28 March 2012

Indiana Still Backward

A geeky looking seventeen year old high school senior, Austin Carroll, in Garrett, Indiana was EXPELLED from school, (really) from making a cute little tweet joke about the many linguistic uses of the word "Fuck" on a private twitter account while not at school at 2:30 a.m. (the school claims it was tweeted from a school computer, but "The principal at Garrett High School claims their system tracks all the tweets on Twitter when a student logs in, meaning even if he did tweet it from home their system could have recognized it when he logged in again at school.", and why expel someone for that ever, in any case?).

Let me restate that again, in case you weren't paying attention. This kid was kicked out of school permanently, not for having a gun, or raping someone, or dealing drugs, or being truant, but for making a half-intellectual tweet. He has to attend an alternative school in order to earn his diploma, for the next three months.

It makes the town in the movie "Footloose" (1984) that banned dancing look permissive by comparison.

The batshit crazy principal at Garrett High School who made the call appears to be a fellow by the name of Matt Smith. It certainly isn't obvious from the student handbook at Garrett High School for the school that this kind of conduct would be a ground for expulsion (although one can twist the language to come to the conclusion that it could be possible).

What they fuck was he thinking? Seriously. Courts have frowned on this kind of disciplinary action by schools. But, more importantly, it just doesn't make any kind of sense whatsoever. This Matt Smith guy reminds me of the Jet Blue pilot who flipped out and had to be restrained from trying to re-enter the cockpit by the flight attendants and passengers earlier this week. An authority figure who just disconnected from reality all the sudden.

Notably, this same principal said upon taking the job in 2007 (his second administrative post) that:

Mr. Smith always encouraged his three priorities, which are God, family, and career.

“I chose God as my first priority because I feel it’s important to be a servant leader and help people become the best they can be,” said Smith.

To help his students become the best they can be, Mr. Smith treats those students, he comes in contact with, the way he would treat his own family.

“Instead of issuing punishment, I try to focus on the student and building a relationship with that student,” he said. Mr. Smith said he does the same with his own children.

One of Mr. Smith’s goals this year is focusing on Garrett becoming the best school that it can be.

“I am going to try to do everything I can to make this school the best school in the state,” he said. “We are labeled a small, blue collar community, but that doesn’t mean that we can’t be the best.”

Clearly, Jesus would expel a high school senior for making a tweet that used the word fuck in a non-sexual way at 2:30 a.m. from home.

District Superintendent Dennis L. Stockdale apparantly lacked the presence of mind to realize that his subordinate, Matt Smith, was an idiot, and has backed the decision. In an interview, he revealed that:

Garrett schools Superintendent Dennis Stockdale tells The Journal Gazette he cannot comment on any student's case. But he says the school has never disciplined any student for anything they posted online using their own computer outside the school's network.

Until now, that is. A couple more points from another account of the story:

Carroll’s mother, Pam Smith, told KPC News that her son will not be able to finish his senior year with classmates, can't attend the senior prom nor attend commencement practices. He will be allowed to participate in graduation, but will receive a blank diploma that night. Stockdale will give him the signed document following the ceremony. . . . Smith and her son were called to the school principal’s office March 12 regarding the incident, and administrators showed her printouts of the tweets. Smith said she has not seen complete documentation regarding IP reports and times.

Stockdale said federal law allows the school to filter content used by students.

The final decision on punishment is made by the superintendent, at the recommendation of the student’s building principal, according to Stockdale.

Parents can request a hearing with a hearing officer to appeal a decision. Stockdale said during his five years as superintendent, three or four hearings have been held.

Smith said she waived the opportunity for a hearing because she didn't fully understand the process at the time.

Carroll posted on his Facebook page Monday: “I agree with the administration that what I did was wrong and I shouldn’t have done it,” he wrote. “But the punishments they put me through were way too harsh. I shouldn’t have gotten in trouble at all. It wasn’t the school as a whole that did it, though. I love Garrett Schools with all my heart. The students and teachers are the best ever. They think of one another as family,” Carroll’s post said.

There is also some history to the case. But, it is harmless stuff:

Last October, Garrett High School senior Austin Carroll got into a rub with school officials after he used his school-issued computer to post an online comment via Twitter that contained obscenities.

Carroll was given an in-school suspension and, according to his mother, quickly learned that he should use the school-issued laptop strictly for homework assignments.

Meanwhile, Carroll continued to get into almost silly conflicts. He wore a kilt to school one day but was ordered by the principal to change. His mother, Pam Smith, said she argued that the kilt was no more of a distraction than girls with short skirts or low-cut tops. Later, the superintendent agreed that Carroll would be permitted to wear a kilt on Irish holidays.

This month, Carroll’s mother was called to the school to discuss her son’s attendance. Carroll, she said, suffers from migraines and other health issues and does miss school often.

At the meeting, though, the topic wasn’t attendance but Carroll’s Twitter posts. School officials, she said, had print-outs of some tweets that contained more obscenities. School officials wanted to expel Carroll.

Smith said she objected. The tweets had been sent from his home computer at 2:30 a.m. While she doesn’t approve of the obscene language and said she confronted him, what he does on his home computer in the middle of the night is his business.

But school officials said the tweets had the school’s IP address. She said she was told that if Carroll had his school laptop running, it would appear the tweet came from the school computer.

The bottom line, still remains, what kind of brainless fools are Matt Smith and Dennis Stockdale, and why can't they just learn to admit that they screwed up?

People like Matt Smith and Dennis Stockdale do not deserve to be trusted around children. They should find a new line of work, in an S&M club maybe. If I were on the school board, I'd vote to immediately fire both of them for proving that they have no sense of good judgment whatsoever, shaming their school, their town, and their state in the process. Small minded people like them in positions of power are the kind of blight that mains our country and our future. (Colorado has them too).

Is Creativity Domain Specific?

What is creativity?

There is considerable psychological consensus on how to go about measuring the psychological trait called IQ. There is less consensus about how to measure creativity, and even the lay meaning of the term often starts to break down when one tries to find the devil in the details.

There are multiple dimensions to the psychological and psychometric construction of "creativity" that are contentious.

One addressed in a recent post at Marginal Revolution, is whether creativity is a general trait, or a domain specific one. Maybe there is no relationship at all between verbal creativity and visual creativity, for example. The evidence cited in the post suggests that creativity may be domain specific (although an alternate hypothesis would be that it was a general trait that only expresses well in combination with other traits like verbal or visual aptitudes).

Another dimension, not discussed in the post, is whether creativity has more to do with the originality of one's ideas, or one's output of ideas, even if most of those ideas are mediocre, or at least, unexceptional.

The Johnson O'Connor Foundation, for example, which focuses on psychometrics, originally as a personnel management tool and more recently with an eye towards career counseling, calls its creativity test a measure of "Ideaphoria", i.e. raw volume of idea output. The operational test they used for the trait involved (maybe it still does) writing down as many responses as possible to a prompt in a set time period - the more responses one writes, the higher the score.

Other common tests, such as one often used to determine if someone is eligible to enter a gifted and talented program that is seeking to be inclusive of creative talent, try to measure divergent thinking rather than idea volume, and one of the most common ones arguably blends to separate traits in an incoherent way:

Efforts to assess creativity have been plagued by supposedly domain-general divergent-thinking tests like the Torrance Tests of Creative Thinking, although even Torrance knew they were measuring domain-specific skills. (He create two different versions of the test, one that used verbal tasks and another that used visual tasks. He found that scores on the two tests were unrelated —they had a correlation of just .06—so they could not be measuring a single skill or set of skills. They were—and still are—measuring two entirely different things.)

Of course, when a measurement tool used widely in research and application is deeply flawed, it can put a damper on the credibility of the entire undertaking, extracting systemic degradation in the quality of the work done across the field. It is a classic case of the perils of academic group think. Criticisms of other widespread psychological constructs used to operationalize ideas like personality and deviance consistently (e.g. the Five Factor Model of personality, and the DSM-IV), have some of these concerns at their root.

The Johnson O'Connor Foundation focused on idea volume rather than divergent thinking based upon the observation that idea volume was more consistently linked to professions commonly considered to be "creative professions" than other measures of creativity based on divergent thinking.

It also observed that lack of "ideaphoria" (like most personality traits) isn't necessarily a bad thing. Creativity can be a hindrance in vocations where consistency and "steadiness" are virtues like dentistry or accounting or managing a stable organization. Interestingly, it found that sales was a field where extroversion and creativity were both critical, while vocabulary (a good proxy for education and IQ), which was important in economic success in almost every other field didn't matter much. They also identified a "group influencing" cluster of personality traits (extroversion, creativity, and high reasoning ability) associated with professions, like teaching and politics, that revolve around influencing groups of people in public forums.

