30 October 2014

Odd And Untrue Anti-Udall Radio Ad

The U.S. Senate race in Colorado between Mark Udall and Cory Gardner is the closest in the country and could swing control of the U.S. Senate.

The latest ad I heard on the radio (this morning) was sponsored by Women for Cory Gardner or something like that.

It argued that choice of issues other than abortion (which Gardner wants to restrict in any manner possible, whether or not it is constitutional) and contraception (which Gardner has repeatedly supported "Personhood" measures to restrict despite a sudden about face arguing that oral contraception should be an over the counter drug, in part so it isn't provided via taxpayer subsidies for health insurance) was important to women.

The ad claimed that Udall wanted to take away at least three other kinds of choice for women in very non-specific language that was at best misleading and in most cases false.

1.  Udall wants to take away your choice of a doctor.  FALSE.

Presumably this is a reference to his support for Obamacare.

Despite the fact that Obamacare is not a single payer system, does not reduce choice of doctor in any way for people who have health insurance, and expands one's choice of doctors for the large number of people who couldn't previously afford health insurance.

Obamacare also greatly increases reproductive health and mental health options for large numbers of people who already had insurance, particularly in the individual and small business plan market.

2. Udall wants to limit choices about how to protect your family.  MISLEADING.

Presumably this is a reference to Udall's support for mild gun control measures.

If you are a woman who is also a felon, this is true.  If you think you need magazines with more than ten bullets to defend your family, this is also true.

In particular, Udall has not sought any new limitations on purchases of the ordinary handguns, rifles and shotguns usually used by families for self-defense, and has actually supported legislation to make it easier to carry firearms in checked luggage on Amtrak trips.  He has also supported legislation to limit tort liability for gun manufacturers when their products are used illegally or tortuously, as opposed to simply being defective.

If you are more concerned about making it easier for criminals to use their guns against you and your family, particularly criminals and impulsive men on the verge of having restraining orders entered against them, than about you having a military grade arsenal at your home, like most women, this isn't a big deal.

Notable facts: Criminals kill about 100 people with guns for every criminal killed by a law abiding person person with a gun.  Criminal commit a similar ratio of non-deadly crimes with guns for every non-deadly crime prevented with guns.

3. Udall wants to limit your energy choices.  FALSE.

Presumably this is a reference to Udall's support for various forms of regulation of fossil fuel extraction and combustion, and support for renewable energy measures.  At the level of ordinary voters, this simply isn't true, although he has supported some new regulation of air pollution and oil and gas production (an area OSHA and the EPA admit that they do not satisfactorily regulate) that impact utilities over whom consumers never had any choice or control in the first place.

Most Colorado voters have historically had one and only one choice when it comes to electricity and natural gas, because these are regulated monopolies.  In the Denver metropolitan area, you used to buy your electricity and natural gas from Xcel energy, the monopoly provider.  Gasoline and diesel fuel and propane, in contrast, have always been provided in highly competitive markets that Udall has done nothing to restrict.

Udall's support for renewable energy measures, however, such as alternative fuel vehicle credits and solar energy credits, have given people an alternative to gasoline and diesel in the transportation fuel market, and have given people an alternative choice to Xcel (or in conjunction with Xcel) for electrical and water heating energy.  Similar credits have also opened up additional conservation options, which is a choice to consume less money on energy.

Everything In Australia Can Kill You

Australia has far more deadly animals and climate conditions than just about anyplace else in the world, at least on a per capita basis.

These include four kinds of deadly snakes, two kinds of deadly jellyfish, disease carrying flying foxes, deadly ticks, spiders and centipedes, poisonous fish, octopuses, and fresh water amoebas, sharks, crocodiles, large flightless birds, hail, and extreme heat.  And, those of just the highlights.

The toxic and deadly fauna can largely be chalked up to extreme Red Queen type evolutionary competition in a hot, arid environment, and a relatively brief period of high density human habitation to exterminate smaller threats.

The people in Australia, on the other hand, are generally quite nice, even though they have funny accents and judges who wear wigs.

28 October 2014

Colorado Renames State Standardized Tests Again

In yet another puzzling and useless development pretending to be education reform, Colorado has renamed its state standardized tests again for the third time since my kids entered the public education system in the state. First, we had the CSAPs. Then, they were called the TCAPs. Now, they are called the CMAS.
The assessments are called the Colorado Measures of Academic Success, or CMAS for short. These statewide tests replace the former statewide exams known as the Colorado Student Assessment Program (CSAP) and the Transitional Colorado Assessment Program (TCAP).
The CMAS will serve the same purpose as the TCAPs and CSAPs, but will have a different set of four levels of grades with different cutoffs to achieve each of the four ratings, to keep us on our toes and to prevent us from making apples to apples comparisons for long time periods.

In principle, the CMAS will not be graded on a curve to the same extent as the prior renditions. But, since the tests are used to evaluate schools rather than having any role in educating kids, it really doesn't matter how they are graded.

Here's a prediction for you: the relative performance of kids, income groups, ethnic groups, schools and school within school programs on these tests will be almost exactly the same as they were when the tests were called the TCAPs and the CSAPs.  In physics, we call this a gauge symmetry.  In education, we call this shifting deck chairs on the Titanic.

Quote of the Day

"Sorry," I say, "I'll be right back and we'll go," leaving Ben to explain our plans and knowing that at this moment, he could say we were off to a heroin-smuggling operation in Mexico and that my father, dazzled and disarmed, would probably only ask if I needed any cash for tacos.
- Kat Rosenfield, in her novel "Inland"(2014).

27 October 2014

Rural New York State Is Much More Liberal Than Alabama

Lawyers, Guns and Money dramatically demonstrates how much more liberal New York State outside of New York City is than Alabama. For example:
If we look at the presidential level, a more useful metric in this context, we can see that upstate New York is overwhelmingly Democratic. In 2012, Obama lost three of New York’s 27 congressional districts: NY-22 [central New York] by .4%, NY-23 [Ithica and parts of the Finger Lakes] by 1.2%, and finally one solid Romney win in NY-27 [suburban Buffalo.] In Alabama, conversely, Romney’s percentages in the 6 of 7 districts he won were 62, 63, 62, 74, 64, and 74.

How Fast Can Gender Norms About Appearance Change?

Today, once of the most visually disturbing and alienating feature of Islam is the extent to which the religion places limitations on how women can dress. But, not so long ago, even the center of the American film industry wasn't that different when it came to using the force of law to impose dress standards on women (although this women's protest was ultimately upheld on appeal):
In 1938, L.A. woman defied a judge's order and wore slacks in court, earning her a five-day jail sentence 
Kindergarten teacher Helen Hulick made Los Angeles court history — and struck a blow for women's fashion — in 1938. Hulick arrived in downtown L.A. court to testify against two burglary suspects. But the courtroom drama immediately shifted to the slacks she was wearing. 
Judge Arthur S. Guerin rescheduled her testimony and ordered her to wear a dress next time. Hulick was quoted in the Nov. 10, 1938, Los Angeles Times saying: 
You tell the judge I will stand on my rights. If he orders me to change into a dress I won't do it. I like slacks. They're comfortable.
She returned to court five days later — in slacks — infuriating the judge. The Times reported: In a scathing denunciation of slacks — which he prosaically termed pants — as courtroom attire for women, Guerin yesterday again forbade Helen Hulick, 28, kindergarten teacher, to testify as a witness while dressed in a green and orange leisure attire. 
The last time you were in this court dressed as you are now and reclining on your neck on the back of your chair, you drew more attention from spectators, prisoners and court attaches than the legal business at hand. You were requested to return in garb acceptable to courtroom procedure. 
Today you come back dressed in pants and openly defying the court and its duties to conduct judicial proceedings in an orderly manner. It's time a decision was reached on this matter and on the power the court has to maintain what it considers orderly conduct.  
The court hereby orders and directs you to return tomorrow in accepted dress. If you insist on wearing slacks again you will be prevented from testifying because that would hinder the administration of justice. But be prepared to be punished according to law for contempt of court. 
Slack-shrouded Miss Hulick was accompanied by Attorney William Katz, who carried four heavy volumes of citations relative to his client's right to appear in court in whatever dress she chose.  She said: 
Listen. I've worn slacks since I was 15. I don't own a dress except a formal. If he wants me to appear in a formal gown that's okay with me. I'll come back in slacks and if he puts me in jail I hope it will help to free women forever of anti-slackism. 
The next day, Hulick showed up in slacks. Judge Guerin held her in contempt. She was given a five-day sentence and sent to jail. "After being divested of her favorite garment by a jail matron and attired in a prison denim dress, Miss Hulick was released on her own recognizance after her attorney … obtained a writ of habeas corpus and declared he would carry the matter to the Appellate Court," The Times reported. Hundreds sent letters of protest to the courthouse. Guerin's contempt citation was overturned by the Appellate Division during a habeas corpus hearing. Hulick was free to wear slacks to court. A couple of months later, Hulick came back to court. Her point made, this time she wore a dress.
On comment on this retrospective article at the Los Angeles Times noted that:
When I moved to western Michigan in 1973, women attorneys were not allowed to wear slacks, even tailored pant suits, in some judges courtrooms.
Now, of course, in the era of "Orange is the New Black" women in jail or prison are rarely allowed to wear dresses or skirts even if they want to do so.  And, about one in three women incarcerated in the world are incarcerated in the U.S. prison system, despite the fact that the U.S. has only about 5% of the world's population.

