30 June 2009

Death Penalty Statistics Search

There is lots of good data on the number of executions carried out under color of law in every country in the world for almost every year, with a handful of cases like China, where the data is merely estimated.

There is far less easily available good data on the average time elapsed historically and in different countries between the offense, the conviction and the execution. Yet, this data shouldn't be terribly hard to secure for a good percentage of cases, and has the virtue that even a reasonably small survey sample has the potential to be a quite good estimate of the complete number in any given judicial system at any given time, because of the way a judicial branch bureaucracy works.

The data would seem to be a quite useful part of an index designed to measure the extent of due process in different criminal justice systems, or as part of an index designed to describe death penalties that are on the books in an empirical continuum basis, as opposed to an all or nothing basis. Countries with no formal death penalty, but high rates of in prison deaths of inmates, might be viewed a having de facto death penalties. Systems with low death penalty imposition rates, high rights of post-conviction death penalty vacations, and long post-conviction appeals processes might be viewed as de facto abolitionist. Each criminal justice system could be ranked on an apples to apples basis if the index was properly designed, with fewer countries ending up in a completely abolitionist stance. "Zero", would be the situation where life expectency in prison at every age, was equal to life expectency outside of prison, and there was no formal death penalty. A negative score might be assigned where life expectency in prison exceeded life expectency outside prison (a possibility in places like the United States where health care, shelter and food are legally guaranteed to those in prison but not universally available to those outside of prison who are under age sixty-five).

Civil Litigation At Its Worst

A Monday decision by the Colorado Supreme Court, decided by a 4-2 margin, over whether a sanction for discovery violations and related misconduct by lawyers in civil litigation was too harsh (the majority ruled that it was), nicely illustrates what civil litigation looks like when the pre-trial process gets ugly, despite (or perhaps because of the fact) that the underlying case was a fairly low stakes affair. The damages sought in the case had a principal amount of about $23,000 (the dividing line between the limited jurisdiction county court and the general jurisdiction district court is $15,000) in what appeared to all of the judges involved at trial and on appeal, to be a relatively simple case with only a few couple of seriously disputed facts.

While the ruling was highly fact specific and hence has only modest precedential application, appellate rulings on pre-trial procedure are rare, so the impact may be disproportionate.

No one on the Colorado Supreme Court believed that sanctions of some kind were not justified in the case, but the Court stuggled with how to balance deciding the case on the merits whenever possible with the desire to give trial judges enough authority to encourage lawyers and their employers not to behave badly.

While the case was won by the side receiving the harsh sanction, one has to question whether the win was worth the fallout involved in being identified as someone who behaved badly in pre-trial litigation in a publicly reported Colorado Supreme Court decision, which amounts to the moral equivalent of a public reprimand, to that lawyer, who will still probably end up paying the monetary sanction that was upheld, will still probably get stiffed on the client's bill in the case, and may still experience retaliation from judges and opposing counsel who might otherwise not have been aware of the incident in future cases.

Also, while the trial judge's sanction relating to the merits of the underlying case was not upheld on appeal, that same trial judge will preside at trial if the case goes to trial, and going to trial before an unhappy judge who has wide discretion on many matters is rarely a desirable propect for a client or that client's lawyer.

In the same shoes (and I am not in the same shoes), I would probably have simply agreed to indemnify the client for any losses suffered in this relatively a low stakes case by an unfavorable ruling on the merits as a discovery sanction. Indeed, the basic premise behind to adversary system in civil litigation, which makes less sense in criminal litigation where malpractice settlements rarely make a defendant whole, is that money paid in a malpractice suit, or under the threat of a malpractice suit, from an attorney who is probably not judgment proof, allows a client to be made whole, even when the client is punished by a judge for a mistake or misconduct that is really the client's lawyer's fault.

Congrats To Colorado Pols

Colorado Pols has won a well deserved mention in Denver's 5280 magazine, who's "Top of the Town" lists are somewhat more serious and less ironic of those of free Denver tab, Westword which has "Best of Denver" lists instead.

Both are highly sought after and treasured for years afterward by local merchants.

Minnesota Race For U.S. Senate Over

As has been clear for months, Democrat Al Franken has defeated incumbent Norm Coleman (who has finally conceded) in the three way race for U.S. Senate by a little more than 300 votes, after a unanimous Minnesota Supreme Court rejected his election challenge. The decision comes about a week short of eight months after the election, and almost six months after the U.S. Senate convened in 2009. The Senate had the power to resolve the contested election, but refrained from doing so.

Franken will give Democrats a sixty vote filibuster proof majority in the U.S. Senate (although filibuster voters are rarely decided on straight party lines), something that will help President Obama win approval for is judicial nominees and help Democrats win approval for legislative priorities like health care reform (if they choose to exercise their power).

Franken's win appears to be the final piece Democrats needs to move the pro-union Employee Free Choice Act (EFCA) with swift (five to seven days from card submission) unionization elections in lieu of the controversial but not terribly important "card check" provision which would dispese with unionization elections if a majority of employees signed pro-union petitions in advance.

Defense Procurement Still Abysmal

* The F/A-18F was designed to be deployed as a carrier based multi-purpose jet fighter. It is being used instead to bomb suspected insurgents in Afghanistan. This probably isn't optimal, but makes bureaucratic sense. The Marines use F/A-18s before they are part of the Department of Navy which commissioned the design (most procurement happens at the service or department level within the Department of Defense). But, the nation needs ground troops to supplement an active duty Army that is too small to fight simultaneous wars in Iraq and Afghanistan, so it has used Marines who can also function as ground troops to Afghanistan to conduct counterinsurgency operations, and of course, the Marines used the equipment and systems that they have and have trained to use.

So far, so good. But, F-18s are not designed to spend the long time periods overhead often necessary for close air support (CAS) in counterinsurgency battles, so other aircraft had to fill in when the F-18s started to run out of gas in a recent battle in Afghanistan. What was called in? A B-1B bomber, which was invented for jobs like dropping nuclear bombs on the Soviet Union before stealth techology was invented.

B-1B bombers (which belong to the Air Force) are far less suited for close air support during counterinsurgency battles than F-18s. This is a job where one wants to fly slow and close to the ground so one can be sure one is hitting the right target before letting bombs go, and where smaller ordinance is usually better as it destroys only what you intend to destroy. Five to eleven dozen civilians, depending upon who you are talking to, were killed as the B-1B bomber blew up a mosque, a shrine, and other improved vilage real estate in the village of Farah in Afghanistan during a long battle with insurgents there, using very large for the purpose (500 pound and 2000 pound) -- which conceivably could have been served with guided artillery shells and armed drone aircraft, both of which are also present (although scarce) in Afghanistan.

One wonders, indeed, what a B-1B bomber loaded with 2000 pound bombs is doing in Afghanistan at, all as U.S. troops do battle with opponents who are infantry that have few weapons heavier than the equipment usually carried by paratroopers. The Air Force is also the reluctant owner of more than one hundred A-10 aircraft designed for precisely this job, and reportedly, in all of Iraq, there are only a few aircraft of any kind in the air in Iraq at any one time, some of which, if not all of which, are of the non-A-10 variety.

It is one thing to use less than ideal aircraft if the Air Force is maxed out, which it isn't in the combat aircraft department (although its cargo aircraft operation is spread quite thin). It is another thing to do so when you have an embarassment of riches in our aircraft fleet.

* House Appropriations Committee's defense subcommittee chairman John Murtha, who has never met a weapons system that he doesn't like, has lost faith in the Marine's Expeditionary Fighting Vehicle program after discovering 25 years into the R&D program (and several names later) that it is ill equipped to provide any protection to its occupants from IEDs and land mines. The EFV is meant to be something like the Army's Stryker, basically an armored personnel carrier, that serves as its own full speed landing craft. But, making the technology work has been challenging.

* Virginia class nuclear attack submarines cost $2.5 billion each to make, the production line is still open, and the current order from the U.S. government is two per year. Like everything else the Navy buys, it is grossly over budget, despite the fact that the design is well established.

The U.S. currently has 53 nuclear attack submarines. Two per year puts it on track to ultimately have sixty. One per year puts it on track to have thirty.

While attack submarines aren't sitting ducks like many surface warcraft of the U.S. Navy, they also aren't in high demand at a time when few potential opponents of the U.S. military have anything more potent than frigates, small coastal missile boats, and coastal, diesel powered submarines. Nuclear attack submarines were built to counter the then Soviet Navy, and Russia could still be a threat that would justify their existence (and China is trying hard to become such a threat), but a large scale naval conflict with Russia doesn't seem like the most likely scenario for the U.S. military right now and the cost of preparing for this contingency is very high.

Sanford Keeps Digging

Governor Sanford, a Republican of course, needs to learn the First Rule of Holes and fast.

