30 January 2009

Top 400 AGI Taxpayers Keep Getting Richer

The 400 taxpayers with the highest adjusted gross incomes in the United States made, in 2006, on average, $277,444,330 (in inflation adjusted 2008 dollars).

By comparison (in inflation adjusted 2008 dollars) the comparable numbers were:

2002 -- $122,872,340
1997 -- $123,142,970
1992 -- $70,843,660

The bulk of the incomes of the higher 400 AGI taxpayers are unearned. In 2006, the average top 400 AGI taxpayer received 63% of their AGI from capital gains, 7% of their AGI from dividends, and 8% of their AGI from interest. Thus, 78% of their income comes from these three sources of unearned income. Other sources of unearned income, such as rental property income, were not broken out separately, so average earned income is an even small percentage of the total.

The average tax paid by these taxpayers as a percentage of AGI is 17.2% (lower than any of the previous time periods), largely as a result of tax preferences available for capital gain and dividend payments.

The figures do not reflect income which is excluded from income entirely under the tax code, the most material of which, in this tax bracket, is non-taxable municipal bond income.

The figures also don't distinguish between compensation in the form of stock options and fund manager interests that are essentially bonus compensation for services, but are treated as capital gains for tax purposes, and capital gains that are a function of gains on investments purchased for cash by third party investors.

The slight slip in inflation adjusted returns between 1997 and 2002 reflects the tech bust. The 2006 numbers, of course, do not reflect the collapse in the capital markets in 2008.

29 January 2009


Illinois senators stripped Gov. Rod Blagojevich of power Thursday in the final act of a political drama that handed the reins of state government to his estranged lieutenant governor, Pat Quinn, and likely will end Blagojevich's career in politics.

Senators voted unanimously to convict Blagojevich and bar him from holding political office in the state again. Shortly after the vote, Quinn was sworn in as Illinois' new governor.

From here.

A federal criminal prosecution awaits the former Governor, and time will tell is taint in the process that resulted in Blagojevich's appointment to fill the vacancy created by President Obama's election to nation's highest office will attach to the apparently blameless candidate who received the boon.

The Death Of Cursive Writing

I don't think that I've written more than a paragraph or two in cursive writing at any one time since 1983 (when I learned to type). For the most part I use it only on checks and to sign documents. I've probably texted or blackberried more words than I have written in cursive writing since then. The advent of electronic signature pads and the hypenation of my name have only made my signature harder to read.

Indeed, apart from class notes, court hearing notes, client meeting notes, drafts (later typed) of creative fiction written on lunch breaks, journal entries, and perhaps dozen or two letters, and one or two settlement agreements written in a courtroom or mediation, I don't think I've ever written more than a page of printed script since then. Even my law school examinations were typed.

The future definitely looks bad for graphologists. This had been a good develoment for me, however, as my handwriting is virtually illegible and the poor pen holding position that I ended up with as a mistrained left hander often leaves smudges on the paper and my hands when I write with a pen.

Flood Zone Mapping

Coyote Gulch has called attention to a new, free e-book on ways to improve mapping flood zones. While the issues are sometimes technical, the implicitions are white hot politically. Failing to implement improvements in flood mapping can wipe out cities. But, listening to it can wreck havoc on development plans and require large expenditures of funds for problems that fall into the important but not urgent category most of the time.

Denver Post Intent On Fratricide

The owners of the Denver Post have declared an intent to buy the half of the Denver Newspaper Agency now owned by the owners of the Rocky Mountain News if the Rocky is sold, under right of first refusal provisions in the Joint Operating Agreement under which Denver's two daily papers operate.

The DNA prints both papers and secured advertising for the papers, and then pays half of the profits from these business operations to the Denver Post, and half to the Rocky Mountain News, from which each paper pays for its newsroom operations and makes a profit, if possible.

The Denver Post plan is effectively a poison pill designed to discourage bidders who might be interested in taking control of the Rocky. Without the DNA, the new owners of the Rocky would have to rebuild printing and advertising operations from scratch. An extended deadline by the owners of the Rocky to receive bids on purchasing the opeartion runs this week, and the paper could terminate operations or announce plans for winding up the almost 150 year old paper any day now.

The Post would then merge the Denver Post and the DNA, and would seek concessions from the unions at each entity in a bid to become profitable. "In December, Dean Singleton, publisher of The Post, requested $18 million in concessions from agency union employees and $2 million from Post union employees." The owners of the Post are betting that the only way that they can survive is by securing a near monopoly on the paid daily newspaper in metropolitan Denver, and that it will capture most of the Rocky's readers. The Post has already started to borrow money ($13 million) from the DNA to make payroll.

FWIW, David Milstead at the Rocky Mountain News predicted in his business column last week that the demise of the Denver Post would follow a year and a half or so after the death of the Rocky because it would fail to pick up newspaper readers that used to read the Rocky.

I think he's wrong. Other markets that have lost a "second" newspaper don't have materially lower numbers of newspaper subscribers per capita than the increasingly small number of markets with more than one daily newspaper. And, the distinction between the Rocky's metro Denver oriented, picture heavy, tabaloid format and the more traditional Denver Post which has a statewide focus, is smaller than the distinction between the morning and afternoon papers that prevailed in the last big round of newspaper failures.

Admittedly, in 2008, the DNA didn't produce enough revenues to fully fund one of its two newsrooms, let alone two. But, in round numbers the DNA had $10 million of profits, and each of the newsrooms cost $20 million to operate. If one of the newsrooms close, the $30 million combined loss drops to about $10 million, and the loss per daily circulation falls even further as Denver Post circulation goes up. With modest price increases for advertisements, subscriptions and newsstand purchases, and some of the requested concessions from workers, the Denver Post will probably survive.

28 January 2009

Lutheran School Wins Right To Be Bigoted

A California court has declared that a Lutheran school in Riverside County, California had a right to expel two high school girls because they stated that they were lesbians in MySpace pages not affiliated with the school.

In this case, like the Boy Scouts of America's journey to the U.S. Supreme Court to establish their right to exclude gays, I can't say with comfort that the judges got it wrong. Private organizations with a religious element which declare in court that an action is part of their religious ideology probably should, under the First Amendment, have a right to exclude people (although not necessarily without consequences, as the BSA has discovered).

What leaves me puzzled is why this school, or the BSA, would declare themselves to have such an exclusionary policy. The BSA that I earned my Eagle Scout award from was a more tolerant organization than the one that exists today. Similarly, in all the time that I was a Lutheran, I was confirmed and attended a Lutheran church until I left for college (and at all the times that I have returned to Lutheran church services for family functions), I can't remember a single tirade against the evils of being a lesbian, or even soft spoken whisper from the pulpit to that effect. I've met Lutheran lesbians in passing who co-existed comfortably with the church. This is not a typical core principal of this Christian denomination. A California law blog explores the absurd conduct by the school that led to this outcome.

Of course, part of the mystery is solved by the fact that this school is not run by the dominant mild mannered mainline Lutheran denomination known as the Evangelical Lutheran Church in America (ELCA for short), which accepts gay marriage (German Lutherans currently have openly gay clergy). Instead:

The School is a nonprofit corporation. It owns and operates the California Lutheran High School, a private religious school in Wildomar. The School is affiliated with the Evangelical Lutheran Synod (ELS) and the Wisconsin Evangelical Lutheran Synod (WELS).

The ELS and WELS are comprised of Lutherans who secretly wish they were Pentecostals or Southern Baptists, but can't stand non-monotone sermons, bad music and white suits. (WELS also has it in for just about every other religious denomination including conservative Missouri Synod Lutherans.)

In all honesty, Lutherans in the ELS and WELS probably resemble the Lutherans who were Martin Luther's original followers more than the relatively milquetoast ELCA Lutherans, or the adherents of the establishment or recently establishment churches of Northern Germany and Scandinavia. Then again, it isn't obvious that he would have persisted in those doctrines had he experienced our world.

The leadership of California Lutheran High School, in contrast, do live in our times and thus, have none of the same excuses available to them. We can only hope that their public adherence to a bigoted creed attaches an appropriate stigma to their sorry excuse for an educational institution, for it certainly is not an institution that anyone I know could be proud of graduating from at this point in time.

In solidarity with the two young women expelled in this case, I encourage you to read Simply Sarah, an award winning webcomic about young women facing similar struggles.

The GOP as the Mormon Party

There has been quite a bit of political commentary out there describing the GOP after 2008 as a "Southern regional party." But, more recent data suggests another interpretation.

All Strong Republican States Have Significant Mormon Populations

There are now only five states that are either strongly Republican (Utah, Idaho, Wyoming and Alaska) or lean Republican (Nebraska), in Gallup polling.

The states with the largest percentage of population who are members of the Church of Jesus Christ of Latter Day Saints faith are as follows:

Utah 71.76%
Idaho 26.63%
Wyoming 10.10%
Nevada 7.41%
Arizona 5.45%
Montana 3.58%
Hawaii 3.46%
Oregon 3.15%
Washington 3.10%
Alaska 2.86%

Three of the four most Republican states in the nation are the three most Mormon states in the nation. The fourth of the four most Republican state in the nation is one of the top ten states in the percentage of the population that is Mormon.

Conservative Christianity Distinguishes "Competitive" States With Urban Centers

The ten states described by Gallup as "competitive" (which is between leans Republican and leans Democratic) are Montana, North Dakota, South Dakota, Kansas, Arizona, Texas, South Carolina, Georgia, Alabama and Mississippi.

Two of these (Montana and Arizona) are also in the top ten for the percentage of the population that is Mormon.

