27 August 2014

Misleading Ads And Crazy Schemes

The problems are as old as time.  People making misleading statements to secure people's money, and people trying to get people's money with crazy or ill advised ventures and opportunities.  A patchwork of laws regulate this conduct, but not terribly effectively.

Who are some of the most recent offenders that have assaulted my ears and eyes?

* Recent radio advertisements for programs claiming to teach you how to fix and flip houses, and how to profit from investments in property tax liens, are grossly misleading or outright false, dramatically overestimating likely returns, and underestimating the risks and investments of time and talent that are required.  If they were selling the investments themselves, these advertisements would constitute illegal and actionable securities fraud, but because they are merely selling overpriced educational programs instead, they aren't "securities" and can get away with making these false claims (although these advertisements are still probably "deceptive trade practices" which are actionable under the Colorado Consumer Protection Act).

* Western International University, which is a for profit private educational higher educational institution targeted at working, non-traditional students, mostly in a remote education format, based in Phoenix, Arizona, is currently running a radio campaign lauding the benefits of faculty led 10 minute classes which argue that adults have trouble retaining anything longer.  I would suggest that people who can't retain information from a presentation longer than 10 minutes really shouldn't be seeking degrees at all.  It's classes are eight weeks long.

Most of the higher educational institutions that advertise on the radio are for profit institutions that, while accredited, have high tuition, low retention and graduate rates, poor rates of career success for graduates, and poor reputations.  They minimize professor pay, spend a great deal of their revenues on marketing and sales functions, generally don't have tenured faculty, and rely on federal Pell Grants and federally subsidized student loans for the bulk of the funds that they receive to bring in revenues.  Default rates on the student loans incurred at these institutions are generally much higher than public and non-profit higher educational institutions.

For example, in the 2011-2012 year, Western International University had 4,696 students enrolled (89% online), but only 98 were first time, full time students enrolled in bachelor's degree programs.  Only 21 of those were still enrolled a year later (a 78.6% dropout rate in the first year alone), and only 4% of first-time, full time students graduate in 3 years for associate degree programs or 6 years for bachelor's degree programs.  None of the 50 students who were black, Hispanic, Native American, or identified with "two or more races", or non-resident aliens graduated, 5% of white students graduated (3 out of 61), and 2 out of 12 students who declined to identify their race or ethnicity graduated.  There were no Asian or Pacific Islander students enrolled there on a first time, full time basis.  Apparently, about 10% of part-time or not first-time students earn a certificate or degree of some kind each year although the website isn't very forthcoming on this point.

Online tuition is $6,072 per year for undergraduates and $8,592 for graduate students, and is $11,112 per year for undergraduates and $15,336 a year for the small number of "ground campus" students.

Like the institution where I was a professor for a while, the College For Financial Planning, it is a sister college of the University of Phoenix and is owned by the Apollo Group (whose Horatio Alger story billionaire founder died in his 90s this week).

* College America's pitch is the abundance of big scholarships that they offer, more of less indiscriminately, which is simply a matter of offering everyone or almost everyone a scholarship and inflating its tuition by the same amount.  Like Western International University and most other for profit colleges, however, they are a very poor value.  A state college or community college is almost always a better value, and community colleges and some state colleges, like Metro in Denver, admit pretty much anyone who has completed high school or a GED and has the slightest prayer of not flunking out when faced with college level material.

* Radio campaigns (often for hair products or skin products) that claim that free offers are available only if you call in an order within the next ten minutes or half an hour, when in reality, the company has no idea when the radio ads will air and there is no such time limitation, are another scam that I despise.

* While merely misleading and not actually false, I despise advertisements in the newspaper by automobile dealers that show a huge colored print price of a vehicle than is not of various discounts from manufacturer's suggested retail price in much smaller black print that include several thousand dollars of "your cash".  I'm sorry, "your cash" is part of the price of the car.  An advertisement like that screams out to the reader that the dealer is hell bent on cheating you in your negotiations to buy the car and can't be trusted.

* Multilevel marketing campaigns, often euphemized as "direct marketing" are another huge swindle.  If these industries could be regulated or taxed to the point where the industry ceased to exist entirely, the world would be a better place.

* It is amazing how many illegitimate "college preparation" counselor and test preparation and special programs advertise and make cold calls in a way designed to make them seem official or to have a prior relationship with you, when they have neither.

* "No call lists" seem to have made great inroads in stopping telemarketing, although a few persist claiming thin "prior relationships" or because they are marketing for non-profits.  In the many months before I killed my land line this month, perhaps 95% plus of calls had become junk calls, and some of the rest were robocalls (e.g. from the library reminding you of overdue books).

I have no tolerance for receiving a robocall with no one on the other side of the line when I pick up for a few moments.  It is one thing to call an automated service, and another to receive calls from them.  When I get a call like that, I immediately hang up.

* I am also offended by insincere astroturf political campaigns such as the No on 68 campaign in Colorado right now (funded by casinos to protect their turf, despite its anti-casino rhetoric), and the big dollar pro-fracking campaign of a few months ago funded by big oil companies.

Regulating these kinds of commercial and political speech and business ventures without offending the First Amendment's free speech guarantees isn't easy.  But, I do think that we could do a better job of it than we do.  Neither freedom of conscience, nor a healthy economy, require that we tolerate whole industries whose very business model depends upon deceiving and exploiting consumers and investors, although the free speed issues associated with misleading political speech are more challenging.

23 August 2014

Vote No On Colorado Proposition 105

Colorado Ballot Issue 105 would enact a new law to require any "prepackaged, processed food or raw agricultural commodity that has been produced using genetic modification" to include the label: "Produced with genetic engineering." The law would be put into effect by January 1, 2016.

California, Oregon and Washington State have rejected similar ballot issues.  Vermont enacted a statute this year to require such labeling.  Some European countries require this kind of labeling.

GMOs are not appropriate to require food providers to label

Genetic modification as used in this sense is not a useful or meaningful concept

Perhaps the most important point to understand in the debate is that all domesticated plants and animals are genetically modified, which is to say that humans have consciously and deliberately manipulated their genome in a manner that would not have happened had humans not intervened.

The genomes of modern wheat, corn and rice are all wildly different than the wild types.  "Ancient grains", like emmer wheat, mostly represent early attempts at genetic modification of wild plants that were previously gathered by humans that had diminished commercial success when further genetic modifications produced more desirable crops.

Vegetables that are completely different in appearance such as kale, cabbage, Brussels sprouts, cauliflower, broccoli, broccoflower, broccolini, Romanesco broccoli, red cabbage, collard greens, savoy, kohirabi, kai-lan, and Chinese kale are all genetically modified versions of a single species of plant known as wild mustard (Brassica oleracea) which is native to coastal southern and western Europe.

Almonds would be poisonous without genetic modification.  Chickens are genetically modified to produce about twenty times as many eggs as their wild ancestors of Southeast Asia.

These genetic modifications aren't simply a matter of accelerated natural selection either.  Developing hybrid plants is every bit as much as genetic modification as more high technology methods.  Commercially developed hybrid oats have been produced since 1892.  Hybrid wheat and corn strains were widespread before World War II.  One of the main forms of rice grown in Africa is a hybrid.

Pretty much the only thing you buy in a grocery store for human consumption which are not genetically modified are wild caught fish and water.

GMOs are not a health risk

The modern campaign to label and have consumers avoid genetically modified plants and animals defines genetic modification narrowly to include only certain newly invented techniques for accomplishing this end, but this is ultimately a distinction without a difference.  As the American Association for the Advancement of Science noted in an October 20, 2012 statement, there are no proven health risks associated with genetically modified foods.

Labeling of genetically modified foods also promotes the misapprehension that "natural" foods are more healthy and more safe, which is simply not the case.  While pretty much every healthy animal is edible when cooked well (apart from mad cow disease and the venomous parts of venomous reptiles, frogs and insects), wild and natural plants are frequently hazardous to your health and have not been systematically tested for their health effects on humans.

It is impracticable to mandate GMO labeling in a small state like Colorado

Colorado residents value the wide diversity in the foods that they have available to them.  But, many of these choices could vanish if GMO labeling is required.


Because most food vendors in Colorado are incapable of determining in good faith if their foods are, or are not, genetically modified.

For example, most U.S. corn, but not all U.S. corn, is genetically modified.  A very large share of all processed food in the United States has some form of corn in it, be it corn syrup, corn flour, corn starch, or just plain old corn.  But, food vendors who buy corn derived products have no reliable way to determine if the corn in their supply chains, the vast majority of which comes from places which would not be subject to Colorado's GMO labeling mandate, is genetically modified or not.  The same concerns apply to products made with imported wheat flour, to Colorado beer made with imported barley and hops, to pork and beef made in other states or abroad, and so on.

Also, even if foods are imported from a place that does have GMO labeling, there is no consensus definition of what constitutes a GMO, so there is no assurance that food that is GMO free by Vermont standards, for example, is GMO free by Colorado standards.

This proposed law may be pre-empted by federal law or unconstitutional

This practical impact potentially has constitutional implications.  Under a legal doctrine known as the "dormant commerce clause", state regulation that substantially interferes with interstate and international commerce in void, because the power to regulate interstate commerce is reserved to the federal government.  So, if Colorado GMO labeling regulations make it very difficult or impossible for merchants who want to bring food from outside of Colorado that is not compliant with Colorado's GMO labeling law, then Colorado's law is probably unconstitutional.

This requirement is also arguably pre-empted by the federal food safety and labeling laws enforced by the Food and Drug Administration.

These kinds of concerns are the reason that states can only regulate motor vehicle emissions within the context of federally authorized environmental regulations.

