, very best judges and CFIs can craft such a convincing statement of the facts in some clear cases, that the facts do seem to compel a particular outcome, but in the mill run of more ordinary cases, these rulings can have a ipse dixit flavor.

The French, who have never had a civil jury system, have a saying that a single judge is an unjust judge. There, serious civil matters are generally tried to a panel of judges, just as appellate cases are in the United States.

Historically, in the U.S., most serious litigated cases were resolved by a jury, with the judge simply serving as an umpire over the proceedings. So the concerns about having individual judges as sole decision makers in important matters isn't so deep rooted in American jurisprudence. But, domestic relations law, which has been one of the fastest growing parts of the court docket over the last generation, has dramatically expanded the scope of cases where no jury is available and a single judge makes key decisions unilaterally. So, unlike other areas of the law where there is wide decision with few guiding principles, like the award of non-economic damages in tort cases, in domestic cases there is both wide discretion and decision making by a single, repeat player, decision maker.

Moreover, typically, in U.S. practice, a judge stays with a case permanently. Even if an appellate court reverses a trial court's decision for an abuse of discretion in a case, and even if a divorce is concluded and the matter returns to court years later in a post-decree dispute, the judge is extremely likely to be the same, barring retirement of the judge in the ordinary course. This rule make a certain amount of sense (although, I have my doubts about it), in civil or criminal cases arising out of a single set of facts.

Keeping the same judge on the same case forever makes less sense in domestic relations cases, which typically involve not only the facts present when the divorce or initial parenting decision is made, but also a decade or so of new litigations based upon new facts, in post-decree litigation that arises when parties can't agree on how to handle changing circumstances as children grow up. This amplifies the impact of having a single decision maker with broad discretion at any given point in the case, considerably, which provides a continuous slow burn of fury to a litigant who feels that the decision maker is a bad one.

In contrast, two parties who have repeated civil disputed arising from separate incidents, or individuals who face multiple criminal charges over a period of years, can usually except to have a different random draw of judges for each incident, minimizing the risks associated with any one decision maker in one of those incidents being biased against a party.

To the extent that it is impossible to remove broad discretion from an issue like parenting, the solutions, it seems, may be, in addition to favoring an inquisitorial process and a move away from finality in decision making, that I discussed in my previous post, to also:

(1) favor group decision making, perhaps by a panel of three judges in non-emergency cases, with one serving as a primary investigator on a case, but the concurrence of a majority required to render judgment, rather than having these serious matters decided by lone individuals,

(2) allow litigants more of a say in choosing a decision maker (perhaps with a single peremptory challenge of a judge, present in some states, similar to the peremptory challenges of jurors available in every state),

(3) consider having non-judicial groups such some sort of a "family council" made up of relatives and/or family friends or community members respected by all parties, serve in appropriate cases as a supervisory body over the care of wards of the court, as they do in some civil law jurisdictions for minors and protected persons in certain cases, rather than repeat players who are judicial system officials make all decisions, and

(4) make it the norm to remove decision makers who are found to have abused their discretion in a particular case from that case in further proceedings.

19 August 2008

Three Cheers For Haddon/Foreman

My professional colleagues at Haddon, Morgan, Mueller, Jordan, Mackey and Foreman, P.C., whose offices are just down the street, is a law firm that does primarily criminal defense work. It has two things that are the envy of every other law firm in the state.

First, they are the only law firm of which I am aware that has a firm flag.

Second, they have a swimming pool.

My firm, alas, has neither of these things.

What I really want to know is, do they have a flag bearer to carry the firm flag with them into court? Maybe that's what their associates do.

(Inspired by the announcement that Suanna Wasito Tifickjian (and I think I've got it bad) and Jason Middleton, have joined Haddon/Foreman as associate attorneys.)

Michael Phelps Killed My Television

In order to watch Michael Phelps, the greatest swimmer in the history of the world, win gold medals and break world records at the Olympics, I brought my television (usually reserved for watching DVDs) up from the depths of my basement where reception is dismal, to my upstairs living room with a better direct line to the TV towers on Table Mountain.

Alas, the trauma of the move apparently did some damage. The monsterous fourteen year old cathode ray tube television set did not appreciate being brought upstairs. Or, perhaps it was traumatized during the opening night storm without its usual surge protector. Either way, the widget that projects red light onto the circle in the middle of the screen, where it mixes with two other colors to produce pleasing reds and flesh tones, decided to die. Now, people of all races and ethnicities in the middle of the screen are popsicle purple, and all things red are blue.