Which states are outside the Mormon Top Ten? "Lean Republican" Nebraska, and the following "competitive" states: North Dakota, South Dakota, Kansas, Texas, South Carolina, Georgia, Alabama and Mississippi. These states in turn fit into two basic patterns (some also found in some of the Mormon Top Ten states).

Nebraska, North Dakota, South Dakota and Kansas are all extremely rural low population density farm states.

Texas, South Carolina, Georgia, Alabama and Mississippi meanwhile are not just Southern states, but strongly Southern Baptist Southern states that lack the strong Catholic roots of Florida and Louisiana, the recent influx of professional and technology workers that Virginia and North Carolina have experienced, or the hill country roots of Tennessee and Arkansas.

Oklahoma and Indiana are the only states outside the former Confederacy, Mountain West (including Alaska), and Great Plains that are anything less than strongly Democratic, and both of these states are now, at least, leaning Democratic. Oklahoma often "acts" like a Southern State (although it didn't exist as a state at the time of the U.S. Civil War), has an oil impacted economy, and is strongly rural. Indiana has has a strong rural economy and conservative political leanings more than a century old.

Christian conservatism clearly underlies all of the more Republican leaning states with major urban centers.

Farmers and oilmen are just about the only constituencies in America for whom the Republican economic message remains persuasive. Both groups are seeing their numbers shrink, moreover, as these goods producing industries become more economically efficient and employ fewer people. Democratic support for a "New Energy Economy" may undermine even this last bastion of the Republican party's economically motivated base. Biofuels and renewable energy are a last, best chance of economic prosperity in the farm economy. While many Democratic party economic proposals have drawn scornful or indifferent reactions from the rural wing of my extended family, all of them are intensely interested in the prospects that wind power and biofuels offer them, even though some spend their time in the off season harvesting black gold. My uncle in rural Northern Ohio was one of the first sign up to lease some of his property for use in a wind farm. A transmission lines become available to link renewable energy to its markets, these economic links of farmers to the New Energy Economy will only grow stronger.

The geography of continuing support for the Republican party strongly suggests that Christian conservatism is the driving motive behind support for the Republican party elsewhere.

The GOP as a Christian Conservative Party

Political parties are ultimately a product of the committed people who remain active within them. And, as the struggle for the soul of the Republican party is fought in the wake of yet another set back election in 2008, it is apparent that Christian conservatism is the tie that binds those who remain faithful to the GOP.

Religion is a good marker for the biggest ideological fissure amongst non-Hispanic whites in the United States, which is the dominant ethnicity (particularly among likely voters) in the United States. Indeed, many of the religious denominations that have attempted to straddle this ideological divide in the United States have failed. The United States has a long history of denominational schism along these ideological lines which persists today as the Episcopal Church (the American wing of the Anglican church) is in the midst of an ongoing schism along these lines. The Roman Catholic Church has managed to keep a foot sturdily on each side of the American political divide, but few other religious denominations have managed this feat consistently.

The recent leftward swing of American politics has propelled liberal and mainline Christians (and all non-Christians no matter how diverse their ideologies) further towards Democrats, while the conservative Christians (including Mormons) have seen their comfort level in an increasingly religiously homogeneous Republican party grow.

No denomination, of course, has a strict political party litmus test. Because of this, the few denominations that are most skewed politically to the Republican party, the Mormons, the Southern Baptists and white Pentecostals mostly, have the greatest impact on the political balance of the regions where their members are most common at a macro-political scale. Evenly divided groups are irrelevant politically.

This tendency has international precedent. The leading party of the right in most of the countries of Europe is a Christian Democratic party. Religion is also the tie that binds the right leaning BJP Hindu nationalist party in India which is the leading source of opposition to the socialist leaning Congress party there. Religion closely tracks the political divides in countries as diverse as the Ukraine, Iraq, Israel and Sudan. And the divide between Western Christianity and other faiths, with the exception of Greece, is sufficient to explain the countries that are and are not within the European Union or its sister organization the European Free Trade Association.

What Options Does A Christian Conservative GOP Have?

It is hard to see a Republican party with a Christian conservative core turning away from its anti-abortion, anti-gay rights, anti-feminist social conservative agenda any time soon. But, this doesn't mean that the future of the Republican party is set in stone. As the electoral defeats that have brought the Republican party to a modern low point have made clear, support from Christian conservatives isn't a sufficient base, even if it is a necessary part of a base seeking a majority coalition in American politics.

The Republican Party has considerable freedom to rethink its direction on foreign policy and economic issues. It can embrace Mike Huckabee's populism, Tom Tancredo's xenophobia, or a less bellicose foreign policy if it wishes to do so. The intellectuals who have been attracted to the Republican party neoconservativism and the GOP's apologist stance towards the abuses of big business may have brought the Republican party funding and a certain amount of intellectual credibility, but it isn't obvious that these intellectuals have been important in garnering political support for the GOP. Populist demagogues like Rush Limbaugh have brought more people to the Republican fold than conservative Washington think tanks.

Conservative Christian Populism is a natural direction for the Republican party to move.

Most Republicans in the South are just a generation removed from the segregationist, hawkish, socially conservative New Deal Democrats that prevailed until the Republican party rolled out its "Southern strategy." Their ties to the pro-big business, small government, lassiez-faire economics that came into the Republican party's DNA via its Northeastern roots are weak. George W. Bush may be the last gasp of Herbert Hoover Republicanism.

Now that manufacturing is crumbling in the rust belt, at the same time that new factories continue to pop up in the rural South, as domestic factories chase less expensive, union-unfriendly work forces, protectionism and "managed trade" may suddenly become popular in the South, after a long history of Southern support for free trade. Industrial policy-like agricultural subsidies are already staples of Southern politics.

The Mormon base in the Republican party also has no deep seated allergy to collective fiscal action. The same Utah Mormons that have been George W. Bush's most stalwart supporters in good times and bad, also voted overwhelming to tax themselves to bring elementary school student-teacher ratios lower than they are almost anywhere else in the nation. The Church of Jesus Christ of Latter Day Saints maintains a welfare state for the faithful which is unrivaled today, which resembles, as much as anything else, the non-governmental system of hospitals, K-12 schools and institutions of higher education established by the Roman Catholic Church in the United States when a wave of Catholic immigration swept the United States in our last big wave of immigration from abroad.

The Mormon base of the Republican party, which is starting to overshadow even the ties of Southern Baptists to the GOP because of Mormon political unity, is also not necessarily naturally inclined to be either hawkish or isolationist in American foreign policy. The Church of Jesus Christ of Latter Day Saints (like the Southern Baptists, particularly a generation or more ago) has always placed great importance of foreign missionary efforts that have sought to engage people abroad with their ideals on a voluntary basis through persuasion. There is no reason that a foreign policy with that kind of premise couldn't win favor with the Republican party's Mormon base.

I wouldn't even be too surprised if the Republican party of 2036 had triangulated so much that it is at least as pro-union as the Democratic party. The heavily working class, populist make up of union America would be a logical ally for a Republican party that had shed its support for big business. The anti-communist fervor and red scare that drove earlier opposition of Republicans to the labor movement has grown irrelevant in a unipolar world. The new geopolitical dividing lines on this planet are being drawn without reference to Marx or Stalin.

The Republican Party will never embrace the secular left. But, the way that its economic and foreign policy stances evolve are open questions not strongly constrained by its core Christian conservative constituencies.

La Dolce Vita Is Healthy

Moderate red wine consumption continues to show a myriad of health benefits. So does coffee consumption, and so does taking naps.

27 January 2009

Colorado's Independent Ethics Commission

Colorado voters passed an initiative commonly known as Amendment 41, best known for its "gift ban." The gift ban is supervised by an independent ethics commission which now exists and has a website. On the website were various tea leaves, some interesting, that I recite here with a minimum of commentary.

* From the minutes of the January 14, 2009 meeting:

The Commission met in Executive Session from 11:55 a.m. to 4:20 p.m.

The Commission returned to Open Session at 4:20 p.m.

1. It was moved, seconded and passed unanimously to dismiss Complaint 09-01
pursuant to IEC Rule 7.D.3, because the alleged violation, if true, would not
constitute a violation of Colorado Constitution Article XXIX, or any other standard of conduct or reporting requirement under the jurisdiction of the IEC. (Commissioner
Lasha excused).

The subject of the 4 hour and 25 minute executive session wasn't described. The agenda for the meeting described it as "Discussion pertaining to requests for advisory opinions and complaints filed with the Commission. C.R.S. §§24-6-402(3)(a)(III); 13-90-107(1)(b); 24-18.5-101; Article XXIX of the Colorado Constitution." If the session was mostly spent discussing Complaint 09-01, the Complaint wasn't an open and shut case; but it is possible that much of the session was spent on multiple advisory opinions. In 2008, there were 71 such requests according to the annual report.

* There commission issued three policies in 2008, although the copy of the website for the first appears incomplete, and another in 2009 (at the front page of their website) that produce an error when I tried to click on it to access it.

* According to the 2008 Annual Report, "Complaint 08-01: In re: Mike Coffman was determined to be non-frivolous, and is scheduled for a public hearing on March 6, 2009." This decision was made as follows:

Complaint 08-01: The IEC voted 3-1 (Commissioner Smith dissenting) to deem the complaint non-frivolous and proceed to a public hearing. (Commissioner Hopper recused). (10/06/08)

Motions in Mike Coffman's case (now Republican Congressman Coffman of the 6th Congressional District and formerly Colorado Secretary of State Coffman) were on the agenda of the Commission's January 23, 2009 meeting.

The substance of Complaint 08-01 against Coffman is discussed here, but there is apparently no way to get this information from the Ethics Commission itself.