Voluntary labeling has been an effective paradigm so far

Nothing prevents food vendors who market to people who are concerned about GMOs (or at least nothing should prevent them) from voluntarily monitoring their supply chains to assure that their products are GMO free and developing a labeling certification program to do so.

This is the approach that has been used to develop markets for organic products, for fair trade products, for product safety assured through third parties like Underwriter's Laboratories, for lactose free products, for Kosher foods, and for gluten free products.  These approaches have legal force under the federal Lanham Act.  They are also much more accurate and less corrupt because they secure the willing cooperation of people who believe in the value of the labeling regime.  It also puts key operational definitions in the hands of people who believe that these labels matter, instead of government bureaucrats who may be subject to industry capture and produce inadequate definitions.

Voluntary GMO labeling, if it is pervasive enough, naturally gives rise to the inference that unlabeled products are not GMO free, but does so in a manner that doesn't require every food vendor who wants to do business in the marketplace to have a full command of the supply chain of every ingredient that they use in places where there are no GMO labelling laws.


While the proponents of a mandatory GMO labeling law in Colorado are no doubt well meaning and have our best interests at heart, and while they merely want to label GMO food, rather than ban it, this law still does not deserve your vote.  The definition of a GMO is dubious.  There are no proven health benefits to non-GMO food.  It is impractical and probably unconstitutional to mandate GMO labeling at the state level at this time.  And, voluntary labeling is a completely adequate, well precedented, and effective alternative that does not raise the same problems.  Mandatory GMO labeling would not be accurate, would be costly, does not advance a compelling public need, and would reduce food choices for Colorado consumers.

Vote no on Colorado ballot issue 105.

22 August 2014

Angels, Aliens, Ghosts, Secret Societies, and Conspiracies

When I was in elementary school, several year younger than my son is now, I went to the library, read lots of books, and watched lots of "documentaries" in an effort to see if there was anything to all manner of weird: alien abductions, ghosts, werewolves, vampires, ancient astronauts, Atlantis, alchemy, the Yeti, the Loch Ness monster, telepathy, clairvoyance, prescience, telekinesis, auras, time travel, kirlian photography.

I tried to figure out how much historical proof there was of events, miraculous or otherwise, in the Bible. I learned what I could about angels (one often sees the phrase angels and demons paired, but they are far more angels than demons in the Bible, the Zoroastrian dualistic notions of battling realms of heaven and hell is more of an extra-scriptual tradition than it is a deeply rooted Biblical idea). I read about Egyptian and ancient Greco-Roman religion. I tried to figure out what the Mayans were on about, why did they conduct human sacrifices? What did their myths mean? Did they have hidden wisdom?

I studied codes, spies, ninjas and assassins. I learned about secret societies and examined many of the leading conspiracy theories.

I hadn't yet started to reach much fantasy or science fiction. It was an instinct to learn about the world, about what is real and what is not. It wasn't really distinct from my efforts to learn about planets, or the big bang, or string theory, or general relativity.

Almost as obscure was the time that I spent learning about things like survival skills in situations that it is extremely unlikely that I will ever encounter.

The instinct has never really died. One of the most ambitious research projects I've ever done in my entire life was a project in college to prepare a history of events surrounding the efforts to exterminate secret societies at my alma mater. I still read at least half a dozen scientific journal articles in physics and neuroscience and psychiatry and anthropology and genetics every week. Most of what I read is utterly uncontroversial and mainstream, but I'm aware and keep abrest of the minority views in each of these disciplines. I still try to fathom ancient civilizations. I still delight when I discover some obscure part of American history that most people don't even know is out there and would have never suspected. Curiousity killed the cat, but it makes men into gnostics, in the literal sense, people seeking hidden wisdom.

Fictional stories about these searches for hidden wisdom can be engrossing, even when they are searches of mysteries that you are almsot sure that you have already figured out. How can it be fascinating even if you don't even remotely believe it to be true or about something that could ever be true? What is the draw?

There isn't a lot of utility in knowing many of these things.

Even if we have the most remarkable burst of technology imaginable, I know that no human will every go much beyond the solar system, at least, not in my lifetime, not in my children's lifetimes, not in my grandchildren's lifetimes. I also know that there is nothing particular cool on the Moon, or Mars, or any other plausible near space destinations. They make barren Utah deserts look like exciting hotbeds of mystery and unexplored phenomena and life by comparison.

Nothing that astronomers see beyond this solar system really has any direct relevance to anything in my day to day life. Knowing what family of languages the language that the ancient Minoan Linear A script transcribes belongs to will not change how I do my job as a lawyer, pay my bills, or raise my children. I made a special effort to go all the way to Loch Ness to see it in person when I was in high school, but the existence or non-existence of the Loch Ness monster is pretty much irrelevant to my life.

Learning these things may on rare occasions have some practical, or at least social, value. But these endeavors are basically quests for knowledge for knowledge's sake. The joy is in the search and in the satisfaction of knowing the truth as surely as it is possible to know it.

The motivation for seeking out useful and useless knowledge is basically the same, and often resides in the same people. Newton devoted much of his life to alchemy and Unitarian theology in addition to the time he spent formulating calculus and classical mechanics and gravity. One of the 20th century's leading quantum physicists is also fascinated with deep relationships between linguistic families. The people who founded and led our nation for its first century or so delighted in creating sophisticated, subtle secrets and mysteries that fill the architecture of our nation's capital. The most elite Ivy League colleges in the nation that train the people with more need for utilitarian knowledge in their future careers than anyone else are also hotbeds of secret societies.

Secret societies and conspiracies are attractive for reasons much like the other kinds of knowledge, even when they could, in theory, have some relevance. The quest for the secrets, because they are secret, is as much of a draw as the value of the knowledge sought itself. We fear secrets, but most of the most threatening things in our existence are perfectly transparent, maybe.

But, maybe not. One of the narratives of the financial crisis is that it was caused by secrets and lies spun by the wizards in obscure upper realms of the financial markets known only to a select subset of Wall Street lawyers and bankers with incredible power and incredible wealth. Lots of legislative action really is the product of back room deals. An ability to decipher elements of office politics that you don't have official access to is often key to your personal economic survival. Who hasn't felt the wrath of, or at least seen someone else suffer, as a result of a secretly communicated malicious rumor? Even the best managers are powerless to stop back channel gossip, the best that they can hope for is that the gossip is most accurate and mostly furthers the organization's purposes, rather than undermining it or spreading lies.

Globally, political power changes hands via coups and rigged elections orchestrated by conspirators as it does by transparent democratic elections. One of the narratives of electoral politics is that it is manipulated by "the Committee that Runs Everything," an oligarchy of influential behind the scenes lobbyists and manipulators, and wealthy individuals whose campaign contributions distorts the playing field, with an agenda that is as much self-serving as civic. One of the narratives of early American political history is that the bonds and ties of the secret society of the Free Masons were critical, first, to facilitating the conspiracies involved in conducting the American revolution, and then in governing the nation successfully notwithstanding any flaws that may have been present in our formal political blueprint.

A large share of all criminal activity is carried out by individuals, or by small, ad hoc and temporary alliances of small numbers of individuals who aren't part of any larger organization. But, an important subset of all criminal activity, a subset that has a huge impact on the shifts in the serious violent crime rate from year to year, is organized. Perhaps a quarter to half of all inmates in Colorado prisons (the subset of convicted criminal who have committed the most serious offenses, weighted for the seriousness of that offenses committed) are members of large, regional or even national criminal gangs or organized crime organizations. These organized criminals are part of organizations that are a form of conspiratorial secret society, and the criminal organizations are the only ones with the capacity to threaten the integrity of the criminal justice system and the authority of the state. Some of our Latin American neighbors to the South, like Mexico and Columbia, have experienced episodes in recent history in which criminal organizations and state bureaucracies have struggled and the criminal organizations have won. The United States experienced that during Prohibition, and during the Progressive Era between the Civil War and World War I - really the United States had almost a century of continuously corrupt government in at least some areas. Post-World War II Italy had similar problems with its mafia.

The United States has mostly fought big, conventional wars. So, perhaps we can be forgiven for forgetting that most of the world's wars are not like that. The typical war is a domestic insurgency against a somewhat authoritarian or corrupt or incompetent regime, and the most powerful tools of insurgencies are deadly secret societies and conspiracies. Only in our post-9-11 "war on terrorism" have we really entered that realm again, although the Cold War was filled with never ending spy v. spy activities that so far as we know probably didn't have much of a decisive impact on how anything actually came out. I'm not entirely convinced of it, but there is a narrative of national security that makes the case that our covert operatives are many times more important in the outcome of our national security efforts than our overt military resources.

In other words, understanding secret societies and conspiracies might actually, unlike so many other of the knowledge for knowledge's stake undertakings, actually have some real utility. While many popular beliefs about secret societies and conspiracies are indeed absurd and misguided and rely on flaws understandings of how the world really works, there are also plenty of cases where credible cases can be made that they matter. Whether you want to use them to secure advantage, or merely want to understand how to thwart them well enough to prevent them from being used for improper purposes, maybe understanding how secret societies and conspiracies really work is something that has practical value.

I won't be leaving my children any vast fortune as an inheritance, unless something unexpected happens. But, part of me would like to leave them a legacy of knowledge and mysteries and secrets. Of some private knowledge that only they and an elite few others know, that abound in fictional accounts of secret societies and conspiracies. In part, I think this would be good because maybe being a part of something like that and knowing how it works would have practical value for them. In part, I'm attracted to the idea because I think that they'd get a kick out of it if it were well done, even if the secret knowledge didn't really have any practical value.

But creating that kind of mystery and well crafted conspiracy of secrets is quite an undertaking, and the truth of the matter is that I can't think of any knowledge that I have to pass on to them that would benefit from being a secret, not yet anyway.