Hummer Deal Falls Apart

A recent deal in which a Chinese company would buy GM's Hummer division has fallen apart in the face of a Chinese government veto citing the environmental impact of Hummers unless negotiators can secure a reversal of this position.

The company has just six variants in all of two models of vehicles, and the total number of sales for the division are modest: "Following the historic record high of 82,380 annual sales of the vehicle in 2006, Hummer’s popularity has continually declined, and in the year before last and last year, the sales figures were 66,345 and 37,573 respectively.” Hummer's sales were about 1% of the General Motors total North American sales in 2008.

A single Indiana factory has enough capacity to make the entire Hummer division's new vehicles. A purchase of the division by a buyer who kept the current factories where Hummer makes its vehicles in place would save about 3,000 jobs. The small scale of the operation makes in a manageable bite for a smaller industrial company.

Iraq War Winds Down

Today, U.S. soldier in Iraq, a force about 131,000, left Iraqi urban areas to great Iraqi jubilation. A final withdrawal is scheduled for eighteen months from now, and the good faith with which U.S. soldiers are leaving Iraqi cities offers some reason to expect that the final withdrawal deadline will have meaning as well.

U.S. troops deaths have been at a sustained low level, with some every month, but fewer than one a day in every month, since May 2008. The total U.S. death sine March 2003 when the war began is 4,318. If the war continues at is current rhythm, or winds down as U.S. troops grow less involved and withdraw, the total number of Iraq War deaths is likely to not exceed 5,000.

The primary missions of U.S. troops in Iraq these days appears to be to protect the U.S. force still there, to prepare the civilian government and its military to take over control, to suppress and discourage violence that gets out of hand, and to intercept and remove from the scene, foreign fighters, more or less in that order. More succinctly the goal is a retreat in good order. The current agreement on the status of forces in Iraq gives the Iraqi civilian government more power and respect, narrows the immunities of U.S. troops and their contractors, and reduces the frequency of potentially deadly direct interactions between U.S. troops and the Iraqi people.

Broad ambitions of state building have been replaced by narrow ambitions of training wheel removal. Notions of Iraq as a regional model of an Islamic democratic state, an important oil trade partner for the U.S., a center for a middle class economy as opposed to an oil economy, an ethnically diverse melting pot, or a long term trusted military ally of the U.S. have all faded. Iraq's basic infrastructure and economy have still not recovered to a pre-invasion state of affairs.

The withdrawal of U.S. troops over the next eighteen months isn't expected to be complete, high profile or precipitous. There may be 30,000 or so troops left when it is over.

The Iraqi civilian government is no world model, but, it appears that it is close to being able to stand on its own two feet after six and a quarter years of occupation. Most of the "Coalition of the Willing" has left already. President Obama's stated policy is to leave Iraq so that the military can refocus on Afghanistan, where we have been at war even longer, since late 2001.

The old regime is routed. The Iraqi military has had almost all of its heavy weapons destroyed or denied to it, leaving it little more than a national SWAT team. While violence and suicide bombings are still routine, some semblance of order has been restored to most of the country, outside select flash points, symbolic and urban centers, the tail end of campaigns of ethnic cleansing in neighborhoods that have already crossed tipping points, and violence directed at impotent minorities like gays, journalists, independent politicians and intellectuals.

Refugee flight and internal ethnic violence from earlier in the conflict has sent the Iraqi middle class most abroad, with large clumps of it in Syria and Jordan, and has dramatically increased ethnic segregation within the country and within neighborhoods in the largest cities. A few large cities like Baghdad have recently walled neighborhoods in which ethnic minorities have taken shelter, akin to airlift era Berlin, or Warsaw's early Nazi era Jewish quarter, and these may even turn out to be stable enclaves. Similar enclaves have endured at various times and places throughout the last last few thousand years. But it does not look likely that these cities will return to the widespread ethnic integration geographically that existed before the Iraq War that is winding down today.

The diaspora of middle class Iraqis bears watching in the years to come. Despite Saddam Hussein's genuine and brutal faults as an authoritarian leader, his regime had created, particularly in Baghdad, one of the largest economic centers in the Middle East in industries other than oil, which had been supported by a large, multi-ethnic educated class of middle class business people, professionals and skilled government workers who operated in some semblance of law and good order. This middle class has been thrust into exile for the most part, living in privation, often abandoning major components of their wealth like homes, land and large furnishings, prostituting their daughters and wives, and interrupting the educations of their younger children in favor of saving their lives from Iraqi militias. But, these most promising people of Iraq could also lead an economic renaissance for Jordan, Syria and other places they have congregated, if they can manage to use the resources that they could salvage, their skills and local good will to get back on their feet.

While the division of Iraq into true sovereign states seems unlikely in the near future, Kurdistan has been autonomous and relatively functional, to the point of being a de facto state of its own, since the conflict began.

The Southeast, meanwhile, right up to Baghdad itself, has become are fairly cohesive Shi'ite political units, even though sometimes brutal internal fights for political control continue between the political parties there. They have been largely unoccupied by foreign troops (previously led by the British) for many months now. This largest faction in the national government, which also has control in many provincial governments which it seems inclined to exercise appears to have generally favorable inclinations towards its better established Shi'ite democratic theocracy to the East, Iran.

While late to the game, Sunni Iraqis in the West appear to have come to terms with the legitimacy of the regime and secured some sort of meaningful self-government and control in the West. These Sunnis appear to have made some common cause with the Syrians whose Baathist regime is the only one left in the region, after the Sunni led Baathist regime of Saddam Hussein was deposed. Many Sunni activists appear to prefer a Caliphate, in imitation of the theocratic and royalist regimes of their middle eastern neighbors, but this seems unattainable in a region where warlords and elected officials collaborate to impose order.

There are still flash points, like Kirkut, an oil rich town whose future as Kurdish or Sunni is still in dispute, but they are beginning to look like the last embers of hot conflict in the country, rather than like fault lines or like the destination cord for a power keg of violence. There are also a few small regions in the central-eastern part of the country that have retained some semblance of a ethnically mixed population, and it is not clear that this equilibrium will be stable. The winners in these areas seem likely to be the Kurds and Shi'ites, as they hold all the cards in the national government which is in the best position to impose settlements in these cases.

The reasons for bringing the Iraq War were always dubious. Claims that Saddam Hussein had weapons of mass destruction, or ties to the 9-11 terrorists were not true. The atrocities from his regime avenged after the U.S. occupation in war crimes tribunals were mostly stale. While Iraq was authoritarian and violated civil liberties, it was less of an offender in this respect than neighbors like Egypt and Saudi Arabia whom the U.S. counts as allies. We can't even reasonably hope to leave Iraq as good as we found it. The new Iraq will be poorer, less educated and skilled, militarily weaker, and more ethnically divided both psychologically and geographically. Iraq will have greater democracy, and probably, once things settle down, even greater due process in its court system. With any luck, it will spend a decade or two focused on trying to establish a stable regime and rebuilt, leaving its neighbors, including Israel, a little safer from any military threat it may have presented before the invasion.

Viewed on a cost-benefit basis, however, it will be hard to say that the U.S. will be better off from this conflict than it would have been if it had never participated. The war was accomplished with almost no non-military domestic sacrifices like rationing, tax increases, an increase in the size of the active duty regular military, or a draft. While 9-11 changed American life and thinking, the Iraq War just slowly fed a perception of the George W. Bush regime's incompetence and cruelty.

I suspect that the biggest long term impact on the U.S. of the Iraq War will be on the way that the U.S. military thinks about warmaking. This was the conflicts that taught the U.S. that it can no longer fail to plan for counterinsurgency operations. Iraq, Afghanistan and Somoli piracy have capped off decades of smaller low intensity conflicts fought by U.S. troops since the Vietnam War. U.S. military planners are now aware that one of their major obligations is to develop doctrines, training and equipment in each of its services, which is more appropriate for counterinsurgency missions and other low intensity asymmetric conflicts, and have been given the opportunity to try out new doctrines and equipment in the "sandbox" of Iraq while developing NCO and junior officer skills in the face of a real war instead of training exercises. U.S. military planners have also learned the risks inherent in overreliance on the National Guard of the type seen in Iraq.

Iraq has pointed out the need for low explosive power high accuracy ordinance, the threat posed by IEDs and infantry based mortars and anti-armor weapons to lightly armored Humvees and military trucks, the importance of language skills, cultural skills and ally building strategies, the risks of using helicopters rather than fixed wing close air support aircraft against tanks, the importance of securing logistical convoy missions, and the importance of having a plan to occupy an area after seizing it in an invasion fought with major military force. Iraq has reaffirmed the system of field hospitals it created, but has also forced greater attention to the harms caused by brain injuries from closed head wounds. Iraq has debuted widespread use of land and air based drones in war, and the military potential of the "smart bomb." U.S. troops have relearned how to conduct urban combat and modified their equipment accordingly for the task.