Many top talents in creative fields, Shakespeare, for example, are notorious for using immense amounts of borrowed or derivative material and breathing new life into it, while stage actors and musicians, often are tasked with bringing only new nuance into a predetermined and tightly determined sequence of dialog lines or musical notes invented by someone else.

Similarly, while most people consider reasoning ability to be a good thing, low levels of the trait were valuable in fields where insisting on evidence rather than inferrence is important, and where the systems one deals with are too complex to reduce to systemic rules.

Studies that have looked at "plus factors" that influence real world success after controlling for IQ, have largely focused on variants on the Big Five traits of conscientiousness and extroversion. The former sometimes gets described as "attention to detail", being a "self-starter", "self-discipline," being hard working and diligent as opposed to lazy, and having "grit." The latter is sometimes expressed in terms of having "people skills," having "empathy" or "emotional intelligence," being "energetic", being a "team player," and being a good "networker." But, creativity hasn't received as much systematic study, in part due to a lack of a definitional consensus about how to model it psychologically.

Of course, the perennial nature v. nurture debate also comes out in the discussions of the psychology of creativity. Is creativity something you are born with, or is it something that you develop with practice and even training? A domain specific creativity construct favors thinking of creativity as a form of "expertise" not just in the sense that it is not general to all fields, but also in the sense that it is acquired rather than inborn.

For example, are great composers distinguished by their great musical talent, that opens up the door to more possibilities to them than to lesser lights, or by a genuinely greater flow or more innovative flow of ideas?

Often ideas flowing from broader experience can look creative to people who don't have the same experiences, even if the person with the ideas doesn't have more or different ideas than someone with similar experiences. Patent law, for example, talks about inventions that are not obvious to people skilled in the field where the innovation takes place, even if they would be non-obvious to a non-expert. Similarly, when a chess master makes what looks like amazingly creative moves, this often has more to do with simply having a greater repertoire of options in the master's experience to draw from than from innovation, per se. A personal trainer who memorized more different exercises may look more creative than one who does not, because the personal trainer who knows more exercises can vary a routine more easily.

Given that greatly knowledge and experience and expertise in a domain can "look creative" the question then is whether once that effect is stripped away, there is any meaningful residual of a personality trait called "creativity" that is left, and if so, what that diminished psychological construct that is still left with some kind of meaning amounts to at that point.

Orchid Children

David Dobbs has a nice article at Wired on gene x enviromental interactions in the context of the orchid and dandeloin children hypothesis.

In a nutshell, this hypothesis re-evaluates what genes like "DRD4 [a dopamine processing gene] . . . the serotonin transporter gene (also known as SERT or 5HTTLPR), the short variant of which is often blamed for depression and anxiety disorders, and a variant of MAOA, the monoamine oxidase A gene, that some studies associated with aggression or violence." The hypothesis argues that rather than being genes that per se reflect negative behaviors, they actually reflect sensitivity to parenting quality.

This revisionist hypothesis is known variously as the sensitivity hypothesis, the differential susceptibility hypothesis, or the orchid-dandelion hypothesis — a term that Thomas Boyce and Bruce Ellis coined based on the vernacular Swedish term “dandelion children,” who seem to grow up okay in almost any environment; to that they added “orchid children,” who thrive under good care but wilt under bad.

Dobbs cites a 2010 study by Jay Belsky and Kevin Beaver that looked at both parenting quality and genotype that support this interpretation. The self-control and self-regulation of children with none of the variants, and of girls, was indifferent to parenting style. But, the more variants of these genes that a boy had, the more their self-control varied with parenting style. Boys with lots of these variants and "good parents" had above average self-control, while boys with few of these variants and "bad parents" had below average self-control.

The case that these genes have some positive function is supported by indications that they have been fitness enhancing targets of natural selection in humans:

These variants, Belsky and others note, appear to have emerged and then rapidly expanded through humankind over the last 50,000 to 100,000 years. Of the leading orchid-gene variants — the short SERT, the 7R DRD4, the more plastic version of the MAOA gene — none existed in humans 80,000 years ago. But since emerging through mutation (or, possibly, through interbreeding with other hominids), they have spread into 20 to 35% of the population.

“That’s not random drift,” says evolutionary anthropologist John Hawks. “They’re being selected for.”

Of course, it doesn't necessarily follow that just because genes were fitness enhancing in the Upper Paleolithic era that they are fitness enhancing in a modern technological 21st century society.

This research also suggests candidates for genes that might influence personality more generally, and just how subtle those genetic connections might be when environment also has to be factored into consideration. Many personality models treat self-control or something like it as a simple personality trait caused by genes, but in an Orchid Children Hypothesis, an effort to link the genes that actually seem to be involved with the self-control personality type will not see a genetic association, even though there is a complex but important one that appears to be involved.

A sensitivity model also doesn't just come into play in the personality trait of self-control. For example, one of the genetic traits hypothesized to be linked to pre-disposition to alcoholism basically comes down to a physiological trait that influences how easily you get drunk. Easy drunks are not prone to be alcoholics, because they can get a buzz with just a little alcohol and the effect is so strong that they tend to avoid it. People who hold their liquor too well, in contrast, need to drink large amounts to get a buzz and are prone to get into the habit of regular heavy drinking as a result.

The practical implications of Orchid v. Dandelion genes in children as genotyping grows ever less expensive are quite straightforward for parents. Parents with dandelion kids can rest easy knowing that their own parenting mistakes won't have as much of an impact on their children's development. Parents with boys who are orchid children, in contrast, would be under immense pressure to consider what kind of parenting practices they employ. The Freudian psychology instinct to look at childhood experience and parenting as a source of adult behavior may simultaneously be wrong and right. For most people the connection may be almost entirely absent, but for a minority, the connection may be profound.

About Obamacare

There is a reason that Democrats worked long and hard for the health care reform act which has been dubbed Obamacare.

The real problem in this country is not that people might have to pay a small tax penalty (far less than the cost of buying health insurance) for failing to buy health insurance which they have the ability to buy.

The real problem in this country is that something on the order of one out of six, or one out of seven people at some point in any given year, don't have health insurance and can't afford to pay to receive the health care that they need - something that is sometimes a matter of life, death, or lifetime disability if not addressed promptly.

Obamacare addresses about 90%+ of the problem, mostly by creating strong incentives (most via the tax code) for businesses to provide private health insurance for their employees and for families who don't have employer provided private health insurance to buy individual coverage with private health insurance. This mostly takes effect in 2014.

26 March 2012

Higher income people still Republicans

Razib refutes the latest silliness of the argument that the upper class in America is Democratic leaning in its politics:

A few months ago I listened to Frank Newport of Gallup tell Kai Ryssdal of Marketplace that upper class Americans tend to be Democrats. Ryssdal was skeptical, but Newport reiterated himself, and explained that’s just how the numbers shook out. This is important because Newport shows up every now and then to offer up numbers from Gallup to get a pulse of the American nation.

Frankly, Newport was just full of crap. . . . the more income a family has, the more likely they are to be Republican.

Those with higher levels levels of income in every educational category are more likely to vote Republican than those with lower levels of income. Those with graduate degrees are less likely to vote Republican than those with mere college degrees of the same incomes, but the same more income favors more Republican voting trend is there, and the liberal streak seen in graduate educated people v. those will less education is numerically overwhelmed, even among those with high incomes, by their college educated (or less) peers. (The is a bit of a fluke in the tiny category of high income people who are not high school graduates, but that category is still more Republican than Democratic.)

The biggest issue in the numbers of that there may be regional variation between Southern whites and other demographics. As one person making a comment to the post linked above notes: "From 1952 to 2004, the working-class white vote in the South shifted to be 20% more Republican. In the rest of the country – only 1% more Republican!"

As Karl Zimmerman notes in a comment at that post:

Such a study has already been done.“Blue” states show little correlation between income and voting patterns, while “red” states show a high correlation. Even though rich people in all states are more likely to support Republicans than poor people, a larger minority in states like Connecticut support Democrats than in states like Mississippi, which explains why higher-income states overall now tilt to the Democrats.

John Emerson also makes some good comments, including the following:

3. The culture war is between two different groups of well-off people. This squares with other findings showing that the opinions of the poorest third, who vote least and contribute the least money, are scarcely taken into account at all by elected officials.

4. Both rich Republicans and rich Democrats are more socially liberal than they are economically liberal, and poor Democrats are less culturally liberal than economically liberal. So the cultural issues work as a wedge issue.