The direct contempt of court power under which Miss Hulick was incarcerated is essentially unchanged today from the way it was in 1938.

Dogs Are For Soup

While it is unfortunate that it took NRA support, I applaud the defeat of a Pennsylvania bill that allows the criminal prosecution of anyone who “[breeds,] keeps, sells, offers for sale or transfers a dog or cat for the purpose of human consumption." I also favor keeping slaughter houses for horse meat legal.

Eating dogs, cats and horses is a matter of taste, not a crime.  Many perfectly law abiding people in other parts of the world eat these animals, and animals are not people, no matter how much we might wish to imagine otherwise.  Given a choice, I will almost always side with the People Eating Tasty Animals version of PETA and not the often extremist People for the Ethical Treatment of Animals that wants us to call fish "sea kittens."

Now, this is not to say that I don't believe that cruelty to animals shouldn't be subject to a criminal sanction.  Torturing animals for cruelty's sake, rather than merely killing them for utilitarian purposes, is a characteristic trait of a psychopath and is often used as a means of intentionally inflicting distress upon, or threatening people.  But causing a swift death to an animal for food, or for advancing a clearly identified research objective in medical science is not cruelty.

26 October 2014

The 10 Worst Diet Foods

There are certain foods that diets love to include that have an impact on taste similar to including rat droppings or cat piss in your food:

1. Flax seed Guaranteed to make anything delightful into a chore to eat.

2. Tempeh  A nausea inducing meat substitute.

3. Capers and olives  Little nuggets of yuck.

4. Turmeric drinks  After one sip, you'll never want another.  Rust and water would have about the same color, but would be more tasty.

5. Protein powder  Looks and tastes like chalk, and isn't much more satisfying either.

6. Ricotta cheese  A gooey texture and almost rotting taste and smell that my wife thinks is dessert-like.

7. Turkey burgers and bacon  Turkey has its virtues; a Thanksgiving helping of slices turkey with gravy can be excellent.  But, turkey is not a good substitute for either ground beef or bacon.

8. Eggplant  Purple is a color that belongs on your sweater, not in your grocery basket.  Diets love to substitute eggplant for meat or cheese, a role that it just cannot live up to.  Honestly, there really isn't any role in a human diet that eggplant can live up to.  It is best reserved for pig slop on a farm.

9. Quinoa Imagine bird seed infused with pureed mold and you'll be fairly close to reproducing this diet recipe favorite.

10. Mashed Cauliflower  As a minor salad component, cauliflower has its place.  As a form of imitation mashed potatoes, it is a form of torture.

24 October 2014

Hottest October 24 on Record Today In Denver

The old record high of 80 degrees for October 24 in Denver was set in 2011. This year, this record was broken at 12:30 p.m. when temperatures reached 81 degrees and could easily reach 83 degrees before the day is out.

22 October 2014

Quote of the Day

You can't choose your destiny, you can only fulfill it or fail it.
- The Tomorrow People, Season 1, Episode 7 (2013-2014 remake by the the CW Network).

21 October 2014

Two Week Left Until Election Is Over

Voting is in full swing here in the swing state of Colorado and in two weeks, we will have a verdict from the state's voters.

17 October 2014

Vote Yes on Denver Ballot Issue 2A

Vote Now!

I filled out my mail in ballot today, and will drop it off at a 24 hour drop box (all of which have been open since October 15, 2014 in Denver), today or tomorrow.

If you vote by mail in Colorado, you should have your ballot for the 2014 general election by now.  If you don't, take action to make sure that you can vote.  Due to recent legislative changes, it is easier than every to vote, and the register to vote close to the election, than ever before in Colorado.

Previous Posts In This Series

In previous posts, I've discussed Colorado's four state ballot issues:

* Amendment 67 (personhood - vote no);
* Amendment 68 (horsetrack casino gambling - vote yes);
* Proposition 104 (restrictions on collective bargaining with school boards - vote no); and
* Proposition 105 (labeling genetically modified food - vote no).

I have also written about Colorado's judicial retention elections in 2014.

I've also discussed the importance of electing Democrats this year in Colorado.  Once again, Colorado is a critical swing state in both the U.S. Senate and U.S. House races, in addition to having a very close Governor's race underway.

In particular, the performance of incumbent Colorado state treasurer Walker Stapleton has been dismal.  (Incumbent  Republican Secretary of State Scott Gessler's performance has also been dismal, but he isn't running for re-election.)

Referred Measure 2A

Denver's Preschool Program, which was improved in 2006, provides access to high quality preschool for all Denver 4 year olds and is financed with a 0.12% sales tax (12 cents per 100 dollars).  The program will end in 2016 if not reauthorized.  Referred measure 2A will reauthorize the program and increase the sale tax amount to 0.15% (15 cents per 100 dollars) from 0.12%.

Also on the ballot is the City and County of Denver, Colorado is local referred measure 2A.  This ballot measure reauthorizes and expands Denver's Preschool Program.

Why Should You Vote Yes on Referred Measure 2A in Denver?

One of Mayor Hickenlooper's initiatives in Denver, before he became Colorado's Governor, was to subsidize preschool education, which is much more costly than K-12 education which is supported by state and school district tax dollars.

Preschool programs are more effective, by far, improving the lifetime academic performance of low income, black and Hispanic children relative to their middle class and affluent peers, than any other form of education spending.  2013 and 2014 Denver Preschool Program students did better than their peers who didn't attend a DPP program on their third-grade reading TCAP tests.

Participation in a preschool program also significantly reduces the likelihood that a child will be abused or neglected.  And, a parent's ability to put a child in preschool at an affordable price greatly increases the economic well being of low income and middle class families, both because it reduces the amount of money that must be devoted to child care, and because it makes it possible for a parent to obtain at least part-time employment where it would otherwise have been very difficult.

Denver's economic well being is well served by having all children (or at least as many as possible) whose parents want to be able to place them in preschool programs do so.  The preschool program in Denver has generally been a great success.  This is an investment in children that is well worth it.

The United States has a social welfare system and economy that produces epic rates of poverty for children, while almost no senior citizens, and a far smaller proportion of adults are destitute.  Poverty rates are particularly high for children of preschool age.  So, preschool subsidies are also justified in terms of relative demographic justice.

Vote Yes on Denver Referred Measure 2A.  This funds a preschool program that works and provides exceptionally great rewards compared to other public spending programs.