The next generation of military planners will be less impressed by big ticket weapons systems designed to do battle with the Russian and Chinese military juggernauts and more impressed by more modest and less expensive innovations that will give small units an edge fighting forgettable wars in third world countries. This will take time to make its way into the culture of the slow moving military bureacracy, but that is where we are headed.

29 June 2009

New Orleans Doomed

Louisiana in 2100 (predicted)

About 10% of the land in Louisiana, including essentially all of New Orleans, will be underwater by 2100, due to subsiding delta silts and rising sea levels. The engineering effort necessary to make a big dent in this trend is mammoth. Much of New Orleans is already below or just barely above sea level, the state has lost a large share of its wetlands to the sea, and Hurricane Katrina cost the city about half of its population on a long term basis.

If the latest predictions by scientists are even partially correct, Katrina may be just the first significant blow of many to one of the nation's most historically and culturally rich cities.

UPDATE: Just to be clear, I bear no ill will for New Orleans, and indeed consider it one of the South's most interesting and worthwhile cities. The authors of the scientific journal article cited by the linked Science News article, at least one from a Louisiana university, no doubt earnestly want New Orleans to survive. And, disaster isn't imminent. The time horizon is for gradual (or more likely sporadic but unidirectional) loss of Louisiana's Gulf Coast over 91 years.

The point the science makes is pretty simple. Sea levels are steadily rising -- steps to stop global climate change and model corrections may impact the rate of sea level rise, but won't stop or reverse it. The Mississippi delta in the vicinity of Louisiana is also sinking, which makes Louisiana more hard hit than many other vulnerable sea level cities. Both the rising sea and sinking land are relentlessly making changes without reversing themselves, not cycling back and forth, at fairly predictable rates. Nothing conceivable is going to stop the sea level from rising or the delta from sinking at some rate. There have been major losses already which we have not stopped with engineering. The scale of the problem is enormous, comprising 10% of the land in Louisiana. The kind of efforts that are necessary for an even partial save of some of the Gulf Coast (perhaps perserving a string of access to Louisiana in the manner of the Florida Keys and saving New Orleans itself a la Venice or parts of the Netherlands) is an immense engineering undertaking.

My headline is hyperbole, of course. But, the point is serious. New Orleans is doomed unless someone does something to save it, and the steps that are necessary to do that on the scale that is really necessary (this report reveals that this scale is much greater than most people had previously assumed) haven't even been really put on the drawing board, let alone commenced in the long process of designing, cost estimating, funding, and building a world wonder class engineering project.

Can America and the world save New Orleans? It is possible. It will cost many billions of dollars. The Denver International Airport and Boston's Big Dig cost on the order of a billion dollars and then is a task orders of magnitude larger. It is likewise bigger than the task of building an aircraft carrier which costs about $15 billion. Forced to guess from the little that I know, I'd estimate that it would cost something on the order of the mid-hundred of billions to low trillions of dollars just to save New Orleans and a little strip of land to access it. No one that I've heard from has talked about that kind of major national investment yet.

Should the investment be made? I'm not even trying to get my hands around that question in this post. I'm simply pointing out a credible report passed on from a respectible scientific journal and explaining the threat it describes to one of our nation's oldest cities, then improving a sense of what would be involved to deal with it in this extended comment. Broad discussions armed with facts generally produce the best results. And, while locals may be most knowledgable about New Orleans' prospects, this problem is on a scale that it can solve on its own (nor can private industry).

Why Is Big Law Big?

Almost one in four law school graduates went to work for large law firms upon graduation in 2008 - a substantial increase from the percentage even a decade before then. Typically, the "burnout" rate for new associates is very high, with something like 80% of them ceasing to be employed by the big firm in four or five years, training and mentoring of new associates is often modest, and new associates are often given very modest responsibility or client contact in a case, despite the fact that they are earning high salaries and are often the cream of the crop academically.

Why have big firms grown so rapidly, and why do they need so many junior attorneys in whom they invest so little and expect so little from (by way of skills and responsibilities, not billable hours)?

Some of big law firm growth is due to the growing scale of big business, but this doesn't explain why firms have become bottom heavy. Leverage used to create high profits per partner explains why firms would like to have more associates than partners, but that kind of leverage only works if a large share of the work to be done can be successfully delegated to relatively inexperienced attorneys, because clients don't like to have skilled work on cases of importance handed over entirely to junior associates.

The bottom heavy nature can modern legal work can be traced to some specific areas of the law that can be deduced from the work that junior associates typically do. Stereotypically, the main jobs of modern entry level associates are discovery practice, due diligence in corporate ownership transactions and legal research. Both of the first two tasks have strong similarities They involve obtaining and processing large amounts of factual information from an opposing party, with a goal of finding needles of important information buried in haystacks of data.

In big case litigation, discovery often drives as much as 90% of litigation costs. In corporate transactions, due diligence is a large part of the legal cost of the deal. In both cases, the vast majority of the information gathered is of trivial importance to the matter, and the opposing party frequently knows what the important information is, but would prefer not to be required to find it and turn it over.

Big law firms are recent inventions. They were virtually non-existent prior to the 1950s, and have grown in number and scale exponentially since then. Big law firm litigation departments were quite small parts of the total enterprise until the 1980s, a time period which also grave rise to many of the transactions for which due diligence is important, like the leveraged buy out.

Relatively surgical changes in civil procedure and the substantive laws that expand the scope of what is relevant in civil cases, in the litigation context, and in securities laws, in the latter case, could, in theory, dramatically reduce these two stereotypical sources of big law firm associate work. It is also theoretically possible that this could be accomplished without necessarily greatly altering the balance of power in the areas of law where they apply.

These changes in the law, in turn, might put a dent in the scale of large law firms, particularly at the associate attorney and paralegal level. This isn't to say that the silk stocking/white shoe law firms that continued to serve big businesses would cease to charge high fees, pay good salaries to the associate attorneys that they did hire, or cease to be larger than their peer law firm that serve smaller enterprises. But, aggregate big business spending on lawyers might fall, associate to partner ratios might grow smaller, and firms that might once have had a couple thousand lawyers might shrink, even in good times, by hundreds associate attorneys and hundreds more paralegals. One also might see more cultivation for partnership of the associates who were still hired.

Would this be a good thing? Probably. But, the real key point is that substantive and procedural law beyond legal ethics (whose conflict of interest rules drive how many clients a firm can have and what kind of work it can do for them) can drive law firm structure.

Are Federal Corporate Spending Limits Dead?

The nation's foremost election law blogger opines at Slate that the U.S. Supreme Court is preparing to declare the McCain-Feingold bill limitations on corporate and labor union spending in federal elections unconstitutional on its face, a decision that could also impact Colorado's campaign finance laws.

The U.S. Supreme Court had been scheduled to release a narrow statutory opinion concerning the release of an anti-Hillary Clinton movie made with corporate financing released on the eve of primary season, but asked to have the case re-argued this September (before oral arguments normally start after the summer recess) with full argument of broader constitutional issues presented.

Justice Kennedy, the most common swing vote on the court, issued a dissenting opinion in the case holding that corporate campaign contribution limits are constitutional (Austin) that the parties in the current case are being asked to argue for and against overturning in their re-argument. Votes in other recent campaign finance cases suggest that Kennedy's position now has the votes on the court to turn his dissent in Austin into a binding U.S. Supreme Court precedent.

The reasoning in the case will also likely impact parallel campaign finance rules at the state level in states that have them, including Colorado. Colorado Amendment 27, adopted by the state's voters in 2002, banned corporate and union contributions in the state and reduced the amount that political action committees (PACs) can contribute (recent implementing legislation closed the "LLC loophole" in Amendment 27 as then applied). Colorado Amendment 54, adopted by the states votes in 2008 and currently put on hold by a Denver judge's preliminary injunction also imposes campaign contribution limits, although those limitations were in question constitutionally in the current state of First Amendment jurisprudence.

Colorado Amendment 41, which bans gifts for the personal benefit of public officials in certain circumstances (interpreted to apply mostly in situations that also legally constitute bribes) will probably not be impacted by this U.S. Supreme Court decision, if it is resolved as expected.

Jail As A Business In Alabama

The private enterprise model doesn't always work for traditional government services like jails.

In Alabama earlier this year, a federal judge ordered the Morgan County sheriff locked up in his own jail for contempt for failing to adequately feed his inmates. Alabama allows sheriffs to keep food money they do not spend, and the sheriff reportedly pocketed more than $200,000 over three years.

This exact scenario would never happen in Colorado, where sheriffs receive straight salary compensation. But, the incentives in the private prison context are less clear. Texas has similarly misplaced incentives in civil forfeiture cases (as do many other states). The U.S. Supreme Court held in another case that it is unconstitutioonal for judges to be paid on a proprietary basis such as a percentage of the fines awarded by the court.