There’s another definition of class (Ruy Texeira’s) in terms of education. From that point of view, the top tenth is strongly Democratic, but the bottom tenth (all races) is even more strongly Democratic. It’s just less-educated whites that the Democrats have problems with.

80% of the population isn’t really rich or poor, and neither has an advanced degree nor is a HS dropout. That’s where the electoral battle is.

The regional issue also helps to explain why "class warfare" is a resonnant issue in Republican strongholds, where income has a dramatic impact on voting behavior, while sounding tone deaf elsewhere, where income is less strongly tied to political preferences.

The Post-Colonial Stagnation In Africa

Over centuries, bit by bit, most of Africa was placed under colonial rule for European powers, with England, France and Portugal being among the more prominent colonial powers. By the time World War I arrived, almost all of Africa was under colonial rule, and it mostly stayed that way until well after World War II. When decolonialization arrived, it mostly happened all at once as a collective policy decision of the colonial powers fostered to a great extent as an early initiative of the United Nations. The year 1960 was the modal year, when more African countries were granted independence than any other.

The pattern of decolonialization was depressingly familiar. The country declaring independence, within boundaries set based on administrative convenience by colonial powers during the colonial era enacted a constitution establishing Western style representative democracy, a Western style court system, and a wide set of guaranteed rights. A thin local elite, educated by the colonial power during the colonial period attempted to conduct government under this system, but were inept, corrupt, and lacked a widely accepted legitimacy in the countries they were given to rule. In short order some combination of military coups (often multiple coups), abrogation of constitutions by current leaders who became dicatators and established cults of personality, or one party political systems modeled on Russia and/or China emerged. Wars, both civil and international raged intermittently in most of the continent. Mass starvation and public health disasters followed. Non-democratic government was the norm for at least a generation or two in most of the continent. Only in the last decade or two had Western style democratic self-government really taken hold. And, Africa has not been exceptional in this regard. Almost all post-colonial regimes have experienced something generally similar.

The economics of the post-colonial era in Africa have reflected this reality, with modest GDP growth at times in some countries masking a genuine deterioration in Africa's economic health.

"The paper [by John Page] shows that between 1975 and 2005 the size, diversity and sophistication of industry in Africa have all declined." . . . The growth has come largely through commodities.

Africa's industrial production, outside of South Africa, is marginal, as the paper explains:

The 1980s and 1990s were marked by a shift of manufacturing production out of Africa. Excluding South Africa, the region’s share of global manufacturing production fell from 0.4 per cent in 1980 to 0.3 per cent in 2005, and its share of world manufactured exports from 0.3 to 0.2 per cent (UNIDO 2009). . . . The share of manufacturing in GDP is about one third of the average for developing countries, and in contrast with developing countries as a whole, it is declining. Per capita manufactured output and exports are less than 20 and 10 per cent of the developing country average, respectively. . . .

Africa’s skills gap with the rest of the world is large and growing. While East Asian countries increased secondary enrolment rates by 21 percentage points and tertiary enrolment rates by 12 percentage points between 1990 and 2002, Africa raised its secondary rates by seven percentage points and its tertiary rates by only one percentage point. Real expenditure on tertiary education in Africa fell by about 28 per cent between 1990 and 2002, and expenditure per pupil declined from US $6,800 in 1989 to US $1,200 in 2002. Staff student ratios in West African universities increased from 1:16 in 1990 to 1:32 in 2007 (World Bank 2007b).

Needless to say, the baselines of secondary (i.e. high school) and (tertiary) (i.e. college) enrollment rates were never very high to start with in Africa.

The average Sub-Saharan African business suffers 91 days of electrical outages and 28 days of telephone outages per year, and it takes an average of 80 days to set up new electrical service and 97 days to set up a new landline telephone.

Atrocities from Africa often resemble situations in the Americas and elsehwere sufficiently distant in our historical memory that we like to forget that they ever existed.

For example, Mauritania, while it banned slavery a couple of decades ago, and criminalized keeping slaves in 2007, still has an ongoing institution of slavery that neither government interest nor private activism has been sufficient to halt. According to CNN, in a report earlier this month, in Mauritania, "An estimated 10% to 20% of the population lives in slavery." People still actively kill people for being witches in Nigeria. Since South Sudan gained independence this past summer, its elite, many of whom served as child soldiers themselves, is trying to figure out how to run a national military force comprised only of adults.

In multiple countries in Africa, the average woman has six, seven or eight children in a lifetime, and there are extremely high levels of infant mortality, something that remains the case outside of Africa only in Afghanistan.

The policy recommendations made in Page's twenty-four page discussion of the question "Should Africa Industrialize?", don't obviously improve on the prior literature which hasn't produced result, but the bare factual observations that he makes, that Africa's industrial and higher education sectors has spent the last few decades getting weaker rather than stronger is the take away point that is notable.

While Africa now is close to a low point in terms of internal armed conflict (although there are multiple armed conflicts and deadly insurgencies brewing in Africa as I write this post, for example, in Somolia, Uganda, Northern Nigeria and most recently Mali where coups and possible counter coups of broken out in the past week), and is also at or near a high water mark in terms of the share of the continent that has civilian, democratic self-government, these developments merely establish pre-conditions to meaningful economic development.

21 March 2012

Scalia on Rehabilitation

Modern penology has abandoned that rehabilitation thing.

- Justice Antonin Scalia (oral argument on March 20, 2012 in Alabama v. Miller).

There are lots of relevant posts at the Sentencing Law and Policy blog.

(Updated to correct misattribution on April 1, 2012.)

Romney Delegate Trendline Portends Brokered Convention

Seth at Enik Rising has committed the grievous sin of burying the lede in his very interesting coverage of the rate at which Romney is securing delegates in the 2012 race for the Republican Party Presidential nomination. The money quote, halfway into the long post, is this:

Romney will not get to 1,144 delegates (a majority) by the end of the primaries and caucuses assuming he keeps accumulating delegates at his current pace.

Now, good academic that he is, Seth immediately assures us that this trendline is not a prediction. Why?

There's no real reason to believe Romney will continue to acquire delegates at this same pace this year. Romney looks likely to do well in Illinois tomorrow, as well as in some large winner-take-all states like New Jersey and California* later on. (And I like him for the winner-take-all Utah primary.) [*Note: California's primary is winner-take-all by state and congressional district. . . .]

So my expectation is still that Romney will have this thing wrapped up before the primaries and caucuses are over. But it may take some time -- NJ and CA aren't until June 5th.

In an update later in his post, he notes that Illinois didn't make much of a dent to the trendline.

Seth also mentions that having multiple candidates, particularly Gingrich, stay in the race has extended the time it takes for any one candidate to win a majority. But, he fails to make the critical follow-up point to that musing:

If Gingrich had left the race, Romney would not have nearly the lead that he does right now. And, when and if Gingrich leaves the race, Santorum's position in the remaining primaries and caucuses will be strengthened.

Gingrich's effect on this race has been to split the conservative vote which would otherwise be great enough to defeat Romney. If Gingrich gets out, most of his supporters will back Santorum unless Romney looks completely inevitable (e.g. if Romney already has enough delegates to win the race). Santorum doesn't have to play to win. He simply has to play to deny Romney a majority in Tampa at the first ballot. If Santorum succeeds in that task, the Republicans will have a brokered convention and all bets are off.

I'm not sure that I think that there will be a brokered convention in Tampa either. But, it is quite a bit more likely than Seth suggests.

Denver Post Continues Long Painful Newspaper Death March

The Denver Post has cut $500,000 from newsroom and editorial staff in yet another round of layoffs, this time including two of its star columnists, Mike Littwin and Penny Parker. The layoffs notice started going out yesterday and are continuing today.

A few years ago, Denver had two ordinary daily newspapers, the Denver Post and the Rocky Mountain News, and a free dail as well, the Denver Daily News. The Post and the Rocky first formed a joint operating agreement allowing for two separate papers with consolidated business operations. Then, the Rocky Mountain News died. Then the Denver Daily News died.

The Denver Post, over time, has reduced materially what it offers readers in content as advertising revenues has dried up and circulations have been stagnant or falling. There are fewer news sections (sometimes shorter ones consolidated where once there was a section for each part), there is less content, there is less original reporting, there are fewer comics, and the ads have become more obnoxious (like sticky notes on the front page and wrap around half pages). Subscription rates have gone up in the absence of competition. Behind there scenes, there have been bankrupticies, conslidation in the industry, and debt reorganizations.

The cuts haven't solved the problem, and so there are more cuts. Even some of the nation's most esteemed and widest circulation newspapers are only marginally profitable or incur losses. The Denver Post and its parent company are feeling it along with the rest of the industry.