* The 2008 Annual Report also noted the following:

Pending Litigation:

1. The Commission intervened in the case of Developmental Pathways v. Ritter, 07CV1353 (Denver District Court). This case, which concerns the constitutionality of Article XXIX, is pending. A status conference is scheduled for March 13, 2009.

2. The Commission filed an application in Denver District Court to protect the confidentiality of requests for advisory opinion on grounds that to release that information would cause a chilling effect on people seeking advice from the Commission. This case was consolidated with another case in which the IEC was sued under the Colorado Open Records Act for not providing this information. This case is pending. No hearing date has been set.

So far, all attempted to adjudicate the constitutionality of Amendment 41 on the merits have been rebuffed as unripe pending the establishment of the Independent Ethics Commission. But, now that the Commission exists and has started to render opinions, a court may someday rule on the constitutionality of particular components of Amendment 41 which are currently the subject of legal challenges. It isn't clear if this will happen in March or not.

Make of it what you will.

Hog, Prepare To Be Slaughtered

Richard S. Fuld, Jr., the former chairman and CEO of Lehman Brothers . . . recently sold his Florida mansion to his wife for $10 in an apparent attempt to shield the home from his potential creditors[.]

Will he prevail?

Few asset protection attempts could be more naked. And, the 2005 bankruptcy law was reformed specifically to address this kind of abuse. But, bankruptcy law is only relevant if his wife is somehow brought into bankruptcy, and presmably, she has done nothing actionable personally . . . except receive an outrageous gift from her financially troubled husband.

The status of this gift would be transparently clear as a fraudulent transfer, but for the fact that:

The Florida Supreme Court ruled in Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. Sup. Ct. 2001), that the Florida homestead law prevented a creditor from setting aside the conversion of non-exempt assets into an exempt Florida homestead, even where the conversion was made with actual intent to hinder, delay or defraud creditors. The Florida Supreme Court ruled that the homestead law, set forth in the Florida Constitution, has primacy over laws enacted by the legislature, such as the Florida Uniform Fraudulent Transfers Act and a Florida law prohibiting fraudulent conversions. However, the Florida Supreme Court in Havoco recognized an exception to the homestead law where the homeowner used the proceeds of fraud to acquire or improve the property.

So, how does one get her into bankruptcy where Florida law does not apply:

If the Florida homestead exemption stands, the battle would likely turn to forcing Ms. Fuld into involuntary bankruptcy in a timely fashion, so that the 2005 Bankruptcy Code limitations can be made to apply. In order to file an involuntary petition, three creditors of Ms. Fuld’s, holding non-contingent, liquidated claims exceeding $13,475 would have to join together in a petition. 11 U.S.C. 303(b)(1). That’s the easy part. If Ms. Fuld objected to the petition, as she surely would, the bankruptcy court could grant the bankruptcy petition only if Ms. Fuld was “generally not paying [her] debts as they come due.” 11 U.S.C. § 303(h)(1). This standard might be difficult to meet when the only unpaid creditors are those who recovered judgment on fraudulent conveyance claims.

I've been called a cynic on this point, but I strongly suspect that Fuld's play won't succeed.

Another possibility is that Havoco may violate the full faith and credit clause as applied to a foreign creditor, and that Ms. Fuld may be denied a Florida homestead exemption on the factual basis that she is not truly a Florida resident.

Notably, a federal creditor, such as the SEC, might be able to adjudicate the availability of the exemption not in the friendly to debtors state courts, but in the perhaps less friendly forum of the relevant U.S. District Court in Florida (something also available to private creditors in a diversity action).

Another posture that could escape the Florida courts and the exemption issue would be to attempt to secure a federal tax lien (dimes to dolars the couple filed jointly in 2007 and all prior years), that would bind her as well.

Neighborhood Anxiety Update

More on the enclave at the boundary of the Golden Triangle and Capital Hill where I work.

Gone: One decent deli on Lincoln in the Beauvillion.

Leaving: The Denver Democrats has terminated their lease on the 700 block of Sherman Street in favor of three year lease with options to renew at 574 S. Broadway, a SoBo home closer to transit, with 500 more square feet, more parking, and less rent. The deal was closed yesterday. The move will take place in February, 2009. It is merely coincidence that both the county and state party will now have their offices in State House District 2.

Coming Soon: A sandwich shop in the premises of my beloved, defunct coffee shop Scooter Joes

The skinny on 700 Lincoln. My sources tell me that Anthem isn't moving out, but is downsizing, which frees up more space in the building.

Local color: Our neighborhood's cops have good taste in coffee.

Fashion: Pink dress shirts for men are in, so are women dressed in Goth cut clothes with stunning rainbows of color instead of black, peacoats, and scarfs and knit caps as indoor wear.

26 January 2009

ERISA On A Rampage Again

In today's U.S. Supreme Court case, Estate of Kennedy v. Plan Administrator, the court unanimously continues the well settled path of treating ERISA plans (predominantly private sector pensions) as if they existed in a law and common sense vacuum.

The facts, as recited by the Court, were as follows (citations omitted), and concern the rights of the surivors of William Kennedy, whose employer ERISA plan had an SIP part and a Pension part:

In 1971, William married Liv Kennedy, and, in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. William and Liv divorced in 1994, subject to a decree that Liv “is . . .divested of all right, title, interest, and claim in and to . . . [a]ny and all sums . . . the proceeds [from], and any other rights related to any . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” William did not, however, execute any documents removing Liv as the SIP beneficiary, even though he did execute a new beneficiary-designation form naming his daughter, Kari Kennedy, as the beneficiary under DuPont’s Pension and Retirement Plan, also governed by ERISA.

On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s Estate. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the benefits to William’s designee.2

2 The Estate now says that William’s beneficiary-designation form for the Pension and Retirement Plan applied to the SIP as well, but theform on its face applies only to DuPont’s “Pension and Retirement Plan.” In the District Court, in fact, the Estate stipulatedthat William “never executed any forms or documents to remove orreplace Liv Kennedy as his sole beneficiary under either the SIP or [a plan that merged into the SIP].”

Thus, despite the fact that the right to receive SIP benefits from the plan was expressly waived in a divorce decree (in a portion apparently not submitted as a QDRO), and despite the fact that William Kennedy tried to designate a new beneficiary for the plan, although he screwed up by not realizing that his plan had two components, the ex-spouse gets the plan benefits because William Kennedy failed to fill out a new beneficiary form specifically for this part of the plan.

It also bears mention that under the state law of every state, divorce decrees (and indeed any documents authorized by an ex-spouse) can be considered in litigation over beneficiary designations, and that all non-probate beneficiary designations in favor of an ex-spouse are revoked by operation of law upon divorce in many states, when ERISA pre-emption does not apply.

The notion that ERISA covered benefits should be administered without regard to generally applicable state law is bad policy and has produced a host of bad results like this one. (The Court notes without addressing the fact that its isn't even clear that homicide would diqualify a beneficary, despite the fact that it does so under every state's law.

Justice Souter, writing for the unanimous Court isn't departing from precedent in his ruling, although the law probably had enough wiggle room in it for a credible decision to be written the other way. But, his policy arguments set forth below, are unimpressive (citations omitted):

The point is that by giving a plan participant a clear set of instructions formaking his own instructions clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtues of adhering to an uncomplicated rule: “simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules."

And the cost of less certain rules would be too plain. Plan administrators would be forced “to examine a multitude of external documents that might purport to affectthe dispensation of benefits,” and be drawn into litigation like this over the meaning and enforceability of purported waivers. The Estate’s suggestion that a plan administrator could resolve these sorts of disputes through interpleader actions merely restates the problem with the Estate’s position: it would destroy a plan administrator’s ability to look at the plan documents and records conforming to them to get clear distribution instructions, without going into court.

The Estate of course is right that this guarantee of simplicity is not absolute. The very enforceability of QDROs means that sometimes a plan administrator must look for the beneficiaries outside plan documents notwithstanding §1104(a)(1)(D); §1056(d)(3)(J) provides that a “person who is an alternate payee under a [QDRO] shall be considered for purposes of any provision of [ERISA] a beneficiary under the plan.” But this in effect means that a plan administrator who enforces a QDRO must be said to enforce plan documents, not ignore them. In any case, a QDRO enquiry is relatively discrete, given the specific and objective criteria for a domestic relations order that qualifies as a QDRO,12 requirements that amount to a statutory checklist working to “spare [an administrator] from litigation-fomenting ambiguities[.]" This is a far cry from asking a plan administrator to figure out whether a claimed federal common law waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and so forth, on into factually complex and subjective determinations.

12 To qualify as a QDRO, a divorce decree must “clearly specif[y]” the name and last known mailing address of the participant and the nameand mailing address of each alternate payee covered by the order; theamount or percentage of the participant’s benefits to be paid by theplan to each such alternate payee or the manner in which such amount or percentage is to be determined; the number of payments or period towhich the order applies; and each plan to which such order applies. A domestic relations order cannot qualify as a QDRO if it requires a plan to provide any type or form of benefit, or any option,not otherwise provided under the plan; requires the plan to provideincreased benefits; or requires the payment of benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. A plan is required to establish written procedures for determiningwhether a domestic relations order is a QDRO.

These are good and sufficient reasons for holding the line, just as we have done in cases of state laws that might blur the bright-line requirement to follow plan documentsin distributing benefits. Two recent preemption cases are instructive here. Boggs v. Boggs, held that ERISA preempted a state law permitting the testamentary transfer of a nonparticipant spouse’s community property interest in undistributed pension plan benefits. We rejected the entreaty to create “through case law . . . a new class of persons for whom plan assets are to be held and administered,” explaining that “[t]he statute is not amenable to this sweeping extratextual extension.” And in Egelhoff we held that ERISA preempted a state law providing that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. We said the law was at fault for standing in the way of making payments “simply by identifying the beneficiary specified by the plan documents,” and thus for purporting to “underminethe congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators[.]"