3900 Posts

This is the 3900th post on this blog. Its fourth anniversary is July 3, 2009. Make of theses facts what you will.

Two Track Associate Attorney Pay Continues

Of the 22,305 law school graduates, a remarkable 23% (5,130 members of the class of 2008) reported an entry-level salary of $160,000. In contrast, 42% of entry level lawyers reported salaries in the $40,000 to $65,000 range. Once again, the central tendencies are a poor guide to the distribution as a whole: whereas the mean salary is a $92,000, the median salary was $72,000. Further, the two modes ($50,000 and $160,000) are separated by $110,000.

From here.

The bimodal distribution of income from law firms was not in place in 1996, but was obvious in every year from 2000 onward. When I graduated from law school, the going rate paid by big firms for entry level associates was about $80,000 a year in New York City, and varied elsewhere mostly according to the cost of living in the city in question.

The large law firms that drive these salaries are themselves an evolving beast. In the early 1960s, 73% of all lawyers in Detroit who worked in law firms at all graduated from one of five elite law schools, everyone else conducted solo practices.

Fourteen Years As A Lawyer

Fourteen years ago today, I was formally admitted to the practice of law, in New York State. A little later, I would move to Colorado and practice law there. New York State has several hundred more years of history (New York has had a continuous governmental regime longer than the United States, for example), and has spent much of that history at a reasonably high population. This shows in their legal system, which has case law on everything and statutes cluttered with exceptions and anachronisms.* But, both the Colorado and New York systems work well enough, most of the time.

* It isn't just me that thinks New York's legal system can be quaint:

[V]oters might be ready to consider a full-scale constitutional convention to overhaul New York's rambling document - which addresses such minutiae as the size of ski trails and railroad grade crossings but is unclear on leadership succession. Just 12 days ago we noted that it had been 42 years since the last convention. That effort in 1967, however, cost $6.5 million - and not one recommendation was subsequently approved by the voters.

Colorado's constitution has a deeply flawed, overconstrained budget process, mostly due to TABOR, but due to regular "housekeeping" amendments passed by Colorado voters, is comparatively uncluttered with spent provisions and minutiae.

28 June 2009

101.5 FM Dramatically Improved

Eleven months ago, it looked like "Indie 101.5 FM" (KTNI-FM) branded as an "independent alternative" was an unprofessionally run disappointment. Even those willing to give the station the benefit of the doubt admitted that "The morning show is a bit ... well ... needs some work. However, jocks working together have to form chemistry and that takes time too."

Apparently, the station's owner went bankrupt (Wikipedia says in February of 2008), changed the station's format, sought permission during the bankruptcy to operate the station from Aurora in January, 2009, and has since emerged from bankruptcy. A culture writer at Westword started a local band show on the station about a week after a dead air incident in August, 2008 had cast doubt on its future and professionalism.

The greater Denver radio station is now greatly improved. Someone must have been listening to the early complaints and taken action. Perhaps the weekend programing is just better, but listening this weekend, something like 95% of the music was actually fresh (if sometimes raw), and the previously annoying DJs were muzzled down to sometimes witty sound bites.

Westword returned the favor of receiving a local show in 2009 with a pair of Best of Denver Awards, but from the sound of the station now, it may have actually earned them.

The advertising is still anemic (a few local bars and restaurants, a local electronics clearing house open only on weekends, and a musical instrument store offered most of the ads in a couple hours of Sunday listening, mostly in just one commercial break), so I don't know if this station will last, but the quality of what it is offering is tremendously better than it was a year ago, when it was trying to publicize its debut.

While a wholesale format change is an unremarkable enough event, it is very rare that a radio station really whips itself into shape while staying within format (the station's music director goes by "Whip"). Good for them.

The station's sister channel, branded as HOT 107.1 FM was even worse than KTNI a year ago, but may deserve a second listen as well.

26 June 2009

Forty Years After Stonewall

The Stonewall Riots (over the shutdown of a gay bar in New York City), forty years ago this Sunday, marked the beginning of the modern gay rights movement, and the Colorado Democratic Party's gay, lesbian and transsexual interest section (like that of many Democratic Party entities with the same purpose) bears its name, the "Stonewall Democrats."

Growing up in small town Ohio in the 1970s and 1980s, even though it was a college town, this was just background noise to me. I don't remember being really aware of the gay rights movement until I went to an even smaller college town in Ohio (Oberlin) after graduating from high school and encountered people who were out as gays and lesbians for the first time (transgender was part of the acronym commonly used on campus at the time but that concept was not something I had encountered personally, or a possibility that part of my consciousness or that I understood, until later). The notion that someone might take a term like "dyke" or "fag" and embrace it, was a revelation. I knew what the terms meant literally, in high school, but not in a way that had any really context or meaning to them.

More than anything else, the gay rights movement owes its success to that same thing that opened my mind, exposure. The "present company excluded" concept is more than a rule of etiquette. Your brain simply can't help treating people you know differently. Theoretical knowledge is all fine and good, but your gut works on the particularistic experiences you've had in real life. One of the most visible early gay rights groups, ACT-UP, didn't make a lot of friends with its militant and often law breaking tactics, but it made you pay attention and acknowledge that gay rights and AIDS were serious issues at all, and just as important, that gay and lesbian people really existed, and were not just some theoretical construct invented by philosophers (well actually, some queer studies scholars still do say that gender is just a theoretical construct, but that's another story).

Still, the biggest impact didn't come from anything flashy or carefully planned. It came from ordinary but brave people living daily, ordinary lives and choosing to embrace their identity instead of hiding it, even though this involved risks of serious harm to their personal safety and reputation. I learned about what "gay" and "lesbian" meant while serving in student government doing things like brokering disputes over office space between the gay and lesbian student group, the Evangelical Christian group, the sex co-op (it provided contraception, counseling, practical sex tips and other information from a basically pro-sex perspective) and the seven Republicans on campus (some of whom I was also on a debate team and bipartisan student publication with). And then there was the drag ball, one of the highlights of the annual campus social calendar. And then there was walking across campus to dinner or a class or a dorm and seeing people of the same sex embracing like all the other lovers on campus and getting used to it (much more easily than I did to the sweet but very loud young woman in a passionate heterosexual relationship down the hall from me in my second year on campus).

At the time, in the Midwest, there weren't a lot of gay role models and there were no guarantees that there wouldn't be serious backlash. People then (and now) have been attacked, killed and ruined socially and professionally by coming out as homosexual or transgender. Many graduate school bound fellow students who were not only out, but incorporated their sexual orientation into their scholarship, had to gamble that they would be embraced rather than shunned by academics who got their PhDs when "Stonewall" was a descriptive non-proper noun and "gay" meant carefree and happy. The science bound future graduate students on campus often didn't have to be quite so obvious in their application materials, but also faced a group of prospective advisers and colleagues with a lot less predisposition to be welcoming as a matter of principle.

In the fact, most people were not punished for their openness while I was in college in our insular community, although not every place else at the time in the outside world was so welcoming. It was a good time to be out, although we didn't know that then. The safe bet at the time for those who didn't know any better was that this coming out was just a localized, temporary fad that would soon go the way of barbershop quartets, flappers, disco and bell bottom jeans.

I know that I was not so brave or self-assured at that point in my life. I spent all three of my years as a residential undergraduate living a lie (not a terribly uncomfortable one to be sure) as a parishioner of the local Episcopal Church and member of the Christ Church's quite active college student's group (even serving as a Sunday school teacher my last year there), despite having quite definitively ceased to believe in God while I was still in high school. The conclusion on religion only became only more firm as I studied church history and science in the classroom, but I wasn't about to let anyone know that in public. I could easily have simply been negligent regarding church attendance and not been noticed at all (which is what I did in law school), but I erred on the side of caution and habit and self-doubt. Maybe I'd change my mind in a different denomination than the Evangelical Lutheran Church in America that I grew up in (and was confirmed in while I was in high school at a time when I didn't believe). I wasn't ready to face my social fears, even after I eventually figured myself out.

The risks haven't ended. The U.S. military, even in the Obama administration, is still drumming people out of the service for their sexual orientation. Public attitudes have changed, with a lot of that change hitting the average person on the street only in the past few years as the gay marriage issue has influenced people's thinking. Laws have changed. Any backlash will have to contend with a nation of Generation X and Generation Y and Millennials for whom homosexuality isn't something to be afraid of. But, transgender acceptance is still probably at least as far from reality now than acceptance of gays and lesbians was then, and the possibility that we may be at the tolerant side of a social pendulum swing is real. In Europe, Jews sometimes lived in peace for decades in an area, only to face a pogrom that left some dead and most of the rest of the community exiled. (In 1543, Martin Luther wrote On the Jews and Their Lies, which urged people to conduct pogroms; modern Lutherans do their best to ignore these teachings, generally with great success.)