In the immediate term, there are complaints that the Denver Post could have handled its layoffs in a more graceful way, rather than the usual heartless corporate mindless indifference, but it didn't.

The longer term issue is that nobody has a viable business model for running a major metropolitan daily newspaper even though many people enjoy the service and are willing to pay something for it. The traditional system, in which distribution is sold at distribution cost, and funds to cover operations and profits are derived from advertising revenue seems to be dying a slow and painful death.

Technological changes like the Internet are no doubt a big drive of the change. But, it makes no sense to abolish the Internet to save the pre-Internet newspaper business model.

Honestly, I doubt that a "for profit" model for gathering and distributing news has much of a future in any case. Without people who pay premium prices for the same services and grants, like most arts and cultural non-profits, I don't see much of a future for newspapers.

20 March 2012

19 March 2012

Oh The Humanity!

Who is speaking up for the mothers who, under HHS mandate [that insurance policies cover oral contraception], have been falsely coerced into feeling that to be a woman means to have “control” of their own bodies?

From Joshua Genig, pastor of The Lutheran Church of the Ascension (L.C.M.S.) in Atlanta, Georgia (currently in exile in Scotland studying theology at the University of St. Andrews, and presumably improving his golf game as well).

Who knew that President Obama was nefariously plotting to forcibly deny women their right to be raped and to bear somebody else's children without their consent?

One of the reliable ways to distinguish rights that conservatives push for from rights that liberals push for is that conservatives relentlessly push for rights that no sane human being would actually want.

Consider some of the rights conservatives strongly favor:

The right to not have access to health care, the right to not have control over your own body, the right to be poor, the right to pay rent for cockroach infested structurally unsound apartments, the right to let the felon next door intimate you with a gun, the right to receive incompetent professional services, the right to let your democratically elected officials make obviously bad policy decisions, the right to execute innocent people who had fair trials that reached incorrect results, the right to abuse your children, the right to breath dirty air, the right to flood the Everglades, the right to poison your neighbor's wells, the right of policemen to beat up or kill innnocent citizens without justification, the right to have your disputes with a business resolved by someone chosen by the business according to rules chosen by the business, the right to have no job security, the right to squander your Social Security contributions with bad investments in the stock market, the right to live in a city without streetlights, the right to accidentally injure people with impunity, the right to persecute people because they are gay, the right to declare your city, state and nation to be governed by your religion, the right of rich people to pay lower tax rates than poor people.

On what sick planet did conservatives come up with this agenda? Who wants these rights? Why should we care about these people?

Randy E. Barnett Acknowledges His Jurisprudence Is Reality Challenged

Barnett is a right wing fantasy constitution advocate at Georgetown University. But, he knows that his castles in the clouds have little to do with the actual law and amount merely to political advocacy. As he notes in an abstract to a new article:

Judges appointed by both Republican and Democratic presidents largely operate within what academics call the "New Deal settlement." By this it is meant that the courts allow Congress to exercise unchecked power over the national economy and everything that may affect it, limited only by the express guarantees of the Bill of Rights. In this arena, with some exceptions, the post-New Deal judiciary disagrees only on whether other unenumerated rights may also receive protection and, if so, which ones. But whatever few additional "fundamental" rights may be recognized, they do not include the protection of any so-called "economic liberty" that might inhibit the national regime of economic regulation.

Finally, a job you are qualified for

Are you a young lawyer? Are you looking for a job? This job may be for you.

Candidates from . . . top firms, could be a good fit for this role. Significant debt experience is key. Compensation is very competitive with what one would find at same level at a top Wall St. firm in HK / China (all in, including expat/cola).

Trust funders need not apply.

Wisconsin Still Screwed Up

Above The Law nicely sums up the unsatisfactory character of Wisconsin Supreme Court Justice David Prosser. Also, a quarter of the circuit court judges in Milwaukee and dozens statewide signed a petition to recall the Governor.

Douglas A. Kahn On Taxing Homemakers and Baby Sitting Favors

My law school tax professor's articles are often dry and technical, but his latest article is a thoughtful examination of deep legal theory issues within tax law. Douglas A. Kahn (Michigan) has posted Exclusion from Income of Compensation for Services and Pooling of Labor Occuring in a Noncommercial Setting, 11 Fla. Tax Rev. ___ (2011), on SSRN. Here is the abstract:

Compensation for services, regardless of the form, constitutes income to the recipient. Consequently, the exchange of services by two individuals is treated as income to each. However, there are numerous examples of an exchange of services that the IRS has never sought to tax. The most common example is an exchange of services by a married couple who divide the household chores between them. The focus of this article is to propose a principled reason for not taxing those exchanges and to explore the limits of that exclusion. The author contends that the income tax operates exclusively on commercial transactions, and so income derived from a noncommercial activity is not taxable. The article explores what types of activities can be classified as noncommercial for this purpose.

As a corollary to the proposed noncommercial rule, the article contends that the income tax does not apply to individuals who pool their labor to obtain a common goal. The resulting exchange of services are not taxable. The article considers the question of how broadly a common goal can be defined for this purpose. The article examines several specific activities in which services are exchanged and which should not be taxable. Specifically, among others the article examines: baby sitting barter clubs, cooperative nursery schools, and home schooling.

Verbatim from the Tax Prof Blog.

Near the top of the unstated issues at stake in the analysis is the taxation of families who do not consist of married couples but share a household, but the article also takes on children's allowances.

One reason that article is notable is that we managed so long without it. All of the activities discusses are commonplace and long standing, yet the nation's tax administration has managed without any coherent theory to explain its everyday practice somehow, without mishap. The situation is actually surprisingly common in American law, where the focus is on the close calls and not the easy ones.

Misanthropic Psychology

Any time you talk about psychology or psychiatry, you don't have to get very far before you start facing deep definitional issues. While these professionals may have a few words to describe way that a person is mentally distinctive that are more unambiguously defined than common place descriptions, these are anything but exact sciences.

One important cause of this problem is that the professional researchers in psychology, usually with PhDs or M.D.s, usually in a university or privileges at a teaching hospital or mental institution, are not the people in our society who are experts at understanding other people.

Their methodologies reflect these predispositions. Subjective, adjective filled questionaires, filled out by individuals isolated from others at the time it is being completed, are their tool of inquiry of choice. The professors rarely have sustained and rich relationships with individual students. The clinicians rarely see their patients outside their offices. Psychologists also tend to be fans of sometimes dubious laboratory experiments.

Their deficits of experience may be tolerable in the area of abnormal psychology, where people exhibit symptoms that are so unusual that very few individuals have the depth of personal experience to have repeatedly encounted the symptoms in daily life. And, even when you do encounter someone with an abnormal psychological condition in your daily life, you can't only catch it with an attention to detail every bit as honed as that of a zoologist looking for chameleons. People often make every effort to be undetectable if they can help it.

But, there are other people who are much better suited to understanding normal psychology. When the "Big Five" personality traits, referred to in another blog today were formulated, the psychologists went not to people who knew a lot about people, but to dictionaries. Then they tried out the dictionary words on lots and lots of people in paper and pencil tests to "empirically" study the patterns that emerged.

What you really want to understand normal psychology is people who have particular insights into who large numbers of people are that is developed in rich, multifaceted and sustained inteactions. You want sports coaches and art teachers and music teachers and gym teachers and scout masters (and even elementary school principals (middle schools and high schools are too large to develop the right kinds of inteactions) who have interact with scores or hundreds of students at any given time and interact with the same kids multiple times a week, for many years on end, in something approaching a natural environment. You want members of the clergy who serve reasonable small, reasonable stable groups of worshippers for decades on end and see children with parents, children with friend, and so on. You want extraverted neighborhood gossips, military senior sergeants, county level political party officials, and hair stylists. You want long time members of social clubs and PTA parents. You want theatrical directors. You want general contractors and realtors. Ideally, you would prefer that they not be unduly contaminated by the formal study of the behavioral sciences.

Rather than going to a dictionary and trying to fit fuzzy concepts like personality into a pre-conceived multi-dimensional construct, you would like people like this, who have rich personal knowledge drawn from experience about the behavior of the hundreds of people that they know and you would like to ask them: "Group these people into three to sixteen clusters of people with similar personalties, however many you think you need to adequately categorize them." Ideally, you have multiple people who all know the same people classify the same group of people. This should be your starting people for fleshing out the boundaries of "personality space." Some clusters are going to be larger, and some are going to be smaller. You can ask the people who made the classifications what it is that these people have in common, how different groups differ from each other, and what observable are most valuable in making the classification. You can see if these "experts" tend to make a similar number of groups from the same group of people, and if not, if certain groups in one classification overlap with certain groups in another.