What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan administrator’s duty to act “in accordance with the documents and instruments.” And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule. Under the terms of the SIP Liv was William’s designated beneficiary. The plan provided an easy way for William to change the designation, but for whatever reason he did not. The plan provided a way todisclaim an interest in the SIP account, but Liv did not purport to follow it. The plan administrator therefore did exactly what §1104(a)(1)(D) required: “the documents control, and those name [the ex-wife].”

It is no answer, as the Estate argues, that William’s beneficiary-designation form should not control because it is not one of the “documents and instruments governing the plan” under §1104(a)(1)(D) and was not treated as a plan document by the plan administrator. That is beside the point. It is uncontested that the SIP and the summary plan description are “documents and instruments governing the plan.” Those documents provide that the plan administrator will pay benefits to a participant’s designated beneficiary, with designations and changes to be made in a particular way. William’s designation of Liv as his beneficiary was made in the way required; Liv’s waiver was not.

The litigation allergy expressed in this line of cases has no reasonable basis. A plan administrator can avoid a thicket of conflicting laws simply by having a choice of law provision in the plan. The wealth of litigation of ERISA benefits, because the results are frequently wrong in any reasonable set of laws, requires great resort to the expensive federal courts and to intricate, not widely understood, federal law. The case before the U.S. Supreme Court, where a court entered divorce decree memorializes an express waiver of the benefits in question, puts the lie to the notion that cases like this one have to be evidence intense and costly to litigate. In real life, Will and Trust contests are incredibly rare, there are a couple dozen a year in the State of Colorado which has 4.6 million residents, and most are quite inexpensive to litigate. The only thing that makes ERISA cases complicated is the Alice in Wonderland like law free zone into which it plunged Plan Administrators and everyone who must deal with them.

Congrats To Neil Gaiman!

Neil Gaiman is best known for his distinctive, adult speculative fiction that hovers between horror, contemporary fantasy and American fairytale. His closest peer in style is probably British author of children's speculative fiction Roald Dahl.

Now, he has won a Newberry award for a recent work of children's fiction, "The Graveyard Book," featuring a child raised by a vampire, a werewolf and a witch, which is apparently spooky, but family friendly.

Another of his children's offerings is also receiving major recognition.

Coraline is a 2009 animated stop-motion horror fantasy film based on Neil Gaiman's novella of the same name. Directed by Henry Selick, it is scheduled to be released in theaters on February 6, 2009.

The author offers this practical advice on the appropriateness of the movie for children:

I think a good rule of thumb would be, that if your child can cope with The Nightmare Before Christmas and the original Wizard of Oz then they should be able to cope with Coraline just fine.

As a general rule, Coraline the book is much creepier for adults than it is for kids, who tend to read it as an adventure. I suspect that this will be true of the film as well.

The movie is rated PG.

Gaiman's previous film efforts, including Stardust, an adaptation of another of his tales, have not been blockbusters.

His heavily followed blog is notable in its own right as a gold standard for creator-audience communication.

The Psych Bed Crisis in Denver

While the recent financial crisis has largely held the health care industry harmless, not all classes have providers have managed to capture a piece of double digit health insurance price increases year ater year.

Denver's psychiatric hospitals have been catastrophically cut in the past two decades, despite a growing metropolitan area population and no sign that the mental health of our region's people is getting any better. "About 40,000 mentally ill people show up in Colorado emergency rooms each year, statistics show. Of those, about 40 percent need hospitalization."

While there as a major deinstitutionalization of the mentally ill in the 1960s, most agree that while there were too many institutionalized mentally ill people in 1955 (about 340 bed per 100,000 people), that deinstitutionalization went too far. Now, many people who should be receiving institutionalized mental health treatment homeless, in jails and prisons, and cycling through expensive emergency rooms.

Metropolitan Denver has 700 psychiatric hospital beds in 1990. Now it has 230. Colorado is 50th among the 50 states and District of Columbia, in psychiastric hospital beds per capita.

Psychiatric hospital beds aren't cheap. The University of Colorado, which recently shut down its twenty-one bed psychiatric hospital spent $80,000 a year per bed to operate its facility.

Colorado has 11.8 psychiatric beds for every 100,000 people, while nationwide the average was 30.

The shortage of beds is bad enough that in November the state hospital at Pueblo had to turn away patients for nearly a week.

The hospital, which has eliminated more than 60 percent of its beds since 1990 because of budget cuts, had no choice, said Liz McDonough, spokeswoman for the state Department of Human Services, which oversees state hospitals. . . .

CU is hardly the first hospital to close its psychiatric unit. Heather Cameron, director of the Triage project, said the group found at least eight hospitals that had closed units in the past decade or so, including Presbyterian/St. Luke's and St. Anthony Central.

St. Anthony's closed in 2005; that year, the unit lost $3 million, said David Thompson, who became the hospital's chief financial officer after the closure.

The loss didn't come because the unit's 29 beds sat empty. On the contrary, "It stayed full. There definitely was a demand," Thompson said.

What was missing was payment for the care.

"The majority of patients did not have insurance," Thompson said.

At Denver Health Medical Center, 960 adults were admitted for inpatient treatment in 2007. Of those, 55 had private insurance, said Dr. Robert House, behavioral health director at Denver Health.

In November, Dr. Patricia Gabow, Denver Health's chief executive, warned that the number of uninsured patients might force the hospital to cut services — including mental- health care — in the coming year.

With University and St. Anthony hospitals shuttering their units, Gabow worries that the strain of psychiatric care, especially for indigent patients, could stretch their resources to the breaking point.

The hospital recently added a 10-bed psychiatric emergency unit, and it operates a 44-bed adult inpatient psychiatric unit.

Even when patients have insurance, there is no guarantee against losing money taking care of them.

At St. Anthony, insurance "reimbursement rates just weren't up to par. They just didn't cover the cost," Thompson said.

Many insurers require hospitals to provide almost daily justification for continuing treatment, and even then limit what they will cover, Most said.

"We have to beg sometimes every day to keep a patient in the hospital," Most said. "We have staff dedicated to just that."

Sometimes the insurers win and the results can be tragic. In one sad wrongful death case where I represented a mental health patient's survivors, the patient didn't want to leave, didn't have a good discharge plan, and committed suicide within 48 hours of being discharged.

While all areas of the health care system have deep seeded and intactable problems with patients who can't afford health insurance or pay for care out of pocket, there a few places where the problem is more accute than psychiatric hospital care. A system based upon employer provided health insurance, and on individual policies that often provide little or no mental health care coverage, simply does not serve this need well.

Even if a system of near universal health insurance through employers, supplemented with means tested subsidies, can work passably well for much of the nation's health care needs, this may not be a system that works to meet the needs of those requiring in patient mental health treatment. Given the grave costs of denying health care in this circumstances to patients, to their families and to the larger public handling this part of the health care system on a single payer basis may make sense.

The Denver Post offers as a public service, and I repeat, a list of the Denver area psychiatric hospitals with their respective capacities:

Where to find hospital care:
Key metro-area hospitals licensed to provide adult inpatient psychiatric treatment, including patients involuntarily committed:

• Boulder Community Hospital: 10 beds

• Centennial Peaks Hospital, Louisville: 30 beds

• Colorado Mental Health Institute at Fort Logan, Denver: 153 adult beds*

• Denver Health Medical Center: 44 beds

• Exempla West Pines, Lutheran Medical Center, Wheat Ridge: 38 beds

• Highlands Behavioral Health System, Littleton: 56 beds

• Porter Adventist Hospital, Denver: 35 beds

*Does not include beds for those committed through the criminal justice system

Ready To Go

Theater and politics live by the creed that the show must go on.

In politics, the people charged with making that happen are Vice Presidents and Lieutenant Governors, who have many years of boredom, punctuated by rare, but not as rare as one might expect, moments of supreme importance.

As opening night a couple of weeks ago in Denver's performance of The Color Purple showed, understudies for lead characters are sometimes called upon to turn the crisis of unavailable lead actors into triumph.

In both cases, the backup plan often works surprisingly well.

23 January 2009

Blagojevich Doomed

The Illinois House of Representatives overwhelmingly and bipartisanly impeached Democratic Governor of Illinois Rod Blagojevich.

The trial starts Monday in the Illinois Senate. The Senators must find that there is politically acceptable evidence that there is good cause to remove Blagojevich. They aren't required to follow court process, and aren't required to find proof that he committed a high crime or misdemeanor. The 5th Amendment right to be free not to testify against yourself and not have that held against you doesn't apply either.

This differs from the federal impeachment rules only in that in a federal impeachment trial, Senators must find that a high crime or misdemeanor was committed. Impeachment has always been the prototypical "political question" that the courts will not interfere with in a case like this one.

Blagojevich denied any wrongdoing but wouldn't discuss the federal corruption charges filed against him last month. . . . He has chosen not to mount any defense in the Senate impeachment trial that begins Monday and could remove him from office within days.

The near uninamous vote in the Illinois House of Representatives, combined with Blagojevich's refusal to delay the U.S. Senate appointment which is at the heart of the controversy, President Obama's unwillingness to support him, and the disrespect Blagojevich will show to the Illinois Senate by failing to even try to defend himself directly to them, makes it almost certain that he will be removed by the Illinois Senate at the conclusion of the impeachment trial.

As the news story linked above explains:

It's not clear what, if anything, Blagojevich hopes to gain from his strategy of boycotting the impeachment trial and defending himself through the media.