The Minimum IQ Requirements For Lawyers

If you have an LSAT score of 145 or less, you have a very dim chance of graduating from law school and then passing a state bar exam.  An LSAT score of 145 is roughly equivalent to an IQ of 117, a bit more than one standard deviation above average, and roughly average for a college graduate (roughly the 86th percentile of the general population).

An LSAT score of 165, which would be more typical of a law student who passes the bar exam, corresponds to an IQ of 133, which is a little above the 98th percentile necessary to qualify for MENSA membership, and is about two standard deviations above average.

Law students at top law schools and law students at the top of their classes on law review and graduating with honors tend to have still higher IQs (usually in the 99th percentile).

The Robots That Are Changing Our Lives

One of the better way to conceptualize many of the technologies that are changing our economy, our leisure time and the way we fight our wars is as robots. They don't look human. Most are sessile. But, the do work that a human would otherwise do.

Some have a kiosk format. I withdraw cash from the bank via an ATM more often that I do from a teller. You can rent videos at a kiosk. You can check in for a flight at a kiosk. Vending machines sell you snacks. An automated chair at the grocery store helps you monitor your blood pressure. Kiosks can provide access to registries as you shop for wedding presents or a baby shower. Kiosks provide a way to purchase the right to use public parking spaces. They provide a way to check out library books, and to have confirmation that they are returned. Kiosk type robots allow you to get gas for your fuel tank and air for your tires, and authorization to use the automated car wash at the gas station without dealing with an attendant. They dispense condoms and deodorant at truck stops. They dispense luggage carts and locker space at the airport. They sell light rail tickets. They sell postage and travel insurance. They flush toilets. They turn on and off lights. They dispatch elevators. They monitor store front doors and houses and cars for theft. They serve as witnesses in public places. They tell you were you are and how to go where you are headed. They connect you with the person you are calling.

Others are computer programs that you interact with over the Internet. The dispense streaming video on demand. They renew books and allow you to request which video you will receive for viewing next in the mail. They tell you your bank account balance and transfer funds between accounts. They accept payments on your credit cards. They receive tax returns and legal pleadings, and distribute legal pleadings to other people who are entitled to them. They receive filing fees, taxes due, and fines payable. They sell airplane tickets, distribute itineraries and provide boarding passes. They sell movie tickets. They sell mail order goods from books to jewelry and e-goods like e-books and computer game rights. They sell telecommunications services like ongoing cell phone service. They register you to vote, decide who to send ballots to, confirm that someone hasn't voted twice, and count ballots. They carry out most business transactions with the Secretary of State's office. They receive trademark filings. They post advertisements, and process replies to job offers. They order groceries you want delivered. They answer frequently asked questions, and provide directions and contact information. They conduct matchmaking for people looking for prospective spouses, friends, business contacts, and one night stands. They trade stocks and bonds and options and currencies and commodities. They provide input in loan underwriting decisions. They decide who can buy guns. They issue speeding and red light traffic tickets. They deliver messages. They administer surveys.

The shift has been subtle. For the most part, we aren't even aware that it has happened, and even when we do, we rarely think about these innovations as robots. But, any robot that can replace a full time minimum wage worker for three years is worth about $60,000, and many robots, once developed can replace tens or hundreds or thousands of workers. Simply by virtue of their ability to work almost 24/7, a typical robot can replace three workers, not just one, upping the ante to $180,000. A kiosk system or computer program can often be developed for sums of money on this scale, particularly when many workers are replaced.

The military is making similar shifts. The humans are rarely entirely out of the loop, but automation has replaced many jobs. The Navy's Littoral Combat Ship requires about a third of the sailors of a comparable sized legacy warship, and there is every reason to believe that this trend will generalize to almost every kind of warship. The covert war in Pakistan under the Authorization for Use of Military Force that also authorizes the war in Afghanistan has been fought mostly with unmanned drones often controlled from hundreds or thousands of miles away. The cruise missiles that were launched in the early days of U.S. military involvement in Afghanistan used automated systems to direct their flight paths from the ships and submarines where they were launched to the coordinates where they were targeted. Automatic explosive round loading systems will trim one person from the crew of future tanks. There are drones in the design or early utilization phase to conduct surveillance, jam electronic communications, conduct bombing runs and airdrops from land and from ships, engage in air to air combat, patrol seas and harbors, deliver convoy supplies, and enter buildings with hostile forces inside.  In addition to saving money, these robots keep human soldiers out of harm's way.

Vote No On Colorado Amendment 67

Colorado Ballot Issue 67 is a repeat attempt to pass a "personhood" amendment to the Colorado Constitution which its voters have rejected in 2008 and 2010 by more than 70% of the vote. Its text states:
Shall there be an amendment to the Colorado constitution protecting pregnant women and unborn children by defining "person" and "child" in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings?
Colorado's criminal code was already amended in the 2013 legislative session (by Democrats) to provide enhanced penalties for crimes that harm pregnant women and cause them to miscarry. As the title to that bill explained:
The bill creates a new article for offenses against pregnant women. The new offenses are unlawful termination of a pregnancy in the first degree, unlawful termination of a pregnancy in the second degree, unlawful termination of a pregnancy in the third degree, unlawful termination of a pregnancy in the fourth degree, vehicular unlawful termination of a pregnancy, aggravated vehicular unlawful termination of a pregnancy, and careless driving resulting in unlawful termination of a pregnancy. The bill makes it clear that a court can impose consecutive sentences for a violation of this act and other associated convictions. The bill excludes from prosecution medical care for which the mother provided consent. The bill does not confer the status of "person" upon a human embryo, fetus, or unborn child at any stage of development prior to live birth. The bill repeals the criminal abortion statutes.
Colorado tort law also allows a pregnant woman to sue for assaults or other unlawful conduct directed at her that causes the termination of her pregnancy or birth defects, and Colorado's probate laws address in exquisite detail the inheritance rights of children born after the death of their parents.

The personhood amendment isn't necessary to address the issues it attempts to use as a smokescreen to fulfill its true purpose.  The true purpose of the personhood amendment is no more and no less than an attempt to criminalize abortion, contrary to what has been the controlling constitutional law of the land since Roe v. Wade, 410 U.S. 113 (1973), and to criminalize hormonal contraception and IUDs contrary to what has been the controlling constitutional law of the land since Griwold v. Connecticut, 381 U.S. 479 (1965).

Colorado Ballot Issue 67 seeks to expose doctors, nurses, pharmacists, the majority of pre-menopausal adult women who use contraception that Issue 67 attempts to ban, and women who are unfortunate enough to miscarry, to criminal and civil liability.  It is based on an extreme version of the anti-abortion agenda that only a minority of people in Colorado, and in particular, a very small minority of women in Colorado, share.

Vote no on Colorado Ballot Issue 67 on "personhood" just as Coloradoan's overwhelmingly did in 2008 and 2010. The issues presented by it are no different.

Vote Yes On Colorado Amendment 68

Colorado ballot issue 68 would amend the state constitution to allow casino gambling at three existing horse racing tracks, one in Aurora, one in greater Grand Junction, and one in Pueblo. Special taxes on the casinos would be applied to K-12 education and charter schools.

It is supported by Rhode Island's Twin River Casino. The sanctimonious ads opposing it from "Don't Turn Racetracks Into Casinos" are paid for by a coalition of (at least) five of Colorado's existing casino operators. This measure has almost no financial support or opposition from anyone who isn't in the casino business.

As Ballotpedia, linked above explains:
Voters rejected the legalization of horse and dog racing in 1940, but later approved such gambling in 1948. In 2003, an initiative to allow video lottery at specific horse and greyhound racetracks with some proceeds going towards tourism promotion and open spaces for parks and recreation was defeated with fewer than 20 percent of voters supporting it. . . .

Following the 1990 legalization of casinos in Colorado, the state's first casino was opened in 1991. As of 2013, Colorado had 41 operating casinos employing 9,278 people. Gambling revenues in Colorado are subject to a graduated tax with a maximum assessment of 20 percent. This came to a total of approximately $104.26 million from casinos in 2013. Gambling revenue taxes are not currently allocated specifically to kindergarten through high school education. Instead, they are allocated to local communities, historic preservation, community colleges, tourism promotion and the general fund.

Colorado also has a state lottery, which has been operating since 1983. The lottery was made possible by a 1980 ballot measure, Referendum 2, which also required the net proceeds of the lottery to be put in the state's conservation trust fund. In 2013, the lottery contributed $59.2 million to the Great Outdoors Colorado (GOCO), $54.3 million to the Conservation Trust Fund, $13.6 million to Colorado Parks and Wildlife and $8.6 million to the Public School Construction Assistance (BEST Program).
The case for saying no to three new casinos at locations where gambling is already conducted would hold much higher moral ground if it weren't for the fact that Colorado already has a state lottery, horse and greyhound gambling, and 41 casinos. The fact that the opposition is funded by existing casinos fighting to reduce competition in locations that are more convenient than their own, while claiming to have other justifications for their position also isn't impressive.

When it comes to gambling, the people of Colorado aren't virgins; they are whores. Preventing three new casinos from opening in places were two other kinds of gambling are already legal won't make the state any more pure, but may raise a little tax revenue for schools and may help Aurora's struggling economic situation.

From my perspective, as a Denver resident, I'd much rather have Aurora open a new casino that doesn't compete directly Denver venues, than have it pursue Aurora's recent efforts to build a Convention Center to compete with the one in downtown Denver linked into a regional public transit plan, or Aurora's effort to steal the stock show from Denver. An approach to developing the tourism industry in Denver that doesn't undermine huge investments in the same thing that have already been made in the metropolitan area by building a casino is a better choice. Maybe Aurora's next step will be to attempt to legalize and tax the prostitution industry that thrives on its stretch of East Colfax.