Start with people who actually know people, even if they have trouble articulating what it is that they know, and you are much further on your way that the methodologies so common in the field today.

Search For Personality Genes Comes Up Empty

In another case of missing heredity, a meta-analysis involving 20,000 Europeans in all, searching for SNPs linked to Big Five personality traits (extraversion, neuroticism, conscientiousness, openness to experience, and agreeableness) came up empty, despite twin studies showing up to a 50% hereditary component to personality and that shared environment has little impact on personality.

Color me unimpressed.

* There have been traits very akin to personality traits for which genetic connections have been identified (novelty seeking/impulsivity; inability to maintain long term relationships; resilience in the face of traumatic events; predisposition to substance abuse, etc.).

* There is even a subtype of ADHD associated with a particular identified gene and the definition of ADHD is closely aligned with the Big Five trait of conscientiousness.

* The Big Five are produces of subscores, and those subscores are known to differ materially between men and women with similar Big Five Scorees, so looking at the composite score includes inherent confounds in a simple statistical method.

* SNPs aren't the only way that a gene can be coded in the genome.

* The case that mental conditions linked to personality including a disposition towards anxiety and psychopathy (narrowly defined, not including all antisocial personality disorder) manifest very young and are very likely at least congenital is great.

In short, there is immense evidence that somewhere in the genome, or at least the epigenome there are codes for personality, and the fact that we can't find them using a particular, crude methodology for doing so doesn't mean that they don't exist. Maybe we just don't know what the genetic codes were are looking for would even look like.

18 March 2012

Apple Hordes Cash

Apple alone represents $64 billion or 36% of the total $179 billion increase in corporate cash since 2009. And in 2011, overall corporate cash would have actually declined by $6 billion had it not been for Apple’s $46 billion increase.… Supported by our expectations that consumers worldwide will continue to feast on Apple products, we expect overall corporate cash and its concentration will increase in 2012. Apple alone could represent 12% of total corporate cash, about three times more than the next cash king.

From here.

Retaining earnings is normal in the tech industry. But, usually, the tech industry companies that retain their earnings reinvest it in something. Apple has vast amounts of cash but no ideas so great that it can find something to spend that cash upon. Its balance sheet looks more like an insurance company maintaining reserves for future losses than a manufacturing company.

Steve Hsu On Race, Class, IQ and Socio-Economic Success

Steve Hsu has a number of posts at his Information Processing blog on the every hot topics of race, class, IQ and socio-economic success. Among them:

* Academic achievement gaps between whites and blacks in the U.s. have fallen since the 1940s, while academic achievement gaps between high income and low income families have grown wider in absolute terms and relative to the white-black gap. The implication is the our society has grown more meritocratic, with income and academic ability more aligned, than it used to be, in the last sixty years.

* Socio-economic distinctions between those who were rich in 1800 in the U.K. and those who were poor then remain quite significant statistically in their descendants as of 2011 although they have been diluted significantly over the last two centuries: "averaged parent-child correlations of variables such as wealth, education and occupation are in the 0.7 -- 0.8 range over the last 200 years, the same as found in India, with its caste system! . . . Mobility rates are lower than conventionally estimated. There is considerable persistence of status, even after 200 years. But there is convergence with each generation. The 1800 underclass has already attained mediocrity. And the 1800 upper class will eventually dissolve into the mass of society, though perhaps not for another 300 years, or longer."

* Another study looks at intergenerational socioeconomic mobility using a different methodology. IQ has less of a role than Hsu would have expected, but he suggests that: "While it doesn't appear that IQ alone can account for most of intergenerational earnings transmission, a combination of IQ, Conscientiousness, Extraversion, ambition, and traits related to social intelligence (even, physical attractiveness) likely play an important and heritable role."

* Hsu wonders, reacting to an Atlantic article how many less skilled American workers are qualified to do modern manufacturing jobs (also here) even if they receive free training to aid them in qualifying for those jobs.

* Hsu comments at the New York Times against race based affirmative action. The arguments he makes are pretty much the ones that affirmative action opponents were making when I was in college, i.e. that creating an academic environment where people of different races have different levels of average academic ability is pernicious and does more harm than good.

* SAT test preparation work doesn't help much: "Does test preparation help improve student performance on the SAT and ACT? For students that have taken the test before and would like to boost their scores, coaching seems to help, but by a rather small amount. After controlling for group differences, the average coaching boost on the math section of the SAT is 14 to 15 points. The boost is smaller on the verbal section of the test, just 6 to 8 points. The combined effect of coaching on the SAT for the NELS sample is about 20 points."

* The benefits of growing up rich rather than poor, and of having high v. low IQ both manifest in your income at your first job in similar amounts (per standard deviation of difference). But, the edge from starting out rich neither grows nor shrinks proportionately over your career, while the impact of IQ has a marked impact on the rate at which one's income improves over time.

* He also argues for the outsized influence of supersmart people, like von Neumann, in mathematics and the sciences:

Luis Alvarez laid it out bluntly: "The world of mathematics and theoretical physics is hierarchical. That was my first exposure to it. There's a limit beyond which one cannot progress. The differences between the limiting abilities of those on successively higher steps of the pyramid are enormous." . . .

People who work in "soft" fields (even in science) don't seem to understand this stark reality. I believe it is because their fields do not have ready access to right and wrong answers to deep questions. When those are available, huge differences in cognitive power are undeniable, as is the utility of this power.

(Additional posts here, here, here, and here). He also argues in the last of those posts that: "My current estimate is that one or two hundred common mutations (affecting only small subset of the thousands of loci that infuence intelligence) are what separate an ordinary person from a vN. There's plenty of additive variance to be exploited, and many desirable human phenotypes that have never been realized." Riffing on the notion of non-additive heritability (i.e. genes with a non-linear phenotypic impact) in the process.

For what it is worth, he hasn't won me over, not least of all because John von Neumann(an Americanization of his birth name, Neumann János Lajos) himself. von Neumann is a fascinating person from the perspective of a biographer and an obvious genius. But, if you look at his contributions to mathematics and physics, you find that while he was extremely prolific, making dozens is notable contributions to mathematics or physics, each of which would individually have been sufficient to win tenure on a decent university faculty, no one of his discoveries had a character that was so ground breaking or atypical of discoveries made by other mathematicians and physicists that one could safely argue that you needed to be a genius to accomplish it. He may have done the work of ten very good mathematicians in his lifetime, but did nothing that ten very good mathematicians who were not up to his standard of genius could not have done. von Neumann's contributions were to extend the fields he worked in a few theorems beyond where they were when he started in each area of research (and those fields have each continued beyond those discoveries since his passing). His most ground breaking contributions were in quantum mechanics, but even now, the validly of von Neumann's proof that "quantum mechanics could not possibly be derived by statistical approximation from a deterministic theory of the type used in classical mechanics" is disputed.

Hsu's arguments about what he sees as threshold minimums of inherent mathematical ability to grasp higher mathematical and physical concepts is quite a bit more credible, than his arguments in support of the claim that the supergenius can achieve what the ordinary quite smart person cannot.

* Finally, he finds a nice reference to the empirical support for the proposition that people with the intellectual style described as Foxes (non-ideological people who know many small things) make better predictors of the future than those with the intellectual style described as Hedgehogs (people who know one big thing).

How Many People Out of Bankruptcy Are Insolvent?

One of the lurking empirical questions in any analysis of many debtor-creditor law issues is the question of how many people who are not currently in bankruptcy are insolvent.

Impressionistically, it seems as if almost everyone (90%+) against whom a lawsuit is filed is in a limited jurisdiction court by a financial institution creditor or landlord (who bring cases that make up perhaps 90%-95% of limited jurisdiction civil actions outside of the non-lawyer small claims court) acknowledges the existence of the debt and that they are in default (although there may be some disputes regarding the amount owed, particularly in landlord-tenant cases), and have defaulted not because of a dispute over the amount owed but because they are unable to pay their debts according to the agreed terms. The same seems to be true in the vast majority (95%+) of mortgage foreclosures. It also seems, reports about the credit reporting system, that a debtor who is in serious default on one debt, but not other debts, is very much the exception.

Probably the typical case is of someone who incurs debts and commits to a lifestyle at a certain point in time, suffers either a setback in income (e.g. the termination of a job held by someone in the household, non-payment of child support or alimony, a reduction in pay or hours, loss of rental income that is not replaced promptly, reduced revenues in the business of a self-employed person, an income reducing injury, illness or disablity, etc.), or experiences a sudden expense surge (expenses related to a DUI, a hike in a child's tuition, medical expenses, a divorce, a big increase in the monthly payment under an adjustable rate mortgage, an increase in monthly minimum payments on a credit card, a personally guaranteed loan for someone else goes bad, etc.) and can no longer pay expenses as they come due. Sooner or later, open lines of credit and savings prove inadequate to manage the imbalance, and the person becomes unable to pay their bills as they become due.