Vote For Betsy Markey For Colorado State Treasurer And Toss Incumbent Walker Stapleton

Besty Markey is the Democrat and a former state representative, who is running to replace incumbent Republican state treasurer Walker Stapleton in Colorado.

Why should you vote for for Besty Markey and against Walker Stapleton?

Mostly because in his first four years, Walker Stapleton has done a lousy job as state treasurer.

State treasurer is one of the least partisan elected positions in the state.  It calls for competence, diligence and honesty in managing state funds, while offering very little policy discretion.  It doesn't tip any partisan balances in the legislative or executive branches.

If you are going to cross party lines in your voting on any office, and instead focus merely on the candidate, this is the office where this can make sense.  And, whether you are a Republican, an unaffiliated voter, a Libertarian, or a Democrat, getting incumbent Walker Stapleton out of this job that he has utterly failed in, and replacing him with someone else, is an easy choice.

In practice, the only way to do that is to vote for Democrat Betsy Markey.  She is competent enough, and given the incumbent's performance over the last four years, the choice is an easy one.

1.  Walker Stapleton devotes very little time to this full time public office.

He shows up to work about 10 days a month.  He is gone from the office for weeks at a time.  When he does show up to work, sometimes it is after three p.m. and for short days.

He rarely shows up for PERA meetings, on whose board he serves ex officio, and when he does attend, often leaves early.  Here's his PERA meeting attendance track record:
2012: There were 10 PERA meetings. Stapleton attended 3, but left early at 2 of those. 
2013: There were 7 PERA meetings. Stapleton attended 2, but left both early. *NOTE: From the September 20, 2013 PERA Board Meeting Minutes: “Mr. Stapleton requested the removal of his absence from the June 25, 2013 Board meeting minutes, as his designee Brett Johnson was present.”
2014 (through June): There have been 5 PERA Board meetings. Minutes are not available for the June 24 meeting. Of the other 4 meetings, he has fully attended 1 and left early at another 2 meetings.
These meetings are not just some extracurricular fund activity for Mr. Stapleton.  They are a core responsibility of his full time job that the people of Colorado elected him to do.  He shouldn't have any higher priorities than his duty to the people of the State of Colorado as a statewide elected official.

2.  He has done a poor job carrying out his responsibilities to serve on the board of PERA, the public employees retirement system for Colorado.

He is on the record saying that:
It's time, unfortunately, that everyone that benefits from PERA sufferers. 
His has spent much of his term in contentious litigation with the rest of the PERA Board, which he lost.

3.  He has secured only a dismal 1% annual rate of return on Colorado's investments, during a recovery and financial market boom.

By comparison, the PERA board which manages the state's retirement assets, has had a long run (and recent) rate of return in excess of 8%.  His Democratic predecessor, Cary Kennedy, who served from 2007-2010 during the Financial Crisis and went on to become Denver's very competent CFO, in contrast, outperformed market benchmarks during this very difficult fiscal climate.

In his 2010 primary campaign, he said that the State of Colorado should invest its financial assets heavily in gold, which if he had done so, would have led to massive losses on the state's investments.  This has a lot to do with the fact that Stapleton is a life long realtor, a career to which he still devotes most of his time and efforts, with essentially no experience in finance or accounting.

4. He games Colorado's property tax system.

Walker Stapleton games Colorado's property tax system by pretending to be a gentleman farmer to secure huge property tax breaks for property that can't fairly be described as farming.

This isn't illegal, but it doesn't inspire confidence in someone whose primary responsibility should be to look out of Colorado's fiscal solvency.  Simply put, it doesn't reflect well on his character.

5.  He was arrested for DUI in  a hit and run incident in San Francisco in 1999 after hitting two pedestrians, and acknowledged that he was an alcoholic at the time.

He pleaded no contest to the DUI charge in exchange for having the more serious hit and run felony dropped.  He was sentenced to three years probation, twice a week AA meetings, and community service, in addition to restitution, fines and costs.

It could be that Walker Stapleton is managing his alcoholism better now than he was then.  But, this was no youthful indiscretion, hurt people and property, and he demonstrated irresponsibility when life tested him.

There are worse things in life to be than a recovering alcoholic.  But, why have a recovering alcoholic in a highly responsible statewide political office when we could have someone who isn't in alcoholic in that post.

6.  He is an heir to the KKK wing of the Republican party.

Walker Stapleton is the great-grandson of Denver's Mayor Benjamin Stapleton (from 1921-1931 and 1935-1947) and as Democratic State Auditor from 1933-1935, after which Denver's former airport and current redeveloped neighborhood is named.  This was back when the Democrats were the party of Southern Conservatives and the GOP was still the party of northern liberals in the tradition of Abraham Lincoln.

Mayor Stapleton's key to getting elected was support from the Ku Klux Klan:
Stapleton was the Klan candidate for mayor of Denver in 1923 and won the election with Klan support. When Stapleton declared his candidacy for mayor in March 1923, he was Klan member number 1,128 and a close friend of the Colorado Klan Grand Dragon, John Galen Locke.
After realignment, when conservative Southern Democrats were replaced by Republicans, and liberal northerners joined the Democratic party, most of the political heirs of the KKK wing of the Democratic party became Republicans.

Admittedly, Walker Stapleton is not responsible for things that he great-grandfather did before he was born (and in fairness, his great-grandfather's detestable racism and anti-Semitism didn't prevent him from accomplishing a lot as state auditor and Mayor of Denver).  But, it is hardly a proud legacy either, and is certainly not a legacy that Walker Stapleton is running away from himself.

Simple Graphs and Formulas Are Persuasive

Published this week in Public Understanding of Science, the Cornell Food and Brand Lab study found trivial graphs or formulas accompanying medical information can lead consumers to believe products are more effective. "Your faith in science may actually make you more likely to trust information that appears scientific but really doesn't tell you much," said lead author Aner Tal, post-doctoral researcher at the Cornell Food and Brand Lab. "Anything that looks scientific can make information you read a lot more convincing." 
The study showed that when a graph -- with no new information -- was added to the description of a medication, 96.6 percent of people believed that the medicines were effective in reducing illness verses 67.7 percent of people who were shown the product information without the graph. . . ."In fact, the more people believed in science, the more they were convinced by the graphs."
From here citing A. Tal, B. Wansink, "Blinded with science: Trivial graphs and formulas increase ad persuasiveness and belief in product efficacy." (Public Understanding of Science 2014) (emphasis added).

Let charitably, but to the same effect, the vast majority of people are at least somewhat innumerate, but most people can easily grasp simple graphs and formulas.

16 October 2014

Truth Stranger Than Fiction In Alaska National Guard Scandal

Wonkette's recounting of a sexual harassment, rape and credit card fraud scandal in the Alaska National Guard's recruiting office that implicates the Governor, who is now running for re-election, and numerous senior National Guard officials, reads like a John Irving novel.  It is both wacky and tragic, and is filled with characters so bizarre, it shouldn't be possible for them to exist in the real world.

Consider, for example, a Deputy Chief of Staff of the Alaska National Guard, who was a former pornography company manager and co-founder of an end times religious sect.  During his tour in Iraq, he served as the military advisor to the Mongolian Army.

The Republican Governor promoted him to his current high ranking post at the same time that a confidential report recommended him for a bad conduct discharge (a military equivalent of  serious misdemeanor conviction), for his role in facilitating $200,000 of credit card fraud in the recruiting office he supervised which was also notorious for its rampant pattern of sexual harassment and rape by a core of several recruiters under his command.

But, investigative reporting from the Anchorage Press, a newspaper with documents and sources to back up its allegations, corroborates the story.

We Are Uplifting Racoons

In the Uplift Universe of science fiction writer David Brin, humans deliberately upgrade the intelligence of chimpanzees and bottle nosed dolphins making them into sentient species equal in ability to humans.

In real life, humans are inadvertently placing selective pressures on urban raccoons that is creating a highly intelligence and capable subspecies of this scavenger species.  They are smarter than previous generations of their kind and smarter than their rural counterparts.  Alternately, their rapid adaptation could be a cultural or epigenetic adaptation.