Several legal experts said they could see some benefit to participating in the trial or resigning office. But refusing to do either makes little sense, they said.

"There's no benefit at all, except to make himself look ridiculous. In addition, anything he says can be used against him later" in court," said Leonard Cavise, a law professor at DePaul University.

The FBI arrested Blagojevich on a variety of corruption charges, including the allegation he schemed to benefit from his power to name President Barack Obama's replacement in the U.S. Senate.

His arrest triggered impeachment proceedings, and the House voted almost unanimously to send his case to the Senate for trial. A Senate conviction would remove him from office but have no impact on the continuing criminal case.

The only way Blagojevich can stay in office is to find 20 of the Senate's 59 members willing to vote for his acquittal. It's possible he hopes defending himself in interviews will inspire the public to pressure senators to support him. . . .

Shortly after his arrest, an independent poll found his job-approval rating had dwindled to just 8 percent. More recently, a poll for the Illinois Campaign for Political Reform found that nearly 8 out of 10 Illinois residents believe the state is on the wrong track. . . .

The governor twisted facts or exaggerated to support his version of events.

He has repeatedly said he wouldn't be allowed to call witnesses in the Senate trial, but that's not correct. Trial rules prohibit witnesses that federal prosecutors feel would interfere with their criminal case, but Blagojevich could have called other people.

He has specifically mentioned wanting to call governors and senators to testify about all the good he's done. Nothing in Senate rules would have barred those witnesses. Blagojevich never asked to have them testify.

When the papers finally get the balls to call you out for lying, prior to a trial, you know you are doomed. I can't imagine a governor or senator who would be willing to put his reputation on the line to say anything positive about Blagojevich either.

Leukemia Drug Effective Against M.S.

"Multiple sclerosis is the most common neurological condition affecting young adults." I lost an aunt to the disease.

Now, cladribine, a drug currently used to treat Leukemia, has shown significant advances in treating M.S. "[P]atients taking cladribine tablets had a nearly 60 percent lower relapse rate than those on placebo pills. . . . cladribine appear[s] to be twice as effective as current primary treatments for MS" in large human trials with controls.

The drug approval process is not yet complete and there is still open questions about the long term benefits of the drug and its side effects. The drug is likely to come to market in a year or two.

Science and Original Sin

Is aggressive, violent behavior something that young adults learn through exposure to violence in daily life and in the media?


Instead, almost everybody starts out with some measure of violent and aggressive tendencies that systematically decline as we get older. What we learn and/or grow out of, in greater or lesser degrees, is how to control violent and aggressive tendencies that come naturally. These tendencies are akin to the Christian notion of original sin, which can be overcome in life, despite the fact that everyone is born with it.

Until recently, most research on aggression has focused on adolescents and adults. A minority of longitudinal studies using large samples of elementary school-aged children has provided important information on the development of physical aggression. One significant and unexpected finding in these longitudinal studies was that the vast majority of children reduced the frequency of their physical aggression from the time they began school until the end of high school. The same phenomenon applied equally to both girls and boys, although girls systematically showed lower frequencies of physical aggression than did boys. This phenomenon was observed during the 1980s and 1990s in Canada, New Zealand, and the United States, where the homicide rate was rising.

This decline in the frequency of physical aggression with age was unexpected from a social learning of aggression perspective, since the children are exposed to more and more models of physical aggression as they grew older. Longitudinal studies have also shown that it is extremely unlikely that an adolescent who has not been highly physically aggressive in the past will suddenly manifest significant problems with physical aggression. . .

[T]he frequency of physical aggression use increases during the first 30 to 42 months after birth and then decreases steadily. Fewer girls than boys reached the highest frequency levels, and girls tended to reduce the frequency of their aggression earlier in life.

Further, longitudinal studies up to adolescence show that preschool is a sensitive period for learning to regulate physical aggression. Indeed, the minority of elementary school children (5% to 10%) who continue to show high levels of physical aggression remain at greatest risk of engaging in physically violent behaviour during adolescence.

Interestingly, while the frequency of physical aggression was found to decrease from the third or fourth year after birth, the frequency of indirect aggression (making disparaging remarks about another person behind his or her back) increases substantially from four to seven years of age, and girls tended to use this form of aggression more frequently than did boys.

The main risk factors for women to have children with serious physical aggression problems are the following: a low education level, a history of behaviour problems, first delivery at a young age, smoking during pregnancy, and low income. A study of a large sample of twins also points to genetic effects on individual differences in frequency of physical aggression at 19 months of age. . . .

In 1972, Donald Hebb, a father of modern psychology, noted that children did not need to learn how to have a temper tantrum. In his 1979 book on social development, Robert Cairns reminded human development students that the most aggressive animals were those that had been isolated from the time they were born. Indeed, infants appear to use physical aggression spontaneously to achieve their goals when angry. Following the pioneering work of Charles Darwin, Michael Lewis and his colleagues showed that angry reactions could be observed as early as two months after birth. Children also seem to resort spontaneously to play-fighting. Thus, rather than learning to use physical aggression from their environment, human children learn not to use physical aggression through various forms of interaction with their environment.

From: Tremblay RE. Development of physical aggression from early childhood to adulthood. Rev ed. In: Tremblay RE, Barr RG, Peters RDeV, Boivin M, eds. Encyclopedia on Early Childhood Development [online]. Montreal, Quebec: Centre of Excellence for Early Childhood Development; 2008:1-7. Available at: http://www.child-encyclopedia.com/documents/TremblayANGxp_rev.pdf. Accessed January 23, 2009.

The research on longitudinal patterns in physical violence and aggression mirror longitudinal studies of academic development.

The road that leads to academic failure, physical violence, and aggression by high school aged children and young adults is already well established in most cases by elementary school.

Dropout rates and disparities in academic achievement in high school are substantially in place by the time kids are taking third grade CSAPs. Violent and aggressive behavior that will lead to school discipline, and run ins with the law, for teens and young adults have also narrowed to a fairly well defined and small majority of kids at risk in elementary school. And, we know from other research that the distinct quality of lack of conscience associated with the emerging psychological classification of "psychopathy" also manifests in early childhood.

(In contrast, schizophrenia, bipolar disorder, substance abuse problems and a number of common severe mental health issues often manifest clinically for the first time only in adolescence and young adulthood.)

From a policy perspective, the research favors early identification of academically and behaviorally "at risk" kids and intensive intervention as early as possible, in problems which will be deeply problematic for society later in life if they are not successfully addressed. It also suggests that education focused on teaching kids to find alternatives to aggressive behavior and managing anger may be appropriate on a much wider basis with younger people, as opposed to the narrow rehabilitative setting where it is currently mandated through the criminal justice system.

While less definitive, it would appear to me that (1) this research tends to disfavor the notion that harm is done by stigmatizing individuals who will live up to negative expectations of them (since the research tends to indicate that failing to act in the interest of avoiding this kind of stigma doesn't help), and that (2) regulation of violent media is unlikely to have beneficial effects.

This research appears to strengthen some liberal and some conservative ideas about criminal justice.

On one hand, it supports the politically liberal tendency to favor leniency towards young offenders charged with violent crimes. A young offender who is a late bloomer has a much greater likelihood of growing out of violent and aggressive tendencies than an offender who remains that way at a greater age.

On the other hand, it supports that politically conservative notion that, by the time one is dealing with adult offenders, a significant portion of people who offend are "criminals" who are a high risk of reoffending because of who they are, rather than simply products of their momentary circumstances. The judge, lawyers and jurors in a courtroom probably wouldn't have resorted to violence or aggression had they been walking in the shoes of the defendant.

Meet New York State's Next U.S. Senator

One of the ways that the Democratic party has decimated Republicans in New England and the Mid-Atlantic, is with candidates like Kirsten Gillibrand, a libertarian leaning Democrat who represents an conservative upstate New York Congressional District more or less along the Hudson River.

New York Gov. David Paterson has chosen Democratic Congresswoman Kirsten Gillibrand to succeed Hillary Clinton as U.S. Senator from New York . . . Gillibrand, 42, represents New York's traditionally Republican 20th district.

She is a member of the Blue Dog Coalition, a group of congressional Democrats who hold more conservative views than their liberal Democratic counterparts.

She is an outspoken advocate for gun rights, and she supports an extension of the Bush tax cuts. She has been endorsed by the National Rifle Association.

She also has a 100 percent rating from the American Civil Liberties Union. . . .

Gillibrand was elected to the House of Representatives in 2006, unseating Republican John Sweeney. In the 1990s, she worked as a lawyer for the Department of Housing and Urban Development during Cuomo's tenure as housing secretary in the Clinton administration.

She was one of dozens of Democrats who joined House Republicans in voting against the Bush administration's $700 billion bailout of the financial industry in October, arguing the plan lacked proper oversight.

Libertarian leaning politicians provide the free market economic leanings, a distaste for deficit spending, and acceptance of private gun ownership that have been important parts of the Republican political playbook. Yet, they reject the heavy handed legally imposed morality, disregard for civil liberties and rejection of science that motivate conservatives in the South, but alienate even wealthy conservatives in the Northeast and West.

While the Libertarian party in the United States is something of a joke, libertarian leaning voters are a crucial group of swing voters that Democrats and Republicans seek to woo. And, the Democrats have been winning that contest for the last several elections.

Also, if the Democrats continue to dominate the libertarian corner of the political compass, in addition to the more traditional liberal corner, Democrats will also write the future of the Republican party's effort to reach out beyond its traditional conservative corner. The only place for Republicans to expand will be will populist leaning voters and candidates, "big government Republicans" they are sometimes called, like Mike Huckabee.

22 January 2009

Anxious For The Neighborhood

In addition to the neighborhood where I live, in West Washington Park, I also spend a lot of time in the Southwest Capital Hill neighborhood where my law office is located.