Clearly, this is Michael Phelps' fault. He was the cause of all of this, after all.

Now, I am a reasonable man. I wouldn't dream of suing. He won the medals and broke the records and that should count for something. But, the world needs to know the truth. I'll bet I'm not the only one.

Amendment Of Key Federal Rules Underway

Amendments to Federal Rules of Civil Procedure 26 and 56 have been proposed.

The FRCP 26 amendment would alter the way certain expert witness disclosures are conducted, and would clarify the scope of work product privilege when expert witnesses are retained.

The FRCP 56 amendments would require parties moving for summary judgment to itemize the facts that they believe to be undisputed, and for parties resisting the motion for summary judgment to separately state which factual allegations, if any, are disputed (in a manner similar to a complaint and answer). These comparisons of the facts would be made separately from the briefs. Local rules require these statements already in some jurisdictions.

At first glance, my diagnosis is "mostly harmless."

My biggest concern is that the changes to FRCP 56 would encourage diliatory quibbling over disputed facts and would elevate the amount of wordsmithing that goes into such motions, with the net result that fewer motions for summary judgment would be granted when they are actually appropriate. It also seems to encourage parties to recant previously established agreements on facts when their relevance to a motion for summary judgment becomes clear.

18 August 2008

In By A Coup, Out By A Coup

Pakistani dictator Pervez Musharraf has resigned in the face of impending impeachment proceedings and his loss of support from the military. Musharraf took power in a military coup. A brief recap of the relevant history is here.

Notably, the act which undermined his credibility in the end was the arbitrary removal of a national supreme court justice.

NYT on Rejected Offers

Earlier this month, the New York Times published an article on trial verdicts in civil litigation where there are rejected settlement offers. The results were as follows:

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The vast majority of cases do settle — from 80 to 92 percent by some estimates . . . and there is no way to know whether either side in those cases could have done better at trial. . . the findings [are] based on a study of 2,054 cases that went to trial from 2002 to 2005 . . . .

On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.

“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial . . . .

The study’s authors have analyzed some data from New York and, after a review of 554 state court trials in 2005, have found parties to lawsuits making the wrong decision at comparable rates. . . .

As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent. . . .

[P]oor decisions by plaintiffs to go to trial “are associated with cases in which contingency fee arrangements are common,” according to the report. “On the defense side, high error rates are noted in cases where insurance coverage is generally unavailable.”

The facts seem plausible. The analysis, however, isn't rich enough and comes to the wrong conclusions as a result. As an attorney who has done plaintiffs' personal injury work on a contingent basis, insurance defense work on an hourly basis, and commercial litigation in which neither party is insured, I will suggest some more plausible and nuanced explanations for these facts.

It is a relatively trivial matter to show mathematically that in a world where litigation costs were irrelevant, plaintiffs and defendants had equally accurate access to information and expertise, all judgments were paid in full, and no one was unduly motivated to settle by financial necessity, we would expect that plaintiffs and defendants would do better than final settlement offers equally often and in equal amounts. But, of course, we don't live in such a world. Why is the real world different?

Lack of expertise and communications skills on the part of lawyers, the explanation suggested in the New York Times article is one possibility, and may explain trendlines over the long term towards somewhat less accuracy in predicting outcomes generally. But, as economists are eager to illustrate with a host of examples, betting on irrationality to explain a large sample of regular phenomea is usually a losing bet. The study's findings themselves, discount the importance of expertise in this situation.

[T]he study . . . found that factors like the years of experience, rank of a lawyer’s law school and the size of a law firm were less helpful in predicting the decision to go to trial. More significant was the type of case.

Notably article states without attribution that: "Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner." This is simply not the case. In fact, while these points don't appear in any single course, and instead appear across the curriculum, both were actually hammered into students repeatedly when I was in law school.

Betting that experienced attorneys are consistently acting in a manner that is grossly irrational is an even weaker bet.

The hard lesson for practicing lawyers to learn is not how to handicap a lawsuit, or to try to control client expectations, as we were taught in law school, but to learn that what makes a particular settlement acceptable to a client often depends on facts other than the objective merits of their case at trial.

A better explanation is that plaintiffs and defendants acted rationally, but that they had different incentives.

The Impact of Litigation Costs

One important fact to consider in a tort case, such as one involving an accident or medical malpractice, is that the parties make litigation decisions, not the lawyers.