14 October 2014

Denver Loses Another Excessive Force Case

A federal jury awarded the surviving family members of Marvin Booker, a homeless African-American preacher who died in the Denver jail, $4.65 million of combined economic, non-economic and punitive damages, plus their lawyers reasonable attorneys' fees and costs which are likely to exceed $1 million.

The City stipulated to liability for all non-punitive damages awarded, to avoid the introduction of similar incidents involving the city at trial, but that procedural trick made no difference in the end.

The City has not determined how the punitive damage awards against individual jail guards will be handled, or whether it will appeal the ruling.

The jury found that Denver jail guards violated Mr. Booker's civil rights by unconstitutionally using excessive force to subdue him in a videotaped incident.

The City has spent many millions of dollars on settlements and jury verdicts in excessive force cases involving its police and sheriff's departments, several involving multiple millions of dollars, and many more cases are in the pipeline.  A judge in a recent civil rights case related to harm to a prisoner in the jail concluded that Denver's attorneys' and internal affairs investigators were engaging in litigation misconduct and called for a federal investigation.

Heads have rolled in the Denver jail's management, and numerous reforms have been proposed.  But, the problem of improper conduct by Denver's police and jail guards remains an unresolved and long standing issue.

The U.S. Constitution does not allow state governments to be sued in federal courts, but municipalities may be sued in federal courts for civil rights violations, so long as the "qualified immunity" defense which makes money damages available for civil rights violations only in cases involving intentional violations of clearly established constitutional rights by particular named individuals acting under color of law.  If the City had not conceded liability for compensatory damages, the Plaintiffs would have had to show that the City had a policy or practice in place that caused the civil rights violation by its guards to take place.

13 October 2014

Popular Opinion And Marriage

Via xkcd.

Majority approval of gay marriage in public opinion preceded majority legalization of gay marriage.

Majority approval of interracial marriage followed Loving v. Virginia in 1967 by about three decades.

When Should Lying Be Legal?

Via Legal Theory Blog: Ariel Porat and Omri Yadlin (Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law) have posted Valuable Lies on SSRN. Here is the abstract:
Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information. 
This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling valuable lies in well-defined categories of cases.
There are a number of circumstances where the law authorizes, or at least does not punish, lying:

1.  Lies by law enforcement (but not prosecuting attorneys) in interrogating criminal suspects.  See Oregon v. Mathiason, 429 U.S. 492 (1977) (confession obtained through false statement that fingerprint evidence linked suspect to crime) and Michigan v. Mosley, 423 U.S. 96 (1975) (confession obtained through false statement that co-defendant had confessed).  See also Moran v. Burbine, 475 U.S. 412 (1986) (allowing confession to be admitted despite lie of police to attorney obtained by a suspect's sister to represent the sister to the effect that the suspect was not being questioned when he was being questioned, after suspect waived Miranda rights not knowing that attorney was available).
2.  Lies in connection with a covert intelligence or undercover law enforcement operation to targets of the operation, and in general, to sustain an officially sanctioned "cover identity" such as those in witness protection programs. See, e.g., Hoffa v. United States, 385 U.S. 293 (1966) (undercover agent in non-custodial environment) and Illinois v. Perkins, 496 U.S. 292 (1990) (undercover agent in jail).

3   Lies in the course of political debates and campaigns about policy issues.
4.  Lies about receiving military honors (in some circumstances) despite the Stolen Valor Act.

5.  Lies about your "bottom line" in negotiations.
6.  Lies that are not relied upon by the person hearing them.
7.  Lies about immaterial matters.
8.  Lies that do not lead to economic harm and don't violate other criminal statutes.

9.  Lies told in order to secure sex ("rape by deception" or "rape by fraud") (but some lies to secure a marriage about matters that are deemed to be material as a matter of law, may give rise to an action to annul a marriage).

Categories 1 and 2, as well as a doctor's lies, are true cases of alleged superseding justification.

Categories 3 and 4 are motivated by First Amendment concerns and about courts acting as arbiters of what is true, although I personally feel that 4 was wrongly decided as the usual First Amendment concerns about who decides what is true aren't applicable in any meaningful way.

Categories 5, 6, 7 and 8 are basically variations of the "no harm, no foul" rule together with a codification of what can and cannot be reasonably relied upon.  These are derived from the common law of fraud and misrepresentation.

Category 9 is also troublesome.  On one hand, there are often serious issues of proof, questions about what is material, and longstanding judicial distaste for interjecting itself into the dialog that leads to sex.  On the other hand, there are many cases where those concerns do not clearly apply.  There is also in category 5 a skepticism over how many lies as opposed to what amount to broken promises (express or implied, even if in the form of representation of fact) lead to sex.

In general, I don't favor broadening the scope of lies that are not sanctionable, except in "self-help" situations such as the lie about one's religious affiliation made to avoid unlawful discrimination, which in some sense is a generalization of the lack of legal sanction for lies about immaterial matters.  Indeed, there is a good argument that some of the above categories of authorized lies should be narrowed.

The lie in the abstract example about mineral potential is deeply problematic, because a whole framework of commercial practice and due diligence burdens is predicated on the inability to make material misstatements of fact about such matters, which is as much as rule of the road as it is anything else.  It would be deeply disruptive to commercial practice to change this rule.

Doctors have a very utilitiarian and paternalistic set of ethics and frequently feel that they have the right to lie for the greater good in all sorts of circumstances where it would never be tolerated from lawyers.

A more common a problem than the vaccination issue, which actually is very rarely the case, is the circumstance where prognosis information is withheld from terminally ill people or expressed in an unduly optimistic way, on the theory that a belief in a better prognosis will make it a better outcome more likely through a sort of placebo effect (with the placebo effect itself being the classic physician lie for the patient's well being).

Law enforcement officers and doctors, already conditioned to believe that it is ethically permissible to lie under some circumstances are also particularly prone to also lie for the impermissible purposes of covering up their own mistakes and the mistakes of their peers.

Another area where there is a distinction between non-disclosure and false affirmative disclosure that is, I would argue, morally relevant, is between anonymous or clearly pseudonymous writing in which there is clear non-disclosure of authorship, and sock puppetry, in which there is affirmative deception concerning authorship.

Energy Problems Solved

In an apparent violation of the law of matter and energy conservation, my car's fuel gauge appears to be be indicating that I have more gas in the tank the further I drive.  Then again, maybe it is a case of elves who appear when I'm not looking and fill up the tank.

I figure if we siphon off my gas tank every couple of days, we could shut down an oil well or two.

Then again, it could be that the folks at Midas on Colorado Boulevard at Alameda in Denver who worked on the fuel system on my car more than once in the last year could of damages the fuel gauge while they were working on it.

But, really, which seems more likely?  Incompetence at a nationally branded car repair facility, or elves refilling my tank?

Surely, it must be the elves.

The practical issue is whether I go back and try to get the company that previously screwed up to acknowledge it made mistakes and should repair the new problem free of charge, which they are unlikely to do and might lead to more mistakes, or do I simply call it a sunk cost and go to a different shop?

09 October 2014

2014 U.S. Senate Election Forecast

The U.S. Senate currently has 53 Democrats, 2 Independents who are aligned mostly with Democrats, and 45 Republicans.  Since one-third of Senators face election every two years, there are 36 states with U.S. Senate elections this year in the November 2014 election.

The FiveThirtyEight Blog Prediction:

* There are three U.S. Senate seats currently held by Democrats that the Democrats are almost sure to lose this year:

West Virginia
South Dakota.

There are no U.S. Senate seats held by Republicans that Republicans are almost sure to lose.

* There are seven U.S. Senate races in seats in competitive races that are currently held by Democrats that could flip to become Republican in the November 2014 election with FiveThirtyEight Blog handicapping:

Louisiana (R+5)
Alaska (R+3)
Arkansas (R+3)
Iowa (R+2)
Colorado (R+1)
North Carolina (D+3)
New Hampshire (D+4)

If all of these races go as predicted by FiveThirtyEight, the Republicans would pick up five more of these seats.