The opposition to Ballot Issue 68 (which has outspent the casino's effort to pass it by more than three to one) is pure astroturf with no more concern for actual public opinion than the campaign to prevent a new taxi service and Uber from entering the metropolitan Denver transportation market. Given this reality, allowing three more casinos to enter the gambling marketplace in exchange for more taxes is the right choice.

Vote Yes On Colorado Ballot Issue 68.

21 August 2014

9th Circuit Holds That There Is No Tag Jurisdiction Over Corporations

Executive Summary

The 9th Circuit held today a trial court cannot have jurisdiction over a corporation merely because it was served with process in a state (i.e. "tag jurisdiction"), joining the 5th Circuit in taking that position, and continuing a circuit split that had already existed with the 1st Circuit which has taken the opposite position.  It held that only natural persons can be subject to "tag jurisdiction."

The decision, which concisely recounts the entire history of the leading cases in personal jurisdiction law is certain to found in almost every law school casebook on jurisdiction unless it is superseded by a subsequent opinion of an en banc panel of the 9th Circuit or by the U.S. Supreme Court.

The issue remains unsettled in the eight other numbered U.S. Court of Appeals Circuits, in the D.C. Circuit and in the Federal Circuit.


Normally, if you (1) do not reside or have a regular place of business in a state ("general jurisdiction"), (2) have not engaged in any conduct within a state that gives someone a right to sue you in that state ("specific jurisdiction"), (3) do not own property located in a state ("in rem" and "quasi-in-rem" jurisdiction), and (4) have not legally agreed to be sued in a state (consent to jurisdiction), then you cannot be sued in state or federal trial courts in that state.

In the case of general jurisdiction, you can be sued without regard to the nature of the lawsuit.

In the cases of specific jurisdiction, in rem jurisdiction, quasi-in-rem jurisdiction and consent to jurisdiction, moreover, you can only be sued in the state in connection with the conduct or property that give rise to jurisdiction there, or within the scope of the matter to which consent to jurisdiction has been provided.

There are close cases under each of these four rules. Is there general jurisdiction if you live in a vacation house in the state for one month a year, or if your corporation sets up a temporary office in the state for a couple of months to response to some short term business need of a client? Does your conduct count as taking place in a state if you make a telephone call to a state or send good to a state, but never set foot there yourself? Where is a bank account located for jurisdictional purposes? Does a contract providing for jurisdiction in a state for conduct "arising out of, or related to" a contract cover a dispute arising under a separate contract without that clause between the same parties?

Even when there is no basis for jurisdiction under any of these four grounds, there is one more way for a state or federal trial court to obtain jurisdiction over a defendant named in a lawsuit.

Service of process on a natural person within a state upon a person who has no other connections to the state in connection with a lawsuit unrelated to a state is a fifth basis upon which a court can obtain jurisdiction over a defendant ("tag jurisdiction") under the U.S. Supreme Court case of Burnham v. Superior Court, 495 U.S. 604 (1990) (holding that personal service upon physically present defendant suffices to confer jurisdiction, without regard to whether defendant was only briefly in state or whether cause of action was related to his activities there).

In one notable case, tag jurisdiction was found to be sufficient even when the person served with process was merely flying over the forum state on a commercial airplane flight when the flight had neither a point of departure or a destination in that state.

Today's Decision

The facts related to the first four grounds for asserting personal jurisdiction were not close, in the case of Martinez v. Aero Caribbean decided today by the United States Court of Appeals for the 9th Circuit, as they related to defendant Avions de Transport RĂ©gional (ATR).

ATR was a French aircraft manufacturer whose allegedly defective plane carrying Lorenzo Corazon Mendoza Cervantes crashed in Cuba, killing everyone on board, the facts on these four theories were not close. ATR has no offices for the conduct of business and no property in California. None of the manufacturing or design or maintenance of the airplane took place in California, and neither did any part of the flight to Cuba that crashed. And, AFR had not consented in any way in any agreement or document to the jurisdiction of California's courts.

The only connection the case has to California is that the heirs of Martinez live there, and that the Vice President of Marketing of ATR was served with process, after an attempt to service the company with process in France had been held to be invalid, while he was attending a marketing conference in California.  Delivery of legal papers to the Vice President of a corporation is valid service of process under the applicable law in a case like this one, if the court otherwise has jurisdiction over ATR.

If tag jurisdiction applies to corporations served with process in a state, then the federal district court in the Northern District of California would have jurisdiction over ATR.  If it does not, then it must be dismissed as a defendant for lack of personal jurisdiction.  The issue was a matter of first impression in California, although other cases in the 9th Circuit and in the U.S. Supreme Court have implicitly acted in ways consistent with today's decision.

The question of whether tag jurisdiction can be established over a corporation is not settled law, however, and resolution of the issue is complicated by the fact that the reasoning behind Burnham is unclear. In Burnham, there was unanimous support for the result, but no one opinion's reasoning commanded a majority of the U.S. Supreme Court's nine justices. As the Martinez panel in the 9th Circuit explains:
Justice Scalia, in a plurality opinion joined in full by Chief Justice Rehnquist and Justice Kennedy and in part by Justice White, concluded that tag jurisdiction satisfied due process because it accorded with the “firmly established” historical principle that “the courts of a State have jurisdiction over nonresidents who are physically present in the State.” Id. at 610.
Both of the current justices of the U.S. Supreme Court who participated in Burnham, Justices Kennedy and Scalia, joined that plurality opinion. Tellingly, Justice Scalia's plurality opinion also contained a footnote:
Noting that corporations “have never fitted comfortably in a jurisdictional regime based primarily upon ‘de facto power over the defendant’s person.’” Burnham, 495 U.S. at 610 n.1 (opinion of Scalia, J.) (quoting Int’l Shoe, 326 U.S. at 316)
The decision creates a circuit split between the 9th Circuit in this opinion and 5th Circuit in a 1992 decision, which held that there is no tag jurisdiction for corporations, and the 1st Circuit, which has reached the opposite conclusion in a 2001 case.

The 2nd Circuit held in 1998, that tag jurisdiction can apply to partnerships, but the legal analysis in the case of partnerships and in the case of corporations is sometimes different. While the modern rule is that a partnership is an entity separate from its partners, the traditional rule, which is the minority rule today, is that a partnership is not a separate entity from its partners, and the traditional rule is applied by the federal court, by statute, for other jurisdictional purposes, such as diversity of citizenship jurisdiction.


Tag jurisdiction is an anachronistic stepchild of personal jurisdiction law, divorced from the legal theories of due process that motivate the other grounds for a court to assert personal jurisdiction over a party.

Indeed, as the 9th Circuit noted in its decision, in some recently decided cases involving assertions of personal jurisdiction over non-U.S. corporations, the U.S. Supreme Court has been reluctant to affirm even that "general jurisdiction" based upon regular contacts with a state suffice to establish personal jurisdiction in a case otherwise unrelated to a state.  See, e.g., Daimler AG v. Bauman (U.S. Supreme Court, January 14, 2014), previously discussed on this blog.

The 9th Circuit has likewise held that in King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579 (9th Cir. 2011), that a corporation’s designation of an agent for in-state service of process does not create general jurisdiction over the corporation, even though there has been a widespread view that this was precisely the purpose behind requiring corporations to do so in order to obtain permission to do business in a state.  Again, this is a decision doubting not just general jurisdiction based upon service of process in a state.  Instead, it doubts the validity of general jurisdiction under the requirements of International Shoe, one of the first modern federal jurisdiction cases, at all.

On the other hand, tag jurisdiction is a very useful legal doctrine from a practical perspective for trial courts.  The percentage of civil cases in a typical trial court where a defendant was served with with process within the state is high, and in those cases, all other personal jurisdictional analysis may be dispensed with, without any need to resort to further jurisdictional discovery or analysis, based solely upon the return of service provided by the process service which is notarized and has been made a part of the court file.

Tag jurisdiction, general jurisdiction, purely in rem jurisdiction, and specific jurisdiction cases such as those based upon automobile accidents taking place within a state, combined, leave only a modest percentage of cases where there is any legitimate doubt about a court's personal jurisdiction over the parties to the case.  But, without tag jurisdiction, there would be good faith arguments against personal jurisdiction that could be made in many of those cases which would require considerable fact specific legal analysis, increasing the cost of routine litigation.

Martinez and the Corporate Personhood Debate

Any distinction between corporate defendants and natural person defendants that is favorable to a corporation fuels an ongoing political narrative about the special treatment that big businesses receive under the law and in politics that is often rolled into a lack of support for corporate personhood.

The recent U.S. Supreme Court holdings that corporations have a right to make campaign contributions that are unlimited in dollar amount under the First Amendment in Citizen's United and that closely held, "for profit" corporations can assert the religious objections of their owners to providing reproductive health care for their employees as they are mandated by the Affordable Care Act (i.e. Obamacare) in the Hobby Lobby case, appear to substantiate this critique and make a decision like the 9th Circuit decision in this case a target for progressive critics of corporate personhood in a very direct way.

Corporations are persons when it suits them, but not when it doesn't, under the law, critics may fairly argue.  And, in general, any technical and procedural legal doctrine that makes it harder for someone harmed by corporate action to secure redress for torts committed against them is problematic for liberals.

On the other hand, tag jurisdiction has long been considered problematic by liberals, because it gives little credit to the due process concerns of the individuals served which differ very little in substance from the due process concerns raised by the corporation in the Martinez case.