My neighborhood and its immediate neighbors have now sent at least two openly gay legislators and at least one openly lesbian legislator to the state legislature (I beg forgiveness if I've missed someone), and I count many Stonewall Dems (and a few of their Republican and unaffiliated counterparts) among my friends, colleagues and clients (about 30% of my estate planning clients are gay, lesbian or transgender). Even though I'm aware intellectually that two steps forward can be followed by one step back, I don't subconsciously believe it. A belief that you are right about something, reinforced by personal experience, creates a sense of inevitability.

When Time magazine reported on the Stonewall riots in 1969, gay rights must have surely seemed like a misguided, absurd lost cause to almost everyone. But protesters picketed, made seemingly impossible demands (many still unsatisfied), and demanded that politicians take sides anyway. A sexual revolution was underway, but it would take most intellectuals a couple of decades to come to the conclusion that the sexual revolution and other cultural upheavals of the 1960s (much of which actually spilled over into the 1970s), had as much to do with identity as they did with sex. A counter-revolution of fundamentalist Christian morality, sexually transmitted disease fears driven by AIDS and increased pre-marital sex, a distaste of young marriage and pregnancy driven by increased economic opportunities for women, and increased concerns about acquaintance rape and sexual harassment in an increasingly gender mixed world would start to take hold in the 1980s, taking the shine off the "sex" part of the sexual revolution. But, the gay rights movement did not retreat. It would take another decade still for people to discover the the ironic fact that the anti-gay policies of the U.S. military, which by bureaucratic happenstance dumped many people discharged for being gay in San Francisco, played a pivotal role in creating a queer community with more critical mass than anyplace since early 20th century Berlin. Gay marriage, which seemed like a pipe dream a decade ago, is now reality for tens of thousands of couples in many states, including the bulk of the Northeast. Popular culture portrayals of gays and lesbians have gone from being remarkable and groundbreaking to almost cliche, if they aren't talking about something more than mere sexual orientation.

Another reason for hope is that progress for gay rights hasn't been confined to the United States, which is actually something of a laggard in the developed world on gay rights issues. In the countries that are the usual suspects in the developed world, not just in Europe, but in Japan as well, attitudes are changing.

Progress has not been universal. In Iran and Iraq dozens of gays are executed or subjected to governmentally tolerated extrajudicial killings every year. Africa is as awash with anti-gay hate as any rabidly conservative evangelical Christian congregation in the American deep South. But, no struggle for toleration and acceptance is ever really won everywhere and forever. There are places on this Earth where they still burn witches in the 21st century too. There are still American elected officials who use the Internet to proclaim that Galileo was mistaken when he proclaimed that the Earth revolves around the Sun. The Church of Latter Day Saints of Jesus Christ spent last fall pouring money and its doctrinal clout into opposing gay marriage in California and was starting to turn the Boy Scouts of America into a publicly anti-gay organization just around the time I became an Eagle Scout. Life is struggle and the struggle over gay rights is not over. But, gay and transgender rights (and acceptance) are making progress as we start to understand better who we are in a more inclusive way.

In the meantime, viva la revolucion!

Wrongful Convictions Can Be Devistating

Why is it so important that society get criminal conviction decisions right and stamp out police misconduct that can produce them? Because the harmful impact of a wrongful conviction for a seriouus crime can be immense.

George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

Another day in Texas, where juries convict defendants easily, but also met out huge civil damages awards, on a regular basis.

June Wet In Colorado

Denver, Colorado entered June a little below the average for annual rainfall to date. We are now already more than two inches ahead of the year to date average (about a third more than normal) and are far above average for June. It is raining again today, so the last few days of June promise to provide even more moisture. If I recall correctly, snow packs also got to slightly more than their annual averages before the season was out in the South Platte River Valley, and close in most other river basins in the state.

It is peak rose season now, with rose bushes in full bloom all over the city. I'm envious has I have made several sincere attempts to make roses grow at my house, always to abject failure despite soil amendments, rose food, diligent watering and everything else I could think of to do. Thankfully, my many Wash Park neighbors are better gardeners than I am.


Impeachment and expulsion are rarely exercised powers of Congress.


Wikipedia notes that the U.S. House of Representatives has voted to impeach someone just eighteen times in U.S. History. Just seven of those cases (all judges) produced removal based upon a U.S. Senate trial, although five other of the impeached individuals were removed from office after the impeachment by other means (including on Secretary of War who resigned, and not including President Nixon who resigned under threat of impeachment).

In forty-four other cases, impeachment was attempted, but failed to receive a sufficient vote in the U.S. House or were rendered moot before a vote was held, most concern Presidential actions, although Treasury Secretary Andrew Mellon, Supreme Court Justice Abe Fortas and President Richard Nixon all resigned in response to the threat of impeachment hearings.

Fourteen of those cases where an impeached was voted in favor of by the U.S. House involved judges. In four of those cases the judge was acquitted in a trial before the U.S. Senate, three resigned, and seven were removed after U.S. Senate trials. One of the removed judges was later elected to the U.S. House of Representatives.

Two impeachments of U.S. Presidents each produced acquittals after U.S. Senate trials. A U.S. Secretary of War resigned and then was acquitted. A case against a U.S. Senator was dismissed when the U.S. Senate expelled him (which is now seen at the proper process as opposed to impeachment for legislative elected officials).

The impeachment power extends to all federal employees and officers (with the exception of elected legislators), but no one whose position is not subject to U.S. Senate confirmation, other than two U.S. Presidents, have ever been impeached, and no one not subject to U.S. Senate confirmation has ever been removed from office via impeachment.

Expulsion from Congress

Another rarely used Congressional power is the power of a House of Congress to expel its own members. Seventeen members have been expelled (reversed in two cases posthumously) for supporting the Confederacy in the civil war. One was expelled from the Senate for treason in 1797 (he was elected to state office a year later and died of natural causes two years after that). Two were expelled from the House for bribery (among other concerns), both of whom ultimately also endured criminal convictions.

Fourteen Senators were expelled for supporting the Confederacy (in one case a decision posthumously reversed), and one was expel for treason in connection a British and Indian supported insurgency in Spanish Florida in 1797. Sixteen more failed attempts were made to expel U.S. Senators. One Senator's term expired and another Senator died before the process was complete, five resigned, and nine Senators were not expelled because the measure did not receive sufficient support in the Senate (one of the nine resigned shortly after winning the Senate vote). Nine more Senators have been censured (and only one of them won re-election).

Five members of the U.S. House have been expelled, three for supporting the Confederacy (one of which was posthumously reversed) and two for corruption (one was criminally convicted after being expelled for the same acts, the other was criminal convicted before being expelled). At least six members of the U.S. House have resigned under threat of expulsion. At least nine more attempts were made to expel members of the U.S. House were made but not completed (one resigned shortly after the unsuccessful vote, one's term expired before proceedings were complete, one died before proceedings were complete and six were exonerated). At least seven members of the U.S. House have been censured, two of whom then resigned from office.

State and Local Cases

At the state level, at least twelve Governors have faced impeachments by state legislative bodies, with two acquitted, one "suspended from office" without a trial of the impeachment, and the others removed. Another Governor avoided an impeachment by just a single vote in a state house. Some lesser state officials have also been impeached. Many states permit judges to be removed from office by means in addition to or other than impeachment.

One of the first cases I worked on, when I was still a summer associate not yet admitted to the bar, was an effort to expel a member of a city council (it failed).

Executive Branch Lobbying Ethics

Professional efforts to influence the legislative and judicial branches of government are heavily regulated and have a body of case law clarifying what constitutes a conflict of interest. Efforts to lobby the executive branch, in contrast, are less regulated and can create subtle conflicts of interest "when: (i) a lawyer properly may, and was retained by the client to, influence an agency decision maker; and (ii) there is a significant risk that allocating influence on behalf of one client is reasonably certain to inhibit substantially the lawyer’s ability to influence the same decision maker on behalf of another client."

Some first rate thinking about these ethical issues can be found in a new article on the subject by Heidi Reamer Anderson called "Allocating Influence." I also like the historical frame that Anderson puts on the issue:

Influence peddlers, influence seekers, and government officials have a long and fascinating history. Centuries ago, those in need of government action greatly appreciated the value of 'an audience with the king' and paid handsomely for such access, to the benefit of both the influence peddler and the influence seeker. Twenty-first century influence peddlers offer influence seekers a similar service, but often do so subject to restrictions not faced by their medieval predecessors.