* There are three U.S. Senate races in seats in competitive races that are currently held by Republicans that could flip to become Democratic or Democratic-leaning independent in the November 2014 election with FiveThirtyEight Blog handicapping:

Kansas (I+2)
Georgia (R+2)
Kentucky (R+3)

If all of these races go as predicted by FiveThirtyEight, the Republicans would lose one of these seats.

* In all other races, a candidate of the incumbent party has at least a seven point lead in the polls.

* Thus, if every race goes as the poll analysis by FiveThirtyEight predicts, the Republicans will gain seven seats and have a 52 seat majority in the U.S. Senate.


Since Vice President Biden, a Democrat, breaks ties in the U.S. Senate, if there the Republicans hold 50 seats, then the Democrats will have a majority and organize the chamber.

The most likely ways for this to happen are for Colorado to re-elect Senator Udall, and for the Democrats to also win either Iowa or Georgia.

The FiveThirtyEight analysis actually gives Cory Gardner a mere 0.7% lead in the polling, and that analysis includes a September 13, 2014 Quinnipiac poll showing Gardner with an eight point lead (which it gives a fairly high weight) that is so far out of line in all of the Colorado races that it is simply not credible.

Historical trends in Colorado, which are also a factor in the FiveThirtyEight analysis, also do not reflect changes in Colorado law between 2012 and 2014 that make it easier to vote, a change that favors Democrats in the state.  These changes are also probably not reflected in the models used by the polling firms in their sampling.

If Udall holds onto his seat in Colorado, then a win by a Democrat in either Iowa (where FiveThirtyEight gives Democrats a 35% chance in race leaning Republican by two points), or Georgia (where FiveThirtyEight gives Democrats a  28% chance in a race leaning Republican by two points), would produce a 50-50 split and Democratic control, while both would give the Democrats a 51-49 majority in the U.S. Senate.

Put another way, a 2 percentage point shift in national public opinion in favor of Democrats during October would give them a 51-49 majority in the U.S. Senate.

What Trends Are Driving Turnover?

Most of the Senate seats which will be filled by a Senator of a different party than the incumbent in this election cycle reflect an ongoing process of realignment, with liberal leaning areas electing Democrats and conservative areas electing Republicans, a trend that has been gradually running its course for more than four decades now.  Some political historians mark Barry Goldwater's unsuccessful Presidential election as the start of the trend.

Many of the states that Democrats are most likely to lose in this year's U.S. Senate races are decidedly conservative "Red States" in which conservative Democratic incumbents with political roots in an era where not all Democrats were liberals and not all Republicans were conservative. Montana, South Dakota, Louisiana, Alaska, and Arkansas all fit this mold.

West Virginia is a bit more of a complicated case.  Its Appalachian cultural orientation suggests that it should favor the socially conservative stances of the Red States.  But, West Virginia is also a state that was formed to side with the North so as not to leave the Union to join the Confederacy along with the rest of Virginia pulling its political identity away from a political party dominated by formerly Confederate States.  Closely related is the fact that West Virginia is overwhelmingly white with few recent immigrants of any kind, because the counties that formed it did not have a history as a participant in the slave trade and its economy hasn't been vibrant enough to attract many economic migrants for a long time.  This has deprived the hot button anti-minority and anti-immigrant driven political stances of the Republican Party of much salience in West Virginia.

And, as a not very affluent state that is best known for its legions of blue collar unionized mine workers, the pro-union stances of a Democratic party that tends to favor the little guy over the affluent on economic issues have been appealing.

But, as opposition to gay rights driven by anxiety over the health of the family in communities with lots of men in blue collar jobs that have seen decades of stagnating or declining incomes and increased job insecurity has eclipsed racial politics in the political debate and that is something that can resonate in West Virginia.  West Virginia's unions have gotten weaker as its coal mining industry has struggled with competition from places like Wyoming in the West, reducing Democratic party support, and the sense that increased Democratic party support for environmental measures driven by the Democratic party's increasingly urban political base has left the Democratic party vulnerable in a rural state that is highly economically dependent upon an environmentally disruptive industry.  Finally, while the Republican party is still the party of the rich, relative to the Democratic Party, the social class divide between the political parties has grown less pronounced in favor of an emphasis on the cultural divide between the two political parties.

As a result of a shift in the policy issues that really define the Republican and Democratic parties respectively, West Virginia has found more and more in common with other Red States and less and less in common with the rest of the Democratic Party base, so eventually realignment caught up with it as well.

At the other end of the political spectrum, New Hampshire, a libertarian leaning New England state which was one of the last outposts of the dying breed of socially moderate New England Republicans.  Also, a growing share of New Hampshire voters live in bedroom communities of people who work in the Boston metropolitan area and thus, have an identity more urban than a cursory look at the state's own urban centers would suggest.

Three of the states in play in this election, indeed, three states which will in all probability decide which party controls the U.S. Senate this year, Iowa, Colorado, and North Carolina are in play for the ordinary reason that states or Congressional districts are competitive.  Iowa and Colorado and North Carolina are purple states where the Democratic Party and Republican Party are very evenly matched this time around.

Colorado was historically a Red State, but has been migrating to the left as urban centers like Denver, Boulder and Fort Collins, and left leaning resort towns built around ski resorts in the mountains with high population densities and many migrants from the West Coast and Northeast have moved to the state.  Meanwhile, rural Colorado areas with farm economies have gradually atrophied as farming has become more mechanized and more efficient and simply less economically relevant relative to the economic activity in the state's urban areas.

Iowa has historically been a Midwestern blue state, but has gradually been pulling to the right as its rural farming identity has become a less good fit to an urban oriented political party.  But, Eastern Iowa is more urban than most people realized, its college towns have become economic drivers just as they have in Colorado, and its farm communities like farm communities everywhere have thinned out, buffering Iowa from the wholesale rightward pitch seen in Kansas and Nebraska.

North Carolina is also a state whose political leanings are shifting together with its economy, allowing a Democrat to gain a small lead over a Republican challenger in a historically Red State in the South.  In a nutshell, North Carolina has leveraged its university system into a secondary center of the tech industry which has grown to become a leading part of the state's identity and economy, while traditional industries, like tobacco farming and processing, have withered in the face of nationwide efforts to reduce tobacco consumption.  The growing tech industry has brought educated, culturally non-Southern, urban oriented people to the state and facilitated their ability to organize and to have the cash needed to become a political force.  And thus, the one time Red State, like Virginia, to the North which has experienced a similar transformation driven by metropolitan Washington D.C. suburbs in Northern Virginia and the economic hub of the University of Virginia, has started to become more of a purple state.

Finally, there is one clearly Red state that will probably not elect a Republican to office.  In Kansas, the Democrats strategically withdrew their own Democratic Party candidate in order to back a moderate independent who was also challenging the conservative Republican candidate in the race.  The independent is now favored to win, because the Republican as one would expect from someone who is the product of a partisan primary, is further from the state's political center than an independent who wasn't vetted by a parade of Republican party litmus tests, and isn't burdened by the unpopular brand in the state of a Democratic President and a Democratic legislative caucus.  If the independent wins, there will be three independents in the Senate, all of whom are more comfortable aligning themselves with the comparatively moderate and big tent Democratic party, than the rigidly conservative Republican Party, at least while the Democratic party can stay in the majority with their support.

The bottom line bad new for Democrats is that many of their losses have been writing on the wall for years and will probably not be reserved in the foreseeable future.  The bottom line good news, however, is that Democrats are better equipped to bring purple states and independent Senators into their coalition than Republicans, and as a result, are still capable of holding a majority even in the U.S. Senate where their advantage in populous urban areas does not necessarily translate automatically into political power.

Another important point is that most "purple states" are in the process of shifting their political identity, rather than in a state of equilibrium.  They are either moving from being Red States to Blue States, or are moving from being Blue States to being Red States.

