31 March 2016

Rule 40(b) Forecloses White Knight Bid At GOP Convention In Cleveland In July

It is theoretically possible for the Republican party to change its rules to allow someone other than Trump or Cruz to be nominated (due to a rule called 40(b) that requires a nominee to have won eight states, as Trump already has, unless no one does) if no candidate gets a majority of the delegates going into the convention.

But, in practice, this is virtually impossible to do given the political realities of the GOP primary and caucus process this year.

There is no realistic chance that Kaisch will win majorities in eight states after winning only one so far, with only about a third of the states left.  But, delegates that he wins do help deny Trump a majority leaving open the possibility that non-Trump delegates would choose Cruz instead if the overwhelmingly preferred Cruz over Trump, which is certainly not a foregone conclusion and realistically, is unlikely (particularly given that the Ben Carson has already endorsed Trump).

The Balance Of Power In The Federal Judicial System

The U.S. Supreme Court has an anomalous 4-4 spit between liberals and conservatives (Justice Kennedy remains the effective swing vote to get a majority for liberal positions, but he can no longer deliver a conservative majority), with no short term fix as the Republicans who control the U.S. Senate have promised not to hold hearings on President Obama's center-left, not young, nominee for the post.

This may fire up GOP voters who would otherwise have no hope of securing a conservative majority on the Court even if a Republican wins the Presidential election.

But, given that the prediction markets are currently giving Hillary Clinton, who would likely nominate a more liberal judge to fill the Supreme Court vacancy if she wins (and will likely have more Democratic Senators even if Democrats don't control the Senate), a 75% chance of winning in November, and the serious possibility that a President Trump (with a 20% chance of being our next President) might be fickle towards the GOP base when choosing a Supreme Court nominee, the game Republican Senators are playing will probably turn out badly for them, even if they don't lose additional seats in the Senate as a result of their conduct.

Tie votes affirm the ruling of the U.S. Circuit Court of Appeals or state supreme court from which a ruling is appealed, allowing for regional splits of authority to develop.  This happened anyway, due to U.S. Supreme Court indifference to some circuit splits, but now this splits are indefinite and certain on hot button issues.  This makes the partisan leanings of the federal circuit courts more important:
Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority. 
Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future.
Another four years of Hillary Clinton as President would make the federal courts lean liberal even more strongly.

Of course, the state courts still exist and are functioning, a lot of important legal decisions are made by state supreme courts, Republicans have a definite geographic edge in state court appointments, it is easy enough for a wily state supreme court to avoid U.S. Supreme Court review by making decisions based upon state law in many cases, and there are simply too many state supreme courts for the U.S. Supreme Court to meaningfully oversee all of their decisions and all of the federal courts of appeals.

Expect Republicans to suddenly find a distaste for the federal courts and new found love of state courts, while Democrats do the opposite, after many years when the conservative leaning of the federal courts had made them the darlings of Republicans.

30 March 2016

Obama Commutes More Prison Sentences

President Barack Obama is commuting the prison sentences of 61 people who were serving time for drug offenses, the White House announced Wednesday. More than one-third of the 61 individuals who had their sentences commuted were serving life sentences. . . . Obama has now commuted the sentences of 248 individuals, more men than the past six presidents combined, according to the White House.
From here.

President Obama has also issued 70 pardons.

The vast majority of commutations are issued around Thanksgiving and Christmas, although there is another minor peak in commutations around Easter.

A commutation is a reduction of sentence for someone currently in prison.  The President's unlimited and purely discretionary power to commutate sentences is a subset of his power to pardon people convicted of federal crimes, something rarely done for someone currently in prison, but far more often done to clear the criminal record of someone who has served their time and been a good citizen who is disqualified from some civil right by virtue of a conviction.

Mass commutations and pardons are also allowed, the most recent of which was a pardon for Vietnam War draft dodgers several decades ago.

The federal prison system, over which President Obama has commutation power, has roughly 200,000 inmates at any given time, and far more individuals over the course of an eight year Presidential term.  Drug offenses, immigration offenses, fraud offenses, and ordinary felonies committed on Indian reservations and federal property, make up a disproportionate share of federal inmates.

The pardon power has been used much more sparingly in recent years than historically, in part, because far more judicial opportunities for post-conviction review are available.

Until the 1890s, for example, direct appeals of federal criminal convictions were not available and only habeas corpus review of federal criminal convictions (with much narrower grounds for granting relief) was permitted. The right to a direct appeal of a criminal conviction remains a statutory or state constitutional right, rather than a federal constitutional right, to this day.

It was once fairly common for a President or Governor to pardon someone convicted of a crime due to a doubt regarding guilt or innocence.  Now, such pardons are vanishingly rare.

But, commutation of sentences is important, particularly in the federal system, because mandatory minimum sentencing laws frequently require judges to sentence convicted defendants to terms much longer than the judges believe are just.