While we think of ourselves as a democracy and a republic, which we are because we rely on elections as ultimate arbiters of key decisions and lack a hereditary monarch, the government of the United States is just a shadow's breadth away from being a constitutional monarchy or oligarchy. Our federal judges serve for life (Judge Samuel Kent had been convicted of a felony, was serving his sentence, had been impeached in the House of Representatives and was facing an imminent impeachment trial in the U.S. Senate before his written resignation finally removed him from office this week), it isn't unheard of for U.S. Senators, members of the U.S. House of Representatives to spend multiple decades in office, and a large share of Presidents leverage their incumbency into a second four year term of office. Between biannual elections, those in power have an virtually uncontestable right to govern as they collectively see fit.

Elections, and the threat of elections do matter, those in power have had the grace to provide for public input, and the right to offer public input is constitutionally protected. But, our history as a modified monarchy explains a lot of American public law, the nature of judicial authority, and more.

Aurora Police Retaliate Against Cop Suing Lawyer

The lawyer representing the family of a man shot by Aurora police last month says police have retaliated against him by towing his legally parked vehicle from in front of his office Monday morning.

Lawyer Derek Cole said he was on the phone with Police Chief Dan Oates on Monday morning, talking about setting up a meeting with his clients when Oates asked for, among other things, his work and home addresses.

By the time Cole got off the phone and made it back to his office, his Volvo had been towed by police for improper registration. Records showed his registration had expired, even though he had current tags...

Cole is the attorney for the family of Darius Murray, who was shot by police May 9.

Police at first reported that Murray, 19, accidently shot himself in the head, after officers investigating a car burglary shot him in the leg and shoulder. They later changed the story, saying an officer fired the shot to his head after Murray fired at them first.

Aurora police spokesman Bob Friel said the call and the towing were not related and there was no retaliation by the chief or the department.

"There is no connection between the car and the call," Friel said. "As to the reason why we towed it, it was in violation of the law."

After further investigation, police determined the registration record was not accurate and Cole's registration was, indeed, current.

From here.

I'll state the obvious. The cops are lying in the underlying case and they are also lying about not having the car towed. This case doesn't pass the plausible deniability test. At the very least, towing a car for bad registration when it has valid stickers on the plate is both reckless and inexplicable. Crime is not so low in Aurora at the moment that people are randoming trawling the vehicle registration records to look for unregistered vehicles to tow. This doesn't happen, ever. It certainly doesn't happen by accident to someone currently bringing a suit against Aurora cops for wrongful use of force while he is on the phone with the police chief providing contact and location information.

Aurora Police Chief Dan Oates, or someone who was in contact with him, committed a serious crime. A civil excessive use of force case is now a criminal conspiracy to obstruct justice case as well. Two people have recently been sentenced to death in Arapahoe County for interfering with pending court cases. It is not appropriate for the authorities to simply blow off this incident. The public integrity section of the FBI, the Aurora Police Department's Internal Affairs unit, the Colorado Attorney General, the judge in the civil case, and the Aurora City Council are all in a position to take action here.

Even if Oates didn't personally order this done, he should be fired for failing to maintain discipline in the Aurora police force.

Friday Quotes On Optimism and Pessimism

I must study Politicks and War that my sons may have liberty to study Mathematicks and Philosophy. My sons ought to study Mathematicks and Philosophy, Geography, natural History, Naval Architecture, navigation, Commerce and Agriculture, in order to give their Children a right to study Painting, Poetry, Musick, Architecture, Statuary, Tapestry and Porcelaine.

-- John Adams, 1780 letter to his wife Abigail.

If you are up to your neck in crap, don't let your head hang.

- German proverb

Oh No! Mom's on a diet . . . we're all gonna die!

-- Refrigerator Magnet, Unknown Author.

25 June 2009

Nonconstitutional Amendments

Richard Albert has a new article at SSRN called "Nonconstitutional Amendments" talks about an interesting subject, the deviations that grow between the written text of a document called a constitutions, and the living constitution that operates in practice. But, Albert also misses some steps in my view.

Unconstitutional Constitutional Amendments and Revolutions

Quite a bit of the paper is devoted to discussing the quite narrow concept that not all constitutional amendments that are approved with the proper process are valid that is found in constitutional law in Germany, India and South Africa (by judicial fiat). Canada and other newly formed states have similar hierarchies of especially difficult to amend provisions expressly included in constitutional texts (as does the U.S. Constitution in Article V, a point not mentioned in the article).

The evolution of the doctrine in Germany, which was the source of the innovation in India, was that constitutional amendments must be made by parliament and parliament is not entitled to enact unconstitutional law -- a provision that even a proposed constitutional amendment must adhere to in practice. (California has a similar doctrine distinguishing constitutional revisions from mere constitutional amendments.)

Likewise, the paper makes cursory note of the fact that new regimes (like the current U.S. Constitution relative to the Articles of Confederation) often arise extra-legally as judged by the old regime.

The American Living Constitution

More interesting, but not well developed for my taste, are the discussions of extraconstitutional amendment through practice via constitutional interpretation (superprecedents), ordinary laws of special importance (superstatutes), and historical practice and precedent. This is a rich area, not well enough explored for my druthers in the paper. While a couple of examples are vaguely stated, like the New Deal, the creation of judicial review, the Civil Rights Act of 1964, and the Administrative Procedure Act, the National Environmental Policy Act, many better examples are not, and Albert doesn't do nearly enough to elucidate what distinguishes an judicial, legislative or executive branch act of constitutional significance from those that amount to the day to day business of government. For example, he suggests that almost every U.S. Supreme Court constitutional case amounts to a constitutional amendment and uses that proposition as a reason to disregard non-Article V constitutional amendments via the judiciary almost entirely.

Yet, one really can't begin the inquiry without a working definition of what does and does not constitute the complete living constitution. For example, the living constitution might include the central constitutional provisions, statutes, court cases, regulations and executive branch precedents that establish the core distribution of powers, checks and balances and protections of individual rights vis-a-vis the government in a country.

One of the big ongoing dialogs of U.S. Constitutional law is the extent to which individual rights expressed there regulate action by sate government. The Slaughter House cases said that privileges and immunities clause do not have that effect, and together with the Dred Scott separate but equal doctrine effectively nullified the constitutional civil rights gains secured in the Reconstruction Era after the U.S. Civil War. Later, the selective incorporation doctrine, which used the 14th Amendment due process clause to protect some individual rights with the federal constitution against violation by state and local actors, reversed much of this setback, and cases like Bivens circumvented immunity doctrines that had limited the availability of a remedy for violation of constitutional rights. At the statutory level, the habeas corpus statute, Section 1983, and the Federal Tort Claims Act serve similar "superstatutory" roles. At the state level, Colorado's Governmental Immunity Act has a similar superstatutory role.

The U.S. Civil War itself is widely viewed as having extraconstitutionally settled the question, "Do states have a right to secede?" in the negative. Executive branch actions that are viewed as precedential, the War Powers Act, budgetary politics and the "political question" doctrine have conspired to create the U.S. Constitutional laws of war, with the Courts mostly stepping in to address the constitutionality of detention, discipline and relocation of individuals.

Another group of governmental policies with something close to constitutional character is the decentralized way that the U.S. has structured control of law enforcement. The Posse Comitatus Act has removed the U.S. military from law enforcement. A less specific, but critically important decision has intensely decentralized law enforcement employment. The vast majority of law enforcement officers are employed by local county and municipal governments where they exist, and hence do not report to anyone in the state or federal government directly. State police departments tend to be a very small percentage of all police officers and like federal law enforcement officers often operate primarily in "extrajurisdictional" places like interstate highways, state parks and state buildings. The number of federal law enforcement officers is not great, and federal law enforcement officers are overwhelmingly concentrated in places where no state or substate local government has jurisdiction like federal property, border crossings, and the coastal waters of the United States. Many states popularly elect their criminal prosecutors at a local level. Even U.S. attorneys in the federal system are generally nominated only with the consent of both of a state's U.S. Senators and operate with little guidance from the central government. Similarly, the director of the FBI serves for a long fixed year term, rather than reporting to the President as a purely political appointee. U.S. marshals, in practice, report to the judiciary more than the executive branch, and many states have similar arrangements. This arrangement practically limits the ability of any one person to use force under the color of state law on a large scale in defiance of legitimate civilian authority.

The judicial determination that the one man, one vote principal was mandatory for all sub-federal governments surely has a constitutional character, as imposes strict boundaries on how state constitutions can be written.

Popular Sovereignty?

A final quibble I have with Albert's analysis is his inclination to describe the United States as a nation with "popular sovereignty," and some other countries as having "judicial sovereignty." The evidence for American popular sovereignty beyond symbolism (where "We the People" substitutes for references to the Crown in prior British political symbolism), simply are not there. The United States is not a nation like modern France or Germany or Russia or Pakistan that has witnessed political change or governmental discipline in the face of pivotal mass protests.