The good news in the neighborhood is that in recent months we have added two new purveyors of pizza (one was previously a take and bake only pizza shop), and a new nightclub (Zen). We also have a large high end apartment/condominium high rise on the verge of opening.

The bad news in the neighborhood is that we have lost two of my favorite neighborhood coffee shops (although Avianos survives), an Oyster bar, a Chipotle clone, and one of Planned Parenthood's biggest offices in the state. We've also seen a neighborhood jewelry store lose its franchise, although it is still in business at this point.

But, all that is inconsequential compared to the ugly threat looming over our little part of the neighborhood.

My office is equidistant between the neighborhood's two largest employers. The Denver Public Schools have their administrative offices in a massive 1960s office building at 900 Grant Street. Anthem, which is Colorado's Blue Cross and Blue Shield affiliate and one of the state's largest health insurance providers, has a massive medium rise office building that takes up an entire block at 700 Broadway. The two office buildings together bring thousands of people to work in my neighborhood every day.

Neither DPS nor Anthem are at any risk of going out of business. But, like every enterprise these days, they are looking to shed costs.

Before being appointed as U.S. Senator for Colorado (he should be sworn in today), Michael Bennett, as superintendent of the Denver Public Schools, was seriously exploring a move of the DPS administrative offices at 900 Grant to vacant space in the District's many half empty high schools and middle schools. The move continues to make economic sense for DPS because the district has far too much real estate for its current student body, and a move from the 900 Grant building would disrupt students not at all, and would be most easily converted for use by occupants other than schools and colleges.

Meanwhile, the 700 Broadway building now has a "for lease" sign prominently displayed outside. And, since the building has basically only one tenant, and there is no sign that health insurance companies are making major layoffs, it is fair to guess that the whole operation may be relocating to cheaper offices elsewhere in the metropolitian area -- perhaps some Inverness or Denver Tech Center office park that has lots of empty space as a result of the economic downturn.

If both these possibilities come to pass (and I don't have enough inside information in either to put reliable odds on these things happening in the way that I fear that they will), the vitality of my day time neighborhood will be sucked into a giant black whole for a while, until these spaces can be filled with new tenants, which could take a long time in the current economy.

The Anthem departure could also produce a measurable reduction in Denver head tax collections, eat into sales and gas taxes these workers pay in the neighborhood which might migrate to the suburbs, and greatly devalue all of the commercial real estate in the neighborhood, which could eventually reduce Denver's property tax base.

It isn't clear that there is any room for municipal government intervention in either of these ugly possibilities. A DPS move from 900 Grant Street would hurt my neighborhood, but provide a boon to some other struggling Denver neighborhood and increase the financial stability of DPS as well. Anthem is free to locate itself where it wants, and the price it is paying per square foot to lease its old and new spaces probably overwhelms any kind of tax incentive that the City could provide it.

The one thing that the state, municipal and regional governments might consider, which could help my neighborhood, is to see if it might be possible to lease space in either of these buildings on favorable terms, consolidating from other locations. Both buildings are fairly convenient to downtown and key governmental buildings, while not being so close that it is possible to demand 80202 zip code rent premiums.

One could also imagine one or both of the city's daily newspapers, The Denver Post, and if it survives, The Rocky Mountain News finding a way to relocate from their expensive prime real estate signature office building next to the Wellington Webb building at Civic Center Park, to parts of one of these less prime locations.

21 January 2009

China-Taiwan Rapprochement

The single most expensive geopolitical situation driving the United States Defense Department's budget is the concern that mainland China might invade Taiwan, and that the U.S., to defend its Taiwanese ally, might have to go head to head against the full force of the increasingly sophisticated and large Chinese military.

Preparing for this possibility is a very important justification for the U.S. Navy's budget. There are few other world threats that justify a Navy of the scale currently in place. It is also an important justification for the Air Force's force structure.

Apparently, however, these tensions have defused greatly over the last few years.

There is now direct postal service, commercial air transport, and, most recently, shipping between China and Taiwan. Also, Taiwan businessmen are investing in China.

And, in early January the China News Agency announced that representatives of China and Taiwan were are expected to meet after the Chinese New Year holidays to hammer out the technical details of several agreements to be signed during the third round of high-level, cross-Taiwan Strait talks. According to Straits Exchange Foundation Chairman Chiang Pin-kung, the new set of agreements will address issues such as cooperation on financial supervision and regulation, prevention of double taxation, intellectual property rights protection, and cooperation on combating crime.

These "semi-official" talks have seen unprecedented agreements between China and Taiwan, certainly a means of "defusing" the previous, danger-fraught relations between the two.

It also appears that the Chinese military, which has expanded and grown more sophisticated over the last few years, may be focusing more on protecting Chinese access to foreign oil resources, and less on keeping open the option of invading Taiwan militarily. One of China's most recent military engagements was to add its Navy resources to the international group of ships firing shots in anger to protect shipping from Somali pirates. This shipping matters to China because much of its oil supply travels this route from Sudanese suppliers.

The surprise is not so much that this is happening, as that it is happening now. China has been liberalizing its economy, and curtailing the worst abuses of its authoritarian political system, ever since the end of the Cultural Revolution, the arrest of the "Gang of Four" and the death of Mao in 1976. Progress has come sometimes in spurts and paused at other times, but it has not stopped.

Unlike almost all of the rest of the world, China has not adopted wholesale either the Continental European political and legal model, or the Anglo-American political and legal model.

Instead, China has organically established its own legal system that differ from Western models right down to core concepts like "what is property," and has conducted almost all of the political liberalization that has taken place within a single political party, within the bounds of strict restrictions on the public expression of ideas.

There is much about the Chinese model which is undesirable. Its economic growth is fueled in part by artificially propping up the American dollar vis-a-vis the Chinese currency, producing trade deficits and creating an unsustainable situation. Its coal driven economy is a global environmental disaster. China makes wider use of the death penalty than any other country on Earth, and provides only weak protections for the accused in its criminal justice system. China still comes across as unpredictable, inscrutable and somewhat corrupt in its international trade dealings. Limits on expression impair the Chinese quality of life, mutes the ability of its political economy to secure progress, and can allow legitimate grievances to fester until they get out of control.

But, the Chinese model isn't necessarily fatally flawed either. China is more democratic now (with a little "d") than it was when it received the wake up call embodies in the Tiananmen protests. China has weathered the past thirty-two years without any further episodes of Stalin/Mao class repression, or a civil war (or even serious insurgency) in a country with many regions that hunger for independence.

The Chinese have chafed under harsh centralized policies like the "One Child policy," crude imposition of harsh criminal penalties and restrictions on free speech. But, China has been more open to change that nations following the Soviet model that ultimately collapsed, and has been less repressive the regimes those of Saudi Arabia, Sudan, the Taliban, Iran, Pol Pot's Cambodia, Kazakhstan, the Soviet Union, North Korea, the Nazi regimes, Cold War Albania, or its own regime under Mao. China has for the past generation avoided than perils of weak government found in most of Africa, the perils of anarchy found in Somalia, and the temptation to overextend itself on a military front exhibited by Imperialist Japan and the Nazi regimes. China has maintained civilian rule with less military influence than Turkey, most of Latin America, and a host of other emerging democracies which have been ruled from time to time by military juntas (including currently industrialized democratic countries like South Korea, Greece and Spain).

The re-establishment of Chinese supremacy in Hong Kong, in 1997, and in Macau, in 1999, produced a small step backward in each former Western colony's political economy. But, China has refrained from crushing the basically Western economic systems that have contributed to economic prosperity in these former colonies, in either place. These experiences appears to have calmed the worst case scenario fears of Taiwan about what might happen if it were more closely integrated politically with the mainland.

Neither the Chinese elite, nor the common people of China, are so isolated from the rest of the world that they cannot see the way that the winds of political and economic change are blowing. Official Chinese new reports are mind numbing for their indirectness, and official Chinese diplomatic P.R. is sometimes laughably inept. But, China is not indifferent to its international reputation.

The Chinese elite does not have a "free society" as a priority. But, it does want its people to be more prosperous materially, does want its people to be predominantly happy with their lot in life, and does want its country to earn international respect through extraordinary accomplishments from its Olympic performances to its space program to its reputation for respecting human rights.

The modern, developed world is still holding its breath when it comes to China. This nuclear power with growing military might is not governed according to the values or principals of the West, and could easily be drawn into a dangerous nationalist fury if provoked.

But, the possibility that the international community can calm the waters long enough for China's system to come into secure harmony with the rest of the world, and for its backward neighbor North Korea to collapse under its own inadequacies, before either country winds up in a bloody modern war, is looking more likely than ever.

8th Circuit Slapped Down For Defying SCOTUS

The U.S. Supreme Court ruled that it was permissible for trial courts to ignore crack sentencing guidelines in ordinary crack cocaine cases.

The U.S. Supreme Court then reversed and remanded for reconsideration, a case presenting the same issue from the 8th Circuit Court of Appeals in a case where it had held that trial courts may not ignore crack sentencing guidelines unless extraordinary circumstances were present. The 8th Circuit, on remand, reached the same conclusion for the same reason, despite that the U.S. Supreme Court had just authoritatively overruled it on this ground. Today, in a per curium ruling, the 8th Circuit's ruling on remand was again overruled, emphatically.

The tussle mirrors similar ones with the also conservative 5th Circuit Court of Appeals in a few cases.

The inability of conservative justices on the 8th Circuit panel, and of three justices who dissented from this opinion (Chief Justice Roberts, Justice Thomas and Justice Alito dissented) to acknowledge that this issue was already decided by recent U.S. Supreme Court decision on point is really indefensible. This is the kind of childish and partisan behavior that President Obama denounced in his inaugural address.