Furthermore, the U.S. Supreme Court, in a series of cases on the issue, has virtually eliminated any flexibility for state or federal judges to hold that a sentence other than a life in prison without possibility of parole sentence imposed on a juvenile, or a death sentence, violated the 8th Amendment prohibition on cruel and unusual punishment.  For example, it has upheld life in prison sentences for recidivist offenders who are convicted of minor shoplifting offenses.  There is somewhat more latitude under the 8th Amendment in cases where the offender has no prior criminal record, but the sentence must still be grossly disproportionate to the crime to qualify for an 8th Amendment reduction.

State Business Climate Indexes Are Worthless Or Worse

State business climate indexes are a political tool, not a meaningful economic indicator.
This study submits 11 business climate indexes to tests of their ability to predict relative economic performance on either side of state borders. Our results show that most business climate indexes have no ability to predict relative economic growth regardless of how growth is measured. Some are negatively correlated with relative growth. Many are better at reporting past growth than at predicting the future. In the end, the most predictive business climate index is the Grant Thornton Index which was discontinued in 1989.
From here.

29 March 2016

Not The Best Way To Say "I Still Love You"

Among the many ineffectual and counterproductive ways to get your ex-wife's attention, hijacking a commercial airplane ranks right up there as among the worst.

Harvard Law Pays

If you are an ordinary criminal with no college degree, odds are your efforts to steal less than $500 of jewelry in a home invasion robbery will net you 25 years in prison (before a 25% good time deduction).

If you go to Harvard Law School, you may still go to prison for a long time when you commit a crime and get caught.  But, for $95 million dollars, maybe it was worth trying, and the federal prison where you are sent will probably be more pleasant than the state prison that the blue collar criminals frequent.

28 March 2016

More Evidence That Subclinical Autism Traits Are Associated With Autism Genes

A recent large genome wide association study identified risk factor genes for autism and noted that even among people not diagnosed with autism, that these risk factor genes were associated with subclinical levels of autism symptoms.

This confirms previous hints along the same lines in a 2013 study, a 2012 study, a 2010 study, and an earlier one in 2004 (discussed with the 2013 study).

Also, there is no doubt that there is a significant genetic component to autism spectrum disorders that is inherited from one's biological parents (see, e.g., here looking at sibling rates and this twin study).  Stephen Hsu's take on this study includes excerpts from it that explains that there are many known specific genes that are risk factors for ASD.

But, oversimplified genetic models of the condition's prevalence fitted to the data also strongly suggest (particularly based on the link between prevalence and advanced parental age) that a very substantial share of all autism cases involve mutations that are novel to the child and not present in either parent's genome. My crude estimate in 2008 which nonetheless is still a pretty good fit to the data eight years later suggests that:
[A]bout a third of autism cases are due to non-age related mutations of in sperm or egg cells of parents who don't have an autism gene, about a third of autism cases are due to age regulated mutations in sperm cells of fathers aged 30 or more who don't have an autism gene, and about a third of autism cases are a result of inheriting an autism gene from a parent, usually a carrier mother or a mild ASD symptom parent of either sex.
This estimate may be high, but is order of magnitude correct.  For example, a 2014 study comparing whole genomes of individuals with ASD and their family members, found "de novo" mutations contributed to 30% of cases of male ASD and 45% of cases of female ASD (see also this 2015 study).  Indeed, the cause of seriously developmental disabilities, in general, is roughly similar to the pattern observed in ASD spectrum disorders.

Also, one thing that we do know beyond any reasonable doubt is that vaccination does not cause autism.

A weak capacity for empathy is often considered a diagnostic symptom of autism. But, even if this is true, empathy can cause its own problems and can lead to bad moral decision-making by people in leadership positions. It isn't unreasonable to think that some level of neurodiversity is beneficial to our society, even if the most severe cases of autism are something no one should have to experience.

25 March 2016

Spontaneous Group Heroism

Security footage from China captured the swift and effective coordination of a group of bystanders to save a pedestrian who was run over by a van and then trapped under by tipping the van over the free the victim.

China isn't unique.  Something similar happened not so long ago in Western Pennsylvania where motorists who witnessed a semi wipe out with its driver trapped in his cab, teetering on the brink of disaster on the edge of a cliff, formed a human chain to rescue him.

Surprisingly often, heroism involves the coordination of people with very weak ties to each other working together, rather than a single individual saving the day.

A Very Bad Invention And A Good Idea

The really bad invention

An assault rifle that automatically uploads a point of view version of its shooting sprees to You Tube.

* If you are in the military, this no doubt leads to critical security breaches and potentially tips off your enemies.
* If you are 98% of people in law enforcement, you don't need an assault rifle.
* If you are a crazed mass shooter, we don't really want to encourage you or make your job easier, and from a purely economic perspective, the market made up of affluent crazed mass shooters (these cost $7,500+ each) is not a really big one.