A plaintiff in a personal injury case often pays for legal representation with a contingency fee. In the classic case, where the lawyer gets a third of the payout, a plaintiff who gets a judgment for exactly the amount of the last settlement offer is no worse off financially. The legal fees are the same.

In contrast, because insurance companies, on behalf of their clients, typically pay defense lawyers who litigate a case to trial on an hourly basis, the insurance company (who pays both the judgment and legal fees, and is the real party in interest in most tort litigation) must come out many thousands of dollars better than the last offer in case in order to come out ahead.

As a result, even in a world with perfect information, so long as the verdict is somewhat uncertain (as it always is in personal injury cases where non-economic damages are always determined on an ad hoc basis by a jury), we would expect plaintiffs to do better than the final offer less often than defendants at trial, even if all other things were equal. Indeed, this result affirms the fact that Plaintiffs' attorneys are acting ethically by deferring to client judgment, even when their own interests differ from those of the client.

In fact, probably about a third or more of the gain defendants typically make at trial by not settling in the cases where they make the right call is erased by additional legal fees.

Similarly, in cases where the defendants don't have insurance (where defendants tend to have much higher "error rates"), the plaintiffs lawyers will typically be paid by the hour, so plaintiffs have an incentive to settle close cases to avoid the litigation costs associated with going to trial to far greater extent in these cases than in cases where they are represented on a contingency basis.

Bad Faith Liability

There is also another reason why defendants settle generously when the real party in interest is the insurance company, which is called the doctrine of bad faith.

An insurance company has a duty to act in good faith in handling an insureds claim, including how it litigates cases on behalf of a defendant. The insured can't settle the case without the insurance company's permission (without losing coverage). And, the defendants' insurance policy limits are disclosed early in litigation.

If a plaintiff offers to settle for the insurance policy limits (or less), and the insurance company doesn't agree, and then the judgment at trial is for more than the policy limits, the insurance company is likely to be sued by the insured who was sued for the amount of the judgment in excess of policy limits that was incurred on the theory that the insurance company acted in bad faith by rolling the dice with the insureds money, rather than holding the insured harmless with a possibly generous settlement.

Settling a case typically protects an insurance company from paying more than the policy limits. Going to trial creates a risk for the insurance company of paying more than the insurance contract says it should, in an undetermined, but almost unlimited amount in a state like New York (where the study was conducted) which has weak limits on non-economic and punitive damages.

The average $1,100,000 penalty paid by defendants in the 24% of cases where they come out worse at trial than they do had they accepted a final settlement offer illustrates the high stakes risks to defendants of failing to settle in the face of a good offer.

Once again, defendants backed by insurance companies have an incentive to settle unless they are very sure that they will come out considerably better at trial, to avoid the downside risk.

Strategic Litigation Strategies

One suspects that another reason that defendants represented by insurance companies usually do better than a final offer, even considering litigation costs, is that insurance litigants are repeat players who have strategic interests in winning at trial.

Settlement occurs in the shadow of what is likely to happen at trial. If you litigate repeatly, you have a long term interest in developing a good track record so that you can be credible in settlement discussions. In theory, an ethical lawyer for an injured plaintiff, who will usually be a one time litigant, doesn't have this incentive.

As a result, a rational insurance company or other repeat litigant will offer to settle close cases for considerably more than they are worth, so that the cases that actually go to trial will be winners. This incentive is due in part to the fact that settlements are not a matter of public record, while trial verdicts are a matter of public record. Notably, in the case of medical malpractice suits, both settlement amounts and verdict amounts are maintained publicly, and settlement is much less common in these suits than in other personal injury suits.

The flip side of plaintiffs coming out behind significantly in the 8%-20% of cases that actually do go to trial, is that plaintiffs are presumably doing better on average than they could have at trial in the other 80%-92% of cases, which is to say that in a narrow sense, defendants lose by settling cases.

Judgment Proof Defendants

The particularly high "error rate" of defendants in uninsured cases may also be easy to explain. Defendants will typically reject an offer that they cannot pay or that will put them out of business, regardless of the likelihood that they will lose and lose big in a case. At trial, an asset poor defendant either isn't wiped out by the judgment, or loses everything the defendant has, while a settlement for everything the defendant has makes that loss a certainty. A rational defendant in a situation like that will often reject a settlement knowing that it is better than the most likely result at trial.

The large gap between the judgment and the last offer before trial in such cases also suggests that in these kinds of cases, litigation costs are almost irrelevant relevative to the amount at stake on the merits, so plaintiffs have little incentive to accept big discounts in order to avoid the cost of litigating the case to trial in these kinds of cases.