One of the main themes of American constitutional law is that the courts act as a countermajoritarian force, and usually win when they choose to press their case. The President's willingness to call out the National Guard to enforce a court desegregation order in Little Rock, Arkansas is the singular non-judicial precedent establishing judicial supremacy in our constitutional system. Open defiance of court orders by public officials in the United States is rare and almost never prevails for long. Indeed, the American system, unlike that of many countries, not only allows the U.S. Supreme Court (our proxy for a constitutional court) to declare a statute or executive branch action unconstitutional, it affords that power to essentially every local, state and federal judge, subject to appeals, of course.

In contrast, efforts to act out of pure popular sovereignty in the United States usually fail. Shay's Rebellion, not long after the Revolutionary War, was put down. Colorado's Governor just commemorated the Ludlow Massacre in which the government used violent force to put down a budding popular uprising organized by a union against management misconduct; in France this still happens and the union members get away with it, in the United States, the union members get slaughtered when push comes to shove. Every Confederate state conducted elaborate and unequivocal democratic processes amongst their existing franchises at the state level before leaving the Union. American popular poltical culture has vehemently disavowed our popular sovereigntist history of lynchings, with at least a couple of anti-lynching/anti-mob rule literary works included in every school child's curriculum (e.g., The Crucible, To Kill A Mockingbird). Robert Bolt's 1960 British Play, "A Man for All Seasons" has entered the U.S. political pyche as a mascot for the importance of the rule of law, even when it is unpopular or wrong. The U.S. does not permit and has never held national initiatives, referrenda, or even truly national elections (Presidential elections are conducted by state elections officials and aggregated at the national level though the electoral college, not through a tabulation of the national popular vote). For the first half of the Republic's history, even U.S. Senators were not directly elected.

Also, while many parliamentary systems permit or require new elections sooner than would be otherwise required when the current national leadership "loses confidence," as a referendum on the current group of elected officials, the American system of government holds elections strictly according to the calendar without regard to the political reality. In the U.S. system, even a crisis like a failure to adopt a budget causing a government shutdown, or a failure to adopt a plan for new legislative districts following a census, does not provide a basis for ousting the existing political leadership prematurely.

Health Care Provider Price Discrimination

A comprehensive analysis of data hospitals report to Medicare shows that, on average, hospitals charge uninsured patients two-and-a-half times more than they charge insured patients and three times more than their actual costs. In some states mark-ups average four-fold. . . . private insurance payments [are] around 122% of hospital costs, while Medicare pays about 100%.

From here.

[A] 2008 survey by the Texas Medical Association found that while 58 percent of the state’s doctors took new Medicare patients, only 38 percent of primary care doctors did.

From here.

Medicaid pays less than Medicare to providers and is less widely accepted by providers, and that for many, individual health insurance is not an option. For example:

In Seattle . . . access to orthopedic surgeons is virtually nonexistent for uninsured people and Medicaid enrollees, because a single group of orthopedic surgeons has a virtual monopoly in the community and does not accept Medicaid or uninsured patients. . . . Findings from a survey of individual insurance shoppers show that 15% of people looking for insurance online were deemed ‘uninsurable’ for standard coverage by most insurance carriers.

A provider/health insurer industry sponsored study found that:

In 1999, there was approximately an 11.3 percentage point gap in operating margin between Medicare and commercial payers, and a 16.0 point gap between Medicaid and commercial. By 2006, this had widened to a 32.5 percentage point gap between Medicare and commercial, and 37.8 points between Medicaid and commercial.

While the general trend is hardly news, the specific quantitative measures of the differences are useful.

Housing Wealth Effect Documented

Why did consumers run up so much debt before the Financial Crisis?

They were spending unrealized gains in their home values, and didn't have access to funds in other ways due to poor credit and nearly maxed out credit cards. The data illustrating this link (about a quarter of new spending per dollar of increased home value) is impressive, despiite the practical difficulties of showing these kinds of relationships.

Economists call spending based on perceived increased lifetime wealth (such as a rise on the value of assets owned) a "wealth effect."

SCOTUS Thursday

SCOTUS Speaks:

* Punitive damages are available in admiralty cases (in this case unpaid compensation to a seaman) whenever there is willful and wanton, or outrageous conduct, as a matter of federal common law predating the founding. A previous recent case had required that punitive damage awards in admiralty cases bear some proportion to the compensatory damage award under a standard more strict than that found in constitutional reviews of state law punitive damage awards. Congress can provide otherwise by law, but has largely left admiralty to the federal common law.

This is a rare 5-4 case where Justice Kennedy was in dissent. The court liberals were joined by Justice Thomas in making the ruling. The twin decisions stablize the law of punitive damages in admiralty decisions and also reflect attitudes of the Justices towards punitive damages in a non-constitutional context.

* Reconsideration of court orders mandating school funding for programs based upon federal law, when the reconsideration alleges a changes in circumstances, must permit a widespread relitigation of the facts that justify the existing order. This is because "institutional reform litigation" can last many years during which circumstances can change and raise federalism concerns. In ordinary cases, it is almost impossible to modify a court order in a civil case after appeal periods and a six months period from entry to raise the most common irregularities in court procedures.

The case involved a court order mandating increased English language learning funding for the Nogales school district in Arizona pursuant to a federal education funding statute. The decision was 5-4 with the usual conservative suspects in the majority and the court liberals in the minority.

* In a bipartisan 5-4 decision (liberal Justice Breyer dissented, as did conservative Justices Kennedy and Alito), the "Court held that a lab chemist must be called to testify in order to admit the lab analysis as evidence in a trial." The constitutional confrontation clause requires testimony to be offered in person (the rule parallels the evidentiary hearsay rule). The dispute turned on whether a lab analysis is testimony reduced to writing, or a mere document.

* It was unconstitutional for a school official to strip search a thirteen year old girl at a school based upon the claim of a fellow classmate that the girl has a prescription strength versions of an over the counter asprin-like drug in her possession, even though a bag search was justified. The weakness of the evidence and minor nature of the possible harm did not justify such an intrusive search. Qualified immunity applied to all but one of the school officials on that the ground that the law applcable in their situations was not "clearly established" and for remand for consideration of the issue of whether the law was "clearly established" based upon more evidence in the case of another school officials.

Justice Souter writes for the Court joined entirely by five other Justices. Justice Stevens filed a partial dissent joined by Ginsburg. Justice Ginsburg filed an opinion concurring and dissenting in part. Justice Thomas concurs in part and dissents in part.

The last three cases of the session will be issued on Monday. The cases are, per SCOTUS blog:

Citizens United v. Federal Election Commission (08-205), on whether federal campaign finance laws apply to a critical film about former presidential candidate Sec. Hillary R. Clinton intended to be shown in theaters and on-demand to cable subscribers. . . .

Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), on whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Cuomo v. The Clearing House Ass’n, L.L.C. (08-453), on whether 12 USC § 484 and 12 CFR § 7.4000 prohibit measures taken by the New York State Attorney General to enforce state fair lending law against national banks by subjecting those entities to “visitorial powers.”

The Ricci decision, in particular, is a hot potato because U.S. Supreme Court nominee Sonia Sotomayer was on the panel that decided it.

24 June 2009

Tax Shelters Kill

The recent Washington Metro crash, one of the worst passenger train crashes in recent American history, may have been substantially the result of a tax shelter that kept a passenger car in service beyond its useful life.

Justice Dept Covers Up Prosecutors' Misconduct

The Department of Justice is in charge of handling complaints of unethical conduct by federal prosecutors. About 30% of cases involve prosecutors hiding exculpatory evidence in criminal cases from defense attorneys, in violation of the U.S. Constitution. But, rather than prosecute cases it sits on them, releases no public information (not even at a statistical level after 2006), and the punishments imposed are frequently minor (like private reprimands) even in situations that experienced federal judges see as serious violations and follow up upon.

Most of the degradation in the Office of Professional Responsibility, in charge of these cases in the Justice Department, apparently happened during the administration of George W. Bush and it isn't clear how much change President Obama will bring to the situation (incumbent U.S. Attorney General Eric Holder took office February 3, 2009, Deputy Attorney General David W. Ogden was confirmed March 12, 2009, as was Associate Attorney General Thomas J. Perrelli). Eric Holder's public statements about Justice Department reform are encouraging. It appears, however that H. Marshall Jarrett has led the Office of Professional Responsibility since 1998 (presumably as a senior civil servant) and that he, in turn, reports to the Deputy Attorney General and the investigated attorney's "component head" with the results of the investigation in each case. In Jarrett's defense, the Bush administration was not always cooperative (citing the New York Times):

Jarrett sought to investigate DOJ approval for the National Security Agency's domestic wiretapping program in 2006, but requisite security clearances were denied. On February 22, 2008, Jarrett announced an investigation of DOJ legal memoranda by John Yoo, Jay Bybee, Steven Bradbury, and others justifying waterboarding and other harsh interrogation techniques.