Conservatives frequently excoriate lawyers for arguing improbable interpretations of court cases. But, lawyers only do it because sometimes it works.

Broadest Liability Waiver Ever

A recent bankruptcy case calls attention to a limited liablity company that, under Delaware law, has exempted its manager (the LLC equivalent of a CEO) from all legal responsibility to the Company whatsoever, even intentional acts designed to harm the Company (e.g. civil liability for intentional theft).

While it is relatively common to relieve business entity officers and managers for liability for mere negligence, to permit them to rely entirely on certain kinds of third party opinions, and to permit conflicts of interest with a business in isolated transactions negotiated at the outset (usually accompanied by exclusion of the individual from the transactions involved), a complete and total waiver of liability is almost unheard of, and would be invalid in most jurisdictions.

The case also raised the question of who could have ethically drafted the law. While Delaware corporate law permits broad waivers, a lawyer for an entity's client is ethically required to place the interests of the entity (in the abstract) above the interests of any particular person affiliated with the entity, even senior management in extreme cases. I find it hard to see any credible argument that an omnibus waiver of all liability from senior management could ever be in the best interests of the entity.

One also wonders if an entity with such a broad waiver of liability is, in any meaningful sense, really still a limited liability company. There is a fair argument that, at this extreme, that the company has become a mere alter ego of its manager and that it is, a de facto sole proprietorship. If so, the limited liability protection should not, in fairness, be recognized by the courts and the manager should have personal liability to third parties for all of his acts as manager.

Fiat Buys Chrysler Stake

Italian automobile maker Fiat is purchasing a 35% equity stake in American automobile maker Chrysler. The move provides hope for the most troubled of the Big Three American automobile makers, with both GM and Chrysler on the brink of bankruptcy and receiving federal bailout financing. An ultimate merger of the companies is a possibility.

20 January 2009

The Exclusionary Rule

Randy Barnett, a law professor, explores problems with the operation of the 4th Amendment exclusionary rule, and suggests solutions involving a restitutionary remedy and vicarious liability of police departments for police misconduct, similar to those I have identified in the past.

I'm not convinced that the exclusionary rule does as much harm as suggested in cases of factually guilty criminal defendants, many of whom face criminal liability for some manner of drug or contraband possession. But, his suggestions for improving civil rights action remedies are good ones.

New Daily Kos Sig Quote

After years with a quote from Voltaire appropriate to the Bush Administration as my comment sig at Daily Kos ("Those who can make you believe absurdities can make you commit atrocities."), I have moved on to a more upbeat sig appropriate to the Obama era:

"Learn from yesterday, live for today, hope for tomorrow.” -- Albert Einstein

President Obama

In an hour and a half, the term of our 43rd President, George W. Bush, will end, and the term of President Barack Hussein Obama, our 44th President, will begin.

Bush leaves with Nixonian approval ratings, a widespread belief that his war in Iraq has accomplished nothing and that his war in Afghanistan is not going well, an economy in shambles, the legacy of losing a major American city in Hurricane Katrina, and international contempt.

Obama faces the highest expectations. He is seen as FDR to Bush 43's Herbert Hoover. His biography bears similarities to that of President Lincoln, another state senator from Illinois promising change. He is seen by many as bearing the mantle of Martin Luther King, Jr., completing our nation's journey towards racial harmony and equality. The French President proclaimed that under Obama, Europe will once again have a United States that shares its values. The youthfulness of Obama and his family, and his idealism, evoke John F. Kennedy's Camelot. He is compared to Moses, leading a people out of an oppressive period in their history, and Jesus, a Messiah to save us all.

The nation hungers for change, and Obama has the mandate and supporting cast in Congress, to accomplish a great deal. Through his campaign and transition team, Obama has already developed a reputation for being a consumate planner. His cabinet picks has been rushed through the Senate approval process, ready to fill their posts on day one, or close to it. The first 100 days legislative agenda is waiting in the wings, receiving finishing touches, but ready to define his admininstration and give it some consensus accomplishments. There are Executive Orders waiting in a stack, carefully vetted by his closest advisors and reviewed in detail, ready to be signed. Those Executive Orders will immediately turn back Bush Administration policies on key issues (like torture) in a way that prolonged efforts from Congress could not.

President Lyndon Johnson, like Obama, came from humble origins and had an amibtious legislative agenda. History remembers how he struggled to salvage his positive agenda from the all absorbing negativity of the Vietnam War that threatened it.

The consensus of Congress, Barack Obama, Hillary Clinton, and the Iraqi civilian government, a consensus that ultimately absorbed even John McCain who had proclaimed a willingness to fight a hundred year war in Iraq, forced the hand of President Bush who cut a deal with the Iraqi government that is already winding down the war in Iraq. An era of impunity for occupying foreign military forces ended with the New Year, under the new status of forces agreement there. U.S. troops (there are scarcely any other memebers of the "Coalition of the Willing" left), are scheduled with withdraw from Iraqi cities in June. There is a date on the calendar for complete withdrawal of U.S. troops, and there is every reason to believe that substantial withdrawals of U.S. forces will take place before then.

There is every reason to be optimistic about Obama's handling of the economy. The "Great Recession" is already so far advanced that its end is, while not around the corner, not hopelessly distant either. Obama can be trusted to do, at least, some of the right things from a policy perspective, to address the financial crisis, and to put together a group of people who understand and are skilled at working with government to implement those policies appropriately.

The greatest anxiety is that a weak economy and possibly escalating conflicts in Afghanistan may derail Obama's positive social agenda on issues like major health care reform to cover the bulk of the uninsured, and reforms designed to improve access to higher education. For now, all we can do is hope, wait and see.

But, today, I still have hope, higher than I've had for a very long time, that we are heading on the right track.

19 January 2009

Epigenetics, Twins and Clones

A clone is an individual living being created with the same DNA as the clone parent. But, there is more to one's blueprint for life than the letters of one's DNA. Environment matters, and a particularly important part of one's environment is the experience one has in the womb prior to birth, when one's body develops from a single cell to an autonomous being. Both factors can lead to similarity in twins.

Recent studies highlight that fact.

[M]ethylation — a chemical alteration that turns off genes — occurs most often near, but not precisely within, the DNA regions on which scientists have typically focused their studies. . . . Methylation is just one of many epigenetic signals — chemical changes to DNA and its associated proteins — that modify gene activity without altering the genetic information in the genes. Methylation and other epigenetic signals help guide stem cells as they develop into other type of cells. . . .

Epigenetic patterns established in the early embryo are carried throughout life with some differences introduced by the environment and others by random chance and error in replicating the patterns as the person develops. DNA is reproduced with high fidelity — mistakes happen in about one in a million bases — but the process of reproducing epigenetic patterns in dividing cells is rather more error-prone, with one in a thousand epigenetic marks going awry.

Identical twins are similiar not just because they have the same DNA, but also because the have similiar methylation patterns, which are believed to result from sharing the same embryo, rather than from having the same DNA.

According to the author of a recent study of methylation patterns in twins:

[T]he methylation patterns in monozygotic twins were more similar than for dizygotic twins, fraternal twins who develop from two separate eggs. And the group found that the amount of variation between monozygotic twins correlates with the time the embryo split. . . . [T]he similarity between monozygotic twins results not from shared DNA sequences but from having come from the same embryo. “We don’t see any reason to think that the DNA sequence makes up the epigenetic profile[.]

Epigenetic traits are believed to be particularly important in explaining some kinds of mental illness and the long lasting effects of some kinds of drug abuse.

Similarly, exposure to certain hormones in utero is believed to impact who the sexuality and gender specific traits of a person, including sexual orientation, develop, influencing how the basic XY or XX (or in some cases more complex gene combinatations) express themselves in a person.

One interesting line of research looks at the ratio of index finger length to ring finger length (sometimes called a person's digit ratio and the number of girls and boys born to one's mother prior to your own birth as a stable markers for this kind of in utero exposure to hormones, and has found a great many statistically significant correlations that suggest that hormone exposure in utero can have a meaningful impact on the kind of person that one grows up to be in life. Many of the traits in question appear to go to some version or other of what a lay person might call a person's temperment. Digit ratio studies are cheap, easy and non-invasive to conduct with large sample sizes, making it fairly easy to conduct studies that can capture even modest statistical significance related to it. To the extent that these produce consistent results and that the trait is, as hypothesized, as marker for a person's in utero experience, they have the potential to provide more than pop psychological insight.

For example, one simple study done in 2002 which compared digit ratio (measured on a photocopy of the person's hand without that individual present and without knowing how a questionaire administered at the same time was answered) and self-identification as a "butch" or "femme" lesbian on a questionaire, produced a statistically significant (p score .04) relationship in the expected direction, with women who identifying as "butch" having digit ratios more similar to that of men than that of other women.

Also interesting is the fact that one's "epigenome" can change during a person's life, renewing interest in the ability of people to biologically adapt, by means other than simple natural selection, that were mostly rejected when the mechanism of core DNA was better understood.

These are fascinating findings because the standard model for epigenetics has been that DNA marks are immutable once set down as part of development. The new findings … strongly support the emerging idea that the epigenome is dynamically regulated over the lifetime of a person, perhaps in response to environmental signals, life experiences and as part of the normal aging process.

For example, extended exposure to severe stress might cause a person's epigenome to change permanently in a way that makes that person vulnerable to depression. Or, drug use might change one's epigenome in a way that creates an ongoing need for the drug.

Slowly Going Paperless

My law firm, like almost every law firm, has a copier (actually two copiers, one with color that we use mostly for scanning documents and for small print and copy jobs, and another industrial sized one that copies in black and white).