Declining Predictive Accuracy

One should expect that attorneys are less accurate in predicting trial outcomes than they used to be. At least one reason is simple. Far fewer cases, on a percentage basis, go to trial than was the case forty years ago, and the number of trials has steadily declined. The less data there is out there, the harder it is to predict the outcomes.

The decline in the number of trials isn't random either. Pre-trial motions to dismiss and motions for summary judgment resolve a much larger percentage of cases (predominantly easy cases) before trial. So, the cases that do go to trial tend to be closer. The increasing availability of compulsory pre-trial factual investigation, called discovery, has greatly increased the cost of litigation, and hence the down side of going to trial, so the margin of error that must be present for an insurance company to litigate a case is greater. And, mandatory mediation, in which a third party prods the parties to reach any possible settlement, has likely become the norm and encouraged an ethic of settlement.

The most experienced trial attorneys typically either got their trial experience in criminal law, where trials are far more common but the litigation environment differs a great deal from civil trials, or got their experience as junior civil litigation attorneys in an environment when fewer and fewer cases are going to trial. While lawyers aren't necessarily avoiding trial because they aren't good trial litigators, the rarity of civil jury trials to provide examples in future cases makes it hard for anyone to predict their outcome. The smaller the sample size a person has, the harder it is for them to accurately predict the outcome on a new event.

It is also important to note that defendants are ten times as likely, as measured by the arithmetic mean result, to make the wrong decision about going to trial as plaintiffs.

As noted above, some of this outcome may have to do with defendants in non-insurance cases that are rational despite carrying a high risk of loss. There is every reason to believe, given the large downside risks of going to trial, that insurance company lawyers would be more conservative than the overall numbers indicate. This may also have something to do with the fact that the insurance company employees making decisions for defendants' lawyers are often playing with someone else's money, while plaintiffs making decisions are usually making decisions for themselves.

This may also have something to do with the pressure on insurance company lawyers to keep settlements in cases that don't go to trial reasonable. It may be worth a few big losses in order to secure a lot of little wins.

And, finally, it could be simply a statistical fluke. Settlement offers rarely get any lower than zero, and generally will rarely be more than the ability of a defendant or the defendant's insurance company to pay, which means settlement offers from plaintiffs are rarely more than $300,000 in cases against individuals (which make up the numerical bulk of the cases). In contrast, there is no real limit to how high a jury verdict can get. Overall, jury verdict numbers are highly skewed by a very small number of very high verdicts. It could be that 95%+ of insurance defense defendants that make the "wrong choice" come quite close in magnitude to the actual jury verdict, and that a tiny 5% or fewer of verdict, some in uninsured cases and some in insured cases, are driving a very high average error.

Bottom Line

In the case of social phenemena as complex of lawsuits, simple explanations drawn from data sets that are insufficiently rich in detail, are likely to be deceptive.

This data set, for example, rather than impuning the judgment of plaintiffs' lawyers, instead suggests that plaintiffs lawyers are, in the highest ethical tradition, putting their clients' interests above their own, while insurance defense lawyers may roll the dice with somebody else's money more often than they should, although perhaps with reasons that make sense in the institutional culture of insurance companies.

I look forward to seeing the actual published journal article, where breakdowns by type of case may either enhance or dispute the analysis I've offered above, this September.

U.S. Navy Leadership Clueless Says Report

According to the Center for Strategic and International Studies, the U.S. Navy's senior leadership is clueless (full report here):

Unrealistic force plans, overoptimistic cost estimates, unrealistic projections of technical feasibility, and inadequate program management have created an unaffordable ship building program, led the Navy to phase out capable ships for new ships it cannot fund, and threaten the US Navy’s ability to implement an effective maritime strategy. . . .

The problem starts at a conceptual disconnect between strategy and reality. The Navy’s "Cooperative Strategy for 21st Century Seapower" is a set of concepts that was not linked to any clearly defined force plan, modernization plan, program, or budget. Navy shipbuilding plans are now shaped more as the result of budgetary constraints than as a response to strategic requirements. They seem to be an expression of wishful thinking rather than a realistic strategic guideline for naval procurement. . . .

The Navy’s procurement policy is in serious disarray, and is creating situation where the most serious threat to the US Navy is now the US Navy. . . .