Then again, the fact that the investigation cited above started in 2005 and still hasn't concluded apparently, isn't impressive.

The evidence of weak attorney discipline at the Office of Professional Responsibility in the Justice Department, as reported by the American Bar Association Journal, suggests that the world's largest law office (i.e. the Justice Department) needs to hand off attorney regulation to disinterested third parties, in the same way that private firms are not permitted to judge their own lawyers. The truth of the matters is that professional and industry discipline agencies in almost every profession and industry tend towards regulatory capture, but most do take complaints of serious misconduct by individuals within the profession seriously.

The apparent failure of the Office of Professional Responsibility in the Justice Department is particular worrisome because some of the most culpable violations of civil liberties and incidents of torture were condoned by administration lawyers, like John Yoo, in ways that appear to violate professional ethics for lawyers in government service. The breakdown of professional ethics monitoring in the Justice Department may also color the rulings of judges who have first hand experience with these issues, in the Padilla v. Yoo civil lawsuit currently pending, where the complaint of Jose Padilla, who was detained as an enemy combatant and allegedly treated improperly while detained under the cover of a Department of Justice memoranda was held to state a claim for relief against a lawyer involved in writing those memoranda.

Detroit Law Firm Layoffs And Other Detroit Updates

Law is a service industry. When those whom they serve do well, lawyers do well. When those whom they serve do poorly, the lawyers are hurt along with their clients. Thus, just as New York City transaction based firms are laying off people in the wake of financial industry troubles (although Goldman Sachs is paying record bonuses), Detroit's two biggest law firms are laying off people in sync with the automobile industry around them, which is doing the same (and has two of the big three firms, plus the largest supplier in bankruptcy).

In related news, Ford is talking to a number of parties about selling the Volvo brand, which it owns. A Chinese company is among the bidders although Ford denies that there is a deal in place.

Also, a payroll audit at the Detroit Public Schools, which is currently under state receivership, turned up 257 individuals out of 13,880 workers on its payroll who are not on approved leave and may be "ghost employees" who aren't actually showing up to work at the school district.

CORRECTION: The operational part of Chrysler left bankruptcy two weeks ago and is already undergoing major shakeups under the supervision of its new owners from Fiat:

[Sergio] Marchionne, also the CEO of Italy's Fiat, has compressed eight layers of management into five. . . . There are senior or executive vice presidents, rather than vice presidents, followed by directors and senior managers. Every other salaried employee is simply considered a Level 5.

The product lineup will change too:

[T]he upscale Alfa Romeo brand to come to North America to compete against established sellers of luxury European cars. Some of those Alfa models are to be built here, too, and possibly exported to Europe. Aside from the tiny Fiat 500, which will be assembled in Toluca, Mexico, and introduced in mid-2011, new models with a European flavor will be branded as Alfa Romeos. . . .

Fiat's 500 minicar will be produced in Toluca, Mexico, and sold through Chrysler dealerships as a 500, much as BMW maintained its Mini as a separate brand. . . .

An Alfa version -- called the GTX -- of the 2011 Jeep Grand Cherokee and Dodge Durango will be produced at the Jefferson Avenue assembly plant. There is a strong likelihood Fiat will export some of those SUVs to Europe. . . .

[As a midsized SUV the] most likely choice appears to be a rear-wheel drive car that will share the basic dimensions of the 2011 Chrysler 300 and Dodge Charger. Fiat has looked at designing an Alfa Romeo 169 off the same structure, but sources inside the company said that decision has not been made. . . .

Fiat's C-EVO platform will be the base for the next Jeep Liberty, a small crossover that replaces the Dodge Caliber and a third model to be sold as the Alfa Romeo Milano . . . . In a daring idea that invites second-guessing, Chrysler and Fiat also are looking at putting a Jeep badge on the small, boxy Fiat Panda, now assembled through a joint venture with Ford in Poland. The Panda, if it comes to market, would probably be built in Toluca along with the 500.

Newpaper Ad Revenue Way Down

Judge Richard Posner offers up some facts about the newspaper industry:

Newspaper ad revenues fell by almost 8 percent in 2007, a surprising drop in a non-recession year (the current economic downturn began in the late fall of that year), and by almost 23 percent the following year, and accelerated this year. In the first quarter of 2009 newspaper ad revenues fell 30 percent from their level in the first quarter of 2008. This fall in revenue, amplified by drops in print circulation (about 5 percent last year, and running at 7 percent this year--and readership is declining in all age groups, not just the young), have precipitated bankruptcies of major newspaper companies and, more important, the disappearance of a number of newspapers, including major ones, such as the Rocky Mountain News and the Seattle Post-Intelligencer. Falling revenues have led to layoffs of some 20,000 employees of the remaining newspapers. Print journalism has come to be regarded as a dying profession. Online viewership and revenues have grown but not nearly enough to offset the decline in ad revenues. Even the most prestigious newspapers, such as the New York Times, the Wall Street Journal, the Washington Post, and USA Today, have experienced staggering losses.

From here.

His suggestions for copyright protection as a remedy don't ring true, however. He suggests that:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

The newspaper's old business model may be dead. This doesn't mean that there is no business model by which news gathering can make economic sense. National Public radio, for example, receives very little of its funding from government sources, even though it has a government charter. The Colorado Independent, in the sidebar, also has a grant based business model, rather than an advertising or subscription based business model.

Before commercial investor owned, advertising funded companies came to dominate news collection in this country, political parties provided a funding base for most newspapers, including one of the predecessors of the Rocky Mountain News. Before newspapers that served the general public came along, we had "foreign correspondents" whose business model was similar to that of today's investment analysts. Notably, newspapers in a fair share of the world manage without any copyright protection at all for their news reporting.

The vast majority of the fine arts sector operates on a mix of fee for service, advertising and contributions for donors, something close to the National Public Radio business model. So do many private educational institutions, and most private hospitals started out that way although many are now profitable from fee for service alone.

Indeed, the Associated Press, as its name suggests, is not itself an advertising revenue driven, investor owned operation at all. It is a producer cooperative of participating newspapers, in which participating newspapers generate much of the total content available. Most of the member newspapers are advertising revenue driven, investor owned corporations, but the AP is not. Members contribute both funds and content to the shared enterprise with funding requirements based on audience size, just as NPR member stations do.

Also, fair use blogging of news stories is a big part of what drives traffic to newspaper websites. The notion that this kind of citation reduces newspaper website traffic is probably empirically wrong.

In Japan and New Zealand, at least, probably elsewhere, part of the way TV and radio ccontent is paid for is with a tax on each TV and radio you own.

The item by item licensing contemplated by copyright law is horrifically cumbersome in practice and if it was really required in practice, every commercial radio station in the country would soon collapse under a mountain of copyright suits. In fact, the only way commercial radio exists at all is for the copyrights in the vast majority of the songs to be available by paying a small number of blanket licenses based upon audience size, and then to impose record keeping requirements on licensees. The data from the radio stations is then used to divy up the the royalties to artists and music studios and others entitled to them.

Why do I get a newspaper even though I could get most of the content online? Simple. Ease of use and scanning issues aside, I want the coupons that come with it and it is nice to have the physical paper around the house for various purposes (like surface protection from children's paint projects).

SEC and CFTC Draw Derivative Regulation Lines

At a congressional hearing [Monday], Securities and Exchange Commission Chairman Mary L. Schapiro proposed that her agency oversee derivatives linked to stocks, bonds and securities and that the Commodity Futures Trading Commission oversee all other derivatives. CFTC Chairman Gary Gensler, sitting beside her, didn't offer his own proposal, but a spokesman said Gensler agrees with Schapiro, except on one outstanding issue. . . .

The accord between the SEC and CFTC awaits action by Congress, which a decade ago exempted derivatives from regulation. In a plan for retooling financial regulation announced last week, the Obama administration proposed new rules and heightened oversight for derivatives and the firms that trade in them. But the administration left the division of labor up to the SEC and CFTC, both independent agencies. . . .

Still being negotiated between the SEC and CFTC is oversight of derivatives linked to indexes -- for instance speculating on whether the Dow Jones industrial average will rise or fall.

From here.

The total nominal value of the derivatives market (a less than idea number because many derivatives, like credit default swaps, are essentially guarantees whose real value isn't reflected in their face value and more than total life insurance face value outstanding reflects the likely annual payouts of life insurance; in contrast, aggregate market capitalization has a far more direct relationship to the amount of bonds and stocks outstanding) is estimated to be about $400 trillion.

More transparency for "standard" form derivative would also be mandated under Obama's financial regulation package, but it appears that customized non-publicly offered derviative deals would continue to be largely exempt from regulation.