The stereotype credit card companies push of people simply living beyond their means for pleasure's sake seems to be the rare exception.

Leading up to that point where a judgment gets entered against someone in court, a barrage of late payment penalties, default interest rates that are triggered, accellerated debts, the burdens of dealing with collection efforts, and so on, lead to less rational financial decision making, intefere with the debtor's ability to generate income, and cause servicing of current debts to go from manageable to unmanageable. Typically, people go bankrupt when the situation seems hopeless, particularly when they have some future income or some exempt asset they wish to preserve. Sometimes this is called the "sweatbox" theory of bankruptcy. People sweat it out until they give up.

Each participant in the process tends to be so focused on their immediate needs that few people are asking if the status quo system, viewed at a forest rather than a trees level, makes much sense to deal with the heartland cases of debt non-payment.

Impressionistically, the 2005 reforms in the bankruptcy code have discouraged individuals from filing bankruptcy and tend to favor later bankruptcy filings than under prior law, and even before then, only a modest share of people for whom bankruptcy would be an available or even preferrable option don't file for bankruptcy.

Wouldn't it be better to have a system where bankruptcy filings happen not long after someone becomes unable to pay their debts as they come due, when assets that have not been depleted in inefficient collection actions, before unnecessary collection costs have been incurred by creditors, before disparities between similarly situated creditors arise, before debtors have been discouraged from earning income or having bank accounts or assets titled in their names, and before debtors and their families have experienced immense psychological trauma?

The Case For Subordinating Certain Debts In Bankruptcy

The Solvency Assumption

Most of the time, the law assumes that private economic actors are solvent, that is, that their assets are worth more than the liabilities, and in most cases, also, that they are able to pay their debts as they come due. The law also generally assumes that economic actors engage in transactions calculated to provide substantially equivalent economic value and that they are attempting in good faith to make a profit rather than a loss.

These are the assumptions that make institutions like limited liability for business entities tolerable. The only economic actions they entities engage in that might harm creditors is the distribution of dividends for which they receive nothing in return, and most state laws, by statute, under common law rules, or under a fraudulent transfer statute, prohibit distributions of assets to owners of the entity when it is insolvent. Some states have at some times even gone so far as to impose fiduciary duties towards creditors upon the management of limited liability entities when the entity is insolvent.

Likewise, the creditor's rights laws that permit an unsecured creditor to seize an asset from a debtor without sharing those proceeds with other unsecured creditors, make perfect sense when a debtor is solvent but refuses to pay voluntarily, but provide a pretty unfair first in time, first in right rule when a debtor in insolvent.

Bankruptcy Compared

Bankruptcy law is based on a different set of assumptions. In general, owners of a bankrupt entity get nothing, and in general, the debts of all creditors without property rights in particular assets in the bankruptcy estate receive the same number of cents on the dollar from available assets. When the bankrupt is an individual, rather than an entity, certain exempt assets are preserved for the bankrupt individual (in a Chapter 7 case, including all future earnings of the individual), and the remaining assets and liabilities are included in the bankruptcy estate.

Thus, in bankruptcy, the main issues are the relative rights of creditors vis-a-vis each other. Many rules in bankruptcy are designed to prevent equally situated creditors or objects of the debtor's bounty from being treated differently.

Creditors who received unfairly excessive payments called "preferences" on the eve of bankruptcy (defined as 90 days before bankruptcy for outsider creditors and one year before bankruptcy for insider creditors) that improve their position vis-a-vis other creditors must return the excess portion to the bankruptcy estate to be shared with other creditors. Assets distributed or transferred for something less than substantially equivalent value that were intended to impair the rights of creditors or transferred when the debtor is insolvent, called fraudulent transfers, may also be restored to the bankruptcy estate.

The general rule of equality of creditor's claims is not absolute. Some creditors are deliberately given priority over others in the interest of fairness vis-a-vis each other.

Secured creditors and others who have property rights in the bankruptcy estate's collateral, or have setoffs against amounts due from the estate to them, rather than mere ordinary contractual claims, have priority in the assets in which they have property interests over other creditors. And, certain claims like those for family support, tax creditors, claims for wages up to a certain amounts, and claims related to the administration of the bankruptcy estate have priority. These claims, for one reason or another, are deemed more worthy of being paid, out of necessity or on purely moral worth grounds.

The Case For Additional Prioritization

The Case For A Trade Creditor Priority

In almost every Chapter 11 bankruptcy, there is a class of creditors, called "trade creditors" with whom ongoing functioning business interactions are necessary for the survival of the business. While they have no formal priority in bankruptcy, in practice, long term debt providers, like bondholders, almost always agree to subordinate themselves to trade creditors in a reorganization plan because their cooperation is necessary to the preservation of value in the company and that preservation of value makes it possible for them to realize a greater return for their impaired long term debt obligation than would have been possible in a simple liquidation of the company. I've argued that trade creditors should, in general, have priority in bankruptcy, because it reduces the need for creditors in non-financing transactions to evaluate the creditworthiness of the people with whom they dod business, and because it reduces systemic risk by reducing the likelihood of non-payments that are likely to trigger a cascade of defaults. Trade credit, like many of the other priority claims which receive priority, often amount of wages and salaries for the independent contractors who are providing it. A priority like this would simplify negotiations and transaction costs in the typical Chapter 11 case without changing the substantive results very much. And, this priority would also encourage long term lenders, who make more well informed and considered lending decisions than trade creditors, to exercise somewhat more caution in their lending which would also reduce systemic risk in the economy as well, since the creditorworthiness of leveraged companies would be greater. Effectively, this subordinates long term debt to trade credit, but that isn't unfair or unreasonable. This priority could be the lowest of all of the priority debts, so long as it is ahead of ordinary long term creditor's claims.

There are also a couple of classes of debts which should probably be subordinated.

The Case For Subordinating Insider Debt

One is insider debt. A person who starts a business entirely with equity financing is at a considerable disadvantage in bankruptcy relative to a business financed with a mix of debt and equity from the same investor. And, it isn't obvious that this distinction is appropriate. The bankruptcy code already acknolwedge this issue to some extent by having a longer period for preferential payments for insiders. And sophisticated lenders routinely require insiders to subordinate their claims to the lender's claims. Also, while default on amounts due on an insider claim has a good chance of not actually producing collection activity unless it would result in strategic advantage to the owners, default on amounts due to insiders often produces inconvenient collections activites. Thus, insider debt often has important features of equity investment (which has the lowest priority) that is lacking in outsider debt. One can also argue that insider debt through control deserves less protection than outsider debt. A subordination of insider debt creates an incentive for insiders to manage a business in a way that is more financially prudent.

The Case For Subordinating Non-Compensatory Debts

Another class of debt which deserves subordination based on the equities between ordinary general unsecured creditors is debt that is not compensatory in nature. Examples of non-compensatory debts include amounts due only on account of a default such as late fees and the incremental amount of interest due only on account of a default, punitive or exemplary damages (for example, for fraud or intentional torts), statutory damages which are a multiple of compensatory damages (for example, for civil theft or deceptive trade practices), statutory damages unrelated to the amount of harm suffered (for example, statutory damages for copyright violations, criminal fines, and civil penalties).

In general, these non-compensatory debts serve the valid purpose outside of bankruptcy of making it more likely that someone can settle their case for the actual compensatory value of their claim, given the imperfections of the civil litigation process, and of punishing a debtor for misconduct. But, neither of these considerations has continued logicial relevance in determining the relative priority of two general unsecured creditors. Yet, the current bankruptcy rules allows some creditors to profit by potentially receiving more than the dollar value of the harm they have suffered, while necessarily forcing others to receive a deeper discount on their claims. If funds are available, there is no harm in paying these claims to creditors rather than a debtor for their intended purpose to punish the debtor, but these non-compensatory payments are not appropriate to use to as a basis for one innocent creditor to deprive another from a recovery.

Indeed, these debts should even be subordinated to the compensatory portion on insider debt.

15 March 2012

Should Elaborate Fiction In A Personal Relationship Be Actionable?

The Illinois Supreme Court will decide whether the following circumstances state a legal claim for money damages:

Paula Bonhomme, a California woman who fell in love with — and tried to meet with — a firefighter she met online named Jesse Jubilee James.