The good idea

Buildings in places where it snows tend not to be flat for good reason.  You want gravity to cause snowfalls to slide off the roof.

But, motor vehicles of almost every shape and size have roofs that are very nearly flat on the left to right axis of the vehicle.  Yet, most models of motor vehicles are sold in places where it snows sometimes and cars are parked outside sometimes.

Why not design car roofs so that they naturally allow snow to fall off to either side of the vehicle?

Now, you probably need a different shape than a building roof because motor vehicles are routinely exposed to much higher winds and aren't so firmly attached to the ground.  You don't, for example, want a concave curve on each side of the vehicle into a thin, tall dorsal fin running down the middle of your car, which could blow you out of your lane in high winds.

But, a car whose top half of the chassis was in the smooth convex shape of half a jelly bean, or half an egg, or half of a rugby ball, would allow snow that fell on the roof of the vehicle to slide off much more readily to the sides of the vehicle, without impairing the ability to stay in a lane or navigate.

24 March 2016

T. Gondii Linked To Anger And Aggression

While correlation isn't causation, the data from this study is pretty suggestive and it definitely deserves further study and an attempt to replicate the result. These parasitic infections can be treated with drugs and doing so might become a standard part of an overall treatment plan for people in anger management courses who test positive for the infection.
Intermittent explosive disorder (IED) is defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as recurrent, impulsive, problematic outbursts of verbal or physical aggression that are disproportionate to the situations that trigger them. IED is thought to affect as many as 16 million Americans, more than bipolar disorder and schizophrenia combined. . . .

Coccaro and his colleagues examined possible connections [of IED] to toxoplasmosis, an extremely common parasitic infection. Transmitted through the feces of infected cats, undercooked meat or contaminated water, toxoplasmosis is typically latent and harmless for healthy adults. However, it is known to reside in brain tissue, and has been linked to several psychiatric diseases, including schizophrenia, bipolar disorder and suicidal behavior.

The research team recruited 358 adult subjects from the U.S., who were evaluated for IED, personality disorder, depression and other psychiatric disorders. Study participants were also scored on traits including anger, aggression and impulsivity. Participants fell into one of three groups. Roughly one third had IED. One third were healthy controls with no psychiatric history. The remaining third were individuals diagnosed with some psychiatric disorder, but not IED. This last group served as a control to distinguish IED from possible confounding psychiatric factors.

The research team found that IED-diagnosed group was more than twice as likely to test positive for toxoplasmosis exposure (22 percent) as measured by a blood test, compared to the healthy control group (9 percent). Around 16 percent of the psychiatric control group tested positive for toxoplasmosis, but had similar aggression and impulsivity scores to the healthy control group. IED-diagnosed subjects scored much higher on both measures than either control group.

Across all study subjects, toxoplasmosis-positive individuals scored significantly higher on scores of anger and aggression. The team noted a link between toxoplasmosis and increased impulsivity, but when adjusted for aggression scores, this link became non-significant.
From here. The source for the quoted article is Emil F. Coccaro, et al., "Toxoplasma gondii Infection." The Journal of Clinical Psychiatry (2016).

Another recent post on the effect of this infection on personality is here.  A previous post linking the infection to suicide is here.

Colorado's Punishment Rate Increased More Than Any Other State From 1983 To 2013

The "punishment rate" as measured by the Pew Foundation is a state's incarceration rate per capita, normalized to reflect the rate at which various serious crimes for which there is good information available are committed in a state.

Thus, a state with a middling incarceration rate could have a high punishment rate if it incarcerates so many people despite having a very low crime rate, or could have a low punishment rate if it has a much higher than average crime rate.

Colorado currently is very close to the U.S. average for its punishment rate and its incarceration rate.

But, this wasn't always the case.  No state in the United States has seen its punishment rate increase more rapidly over the two decades from 1983 to 2013, during which Colorado's punishment rate increased by 417% and its incarceration rate increased by 271% (the 6th fastest growth rate in the nation).

The lowest increase in the punishment rate over that time period was in North Carolina, where it increased only 17% (it is now 372).  Nationwide, the average increase in the punishment rate over that two decade time period has been 165%, while the incarceration rate has increased nationally by 149% (reflecting a modest drop in crime between 1983 and 2013).

Basically, over the last twenty years, Colorado has gone from being one of the most lenient in the nation in incarcerating people per comparable crime committed, to average.  No state in the nation today has a punishment rate as low as Colorado's was in 1983.  (It is now 469 and was about 100).

  For the most part, this happened because the legislature decided to enact higher sentences for the same crimes and to pay for the prisons needed to incarcerate the people sentenced under those new laws.