We also have a stand alone fax, three laser printers, a few file cabinets for paper files, and arrangements for long term storage of closed files until they reach their destruction date. We used to have a postage meter, but discontinued the service a couple of years ago, instead using stamps and a postal scale, because the volume of mail weighing more than an ounce that we were sending didn't justify it any longer.

While we've talked about becoming a paperless office, like most law firms, we haven't decisively made a near 100% transition. Instead, paper reducing changes have crept up on us.


One of the big factors was the shift to mandatory e-filing in most of the state's trial courts of general jurisdiction.

When I started practicing law, we needed a small army of administrative staff to make a court filing. The original and a copy to be file stamped and returned in a self-addressed envelope was sent to the court, by mail in a manila envelope, on the deadline for filing. One copy was placed in our paper file, pinned down, tabbed and indexed. Another copy was mailed to every party in the case -- not infrequently several or even a dozen of them, and to the client. Each envelope typically included a form cover letter also copied to the file. A paralegal or legal secretary would sign a certificate of service reciting that a copy was sent to each person on the mailing list that appeared below that certificate, and that was a serious matter, because there would be no other independent record that the document was sent (one rarely used certified mail to deliver papers to other lawyers in a case).

This had to be completed for every court document in every case in the office in time to get to the post office or a mail box that picked up that day. This was non-trivial, because in Grand Junction, there was no nearby post office open until midnight.

With e-filing, the process is comparatively trivial. A single copy is printed and signed, which serves as both an "audit copy" for the e-filing system and as the file copy for the firm. The court and opposing counsel receive their copies on a website, and receive notice via e-mail that a new document has arrived for them to retrieve at their leisure. As long as you authorize that the document be sent prior to midnight via the computer, it is timely. There is no need to worry about getting anything to the post office by closing time. A certificate of service is completed (although often, now, it is signed by an attorney), but that is far less material now, because the e-filing system itself provides independent verification of the fact that the document was delivered and identifies who it was sent to, at which e-mail addresses. The client copy is typically sent under separate cover via an e-mail with a pdf attachment, and often with a brief statement of explanation to the client in the e-mail. The "sent mail" folder provides proof that the copy was sent to the client.

In some cases, we print a paper copy of each document received. But, in some cases that isn't necessary, and we simply save a pdf copy of the document received in the client's computer file (which, with regular backup, is probably less at risk of being lost or destroyed than the paper copy).

The main exceptions to the rule are original wills (which must be both physically and e-filed), and documents that must be personally served (like an initial summons and complaint or a subpoena). But, it isn't unusual for service to be delivered to an attorney contained prior to issuing a complaint or subpoena), for the document to be delivered electronically to that attorney, and for service of process to be waived, adding only a one or two page hard copy of a waiver of service to the paper file.

County courts (courts of limited jurisdiction) have not converted to e-filing, with a few exceptions, but those cases tend to have far thinner files that don't use much paper, because most motion practice is prohibited in county court, because the cases tend to have fewer parties, and because the cases tend to be simple ones (or, at any rate, litigated as simple ones, given the limited resources available to prosecute each one).

Scanned Documents In Discovery and Evidence

In most civil litigation, prior to trial there are one or more exchanges of large quantities of documents. The first batch is called one's "initial disclosures." The subsequent batches are called "discovery." In big cases, as much as 90% of litigation costs, and 99% of the paper in the case, consists of initial disclosures and discovery. Another important part of the discovery process involves "depositions" which are examinations of potential witnesses under oath before a court reporter, which produce lengthy transcripts.

In cases handled in a predominantly paper format, it isn't usual for a lawyer to have an entire book case or file cabinet of these discovery documents and transcripts in his or her office, or in a file room. Near due dates for producing these documents, it wouldn't be unusual to receive 30 pound boxes of documents in the mail, or via courier from opposing counsel.

There are still cases that proceed in this manner. But, now, in the U.S. District Court for the District of Colorado (i.e. federal court), documentary evidence must be presented in electronic form at trial, except in the rare instances when the core issue with regard to a document is its authenticity.

As a result, it isn't uncommon for law firms, my own included, to gear up for those cases by scanning all paper documents in the case into electronic form immediately. As a result, while you may have banker's boxes of your own client's original documents in your office somewhere, it is not usual for the document exchanges that take place in a case to involve an exchange of CDs full of pdf files. Court reporters also typically provide an electronic copy of a transcript (which is searchable) in addition to the paper copy. The CDs typically get filed away in a thin file folder, after they are copied into the computer file for the case.

Many firms have decided this is more efficient and use this approach in most of their cases.


When I started practice, a hard copy letter, on pre-printed stationary, signed and send via U.S. mail was the normal way you communicated with anyone, other than by telephone, and telephone communcations were themselves often followed by confirming hard copy letters. It was a rare day when I lawyer did not have several letters to mail.

All of our bills payable were paid by physical checks send in the mail to the person owed. All of our invoices went out in the same way. All of this, of course, was photocopied before it went out the door and placed in a correspondence file.

For a while, it wasn't uncommon, for urgent communications to take place with hard copies of these letters sent via both facsimile and mail. The mail copy would have the usual file copy placed in a correspondence file. The copy sent via facsimile would have the fax cover sheet and confirmation attached and placed in the client file, and another copy of the letter, the cover sheet and the confirmation sheet placed in a fax log binder.

All of the copying, mailing, and faxing was done by office staff, and all of the lawyer's work needed to be done in time for the office staff to finish the work and leave the office in time to go to the post office. While one person went to the post office, the remaining office staff would pin down the copies into files and update the indexes.

Now, we pay about half of our office's bills electronically, and a few are even invoiced electronically. Probably three-quarters or more of our bills are sent via e-mail, and a growing proportion are paid electronically with credit or debit cards.

As recently as three years ago, the fax seemed to hum incessantly with messages going out or in, all day long. Checking the fax machine was something that I did several times a day as a matter of routine, and almost every communication with an attached document went via fax. Six years ago, I used it even more. Now, I probably receive three or four faxes a week with any substance, plus a few mass faxes (usually with our permission from civic organizations), and send one or two a week.

Now, most of the postal mail we sent consists of bill payments and requests to have documents certified or recorded, and most of the mail we receive consists of exemplified documents and payments received from clients (as well as periodicals and bulk mail).

This doesn't mean that correspondence has ceased or the confirming communications to follow up on telephone conversations have ended. But, probably 90% of the communications that I used to make by mail or fax are now made via e-mail, often with attachments. Even paper intraoffice memos have been largely replaced by intraoffice e-mail.

E-mail on our system automatically copies itself when it is sent, and the sent copies are routinely filed in a folder for the client or matter in question, often as a last busywork task of the day chore. Most e-mails have computer backups, but are never printed out in a client file unless they are lengthy and substantive, it is necessary to do so in the discovery process, or a file is closed. The date of the communication and a signature block in lieu of a stationary header is often used.

Legal Research

When I started practice, almost every law office had hundreds of volumes of case reports, which provided full text copies of every appellate court case decided in the state. In New York, we had multiple versions of these reports so we could cite to cases correctly. Larger offices or those that practiced a lot of federal law, also had reporters for the federal courts, or at least a practice area service for cases of a particular type. We have encyclopedia like digests that were encyclopedia length, arranged in a subject matter outline, that listed every appellate case that had addressed a particular issue with a paragraph summary of the holding from a headnote in the case (annotating statutes in lawyer's offices still have these digests for each statutory section). Several unabridged dictationary sized volumes called Shepard's service, indexed every instance in which a case was cited by another case with codes to discern if it was still good law or had been overruled. Typically, it took reference to two or three volumes to determine if a case was still good law, if it was older, because supplements were printed to keep the service up to date until a new hard copy version was printed. Shepardizing cases could often take up hours a week of lowly research associates or paralegals. Office staff would often spend half an hour a day putting back several foot high stacks of books removed to look at cases for the day.

Lawyers still need to do legal research. Statutes, which are hard to read on a screen, because key points often continue for several pages in which indenting is key to understanding, and in which browsing adjacent sections is often helpful, still remain on our library shelves as do legal treatises and periodicals.

But, the digests, Shepard's service and case reporters, that used to take up a few hundred volumes on several bookshelves are almost completely gone. Now, almost all case law research is done via a password protected website (there are several) accessed over the Internet, that does various kinds of searches, and also automatically Shepardizes every case retreived.

The lawyer never leaves his or her desk and books never leave or are returned to their places. Cases that turn out to be unimportant after an initial skim are never printed. Tangential cases are downloaded into a client's computer file but not printed. Important cases often are downloaded and printed, and then placed in a research file as well as the client's computer file.

Bottom Line

The bottom line is that these developments have slowly moved us in the direction of a paperless office, almost despite ourselves.

Less incoming mail of substance comes in and goes out.

The fax machine isn't quite gathering dust in the corner, but is quite a lot more often. It is paid off and inexpensive to maintain, so we keep it. But, when it dies, we will probably replace it with a web based fax service, or use our all-in-one fax, scanner, printer for that purpose.

When our industrial sized copier (also paid off) dies, it will probably be replaced with an industrial sized scanner, which may or may not have a printer of its own.

Our file cabinets aren't as crowded as they used to be, and when we archive paper files at the end of the year, it takes fewer banker's boxes than it used to take. Only one of our printers gets much use, when before, all of them used to print documents for the better part of the day.

We make fewer and less urgent trips to the post office, and it takes less office staff to keep up with each lawyer (although certainly not zero). The staff we have needs to be more skilled than it did when I started practicing law.

We aren't paperless yet, but we are going there faster, and with less drama, than we expected.