The Congressional Budget Office estimates that the execution of the Navy’s current 30-year shipbuilding plan would cost an average $25 billion per year, 30 percent above Navy estimates. Cost overruns, such as estimated $1 billion for the CVN-78 aircraft carrier jeopardize the entire program. Overoptimistic cost estimates have led Navy officials to shift funding to the outyears. This will cause a temporary shortfall of carriers and a breach of US law.

The authors blame the failed leadership of "senior flag officers, senior civilians, and the Secretary of the Navy.”

Some parts of the report are questionable, however. For example, it describes as a "shortfall," cut backs in the number of attack submarines in the planned fleet by 2028 by 7 submarines, a plan not to build 4 new guided missile submarines after 2028, and a plan to reduce the number of nuclear missile submarines after 2028 (as well as an earlier reduction by 1 ship of the number of San Antonio class amphibious transport docks and by 2 ships of planned logistics ships). There mere fact that the naval has moved its projected fleet size closer to the realm of budgetary possibility is not itself proof of disarray.

Of course, no one can dispute that naval ship procurement has a dismal record when it comes to staying on time and on budget.

Some of the problems, in my view, which are not mentioned, include (1) a failure to adequately address the threats posed to surface combatants by advanced anti-ship missiles and submarines, (2) a planned blue sea fleet that is overkill at the same time that littoral capabilities are underwhelming, (3) an allocation of offensive capabilities better handled by the Air Force to the Navy (particularly cruise missile deployment and anti-surface ship capabilities), (4) a strategy of deploying Marine units by slow conventional ships that puts troops at unnecessary risk while getting troops into the field too slowly, and (5) insufficient attention to logistics and sea lift generally.

Accounting For The Dark Knight

I pause a moment to note that the latest Batman movie, The Dark Knight, features not one, but two accountants in important supporting roles. One is the mob's shared CFO, the other has a consultancy that serves Bruce Wayne. Both ultimately fit the bill of bad accountants (in the evil sense, not the unqualified sense).

101.5 FM In Trouble

I'd earlier pointed out that the new radio format at 101.5 FM in Denver was disappointment for a station touted as the "Independent Alternative" (which isn't to say that the music totally sucks). Westword reported on August 15, 2008, that the station recent had an embarassing technical gaff (an hour and a half of dead air), and is rumored according to unidentified sources to have serious problems attracting advertising (and hence money to operate the station).

16 August 2008

Improving Colorado Divorce Law

Probably no area of Colorado law produces more dissatisfaction with the judicial process than domestic relations law. A large share of active online critics of judges and the courts have had unhappy family law experiences. Litigants in all but the most tame divorces regale friends and family with the agony of the process.

Some of this unhappiness may be the fault of the professionals involved. Some of this may be attributable to the underlying causes of the marriage's demise itself. But, I believe that it is possible to rethink both the substantive law and the judicial process in this area to reduce the harm caused by the divorce process itself to all involved. My identification of the problems and proposed solutions follow.

Problem: Too much discretion

Divorce law gives the judge, sitting in equity, immense discretion.

The aggregate value of property divisions is supposed to be "equitable" rather than equal, and there is essentially no formal guidance on who should get what in particular from the marital assets.

The overriding rule in parental decision making and parenting time rulings is to advance "the best interests of the child," which is only slightly less vacuous than "do the right thing."

Maintenance (i.e. alimony) awards are made with slightly more guidance to judges, but only slightly more. The many factored test provided by statute provides considerable discretion for a judge to determine is maintenance should be awarded or not, and provides little guidance on an appropriate duration or amount of an award.

Also, in the absence of firm guidance, women, who tend to make more economic sacrifices in marriage for the benefit of the family, by foregoing career building to be homemakers and/or care for children, overwhelmingly see their financial fortunes worsen after a divorce, while men generally see their financial fortunes remain little changed or actually improve. Indeed, the desire to give women greater leverage in negotiations over maintenance has been the main factor driving New York State's refusal to adopt "no fault" divorce. Larger maintenance payments would also legitimate the fact that typically, in a family where a mother has spent time as a homemaker, both the mother and her children need financial support from the father. When awards are described only as "child support" father's very frequently complain loudly about and resent the fact that child support money is paid to the mother without any accounting of what is actually used for a "child's expenses" as opposed to the mother's, despite the fact that the law requires no such accounting.

Child support awards are governed by a much more specific formula, which is a product of the income of the parties, the number of children involved, the number of overnights spent with each parent, and certain adjustments for in kind payments or extraordinary expenses. But, the income numbers that go into the formula may be adjusted if a spouse is unemployed or "underemployed," so child support is based not upon what each spouse actually makes, but what each spouse could make if they really tried.