That firefighter, though, was a creation of Janna St. James of Batavia, who met Bonhomme on a message board for the HBO show “Deadwood.” Over 18 months, St. James created a number of other online characters to buttress the firefighter’s story, before eventually killing him off by having him “die” of liver cancer.

Bonhomme sued, claiming emotional distress caused by St. James, and the case was argued before the state’s high court today.

St. James’ attorney told the justices that the fraud Bonhomme was claiming is only legally acknowledged in business relationships, not personal ones. A ruling that would expand similar fraud claims into personal relationships could raise a lot of questions, she argued.

“There is no aspect of business in the relationship,” argued Phyllis Perko, an attorney based in West Dundee. “This is very simply a personal setting.”

But Bonhomme’s attorney argued that fraud in personal relationships should be weighed on a case-by-case basis. In her case, Bonhomme spent as much as $10,000 in gifts and other expenses on the relationship, Saper said.

Is this a con to prey on someone else economically, or is it just a somewhat twisted bit of sophisticated play acting in a forum where it is unreasonable to rely on someone's truthfulness that is too harm to characterize in a non-vague way to permit legal remedies to redress?

Generally, claims for emotional harm, untethered to economic injury or physical injury are not actionable absent very narrowly defined circumstances that make such suits rare in practice. But, there are situations where suits for purely emotional harm are permitted, and there isn't much consensus on the systemic nature of the various situations where this is the case. Over time, the tendency has been for modern courts to be much less receptive to these suits than early 18th century courts. For example, only a handful of states still recognize heartbalm torts and crimes, and defamation cases based on harms to one's personal reputations have been narrowed (with criminal libel statutes like Colorado's frequently being repealed).

Killer Genes

What do you do when you discover a rare gene variant that is profoundly lethal and has no know cure? As John Hawks notes, "Finding that you carry a harmful genetic variant, and that there's nothing you can do about it, is probably the most frightening outcome when obtaining your personal genetic information."

Judicial Activism v. Imprudent Politicians

One of the more common legal arguments is that a judge should uphold a law or executive branch decision that the politicians responsible are entitled to enact or take, even if the law or decision is a ill advised as a matter of policy. This is the black letter law in a wide variety of contexts and is generally justified as a way of expressing an institutional preference for preserving the integrity of the democratic decision making process. Deference to jury verdicts that seem to have reached the wrong conclusion from the facts presented at trial is justified in a similiar way. As a lawyer, I get that. I've made these arguments many times myself, and it would be a rare lawyer who wouldn't use them from time to time.

But, when you really look at the structure of this argument, it isn't a terribly emotionally satisfying one, and the more extremely ill advised a law or decision is as a matter of policy, the less impressive the case of judicial restraint to uphold democratic principles and institutional perogative becomes, particularly when the bad legislative drafting, or executive branch decision making at issue seems to reflect an ill considered choice by politicians (or people who report to politicians) or a decision that a sincere decision maker might acknowledge in private was a regrettable one that would have been better resolved in the manner that an activist court is tempted to resolve it.

I don't claim that judges should be judicial activist who substitute their policy preferences for those of elected political actors and their subordinates, particularly in cases where the policy decisions made really were carefully considered and intended by the people making them, and were not, in private, regretted after the fact (even if they are supported in public to save face and protect the authority of the decision making in other situations).

But, I do think that these kinds of doctrines about judicial review overstate the extent to which at the level of detail at which judicial review is applied, the right policy is a matter of opinion, rather than an objective fact within the context of a widely shared and foundation set of values and assumptions built into our social reality and legal and political process. There are a lot of cases where political actors of differing political affiliations will reach the same conclusion about the best policy in a fact rich, specific, as applied situation.

Also, even is judicial actism is wrong, just how wrong is it relative to other problems with our governmental system. To the extent that judicial activism in a particular instance does not have the effect of tangibly undermining the judicial or political process (perhaps, for example, because the publicly given reasons for the decision are insincere, or because the decision is likely to be obscure and little reported), to what extent is judicial activism that imposed a better policy results than a poorly written law or an executive branch exercise of discretion that makes a bad choice, anything more than harmless error?

One can acknowledge that judicial activism is, in the abstract, wrong, while at the same time agreeing that bad laws and bad executive branch decisions regarding how to exercise their authority is also a bad thing. Indeed, if a risk of judicial activism discourages legislators from writing bad laws and discourages executive branch officials from making bad decisions, judicial activism may not only be a harmless error in the individual case, but may be harmless error at an institutional level.

For example, even if there is no credible legal argument for the proposition that it is unconstitutional to prosecute someone for witchcraft exists under a given country's laws which have a statute permitting prosecutors to do so, judicial activism that invalidates convictions for this crime may be a good thing, and correct horribly misguided and/or grossly ill informed judgments by other participants in the political process.

The bottom line is that when one critiques the ills of our judicial system and political process that need reform and action, judicial activism may rate a quite low priority, even if you agree that all other things being equal that it is a bad thing.

Similarly, conservatives may view overzealous efforts of law enforcement officials acting in good faith to catch criminals, even if technically constituting civil rights violations, to be a quite low priority problem relative to problems like criminals not facing even the fear of criminal sanctions because they aren't caught because law enforcement isn't zealous enough in the methods that they use to catch criminals.

Recognizing that not all things that government officials do wrong are not equally problematic in the greater scheme of the political system is an important refinement to the usual default black and white assumption to political critics that all relatively frequent instances of misconduct by governmental officials are equal in the threat that they pose to the system as a whole's functioning.

The Moral Oligation Of Academic Advisors To Warn

John Hawks calls attention to one of the most serious responsibilities of an academic advisor in graduate school: Helping the graduate students they advise steer clear of faculty members who are likely to sexually harass or otherwise bully them. Since these faculty members often hold the keys to career success for graduate students aspiring to seek academic careers, this is serious business, and, of course, also requires a level of empathy, emotional intelligence and social awareness that not all professors share.

Academic advisors, of course, are merely in the business of providing advise to their advisees on the lay of the land in the relevant departments when there is an issue. Actually directly addressing this kind of behavior is primarily the responsiblity of the department chair and above the department chair, the dead to whom the faculty member reports. And, their jobs aren't easy, as the problematic professors frequently have tenure and have knowledge and expertise unrelated to their personal faults that is not easily replaced or substituted. Department chairs and deans are very much in the herding cats business, who must mostly manage with use "soft" methods to psychologically corral misbehaving professors into good conduct, rather than "hard" methods like write ups or formal disciplinary processes.

The Weirdness of Unnatural Prose

Language Log has a nice piece on the unnaturalness of the prose fiction of an author, Matthew Pearl, who graduated from Harvard undergrad and Yale law whose style detracts from his story.

Falling In Love In A Nutshell

It was amazing how simple it was, how fast [we] went from strangers to spending every minute together. He met my parents. I met his parents. We did homework together. We kissed for hours. His dog liked me.

- E. Lockhart, "The Boyfriend List: 15 Guys, 11 Shrink Appointments, 4 Ceramic Frogs, and Me, Ruby Oliver." (2005) at page 54. N.B.: despite a promising start, this relationship ends badly.

14 March 2012

SCOTUS To Consider Juvenile Life Without Parole For Murder

On March 20, the U.S. Supreme Court will consider two cases where fourteen year olds were sentenced to life without parole, one for murder, and the other for a felony-murder where "youth who did not commit the crime and did not plan for or expect anyone to die in a planned crime, but was convicted nonetheless for a role in a murder that resulted."

A recent survey examined the lifes 1,579 people in the United States currently serving sentences for a murder or felony murder committed while they were under the age of eighteen out of more than 1,700 juveniles in the U.S. (some sources say 2,500) (and 41,000 convicts overall) serving such sentences. In many of the cases life without possibility of parole was the mandatory sentence for the crime of conviction, and in many cases the sentence was the result of a plea bargain for a defendant facing the risk of a death penalty sentence that has now been found to be unconstitutional in their cases. This kind of sentence in the United States is uniquely American and not available in all American states (even the Colorado no longer authorizes such sentences in new cases). California, Pennsylvania and Michigan make up a particular large share of the cases. About 2% of juvenile lifers in Michigan were fourteen years old when the crime was committed. No juvenile lifer in the United States appears to have actually served more than forty-nine years in prison so far, as the sentencing option is relatively new.

The cases arise from Arkansas and Alabama but would have an effect on Colorado, which has abolished the life without parole sentencing option for minors convicted of new crimes, but has several dozen juveniles of varying ages serving life without parole sentences for murders committed while the statute was in force from 1991 to 2006, many on felony murder convictions of the kind being considered by the U.S. Supreme Court in these cases.