Fortunately for Democrats, the transition from Blue States to Red States, primarily in the South and the Great Plains, has pretty much run its course already.  But now, historically Red States with strong urban economies are starting to trend back to being Blue again.  This, in the balance of power within the U.S. Senate, is the demographic trend that is just starting to shift state political identities in the Democrats directions that may continue to play out that way for many years to come.  Eventually, this may be enough to turn the entire Southeastern seaboard Blue again.

08 October 2014

Coffee Lovers Born Not Made?

At least six genes that govern propensity to drink coffee and how your body processes coffee have been identified.

06 October 2014

Wake Up People! Vote For Democrats In Colorado.

There are three big candidate races in the 2014 election in Colorado, for which ballots will hit mailboxes in less than two weeks.

In the Governor's office, incumbent Democrat John Hickenlooper, a popular centerist former Mayor of Denver, faces Republican Bob Beauprez, a Tea Party Republican who thinks that IUDs are murder and doesn't believe in climate change.

In the U.S. Senate race, incumbent Democrat Mark Udall faces Republican Congressman Cory Gardner.  He has spent most of his career favoring an extreme "personhood" amendment that would put U.S. law on a par with the extreme anti-abortion stance of El Salvador as a matter of constitutional law, but recently made an about face to support over the counter status for birth control pills on the theory that if it can't be banned, that employer provided health insurance and tax breaks for medical expenses shouldn't support it.

In the highly competitive 6th Congressional District, incumbent Republican Congressman Mike Coffman faces Democrat Andrew Romanoff, former speaker of the state house of representatives who served at that time from a Washington Park district.

Cory Gardner and Mike Coffman are the local embodiment of a Republican majority in the House of Representatives that has shut down the government, played games with our national credit rating by threatening to default on the national debt, shut down immigration reforms essential to improving our economy simply to deny President Obama a legislative success, and in general, have stood in the way of any positive change through legislative channels in our nation's capital for the last four years.

I have met both John Hickenlooper and Andrew Romanoff personally, and they are the two most extraordinary people in Colorado politics today bar none.  These are people who can walk into a room where a compromise, let alone positive progress, seems impossible, and produce a deal that everyone would have assumed was impossible.  Each man is exceedingly intelligent, extraordinary civil across partisan lines, a good judge of character, and has a strong commitment to doing what is right.  Both are moderate Democrats, who nonetheless generally do the right thing and when they do recognize conservative political impulses do so in a moderate way.

Mark Udall is a reliable Democrat supporter, who has gone to bat for priorities that matter to Coloradoans, although in a legislative environment of split political control, he hasn't always gotten major initiatives of his own passed.

Colorado's U.S. Senate seat is the closest race in the nation according to poll analyst FiveThirtyEight, and our Governor's race and 6th Congressional District race, according to other poll analysts are likewise among the closest in the country.

Right now, Democrats hold just 52 seats in the Senate, while Republicans hold a slim majority in the House.  If Democrats lose control of the Senate, we will have deadlock on federal judicial appointments for the next two years, and national policies will tilt sharply towards Republican priorities:

* Making it harder to vote.
* Doing everything in their power to block women's rights and gay rights.
* Reducing federal spending that benefits the poor and the unemployed.
* Ending the guarantees of the Social Security and Medicare system.
* Enlarging the ranks of the uninsured.
* Crush all unions.
* Reducing the remedies of those injured through negligence or fraud.
* Encouraging the teaching of bad science and fake history in our schools.
* Reducing funding for education.
* Reducing taxes on the rich and big corporations.
* Making it harder to immigrate to the United States or claim asylum here.
* Saying no to reforms of a broken criminal justice system.
* Making it easier to gain access to guns with no purpose other than to commit crimes.
* Gutting protections for the environment.
* Undermining the freedom of religion's establishment clause.
* Gutting campaign finance regulations.
* Letting our roads and bridges crumble.
* Shutting down funding for public transit.
* Allowing our economy to be gridlocked with excessive intellectual property protections.
* Punishing efforts to decriminalize marijuana.
* Increasing spending on wasteful military programs.
* Stopping U.S. efforts to hold war criminals accountable.

There are down ticket races as well.

A Democrat committed to improving access to the ballot box wants to replace our current notoriously corrupt Republican Secretary of State.

A Democrat who believes in the public employee retirement system wants to improve on the state's lackluster 1.4% return on investment during the incumbent's tenure.

A Democrat who believes in protecting civil rights, consumer rights, and a balanced approach to the criminal justice system, wants to replace the outgoing Republican attorney general, and his anointed successor who's signature point has been opposition to gay rights until that position was made futile by today's U.S. Supreme Court ruling denying further review for U.S. Court of Appeals rulings invalidating gay marriage bans.

Democrats very narrowly control the state house and the state senate right now.  Republican candidates, including one from a safe Republican district in Colorado Springs who the County Republican Chairman says reflects the value of the Republican party in the state, thinks that we live in a world where everything from homosexuality to the Federal Communications Commission's policies are a result of demon possession, and tried to exorcise the "demon" from a lesbian woman while he was a Navy Chaplin.

If you want gridlock and want to give power to people like him and like the extremists who have taken control of the Jefferson County School Board, vote for Republicans in the state house and state senate races.  If not, vote for Democrats who have been working for positive change in this state.

Keep in mind too, that in Colorado, neither Democrats nor Republicans can pass new taxes or increase state spending (even due to increased revenues from existing taxes) above an amount accounting for inflation and population, without a vote of the people.  Democrats in state office couldn't raise your taxes even if they wanted to do so.

Colorado Democrats are overwhelmingly moderates relative to their party as a whole.  Colorado Republicans are overwhelmingly extremist Tea Party advocates who bear the intellectual legacy of the John Birch Society and the KKK that was once powerful in Colorado.  The "County Club Republicans" of the 1950s have been driven out of the Republican temple in favor of people who see it as the party of conservative, Evangelical Christian white men with Southern roots and Confederate values.

A Democratic President backed by a U.S. Senate controlled by Democrats and legislation passed by Democrats in the first two years of the Obama administration, have allowed our economy to recover from years of corporate excess, inequality and Wall Street fraud.  A Democratic Governor together with a Democratic party controlled Colorado General Assembly, has brought the state prosperity, tolerance and justice that has made it an attractive place to live nationally.

People of the State of Colorado.  Wake up!  We are in a swing state, and if we want to preserve our prosperity and desirable way of life, we need to defeat Republicans who want government to fail and care more about preserving outdated and hateful prejudices than our economic and moral progress.

In 2014, no state in the union is more purple than Colorado.  This is the nation's swing state once again and your vote matters very deeply to the future of our country.

At Least We Don't Live In New York

There are many problems with the criminal justice system in Colorado and our juvenile justice system, in particular, has flaws.

But, in Colorado, almost without exception we do not subject our sixteen year old juveniles arrested (arguably without probable cause) on suspicion of robbery to 33 months of pre-trial incarceration (including 800 days in solitary confinement) only to have the charges dismissed in a prison like Riker's Island where violent pre-trial assaults by guards and fellow inmates are commonplace.

This pretty much takes the joint efforts of bad cops, bad jail guards, bad prosecutors, bad defense attorneys, and bad judges.  It also takes the indifference of a poor family that in all of that time can't make a $3,000 bond payment (which would probably have required only $300 in cash plus a car as security) to get him out of jail pending trial.  I seriously doubt that a family that was really committed couldn't come up with those resources for three straight years. [Update: It turns out that bail was revoked in full due to his indictment for a felony which constituted a probation violation after about two and a half months by a grand jury. After that, bail was no longer available.]

The case also raises the serious question of whether it is really appropriate to use adult speedy trial standard for juveniles for who have shorter time horizons. As his attorneys' explained:
Kalief was deprived of his right to a fair and speedy trial, his education, and, I would even argue, his entire adolescence. If you took a sixteen-year-old kid and locked him in a room for twenty-three hours, your son or daughter, you’d be arrested for endangering the welfare of a child.
It isn't unreasonable to conclude that pre-trial incarceration for an adolescent is more burdensome than it is for an adult.