While I am certainly more liberal than I am conservative, I don't see "corporate personhood" per se, as a conservative or pernicious doctrine.  Corporate personhood and its close cousin, the vicarious liability of private entities and persons for the acts of their employees and agents, is a critical tool by which average individuals can hold large businesses accountable without knowing the details of their inner workings.  Tort law would be toothless without it, and would instead look like the far more restrictive regime of governmental liability, where vicarious liability is the exception, and immunity from liability is the norm.

In my view, the problem is not "corporate personhood" but the undue concentration of political power of big businesses, and in wealthy individuals who often make their money in big businesses, which can be leveraged into legal and economic advantages.  But, it is also not a problem with an easy solution.  Even in a system totally free of corruption and partisanship and bias, people who make big decisions about the laws that should govern the political economy should care a great deal about the impact of their decisions on big businesses that if made unaware of the consequences of these decisions on big businesses could have a serious negative effect on the overall economy and the jobs of large numbers of people.  Big businesses provide a natural way to give voice to legitimate economic concerns that have widespread impact but are not very familiar or salient to the daily lives of most individuals.  Ignoring their voice poses a serious risk of destructive mob rule.

I also can't say that there is no rational basis to distinguish between corporations and natural persons when it comes to "tag jurisdiction."

The typical corporation is embodied in far more people who are legally authorized to accept legal process on its behalf than a typical individual.  Corporations often have dozens or scores of people who are subject to service of process and are generally required to have a registered agent for service of process available to be served during all regular business hours.  There are often only a few people, in contrast, who are authorized to accept legal process on behalf of an individual.  So, tag jurisdiction could, in principle, be more onerous for a corporation than it is for an individual.

Conversely, even "tag jurisdiction" is not quite as extreme when applied to natural persons as it seems.  There are many ways to serve a natural person who is an adult with process other than by delivering a summons personally to that individual.  In Colorado, one can also deliver legal process to any adult member of the defendant's family at his or her "usual place of abode", or at the person's "usual workplace" with his or her "supervisor, secretary, administrative assistant, bookkeeper, human resources representative, management agent."  Service of process upon an adult individual can also be made upon that person's agent for service of process.

Service upon any of these people would probably not be considered a basis for "tag jurisdiction", upon the individual. For example, if Harvey Smith has a natural person named Fred Jones who is a designated agent for service of process upon him in Utah in connection with a requirement that he do so in order to be qualified to do business as a sole proprietor there, and a process server delivered a summons and complaint to Fred Jones in Colorado, it is not at all obvious that the Colorado courts would have jurisdiction over Harvey Smith on the basis of "tag jurisdiction."  Similarly, tag jurisdiction would probably not apply to an individual that a court authorizes "substituted service" upon on a case by case basis, such as a doorman for a gated community where a defendant owns a house.

Of course, the mere fact that a person has a "usual place of abode" or "usual workplace" within the state would itself, normally establish that a Colorado court has general personal jurisdiction over the defendant.  Likewise, the fact that someone has an agent for service of process whose regular office is in the State of Colorado would traditionally suffice to establish general jurisdiction over that person in the State (although the 9th Circuit disagreed in a 2011 decision).

Colorado law does not, however, allow for service of process upon an adult natural person, by delivering papers to a spouse or adult child of the defendant who lives with the defendant, at their respective places of work, or upon someone's secretary or supervisor at work at their respective homes.

The Case For A Compromise Rule To Resolve The Circuit Split

One could reconcile the circuit split between the 1st Circuit, which held that tag jurisdiction was available in Northern Light Technology, Inc. v. Northern Lights Club, 236 F.3d 57 (1st Cir. 2001), where tag jurisdiction was held to be present when the person upon whom process against the corporation was served upon the President of the corporation, and the 9th Circuit, where service of process was made upon the Vice President of Marketing in a large corporation that probably had dozens of Vice Presidents, by holding that for tag jurisdiction purposes, that the highest ranking officer of the corporation, the CEO if there was one, and the President, if there was not a CEO, was the physical embodiment of the corporation for tag jurisdiction purposes.  This would be individuals and corporations on equal footing, as in each case, it would be possible to secure tag jurisdiction in each case, solely by serving one individual.

This would treat sole proprietorships and closely held corporations identically, which would be a fair result in cases like a 9th Circuit implicitly rejected this theory in dicta in the case of Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994), where personal service in Washington State was obtained against the president and sole owner of a German corporation within Washington State where the action was brought.  In that case, the service of process was held to be valid, but the issue of personal jurisdiction over the corporation was reserved for determination on remand, even though it would have been transparently obvious if tag jurisdiction applied to corporations.  But, it is hard to see how due process is offended in the case when the German business is organized as a corporation, but not if the German business had been organized as a sole proprietorship with the same ownership and management structure.

Against Trans-Substantive Personal Jurisdiction Rules

It is  somewhat troubling that so many of the leading personal jurisdiction cases apply to instances of non-U.S. corporations sued in U.S. courts.  In principle, the constitutional boundaries on the assertion of personal jurisdiction are no different in interstate and international case, and as a result of statutory law creating the U.S. District Courts, there is also no difference between the ability of a federal trial court and a state trial court to assert personal jurisdiction over someone.

But, there are principled reasons for treating international cases differently (a difference which exists expressly when it comes to the enforcement of court judgments from another state), and also for treating federal courts differently than state courts (a distinction which does not have constitutional character).

On one hand, forcing someone to litigate in one U.S. state rather than another is a less serious issue than forcing someone to litigate abroad, rather than in the United States.  All U.S. courts are subject to the same constitutional standards of due process of law, almost all share the same legal tradition and general outlines of substantive law, and all are subject to ultimate supervision on direct appeal by the U.S. Supreme Court whose precedents on issues of due process rights bind all of them.  Moreover, a court decision of a U.S. Court is enforceable in any other state under the full faith and credit clause of the United States Constitution.

Also, forcing someone to litigate in a federal court in a given state is a less serious issue than forcing someone to litigate in the state courts of a different U.S. state, or in a different country.  The federal courts were established by the United States Constitution expressly for the purposes of providing a fair forum for interstate and international litigants that might not be available in a particular state's own popularly courts that might have an incentive to systematically disfavor out of state defendants.  Procedural issues in federal trial courts in civil cases are governed by a uniform national set of federal rules of civil procedure and federal procedural statutes, even though there are local rules in different federal district courts that often reflect state court practice in those states, and even though some procedural issues (like choice of law) are determined using forum state law.

Furthermore, there is no really good reason, other than tradition, for the fact that the long arm jurisdiction analysis made by a federal trial court should be based upon the connection that the defendants and the case has to the United States of America, in general, rather than merely the ties that the defendants and the case have to the particular state in which the particular federal trial court in the case is located.  Congress and the U.S. Supreme Court could easily have adopted a national analysis of personal jurisdiction for the federal courts, while leaving the consideration of which of the federal courts a case should be tried in as a non-jurisdictional question of proper venue (as the state courts do when deciding which county a case is most appropriately tried in which the state).

Thus, it would be perfectly reasonable to have a personal jurisdiction rule that made it easier to sue a non-U.S. corporation in a federal trial court than it was to sue a U.S. corporation from the next state over in a state trial court.  Similarly, it would be perfectly reasonable to have a personal jurisdiction rule that made it easier for a non-U.S. corporation to escape a state court forum, than it was for a U.S. corporation to do so.

For what it is worth, I favor changing the law to allow federal trial courts to evaluate specific jurisdiction on the basis of contacts with the United States, rather than contacts with a specific U.S. state (which would expand the federal courts' personal jurisdiction), and changing the law to repeal the statutory basis of U.S. District Court jurisdiction over both diversity jurisdiction cases between non-governmental parties (except cases that have specialized statutory authorization such as interpleader, interstate property disputes and interstate class action lawsuits), and federal question lawsuits between non-governmental parties that have no other separate jurisdictional basis authorizing them (particularly, employment law lawsuits against non-governmental defendants) (which would narrow the federal courts' personal jurisdiction in cases where all parties were U.S. parties).  Although, I might be inclined to allow for diversity jurisdiction in cases involving a non-U.S. party who is not collusively joined, even in the absence of "complete diversity" which is currently required.

These reforms would subject more foreign defendants to the jurisdiction of the U.S. courts and make it easier for them to get into federal court, but would dramatically reduce the volume of ordinary domestic litigation between non-governmental domestic parties in the federal courts, where state court authority and capacity is more or less co-equal under existing law.

18 August 2014

Gremlins Attack!

It has not been a good few days for technology in my life.

My car is in the shop and won't be done until later today or Tuesday.

My newest laptop died this weekend, although my old spare that I am using now is limping along.

Sometime between 12:46 p.m. and 3:20 p.m. on Sunday, my office suite's phones, local area network, file server, and Internet connection died.  I think that our e-mail server also works through this network.  Also, since it was the weekend, the HVAC systems in our office were shut down and the lights went out every hour until I went into the hall to restart them.  Two and half hours later, I left the office too frustrated to try to make everything work.

While my car has been in the shop, I have been using the car2go smart car share system.  But,  on Sunday afternoon, the same time that the office systems died, I reserved a car that was supposedly at 1221 East Alameda Avenue, but after walking several blocks to get there, there was no car even though the system showed that it was still there.

Also, this weekend, my phone died for almost a day, although I hadn't realized that fact, because the batteries were dead.

Also, this morning, the copying machine had a paper jam even though it hadn't had one when I left on Friday afternoon.

I also learned that our managing partner and office manager were both on vacation (and our law clerk finished his summer on Friday), so the usual suspect to fix the tech problems were away.  One lawyer colleague, a former lawyer at the firm in doing some contact work, my assistant and I were it. 

We may not be back to the Stone Age, but we are definitely back to the Bronze Age of paper and pen, and maybe even to the Middle Ages when the printing press was invented, because we do have law books that we can refer to in the meantime.