About a third of the forty-six Colorado juveniles serving life without parole sentences in 2009 were convicted of felony murder rather than murder, and two of those juveniles were fourteen years old at the time the crime was committed (one of my sources says that the total was forty-eight rather than forty-six). Two juveniles serving life without parole sentences were commuted by Governor Ritter in 2011, shortly before he completed his term of office. Governor Hickenlooper has not, to my knowledge, pardoned or commutted the sentences any of the juveniles serving life without parole sentences in the state since he took office.

A bill in Colorado to allow people serving life sentences for crimes committed while they were juveniles who had served forty years of their life sentences to be considered for parole was narrowly defeated in committee in 2011. Of course, even under that bill, none of the juveniles serving life without possibility of parole sentences in Colorado would actually be eligible for parole any sooner than the year 2031.

The Wisconsin Supreme Court, when presented with essentially the same issue found a similar statute to be constitutional in a case of murder, rather than felony murder, where a judge had discretion to impose a lighter sentence but choose not to do so.

In Colorado, in contrast, life without possibility of parole was the mandatory maximum and minimum sentence for all juveniles charged as adults and convicted of first degree murder (including felony murder) from 1991 through 2006; and in all or almost all of those cases, the decision to charge the juvenile as an adult was made by the prosecutor and not reviewable by a judge under the "direct file" statute which has since been scaled back but not repealed in Colorado.

In Roper v. Simmons in 2005, the Court barred the death sentence for any minor convicted of murder. And, in 2010, in Graham v. Florida, the Court barred a life-without-parole sentence for a minor who committed a crime other than murder, in which no one was killed.

The U.S. Supreme Court has also fairly recently ruled that it is unconstitutional to executed people who were mentally retarded when they committed their crime, and that it is unconstitutional to execute people for ordinary crimes that do not cause death including the rape of children (although an exception was left open for "crimes against the state" like espionage and treason).

No one doubts the constitutionality of a law that imposes a life without parole sentence upon a non-retarded adult who personally murders someone under the 8th Amendment guarantee against cruel and unusual punishment (applied directly against the federal government, and via the 14th Amendment due process clause under the doctrine of incorporation against state and local governments).

The U.S. Supreme Court held several decades ago that it was constitutional to execute adults who did not personally murder someone, and did not plan for or expect anyone to die in a planned crime, who were convicted for a role in a murder that resulted. For crimes other than felony murder, maximum sentences for inchoate crimes (like conspiracy to commit a crime, or a role as an accessory to a crime) are frequently less serious than sentences for personally commiting the crime, and often have a higher threshold of culpability for the other person who played a role in the crime. Felony murder is one of the most stark examples of a situation where our criminal justice system permits very serious penalties for someone with relatively modest levels of culpability.

Graham v. Florida is the only case of which I am aware that makes a constitutional distinction between a life in prison without possibility of parole sentence and any other long prison sentence.

Of course, even someone serving a life in prison without parole sentence, can benefit from the appropriate person's executive branch pardon (usually the Governor for state convictions and the President for federal convictions, but some sort of parole board in a few states), and from post-conviction relief, for example, if irregularities in their trial are revealed after the direct appeal process is spent.

The availability of post-trial relief in cases where actual innocence can be established later, despite the fact that there was conviction after a trial that was procedurally sound in all respects, is an ongoing hotly disputed issue in federal habeas corpus jurisprudence (and almost never prevails in practice) and is certainly not clearly established.

In addition to determining if "life without possibility of parole" is different, at least for minors, the U.S. Supreme Court also has to determine if there is any difference between a young juvenile, and an older teen who is not yet eighteen. At one point, the U.S. Supreme Court treated sixteen and seventeen year olds differently from younger juveniles with regard to death penalty eligibility, but recently backed away from that position.

Now, it must decide again if a sentence may be cruel and unusual as applied to a crime committed by a fourteen year old, but not to a crime committed by a seventeen year old. The resolution of this question has an impact on the "unusual" prong of the cruel and unusual analysis, because life without possiblity of parole statutes frequently permit the sentence to be imposed on older juveniles but not younger juveniles.

Forced to guess, I'd predict that the U.S. Supreme Court will split the difference, allowing life without possibility of parole sentences for young juveniles who personally murder someone, but not for those who are merely guilty of felony murder. But, this is a close case whose outcome is hard to predict. The fact that the cases are being considered at all means that at least four justices are interested in changing the status quo, and that some of them think that there might be a constitutional distinction between committing a murder personally and felony murder. Those four justices (very llikely the liberal ones on the court) will in turn force the most swing judge on the court (Justice Kennedy) to face those questions in cases like these where the sentence looks harsh considering the crimes involved.

Quote of the Day

If all else fails, immortality can always be assured by spectacular error.

- John Kenneth Galbraith

Republican State Legislators In Colorado Really Hate Birth Control

* Sen. Harvey declared that a program of mandating contraceptive coverage is "not a slippery slope, but a cliff" to "genocide somewhere down the road."

* Sen. Lambert called the policy "mind control," and read from a right-wing column warning that the same authority could be used to force the purchase of "euthanasia pills."

* Sen. Renfroe said that it could to a situation "where England was when their king decided he needed to rule the church."

From here.

On the merits of the policy they are fighting against, one good place to start would be to give oral contraceptives over the counter drug status.

Whose Afraid Of A Few Canadians?

Former U.S. Vice President Dick Cheney was making headlines Tuesday after canceling an appearance in Toronto, his spokesperson said that Cheney and his daughter "decided it was better for their personal safety they stay out of Canada."

From a March 13, 2012 story in the Los Angeles Times. Hat Tip to Colorado Pols.

Canada, of course, is famous for having far less crime than any of its neighbors to the South, and is not known for being a hotbed of terrorist activity. A lawsuit by a Canadian citizen faulting the Canadian government for cooperating in the Cheney devised policy of extraordinary rendition that caused their citizen to be tortured abroad has caused major headlines there.

The bottom line is that while Cheney always talked tough while in office, he now looks like a cowardly wimp.

A recent appearance by Cheney in Vancouver brought out fierce protests from usually docile Canadians that required police intervention.

Cheney also faces a 2010 felony indictment in Nigeria related to bribery his company, Haliburton, allegedly engaged in there while he was his CEO which Canada might extradict him upon, since Canada respects internationally legal arrangements and voluntarily participates in them much more so than the United States.

Cheney was the chief architect of an aggressive and constitutionally questionable set of tactics to deal with terrorism, and was a war hawk pushed for war with Iraq based on what turned out to be false pretenses related to weapons of mass destruction and a non-existent connection to the 9-11 attacks, during the administration of George W. Bush. Lawsuits against him in the United States based upon his alleged war crimes and civil rights violations have been dismissed on procedural grounds and under doctrines designed to protect senior political officials from liability for national security decision making.

His companies, which provide private security services in war zones, have also been criticized for creating an unaccountable legion of mercenaries who harmed local Iraqis with impunity and damaged U.S. diplomatic interests while enriching him and his shareholders.

In Cheney's recent memoir, which his trip was probably intended to promote to some extent, he was unapologetic.

More GOP Primary Results

So, Santorum wins both Alabama and Mississippi and Romney wins Hawaii. In Alabama and Mississippi, the delegate awards are not winner take all, but Santorum's ability to capitalize on the result is muted. But, Gingrich who needs a Southern strategy to prevail, has now failed to win Alabama, Mississippi, Florida and Tennessee. He is simply serving as a spoiler for Santorum who would otherwise be winning contests all over by large margins with a consolidated conservative vote.

A lot of the media narrative has been about campaign spending in this race. But, the 2012 Republican primary race is really more of a classic case of the way having multiple candidates in the same policy space who split of the votes of potential supporters can produce screwy outcomes.

On the other hand, it isn't too impressive, from a Republican point of view, that even with the conservative vote split, that Romney can't muster enough to support to win any state other than Florida in the South after a long string of contests there. Most of the Republican base really doesn't like Romney very much and the possibility of a Romney loss in a brokered convention is increasingly looking like something that is within the realm of possibility. While it would be difficult or impossible for Santorum or Gingrich or Paul to win a majority of the delegates going to Tampa, it isn't unthinkable at this point that they could collectively deny him a majority and that their delegates might prefer someone other than Romney.

While the long, pitched primary fight between Obama and Hillary Clinton in 2008 ultimately strengthened Obama's general election prospects, Romney seems to be seeing his general election prospects diminished as a result of his primary battle.

As a footnote, it is interesting that both Democrats and Republicans award delegates who have a say in the selection of their Presidential nominees to residents of U.S. possessions like American Samoa and Puerto Rico, even though residents of those possessions don't have a vote in the general election for the U.S. President.