Out With A Whimper [Updated October 7 and 8, 2014]

By denying certiorari from U.S. Court of Appeals cases striking down same sex marriage bans in Virginia, Utah, Oklahoma, Indiana and Wisconsin, the U.S. has effectively legalized same sex marriage in those states and also in Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina, which have rulings striking down the ban at the trial court level and are in circuits that have rulings to that effect which are binding precedents. By including these states, same sex marriage is now allowed in 30 U.S. states, up from 19 U.S. states before today.

 And, the rulings may tip the balance in the 6th (which is home to four states, none of which has legalized same sex marriage) and 9th Circuits (home to nine states, four of which have legalized same sex marriage) where rulings striking down same sex marriage bans are pending, adding more states to the total.  The 9th Circuit was widely expected to allow same sex marriage in any case.  But, the 6th Circuit has seemed to be leaning towards refusing to strike down the same sex marriage ban, something that might change now.

[Update October 7: The 9th Circuit has made its precedent invalidating same sex marriage bans in cases out of Nevada and Idaho.  This brings the total number of states that allow gay marriage or are in circuits invalidating same sex marriage bans to 35 plus D.C., out 51.]

[Update October 8: Every state in the 6th Circuit which awaits a fully briefed and argued ruling with a known swing vote judge (Judge Sutton), and outside the 6th Circuit Florida and Texas, as well as many other states, have trial court rulings striking down same sex marriage which are stayed pending circuit court rulings.  A 9th ruling in Idaho is stayed pending an application to the U.S. Supreme Court for review, but the 9th Circuit ruling is not stayed in Nevada.]

Colorado's attorney general has relented and agreed to end to stay of a state court ruling striking down the same sex marriage ban in Colorado.

In principle, the U.S. Supreme Court could take up a case in the future and rule otherwise, invalidating rulings striking down same sex marriage based upon federal law in all fifty states.  But, given the multiple circuit court ruling on the topic which it has declined to review, this seemed unlikely.

The 5th and 11th Circuits have no states where same sex marriage is currently allowed and no circuit court rulings on the subject.  The 8th Circuit has two state where same sex marriage is allowed, but not circuit court rulings on the subject.

Notably, this ruling defuses what had been a key issue in the state attorney general's race in Colorado.

01 October 2014

Shorter Pettis: Chinese Economy Still Doomed

China's economy has been experiencing very high rates of GDP growth for a long time.

Sooner or later what goes up must come down and produce a huge economic downtown of a magnitude rivaling the Great Depression in intensity. I'm on record predicting that this will happen sometime from January 1, 2014 through December 31, 2023, and more likely than not, at the early end of that time frame.

The situation is actually more dire than it seems using official statistics.

Chinese banks have lots of bad debt outstanding that hasn't been written off, artificially inflating GDP by a big amount.  But, since the real economic cost of the debt service exceeds the value of the investments that were produced with the money borrowed, there is a real economic loss.  Somebody in the Chinese economy, probably Chinese households, is going to bear the real economic effect of these losses that already exist sooner or later.  Probably sooner.

I'm still hopeful that my prediction that this downturn will not commence for at least another three months will hold.  But, I continue to be convinced that China is on the brink of an economic crisis which will have a profound global impact (although mostly less severe abroad than it is domestically for the Chinese).

The Geography Of Bad Consumer Debt

The problem of people who don't or can't pay their consumer debts is ubiquitous.

About 94% of all census tracts in the United States (which average about 4,000 people each), have someone living there with a credit report indicating that they are 30 days or more overdue on one of their currently outstanding non-mortgage consumer debts (i.e. they have "bad debts").  And, 99.99% of census tracts have someone living there who has had a debt referred to collections in the last seven years for a non-mortgage consumer debt (i.e. they have "been referred to collections").

The two groups, unsurprisingly, overlap.  About 79% of people with bad debts have been referred to collections at some point in the past seven years.  About 11% of people with credit reports don't have any debts (like a mortgage or credit card debts or a car loan or a student loan) of a type that would ordinarily be reported to a credit reporting agency, but have had some other debt (like an unpaid utility bill or medical bill) that has been reported to collections, causing a file to be established with a credit reporting agency.

Geographic Trends

But, there is wide regional variation within the United States in the amount of bad debt outstanding and of the percentage of people that have been referred to collections.

The Geography Bad Debt

In the 1% of census tracts with the highest percentage of people with bad debts, 40% of which are in Texas or Louisiana, 15% or more of people with credit reports have bad debt (about 0.05% have more than 25%).
Across the 50 states and Washington, DC, three states have less than 4 percent of the credit file population with debt past due: Utah, Washington, and New Jersey. Three states have more than 7 percent of their credit file population with debt past due: Louisiana, Texas, and Mississippi.

Across the largest 100 metropolitan statistical areas (MSAs), Salt Lake City, Utah, has the lowest fraction of people with debt past due reported at 3.2 percent (appendix table A.2), followed by San Jose, California, and Seattle, Washington, at 3.5 percent. Some Texas and Louisiana MSAs are at the other end of the spectrum. In McAllen, Texas, 10.1 percent of people with credit files have debt past due reported; in El Paso, Texas, San Antonio, Texas, Baton Rouge, Louisiana, and New Orleans, Louisiana, approximately 9 percent of people with credit files have debt past due reported.
The Geography of Debts Referred To Collections

In the 1% of census tracts with the highest percentage of people who have been referred to collections, 75% of people with credit reports have been referred to collections.  Most of those census tracts are in the South or Appalachia.
Nevada . . . tops the list . . . 47 percent of people with a credit file have reported debt in collections. The District of Columbia and an additional 12 states (11 in the South) are over the 40 percent mark: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Texas, and West Virginia.

At the low end are three Midwestern states— Minnesota, North Dakota, and South Dakota—which have a substantially lower, yet still considerable, 20 percent of people with reported debt in collections.
How Much Is At Stake?

The amounts of unpaid debts in these cases is usually quite modest.

The average amount of money that a person with bad debt must pay to be brought current is $2,258 (the median amount is $651).

The average amount of a debt referred to collections is $5,178 (the median amount is $1,349) and shows only modest regional variation, with the Southern states that have the highest rates of debts referred to collections tending to have small amounts owed.


Not Household Income

Variation in household income is only weakly correlated with bad debt rates, accounting for only 9% of the observed variation in the percentage of people with bad debt and only about 1% of the variation in the amount of bad debt owed by people who have bad debts.

The quite modest median dollar amounts of the bad debts and debts referred to collection relative to household income, and the only modest correlations between bad debt rates and household income, suggest that economic stress is not the predominant source of the regional differences in bad debt rates.  Average difference of a few hundred dollars in consumer debt financed debt spending, or personal consumption spending of people with consumer debt, would make a very large difference in the percentage of people with bad debt in any given place, since the median amount of bad debt is so modest.

Race Is A Minor Factor

At first blush, race looks like it could be a significant fact, and it probably has a statistically significant correlation.  The South, which has the most bad debt, also has a much larger African-American population than the rest of the United States.  But, upon closer examination, race appears to be a fairly modest issue.

While many places with high rates of bad debt and debt referred to collections have large African-American populations.  Others, like West Virginia, Texas and Nevada do not have particularly large African American populations.  Many of the states with very low and very high rates of bad debt have very small Hispanic populations.  And, states at any given band of rates of bad debt and debts referred to collection have wide variations in the size of their Hispanic and their combined black and Hispanic populations.

This impressions is reinforced when looking at more targeted metropolitan area statistics.  Many poor, depressed Rust Belt cities with large African-American populations have relatively modest bad debt rates and rates of debts referred to collection, compared to more prosperous metropolitan areas in the South with similar demographics.  If rate (or unemployment rates which are strongly correlated with race) were driving the disparities, one would expect these places to have similar rates of bad debt, instead of quite different rates.