I am currently encamped in Subway having a coffee and roll, and waiting for the cavalry to arrive, and trying to function with my spare computer and poached Internet service.

I'm totally blaming Gremlins for all of this mess.

14 August 2014

Sanskrit Resurected?

Before Israel became a state, Zionists worked to resurrect Hebrew, which had declined to the point where it was solely a liturgical language, as a living language. A similar movement, which has been embraced by India's Hindu nationalist party, is trying to restore Sanskrit, which is the source language for most of the Indo-European language of South Asia in much the same way that Latin it the source language for the Romance languages.
Sanskrit has somehow managed to remake itself as a living language. Universities around the world (including Penn), schools, and summer camps offer courses on spoken Sanskrit that are well attended, and there are villages in India where most of the people are conversant in Sanskrit. 
The reason I bring all of this up now is that BBC News Asia just published an article entitled "Why is Sanskrit so controversial?" which focuses on the political aspects of the spread of Sanskrit in recent times. One thing that I think needs to be made clear is that the modern rebirth of Sanskrit began long before the ascension of the BJP to power. 
"The 'Revival' Of Spoken Sanskrit In Modern India: An Ethnographic And Linguistic Study" (1998) 
Nonetheless, it is clear that the new Prime Minister Narendra Modi is well disposed toward Sanskrit and that this venerable classical language can expect to see additional gains in the coming years.
FWIW, the village in India linked above is home to three major Hindu temples and hence is not really inconsistent with Sanskrit's character is a primarily liturgical language with this village being analogous in some ways to Vatican City in Italy where Latin is still used as a living language by a community of ordained Roman Catholic religious officials.

A revival of Sanskrit, like the revival of Hebrew in Israel, could serve to unify a fractured Indian state as a nation whose current conceptual basis is multi-ethnic (in terms of ethnic identity and regional ethnic diversity, India is more analogous to the E.U. than to a particular European nation), but would do so at the cost of alienating non-Hindu minorities from this national identity.

11 August 2014

Budget Air Power

The Iraqi Air Force exemplifies a recent trend in poor country military forces.  It's air force has as a major component of its air to ground fighter complement, small Cessna general aviation aircraft fitted with Hellfire missiles originally designed for use on attack helicopters.  The focus on high tech offensive weapons on budget flight platforms is typical of the trend.

Local Government And Economic Development

A post at Marginal Revolution on libertarian misconceptions about government recalls for me another under appreciated aspect of the developed world status quo.

Most of what distinguishes Third World political economies from those in the United States, happens on a largely non-partisan basis at the local government level in the First World.  What do local governments provide in the United States that is often missing or sorely deficient in the Third World:

* Water supply, treatment and sewage services.
* Mosquito control.
* Weed control.
* Storm sewers.
* Public street lights.
* Local road maintenance.
* Operate and build public transit systems (sometimes with grant funding at higher levels of government).
* Traffic and parking law enforcement.
* Administration of motor vehicle registration.
* Administration of motor vehicle emissions requirements.
* Enforcement and adoption of building codes.
* Property tax assessment and collection.
* Resolution of property line disputes.
* Administration of public records related to real property ownership.
* Administration of public education via public schools.
* Enforce vaccination and truancy requirements.
* Enforce laws prohibiting child abuse and neglect.
* Administer libraries.
* Mental health services.
* Administration of welfare laws.
* Local hospitals of last resort.
* Fire fighting and functional EMT services.
* Alcohol establishment regulation.
* Relatively non-corrupt enforcement of laws prohibiting blue collar crime by law enforcement, and prosecuting attorneys.
* Determination of cause of death in suspicious cases.
* Trial courts for all crimes.
* Pre-trial incarceration and misdemeanor sentence implementation.
* Collection of small debts and evictions in courts of limited jurisdiction with appeals in most cases to a general jurisdiction court in the same county and enforcement by local law enforcement officials.
* Civil trial courts of general and probate and domestic relations jurisdiction.
* Conduct of non-judicial foreclosure proceedings.
* Marriage licensing.
* Most election administration except compilation of final tallies in multi-jurisdictional election districts.

It also isn't uncommon for local governments to operate or manage by outsourced contracts utilities such as electric power grids, cable television, and Internet access providers.

State and federal governments legislate broadly and engage in some administration of governmental functions, but far less than most people realize.  A quite small percentage of law enforcement officers are in state or federal government positions.

The biggest categories of state and federal workers are college and university employees, postal workers, national defense employees, park rangers, and managers of public lands and public property.

The proportion of the federal and state government engaged in controversial regulatory activities is quite modest.


My daughter, who has her learner's permit, and I, took advantage of light traffic due to closures on I-25 over the weekend to practice getting on and off the highway, over and over again.  As I'm still writing this on Monday, it clearly went well.

The secret was immediately plunging into the task before she had time to be scared and panic.

The task of driving on a highway isn't that hard.  The percentage of people who learn to manage this task rivals the number of people who manage to finish middle school or read a newspaper headline, or who ever have sex sometime in their life, or who learn to operate a telephone.  It exceeds the percentage of people who become functionally literate, who manage to do their own taxes, who can tie a Windsor knot, who manage to finish a tour of military service without a dishonorable discharge, who know who their U.S. Senator is, who manage their own checking account, who try drinking alcohol without becoming drunks, who make it through life without being convicted of a felony, or who ever manage to run a ten minute mile.

But, it can be intimidating.  You recall this when you witness someone doing it for the first time.   Hurling up an exit ramp at sixty miles an hour; watching over their shoulder to see if there is a gap in a line of people people who have no duty to yield to them as they move at similar speed; then, changing lanes into traffic, with a penalty for failure of death or serious injury for everyone in more than one vehicle.

There were people still living while my father was alive who had never faced such a challenge and had never had an ancestor do so either.  My great-grand father bought his first car in the days before driver's licenses and never learned to stop it before leaving the dealership.  He ended his trip by planting the car in a fence post and there is sat for years, or so the story goes.

As a math, science and economics tutor over the years, from my wife before we were dating, to my children's peers, I've seen something similar.  The number one problem of students struggling with STEM subjects and people who struggle in daily life with technical tasks from making their computers behave to hanging pictures is that they fail to remain calm and sanguine as they try to puzzle out the answer.  Many people are so inured to the idea that piling on more emotion will solve their problems that they find it very hard to center and focus in a non-emotional way on solving their task.

Almost anyone can learn to do it, but it doesn't come naturally to lots of people.

It is rewarding.  Driving is one of the last things that my children absolutely must learn to survive in the world on their own.  There are lots of other tasks that they can afford to fail, but this is not one of them.  The assurance of seeing them master these tests means you've gotten them over that critical threshold.

08 August 2014

The Case For Atrocity Prevention On A Budget

Saving The Yazidis

Yesterday, President Obama authorized the U.S. military to make airdrops of food and water supplies, and airstrikes in the part of Iraq under the control of the Islamic State that has de facto political control of most of Northern and Western Iraq and Eastern Syria.  Before taking action, he obtained the permission of the elected civilian Iraqi government that the U.S. and its allies installed in the wake of the Iraq War that deposed the Baathist regime of dictator Saddam Hussein, to take action in Iraqi territory.

The mission was carried out with five aircraft.  A large C-17 military cargo plane and two smaller C-130 military cargo planes dropped 72 bundles of food and water containing a total of 5,300 gallons of drinking water and 8,000 pre-prepared military ration meals over about 15 minutes in a target drop area.  Two F/A-18 fighter jets (the main kind of jet fighters deployed on aircraft carriers) escorted the cargo planes and bombed selected Islamic State military targets in the vicinity.

President Obama did this to protect members of the Yazidi religious minority trapped in Sinjar Mountain without food and water facing imminent slaughter by fundamentalist Sunni Islamist fighters from the Islamic State.  Stopping an imminent atrocity that we had the power to prevent from happening was a central justification for the United States to take some steps, however modest, to help.  The Yazidi community had previously relied regional Kurdish government militias to protect them, but the Islamic State had outgunned the Kurds in this instance, which is in the heart of the territory that they claim as their own.

The Islamic State openly acknowledges that one of its objectives is the extermination or exile from its territory ("ethnic cleansing to use the term used by Serbs in the war in Bosnia) of the Yazidi people.  Their fundamentalist reading of Islamic law calls this objective a religiously required and righteously moral  jihad. The rest of the world and international law, however, consider any efforts to carry out these objectives by the Islamic State to be the war crimes of genocide and of the disproportionate slaughter of civilians, because killing these non-combatants civilians serves no legitimate military objective.

President Obama also did this protect the safety of U.S. humanitarian aide workers and U.S. diplomats at a U.S. consulate in the vicinity, but this justification was secondary.

The U.S. could have simply brought U.S. citizens in the region into the consulate, holed up there with protection from a beefed up Marine Guard Unit, and extracted the people in the consulate if it appeared that this modern fortress would not hold, while leaving the locals to fight their own battles without any U.S. intervention.

The United States has done many times in the past at locations around the world.  An evacuation of this kind from the U.S. embassy in Vietnam in the final days of the Vietnam War was famously captured by news photographers. A 2003 Hollywood movie on this theme called "Tears of the Sun" portraying an effort to make this kind of extraction in an African country that was falling apart that famously illustrated the moral problems with this kind of policy.  This week's episode of international intervention by President Obama, however, is one of the first times in recent memory in U.S. history that the U.S. has taken action to address the moral problems with its standard evacuate its own and don't intervene protocol in these situations.

Who Are The Yazidi and Why Does The Islamic State Want To Slaughter Them?

While it doesn't really matter much to the larger issue of U.S. policy towards preventing atrocities like the Islamic State's attempt to slaughter the Yazidi people, it is worth a moment to familiarize ourselves with who they are and why the Islamic State wants to kill them.