This discretion flows from the fact that historically, divorce was very rare, so there weren't enough cases to establish general rules. Now, they are common place, so judges have to "mass produce" divorces. Moreover, the most important general rules were gender specific and have been thrown out on equal protection grounds, and also on the grounds that they reflected assumptions about how marriages function that are no longer factually accurate.

In contrast, most other kinds of litigation has much more clear standards based upon what has happened in the past, rather than calling upon courts to try to predict the future with vague standards.

Since there is no baseline to measure against, and little in the way of legal standards to govern a judge's discretion, it is little wonder that the personal ideology and alleged biases of judges in domestic relations cases attract so much attention. A domestic relations judge is a super-legislator who makes a new domestic relations law from scratch for each family, rather than an umpire merely applying the rules. Sometimes domestic relations judges act more predictably than the law itself would suggest, but unwritten rules and assumptions are a more powerful force in causing this predictability than the statutes themselves, and parties have no avenue for relief when unwritten rules and assumptions are violated.

Judges aren't the only ones put in a difficult position by the wide discretion afforded judges in domestic relations actions. The fundamental lesson every lawyer learns in law school is that settlement, which is how most cases are resolved, operates in the shadow of what is likely to happen at trial. The less predictable the outcome is at trial, the harder it is for parties and their lawyers to reach consensus on how to settle a case before trial.

Not surprisingly, the domestic relations cases where trial is most predictable -- cases where there are no children and an award of alimony is unlikely because both spouses have established careers, tend to be the least contentious and unhappy, even when the amount of money at stake is very large. In contrast, in almost all other types of litigation, the contentiousness of the parties is strongly related to the amount in controversy.


There are several ways that greater certainty could be brought to divorce law, without sacrificing substantive justice.

Maintenance awards could be based upon a formula for determining the amount of the award and its duration that hinges on specific findings of fact about the events that have occurred during the marriage and the current financial situation of the parties. This formula should be more generous that current practice to people entitled to maintenance.

A firm determination of maintenance amounts would also make it easier to merge maintenance awards and property settlements into unequal property distributions that disentangle the parties as soon as possible and also reduce the risk of non-payment, which is a chronic problem.

The use of imputed income in child support awards could be discontinued. It is hard enough to determine what the parties actually earn in many cases, without even beginning to consider what they could earn. Imputing income frequently requires expensive expert testimony. But, the goal of imputation of income, which is to discourage parents from being underemployed, are already served by other parts of the child support formula. Like an income tax, an increase in personal income increases an individual's take home pay more than it increases their child support obligation under the formula, so there is always an economic incentive to earn more money. Also, the opportunity to modify child support upon a change of circumstances under existing law largely eliminates the need for courts to make accurate long term predictions about future earnings.

While it might be counterproductive to specifically require that property divisions be equal, rather than equitable, as this could force appeals over trivial disputes in property division awards, it wouldn't be hard to formally set a limitation on how much of a percentage deviation from equal is permitted.

Finally, some guidance more specific than the "best interests of the child" for parenting time and parental decision making is in order. In practice, several propositions, not always consistent, tend to be applied on a default basis to parenting time determinations.

One is that the status quo tends to be preserved to the extent possible. For example, if prior to the dissolution, mom usually worked late and saw her children mostly on the weekends, she is likely to get lots of weekend parenting time and few midweek overnights. If one or both parents have unusual work schedules, parenting time is frequently tailored to those needs.

Closely related to the status quo principle is that when parents live far apart from each other, a school aged child usually spends summers and many holidays with one parent, and the school year and some shorter holidays with other parent, while, when parents live close together, each parent usually has some parenting time every week. These schedules are also followed by separated couples in "intact" families.

Another is that major decision making tends to be awarded jointly to the parents, unless they are incapable of cooperating, in which case decision making power is usually awarded to the primary caretaker of the child, unless the other parent is clearly more sensible or moderate on the most controversial issues.

Constitutional abolition of the tender years doctrine notwithstanding, primary caretakers of pre-school children, who tend to be mothers, generally receive disproportionate parenting time. Parenting time tends to be allocated fairly evenly between parents of older children in the absence of practical difficulties, or a clear disparity in parenting ability. Parenting times tends to be more flexible and more influenced by the wishes of the child for adolescents.