Instead, Detroit, which is overwhelmingly African-American, has considerably low rates of cases referred to collection than, for example, Houston or Dallas.

The Housing Bubble Looks Unlikely As A Factor

Nevada and Florida, which were among the states hardest hit by the housing bubble collapse, has a very high rate of debts referred to collection.  But, California, which was also severely hit by it, does not.  And, Texas, which was largely spared, also does not.

Other Possible Causes

There are at least two other kinds possible causes look more plausible.

* State Level Legal Differences That Vary By Region

One possible source for the regional variation has legal sources.

Many states with high rates of bad debts and debts referred to collections also have generous laws protecting property from being collected by creditors, while regions with low rates of bad debts and debt referred to collections.  Texas and Florida, for example, have generous homestead exemptions that protect virtually all real estate equity from the claims of consumer debt creditors.

Also, while average household income isn't strongly correlated with bad debt, the federal bankruptcy protection means test for obtaining a Chapter 7 liquidation in bankruptcy without a payment plan is much more strict in many of the states with high rates of bad debt.

For example, states with high rates of bad debt also typically regulate consumer finance and debt collection less aggressively, have much more regressive state and local tax systems, have less generous social safety net programs, and impose more civil disabilities on people with criminal records.  All of these policy differences could translate into more bad debt.

* Regional Housing Prices

States with high average levels of mortgage debt have lower average levels of non-mortgage consumer debt, and visa versa.  And, this may be one of several relevant factors.

High levels of consumer debt may in places with high bad debt levels may arise because people make more debt financed consumer purchases because they have more money left over after paying their housing expenses.  People who have less consumer debt are less likely to have bad debt.  And, in some places, debt financed consumer spending is less common because everyone had less non-housing money to spend on consumer goods.  For example, people in New York City tend to spend far less on debt financed automobile purchases and far more on rent than people in Texas.

The problem with this explanation, however, is that it fails to explain low rates of bad debt in the Midwest and Plains states where housing is often dirt cheap relative to household incomes.

* Culture May Drive Regional Differences

Many of the areas with high rates of bad debts and debts referred to collection are also places immersed in Southern culture and Evangelical religious beliefs.  This is a culture that emphasizes that people sin and are forgiven, and emphasize God's providence in times when there seems to be no hope, while their Protestant peers in the North tend to place more emphasis culturally, on thrift and on not sinning in the first place and less on forgiveness.  A common translation of the Lord's Prayer in much of the North refers not to people "who trespass" and "trespasses" but to "debtors" and "debts."

It is entirely possible that social norms about the importance of paying one's debts are simply stronger in the North than in the South, and indeed, that differences in the relevant laws between these regions reflect these different attitudes.  The relatively homogeneous trend across the Southern cultural area, and the fact that some Northern States with generous exemptions from creditors (like Minnesota) still have low rates of bad debt, tend to favor this explanation.  The stark disparity between neighboring Nevada and Utah, despite the fact that the state's neighbor each other and actually have quite similar laws on many relevant topics, similarly favor a explanation for the geography of bad debt based upon regional cultural differences.

The Legal Process

The courts of limited jurisdiction where these claims are adjudicated have massive case loads, have loose procedural rules with little pretrial structure, receive little political attention, go largely unnoticed by the media, and adjudicate the vast majority of claims by default or by settlement.

Notably, in collections cases, getting a money judgment from a court is often of only minor relevance to collection success, as finding a source of payment is often the real issue.  And, often, there are rights to repossess property or a security deposit, pursue an insurance claim, harm a person's credit rating, or to refuse to do further business with a consumer (a particularly powerful option in the case of a monopoly like a utility company) that provide remedies for creditors beyond those that a money judgment from a court can offer,  In contrast, it is impossible to get divorced or to conclude a criminal prosecution, for example, without court involvement.

In limited jurisdiction court collection cases, creditors are usually represented by collection agency lawyers who mass produce cases, while debtors are almost always unrepresented since the cost of a lawyer and unlikely prospects of reducing their obligations by paying their own lawyer plus the fees to which a collections lawyer is legally entitled if a collections lawsuit drives up the collection's lawyers' fees when contested, rarely justifies the amount of money judgment reduced through litigation in these cases.  Politically, this means that creditors through their attorneys' have a core of full time professional advocates who may seek political action, while consumer debtors have no similar core of professionals protecting their interests in the courts or in the legislature.

Then again, limited jurisdiction courts offer justice that consumer debtors can afford, are often much more affordable than options like consumer arbitration, and are more management for pro se parties (i.e. people without lawyers) to navigate than general jurisdiction courts that handle bigger disputes.

And, for someone who rents and doesn't have much property subject to creditor's claims other than their wages, the worse case scenario in a court of limited jurisdiction, compared to the outcome that would happen if a lawyer negotiated the claims and litigated, is often not that much different (something that is very much not the case when large debts, often of a business nature, are litigated in general jurisdiction courts and huge concessions can often be secured).  Typically, in large dollar debt collections, the biggest concern is about a loss of asset value due to a fire sale of assets in the collection process, something that is far less of a concern when wage and bank account garnishments are the primary remedies.

Relief from various enforcement approaches is often handled by negotiation rather than as a matter of legal right that a court outside of a federal court bankruptcy system can confer, in any case.

Also, often the problem faced by a consumer debtor is an inability to pay a debt, rather than a material dispute over whether most of it is owed.  In those cases, the end run of bankruptcy court, where consumers are often represented efficiently and inexpensively by lawyers who mass produce consumer bankruptcy cases with heavy paralegal involvement provide a more efficient solution than litigation of individual claims on the merits of the debt in limited jurisdiction courts.

Political Considerations

Partisan considerations aside, policies impacting bad debt and debt collection have broad impact.  Nationally, 35% of people with credit reports have been referred to collections within the last seven years.  Bad debt is also an important issue for almost every business and financial institution involved in extending consumer credit.  Of course, people with a stake in businesses collecting their debts tend to be reliable voters who can donate some money to political campaigns.  They also have an ongoing stake in the issue as repeat players in this legal arena and the wherewithal to do something about it politically, something that stressed consumer debts rarely have available to them.

Only about 3% of people resort to payday loans or pawn loans in a given year, and only a modest share of people who are referred to collections go bankrupt.  So, policies regulating the collections process and consumer finance outside of bankruptcy have wide impact.

It is also not too surprising that pro-debtor legislation like the bankruptcy code and fair debt collection practices act, tends to be federal, since voter turnout in federal elections is higher, while pro-creditor legislation tends to be enacted at the state level where voter turnout is lower.

On the other hand, the number of consumer debtors who have experienced the collections process first hand as debtors vastly outnumbers the number who have experienced it from a creditor's perspective.  And, while consumer debts in the collections process tend to be working class or middle middle class, about 20% of the adult population, mostly those with too few assets and too little income to get credit, don't participate in the consumer finance economy at all.  So, consumer debtors with bad debt are not the most politically vulnerable people in the electorate either.

While the Republican party espouses a pro-business orientation, bad debt, and the need to refer debts to collections, is clearly not something that businesses like to experience.  Consumers obviously, don't like to struggle with their debts either.

States with higher than average rates of bad debt and referrals of debts to collections, are overwhelmingly Red States.  States where bad debt is less common strongly tend to be blue states.  On the other hand, it isn't clear that politicians of either party really understand which policies most strongly influence this process or what kind of influence those policies have.  For example, for the most part, exemption from creditor laws are static with little legislative action from either party away from status quo positions set often many decades in the past.

Of course, if bad debt and referral to collections rates are more a product of cultural norms than legal rules, then maybe legislative action is irrelevant.


All statistics in this post not otherwise sourced come from a July 29, 2014 study by the Urban Institute of the TransUnion credit reporting database (TransUnion is one of the three dominant credit reporting agencies in the United States).