From the point of view of their fundamentalist Sunni Muslim religious doctrine, the Islamic State is justified in its genocide of these people.  Islamic law calls for Muslim communities to allow other "People of the Book" (i.e. Christians and Jews) to be tolerated on a subordinate basis, but demands the conversion or extermination of pagans and heretic Muslims.  But, the Yazidi are clearly not "People of the Book."  And, in the interests of expediency and terrorizing dissenters, the Islamic State, in  the honeymoon period at the dawn of its regime, has focused on the extermination strategy, rather than the conversion approach.

The Yazidi people's religion is an offshoot of Zorastrianism, with a strongly gnostic character and borrowing from other pagan religious traditions of Mesopotamia.  There are about 700,000 Yazidi people in the world, about 500,000 in Iraq (mostly in Ninevah province in an area near the Kurdish-Arab ethnic boundary in that Northwestern Iraqi province), about abut 35,000 in Armenia, about 18,000 in Tiblisi, Georgia (with another 2,000 elsewhere in Georgia), and about 105,000 in a diaspora mostly in Germany, Russia and Sweden.

Gnosticism is a mystical metaphysical belief system that was influential particularly among Neo-Platonistic philosophers and early Christian sects of the classical Greco-Roman era in the Eastern Mediterranean that lost the struggle to become the orthodox interpretation of Christianity among early Christian sectors that considered each other to be mutually heretical.

Zoroastrianism was the predominant religion of Iran (known as Persia at the time) from ca. 1000 BCE to about 650 CE, and communities that practiced this religion were common throughout the classical Greco-Roman era in Anatolia, Babylon and Central Asia.

Zoroastrianism is a likely religious source of ideas that would give rise to Christian metaphysical understandings of the world we live in as a battle ground between the forces of Good, led by God in Heaven, and the forces of evil, led by Satan in Hell, who send angels, prophets, Jesus and demons into the world to do their bidding.  These ideas probably made their way into Christianity, not directly, but through Jews returning to the Levant from a period of exile in Babylon where they would have been exposed to Zoroastrianism who incorporated these ideas into one of more Jewish sects from which Christianity emerged.  These Zoroastrian influences had little impact, however on the sects of Judaism that would go on to found modern Rabbinic Judaism after the fall of the Second Jewish Temple in 70 CE.

In addition to the Zoroastrian influenced Yazidi people mostly from Northern Iraq in the vicinity, two relatively "purely Zoroastrian" faiths remain.  The Parsi community, which migrated to India from the Persian capitol of Pars in the wake of the initial mass forced conversion to Islam in Persia ca. 700-900 CE, and the Irani community, who migrated to India from Iran ca. 1500-1700 CE, in the wake of a crackdown on relict Zoroastrian communities by a later Islamic ruler in Persia.

Today, fewer than 1 million of the 7046 million people on Earth are either Zoroastrian or Yazidi: the 700,000 people who share the Yazidi faith (which is sufficiently far from its Zoroastrian influences to be considered a separate religion from it) and the 125,000 to 300,000 members of Zoroastrian sects.  These Zoroastrians are found today in India (ca. half of the world total), Iran (ca. 1/6th), Azerbaijan, Afghanistan and Pakistan (ca. 1/8th in these three countries combined), various English speaking countries around the world (about 1/5th of the world total), and small communities in Singapore and the Gulf States (about 1/20th).

The Case For Atrocity Prevention On A Budget

We Are Regularly Aware of Atrocities That Are Imminent Or In Progress

The modern reality is that telecommunications and widespread global travel, communication and commerce brings news of imminent atrocities or atrocities in progress around the world to the attention of well informed Americans several times a year.

We knew about the Hutu genocide directed at Tutsi people in Burundi as it was about to happen and started to happen.  We were aware of the Boko Haram capture of hundreds of school girls in Northern Nigeria before many people in Lagos did and have also heard promptly about the many instances in which Boko Haram has slaughtered whole villages in Northern Nigeria.  We have witnessed Syria and Libya use aircraft to bomb their own civilian populations, and promptly witnessed Syria use chemical weapons on its own people in a way that did not discriminate between soldiers and civilians - we intervened in Libya under Hilary Clinton's leadership as Secretary of State, but did not in Syria, in order to avoid crossing Russia which deployed war ships to the Syrian coast to discourage Western intervention in the conflict.

Together With Our Allies, We Have The Ability To Stop Many Individual Atrocities

The United States has, by far, the most powerful military force in the world.  It has the largest and most advanced air force and is the only country with a significant fleet of operational stealth aircraft.  It has the largest blue sea navy in the world by war, and the greatest power to use that navy to establish bases for its troops and aircraft and missiles far from its own territory.  It is rivaled only by Russia in its nuclear arsenal.

Only China has more tanks (although, surprisingly, Syria is second to the United States in that respect).  Also, only China has more active duty soldiers, despite the fact that the U.S. has about a third fewer active duty soldiers than it did during the Cold War, and has a wealth of veteran officers and non-commissioned officers with wartime experience and training that rivals any other military in the world.

The budget of the United States military is the largest in the world and rivals or exceeds the military budgets of the rest of the world combined.  Our intelligence resources are second to none.

The U.S. also has a great many allies in the world, many of whom are willing to offer up their assistance and military resources as part of coalitions with the U.S. to advance uncontroversial missions, and the U.S. together with its developed world allies, collectively, wield immense economic power in the global economy.  The money that third world despots have available to fund their own military organizations comes mostly from their share of profits from the domestic operations of multinational companies based in the developed world, from sovereign wealth funds invested in developed world economies or in developing economies other than their own through international financial markets in developed world economies, and through direct military aid and loans to these countries.

Even if the U.S. cannot unilaterally sanction sovereign bad actors in the world economy effectively with economic sanctions, the community of first world nations, collectively, if they chose to do so, collective do have economic control over the rest of the world.

Meanwhile, the atrocities that we do learn about almost always take place in smallish (compared to the United States or the European Union or China or India, for example), third world or developing world countries with non-democratic governments with regimes that leave little to find worth respecting, other than their bare sovereignty.

We don't intervene in this atrocities, however, most of the time, out of a lack of direct national interest, a fear that we will end up footing an unaffordable bill in the lives of our soldiers and treasure, to become a "World Policeman" that we are not politically willing to pay, and a fear that intervention will impair the benefits we and our allies receive from the principle of absolute national sovereignty, transforming civil wars and insurgencies across the globe into a Pandora's box unleashed to international wars.

Devoting A Measured Amount of Resources To Atrocity Prevention As An Express, Secondary Mission Of Our National Defense And Intelligence Establishment Is In Our National Interest.

I believe that we can do better, and that it is in our interest to do so.

We can't do everything as a world policeman, but we could certainly set aside 1%-2% of the defense and intelligence budget ($7-$14 billion a year plus contributions from allies who would join us in this venture, with perhaps 15,000 to 30,000 active duty soldiers and appropriate weapons systems, vehicles and gear for their missions), together with no additional cost or low additional cost assistance from other national security resources (such as spy satellites), for a military, intelligence, law enforcement, and humanitarian aid force that had as its primary mission preventing atrocities due to military force or natural disaster, intervening to prevent atrocities in progress, and holding the war criminal perpetrators of atrocities accountable.

This force wouldn't be large enough to effect regime change, or serve as long term peacekeepers as the U.N. Blue Helmet forces do, but it would be enough to rapidly intervene in international crisis situations much like police, firemen, and EMTs do domestically.  Even a tiny force of a five planes and perhaps a couple of hundred active duty servicemen was enough to make all the temporary but critical difference that may have saved thousands of lives for the Yazidis in a moment of crisis this week, for example.

This narrow mission - limited to war crimes and national disasters - would also provide a limiting principle to this exception to the general principle of national sovereignty that would prevent the general rule from being too badly compromised.  This would be akin to the domestic violence and child abuse and neglect exceptions to the general rule of a family's right to privacy in its own home and autonomy and religious freedom in how the members of that family raise their children.  This narrow mission would also help to keep this agency popular politically, both at home with voters and abroad with allies.

This agency could be mobilized by the President in times of war for other national defense missions, much like the Coast Guard, the National Guard, and the Army, Navy, Air Force and Marine Corps reserve units.  So, this spending while being put to use and generating a corp of people with real life conflict experience, would be available if necessary.  And, honestly, a huge percentage of the U.S. military (certainly more than 1%-2%) is training (often for missions that are highly unlikely to every happen), rather than involved in carrying out any other military operations or objectives, at any given time.

The limited budget of the agency, contributions of third party economic resources, and limited mandate of the agency would allow the United States, through the agency, to be a world policeman, without falling down the slippery slope that would overextend American budgetary resources, expose American soldiers unreasonable to risks not justified in the narrowly construed national interest, or impair the general rule of sovereignty as a governing principle of international law.

In addition to assuaging our consciences and "saving the world", this agency would also enhance U.S. soft power by adding to U.S. goodwill, in the world through the horrors it prevented that it had no obligation to prevent, and by cementing a global perception of international leadership and of the U.S. as a first among equals in the world.

Furthermore, by establishing that there is someone in the world who will intervene to stop war crimes, save disaster victims, and punish war criminals, this agency would discourage war crimes as a political tactic and would mitigate the harm caused by natural disasters and in the process would make the world a safer place for American commerce and Americans around generally and would advance democracy.  World leaders who can't credibly threaten to commit war crimes with impunity are weaker and this strengthens the hands of the comparatively good guys around the world in their own domestic struggles for political power, making the world a better place for everyone and enhancing economic development in a way that ill supervised, tiny grant programs have failed to achieve.