Formal recognition of these unwritten rules would encourage settlement and reduce resentments aimed at professionals who recommend parenting time in accordance with these principles, while providing greater recourse to parents who genuinely are subjected to the whims of a biased decision maker.

Problem: Finality and Mutual Agreement Are Unrealistic Expectations

As I explain to my clients, in a domestic relations matter involving children, you can end your marriage, but not your relationship with your co-parent. Except in the case of a completely absent or marginally fit father (or much less frequently, a completely absent or marginally fit mother), each parent will have court ordered parenting time and some shared parental decision making duties, at least on minor issues while the child is in each respective parent's care, until adulthood. Since children tend to be born shortly before, or sometime after a couple marries, and most marriages that end in divorce end fairly early in the marriage, this co-parenting relationship often lasts a decade or more.

Children change a lot in a decade. But, it is hardly surprising that couples who can't bear to be married or stay married to each other also have more difficulty than other couples agreeing on parenting issues. Most couples are better at co-parenting alone than they are at a full fledged marital relationship, but that doesn't mean that they are good at it. They typically have enough history with each other to subtly push each other's buttons if they want to do so. Also, most divorced people end up remarrying, which often further complicates co-parenting after the divorce a great deal.

As a result, the finality that applies brutally to other court orders doesn't work in parenting and child support cases. Couples that divorce with young children can expect to see multiple revisions to parenting arrangements until the children grow up, and if parents can't agree those may end up being court ordered changes.

The usual default of joint parental decision making on major issues is also often problematic in practice. Often the status quo that applies in absence of an agreement of the parents is ill defined, and often ex-spouses are not the best at reaching unmediated agreements with each other on parenting issues. If joint decision making is ordered for parents who have trouble agreeing, every life decision poses another potential lawsuit.

In Colorado law, the line between constant relitigation of parenting issues, and complete finality, is drawn using two separate "two year rules" with certain exceptions, one for parental decision making, and one for parenting time, which fail to acknowledge that complications that can arise if intertwined parenting time and parental decision making issues get out of sync with each other under the two year rule. The possibility that litigation can arise from joint decision making in situations in which there is no status quo is barely even acknowledged. Additional elaborate rules apply when a parent makes a major relocation.

Most modern child support orders provide for regular exchanges of information, usually annually or sooner upon a request for modification of child support orders, but usually disclosure rules follow a one size fits all approach that calls for the same disclosures for purposes of child support modification that are required in a full fledged divorce. Yet, many factors considered in a divorce, like the assets and debts of each party, and the ordinary living expenses of each party, are generally irrelevant to child support calculations.


The child support information exchange issue is a common issue that impacts almost every divorced couple with minor children, and is fairly easy to address. The court system could simply promulgate a streamlined sworn statement of financial affairs that limits itself to matters pertinent to child support modifications. This simple change could meaningfully reduce litigation costs in many cases.

One alternative to a system that presumes that finality is the rule, and modification of parenting orders is the exception, would be to mimic the approach used by probate courts in guardianship and conservatorship cases, in which periodic reporting and status hearings at which adjustments can be made are the norm. Rather than requiring a showing of an affirmative change of circumstances, all aspects of parental responsibilities would simply be revisited every year or two, unless a stipulated reaffirmation or modification of the plan was sent to the court in advance of a planned status conference.

There should also be, as there is in probate court, provision for summary adjudication of individual decision making deadlocks or court order compliance disputes that cannot be resolved out of court, on a piece meal basis. In contentious cases, courts ought to be granted the power to appoint a non-judicial decision maker without the consent of the parties.

Problems: Courts Are Bad Fact Finders About Parenting and Need For Judicial Assistance Doesn't Track Ability To Pay

Another key reason that domestic relations cases are so problematic for litigants and the court system, is that the courts have a monopoly on granting divorces and resolving disputed parenting issues, but many people can't afford to have lawyers for each party, particularly when there are usually multiple post-decree disputes. But, the court system is not designed well to handle unrepresented parties.

Indigent parties have a right to counsel in criminal cases, and in civil cases, the real stakes in cases where an indigent party is being sued for money damages are often very modest, so a lack of a right to counsel in this fight over money isn't terribly worrisome. If it isn't worth it to the person who faces having to pay the judgment to hire a lawyer to defend a case, maybe the public shouldn't have to do so either.

This analysis makes far less sense when parental responsibilities and restraining orders relevant to personal safety (or freedom if one is defending a request for one) are at stake. Litigating parental responsibilities and restraining orders is just as expensive as litigating a moderate sized personal injury case, a criminal case, or a fairly significant business dispute, and is more expensive than most civil consumer disputes. Taking a parental responsibilities dispute to trial with lawyers can easily cost in excess of $20,000 for each party. And, many people, particularly those who aren't very affluent, are not well qualified to represent themselves in even a bench trial using the rules of evidence and the pre-trial processes associated with civil procedure in a domestic relations case.

There are some funds available for legal aide representation in these cases and there is some pro bono assistance from lawyers available, but the need grossly outstrips the demand. Legal aide is lucky if it has the resources to take on the most contentious cases with children and domestic violence involving the most indigent individuals. As a result, one or both parties in a large percentage of all domestic relations cases involving children are not represented by counsel.

Even with lawyers, a court room is not a particularly good setting for evaluating parenting skills and crafting parental decision making and parenting time orders. Parent child relationships are subtle things, tend to be best evaluated on a holistic basis, and can be hard to communicate in the unnatural environment of a courtroom with adversarial evidence rules designed to handle criminal disputes and personal injury cases tried to juries.


Even now, in Colorado, judges lean heavily in their parental responsibilities determinations on the findings of "Child and Family Investigators" (CFIs), who are court appointed experts, generally chosen jointly or if not agreement is reached, by the court, who conduct an inquisitorial investigation of the family by communicating with the parties, watching them in context with the children, and often talking to relatives, neighbors or other people with knowledge of the situation outside a courtroom setting, and the making a report on the facts with a recommendation to the court. While this recommendation is generally not binding, it is generally given great deference in practice because the CFI has the best information and can claim to be a neutral party. Typically, the cost of hiring a CFI is born equally by the parties.

I would suggest that Colorado formally separate the part of the domestic relations process that doesn't directly involve children (i.e. property division and maintenance) from the part that does (i.e. child support and parental responsibilities). The former could be conducted much as it is now, but with more firm guidelines regarding maintenance. The latter, both initially, and in "post-decree" disputes, could be handled by a formally inquisitorial process with CFIs given some basic instructions on child support calculations as the actual judges, and with the parties represented by non-lawyer parenting advocates, who would have a much narrower (and hence less expensive) formal training in their profession which would be limited to parenting and child support calculations, a fairly self-contained part of the law, particularly after it was streamlined to eliminate matters like imputation of income, and complex waiting periods for revisiting different kinds of parenting decisions.

Both the CFIs and the parenting advocates would be provided at state expense in all cases, upon request, on the theory that children's interest should not be given short shrift due to parental indigency. There would also be a right of indigent person to the assistance of a lawyer to both bring and defend a restraining order case, which is a quasi-criminal matter, paralleling public funding of prosecutors and public defenders.

While the parenting professionals in the separate parenting court that I propose, and the legal representation in restraining order cases that I propose would not be free to the state, the cost would not be crushing. Pro se parties indirectly impose a great burden on the court system as it is now, by basically bumbling everything up and requiring a great deal of informal assistance. Allowing a CFI to directly issue parenting orders, and using non-lawyer professionals as advocates in parenting cases would greatly reduce the compensation that must be paid by someone in litigation involving parental responsibilities, while not necessarily sacrificing much expertise because of the specialization involved.

It would also probably be cheaper for the state to have CFIs, parenting advocates, and restraining order lawyers on payroll, just as judges, prosecutors and public defenders are, than it would be to outsource these professionals at private expense as the current system does.

Some people would still hire their own lawyers in parenting cases, particuarly if they were hiring lawyers anyway for the financial side of a divorce. But, in an inquisitorial process, with each party assisted at least by a professionally trained professional, the impact of hiring a lawyer would usually be far less outcome determinative than it is under the current system when a party with a lawyer is pitted against a party representing him or herself, or when two unrepresented people of very unequal bureacratic abilities try to move a case along through the court process.

Also, it would be helpful to separate all rules of civil proceedure that apply in domestic relations cases into a separate set of rules from the ordinary rules of civil procedure within which they are now lodged, because this would help non-lawyer professionals and unrepresented individuals to better understand them.


Divorce will always be unpleasant. No amount of rewriting the rules can change that. But, by reducing discretion in the substantive law, radically overhauling the process in terms of finality and the adversarial hearing oriented part of the process in the parenting part of cases, and using publicly funded non-lawyer professionals to handling parenting issues in most cases, the system could be less painful for all involved, and also cost less to the parties and the goverment alike, while producing results at least as just as those produced under the current system, and probably more so.