Details: Some Guiding Principles

As a result of budget limitations, the agency might not have the ability to response to every incident in the world that its mandate would permit it to intervene in, and political realities like credible demands from nuclear armed countries that the agency not intervene in a particular conflict would prevent it from taking on other missions.

I would contemplate a threshold for taking on a mission that might result in three to six major war crime interventions in a particular year, perhaps another half a dozen or dozen potential war crime interventions that can be handled with much smaller teams (perhaps a platoon or smaller with a few civilian advisors), and perhaps half a dozen to a dozen full fledged natural disaster responses a year in cases where no other responders are adequate and deployments of a few specialists to assist otherwise adequate national natural disaster responses in a couple of dozen other cases.  A budget of $6-$13 billion a year, plus perhaps $1-6 billion of agency supporter and coalition support would probably be able to manage a level of operations on something like this order of magnitude.  If it couldn't, it would do less.  Someone in the organization would have an office devoted to finding other people to do work within the agency's mandate that it can't afford to do itself.

Typical missions would last anywhere from a few days to a few months.

I would imagine that the number of people at any given time being investigated, pursued, or prosecuted for war crimes might number in the dozens or low hundreds in an operation that might cost $100 million to $1,000 million a year, but might also generate revenues sporadically from asset forfeitures from convicted and suspected war criminals, and, like support for humanitarian natural disaster aid, it might generate national government financial support in cases from countries that might be uncomfortable supporting military action to support war crimes (e.g. from countries like German and Japan that have constitutions that disavow offensive military action, or from countries like Switzerland that prefer to remain a position of neutrality for the most part).

A number of missions would be outside the scope of this agency.

It would have a rapid reaction "emergency room" philosophy of stabilizing the patient, and would not be an agency in the business of providing "long term care" in the form of prolonged peace keeping missions or "nation building."

It would not respond to coups, even if they depose democratically elected regimes, that don't involve imminent risks of atrocities committed against large numbers of civilians.

It would not be an anti-terrorism force, even though there are parallels.  While one man's terrorist may be another man's freedom fighter, nobody wants to stand up for a war criminal or war crime, or to let people suffer and die as a result of a natural disaster.

It would operate with the kind of transparency found in well run civilian governmental agencies, rather than the shroud of secrecy associated with agencies that have a "national security" mission.  It would have a "white" budget, would not engage in covert operations, and would not be privy to state secrets other than brief tactical delays in disclosing operational information in order to facilitate current operations but not to protect methods and practices.  The only secrets would be those necessary to protect intelligence collection methods and practices from other national security oriented intelligence agencies.  Even then, this agency would operate on the basis of maximum transparency and would share any intelligence, used by it in a particular mission, that had to be redacted for the public with the intelligence agency counterparts of in all governments contributing to any particular mission.  It might even have a counterpart to the U.S. Secretary of State's website warning travelers and locals alike of disaster and conflict risks in various places.

The agency would have as its ultimate commander in chief at all times the President of the United States and would be an international organization permanently controlled and primarily funded by the United States government in which other governments could participate with voice and contractual promises but not a vote.  It would not be subject to United Nations or NATO control, or require their authorization to act.  Details of how missions would be authorized could be worked out.  It might be done by the President as a political decision, it might be done by vote of an agency board, it might be authorized or subject to conferral without a mandatory approval by the U.S. Senate or Congress, or some Congressional committee or foreign ally participants in the agency or the supporters of a particular mission, or it might call for a judge or multi-judge panel of a court to authorize missions at the request of a decision maker in a manner similar to an arrest warrant or search warrant or wiretap or grand jury indictment, but without the secrecy attendant with any of those tools - proceedings to request authorization to act would, as much as possible be public and certainly would not be classified.  Authorizations for missions would not themselves be specific enough to require tactical short term secrecy related to operational details.  The public discussion of a possible request to authorize a mission would be calculated (much like U.N. Security Council meetings) to deter war crimes and encourage remedial action and negotiation and disclosure of information that clarifies the situations on the part of countries suspected of committing war crimes.

In some ways it would have something of the character of the French foreign legion.  Individuals who are not citizens, nationals or permanent residents of the United States would be allowed to be employees, independent contractors and active duty or reserve military personnel in the agency.  But, military veterans of the agency receiving honorable discharges would have a right to U.S. citizenship and the same military benefits as U.S. veterans.  Foreign soldiers could swear allegiance to the agency's mission and to loyally obey the orders of its ex officio commander in chief, but not to the United States, or to its constitution or laws except insofar as they apply to the agency itself.

The agency's charter would permit up to 1/3rd of the agency's military personnel organized in national military units loaned from the military of another nation but subject to the agency's command and control, and would be allowed to receive up to 1/3rd of the agency's funding to come from supporting governments.  For example, perhaps Canada might provide a unit of 1,500 people trained in search and rescue operations and their gear at Canadian expense as part of a Canadian unit, for a couple of year commitment.  The unit would remain part of the Canadian military, but while serving with the agency, that Canadian unit's commanding officer would report to the general who was the commanding officer for the military personnel in the agency who in turn would report to the President of the United States.

The agency would also be permitted to borrow or rent military or civilian resources from non-U.S. governments on a long term or temporary basis.  "Significant" free borrowing or "significant" dramatically below reasonably equivalent value support, however, would count against the 1/3rd of agency funding from outside sources that was permitted under its charter.  Short term use of resources donated to it (e.g. use of an air field or port or vehicle for less than a month in connection with current missions), donated humanitarian supplies, volunteers not paid by their sponsoring governments, somewhat below fair market value economic arrangements, unrestricted donations from individual or corporate donors not affiliated with or controlled by a government, or donations under some threshold of dollar value per year, would not count as significant.  Bribes and kickbacks for individuals working at the agency would be strictly forbidden (no "tipping" allowed for rescuers except as authorized by express written policies of the organization).

U.S. posse comitatus limitations would apply to the agency just as they do to other U.S. military forces.

The United States and other supporting countries could (and would) delegate to the agency the authority to issue refugee visas and to transport refugees to the sponsoring countries in a safe and secure manner.  Each nation's delegations of immigration authority would be on its own terms and conditions and would be individually negotiated.  Thus, for example, Germany might offer to provide refugee status to 10,000 Yazaris assisted by the agency in the year 2014, subject to processing of applications by a German immigration official loaned by Germany to the agency for the mission to assist the Yazari people in the face of a threat from the Islamic State, while Indonesia might agree to provide refugee status to up to 2,000 Sunni Muslim sympathizers and deserters who renounce their military intentions in the same mission in the year 2013, subject to processing of applications by an Indonesian immigration official loans by Indonesia to the agency for the purposes of this mission.

Countries that regularly offered to assist with refugee visas like the United States, Canada and Sweden might have civilian immigration application processors on loan to the agency indefinitely who were authorized to handle delegated refugee authority for any incident that might come up and might have form refugee visa delegation contracts drawn up and agreed to by the agency and the supporting country so that no time was wasted haggling over boilerplate details and only mission specific authorizations would have to be communicated when emergencies come up.

Similarly, there could be standing agreements and arrangements in place with particular countries regarding support for the agency through donations of humanitarian aid supplies, use of air fields, or protocols for gaining permission to cross a nation's airspace in furtherance of a mission, or to provide natural disaster response in a country.  These standing agreements might even include standing agreements to provide certain kinds of assistance to the agency in certain situations without the prior authorization of elected officials or high level government officials.

The agency might organize a system of low cost or subsidized national disaster insurance for countries that don't have sufficient financial reserves, credit, political discipline, are too small, or do not have a sufficient lack of corruption, to allow them to finance their own national responses to natural disasters when they come up (e.g. the kinds of services that FEMA provides in the United States which the United States can afford without insurance because it is large enough to spread risk widely and is affluent and non-corrupt enough to pre-fund in a natural disaster reserve fund, tax and spend or to borrow funds to provide this kind of disaster assistance if necessary).

The agency would have a secondary mission of documenting atrocities and determining who was responsible in cases that it is unable to mobilize to prevent for whatever reason.  I suspect that the agency would prove to be able in practice to mount an effective economic sanction regime on countries that commit war crimes, but its credibility and first hand on the scene documentation of war crimes when it intervenes might be sufficient to help others mobilize economic sanctions.  On the other hand, I do think that it might be able to secure widespread cooperation from national governments to cooperate in prosecuting war criminals, much as the Israeli government has received considerable support from other national governments in its long running, dogged and tireless efforts to prosecute Nazi war criminals for the principle of the matter even when they are elderly and harmless now.

War criminals who were located would be prosecuted in the U.N. War Crimes Tribunal, when available, a national court with jurisdiction (universal or specific) over the Defendant for the acts charged, or an agency military tribunal when neither the U.N. War Crimes Tribunal or a national court of the United States or a participating or cooperating country, is not available.  The relevant judicial body, as the case might be, would have authority to issue arrest warrants, to issue search warrants, to make extradition requests, to attach assets, etc. in countries with treaty relationships to the agency or a participating country taking action coordinated with the agency, and so on.  There would also be arrangements with the United States and/or other participating countries for the incarceration of war criminals convicted by these means.

Countries would have the option of signing on to a full fledged membership in the agency which would require it to consent in advance to any future authorized missions in their country, to cooperation with agency investigations and prosecutions of war criminals, and to other kinds of cooperation with and contributions to the agency.  Some of these might be particularized to particular relationships with individualized treaties in a manner a bit like individualized agreements in the Middle Ages of a notable lord to swear fealty to a more powerful sovereign lord.  They would have rights and privileges that would be respected by the lord and would be on the lord's "team" and not attacked by him without good cause, in exchange for recognizing the lord's authority to obtain certain kinds of support and cooperation from him.