A Forest Level View Of Islamist Terrorism

Terrorist attacks like the one this week in Brussels are stunning horrific events that we need to make all reasonable efforts to stop. But, it pays to take a moment to get a forest level perspective on the phenomena of terrorism in general, before coming to conclusions about how to address it.

From 1970 through 2014, the small red bars are Islamic terror attacks in Europe, all the rest are groups like the IRA Provos, Red Army Faction and the like which were far more numerous and more deadly than these recent attacks we have been seeing lately. 
Via Sallyanne Ofner.

Islamist terrorism may make headlines, but the overwhelming majority of terrorism in Europe in my lifetime has had its roots in regional autonomy movements and home grown political groups.

The United States has had far less domestic terrorism than Western Europe, but even in the U.S., some of our worst terrorist attacks have been domestic, such as the Oklahoma City bombing:

Likewise, most recent Islamist terrorist attacks have been directed at other Muslims, something that U.S. news outlets, due to their audience and sources of news, tends to distort:

Also, it is important to recognize that terrorism still causes far less harm than crimes committed by people with no coherent agenda or larger organizational ties.  Consider:

23 March 2016

7003 Posts

This is the 7,003rd post at Wash Park Prophet (there are another 932 posts at sister blog Dispatches at Turtle Island and another 38 posts which are part of an incomplete serial novel at sister blog Wash Park Poet).

In other news, the blizzard in Denver is so bad right now that I can barely see further than a block outside my downtown office window.

Arizona Republicans Slow On The Updake

Eleven of the fourteen candidates on the GOP primary ballot in Arizona are no longer running for President.  But, that didn't stop roughly 22% of Arizona Republicans for voting for them (more than either Cruz or Kaisch alone).

We'd like to hope that this is because lots of Arizona Republicans voted early or by mail, rather than because one in five Arizona Republicans live in a total media vacuum. But, given the high percentage of geriatric snowbird migrants in the Arizona GOP, it is hard to be confident that this is the case.

UPDATE: Confirmation?:
The campaign of John Kasich is a joke, and not a particularly funny one, unless you like humor at the expense of the GOP and conservatism. Yet the media and GOP establishment has largely failed to call Kasich out. But with his embarrassing losses in Utah and Arizona yesterday (incredibly, it appears he lost the latter even to Rubio, who has been out of the race for a week now), it is long past time to throw Kasich’s campaign into the ash heap of history.

Martian Property Law

Physics recognizes the inherent value of considering how its discipline will theoretically explain evidence that may be discovered in the future, but might not.

Legal scholars do so less often, but Thomas E. Simmons of the University of South Dakota School of Law has a fascinating article discussing how property law would play out in a hypothetical future permanent human colony on Mars in light of existing international treaties. It is a fitting subject for a legal scholar in a part of the country that was itself a new frontier not so long ago and has an economy similar to the one most people envision for a future Mars colony.

There is an academic literature on everything.

Musicians are no slouches either.  For example, electronic dance music group Blackwell has an album entitled "Music for Dining in Space."

22 March 2016


Islamist terrorists have struck the United States on 9-11 and in San Bernadino.  They have struck Paris, they have struck London, they have struck Madrid.  And, today, they have struck Brussels, killing at least thirty-one, wounding hundreds and disrupting European air traffic, first with two coordinated bombings in an airport - one involving a suicide bomber, and then with a subway bombing.

It is hard to imagine a campaign better calculated to turn mere indifference towards the affairs of the Islamic world into an "all in" effort of a wide coalition to crush ISIS and its allies, and simultaneously to discourage political efforts in the West to accept refugees and other migrants from the Islamic world.

The West has vast military resources that it can deploy, if it has the will to do so and a strategy that appear that it might work. The resources of Islamists, meanwhile, derive predominantly from oil sales, in legitimate, gray and black markets, to the rest of the world.

These deliberate provocations may improve these organizations' global prestige in the short run, but it is hard to see how they do anything but invite disproportionate retaliation in the long run. In the long run, every life taken in a terrorist attack may reap vengeance ten-fold or a hundred-fold.

This is not to say that war and xenophobia are the best policy responses, but they are the most natural ones.

There are root causes that are much harder to address. Authoritarian dictatorships and monarchies that use brutal means with religious excuses to achieve their ends. Oil wealth that allows destructive ideologies to thrive because there is no economic imperative to keep other parts of the economy healthy. Unemployed religiously indoctrinated men in places like Saudi Arabia who want to be heroes. Hardship created by war and the unequal distribution of resources and a culture of honor in a world where success depends instead on trust and cooperation and forgiveness. Societies of clans of cousin married families who bear loyalty to the clan rather than to the rule of law or a moral code.

But, the crude instruments of foreign policy and war afford the rest of the world little room to intervene, and the non-democratic governments of states that have chosen the path of no taxation and no representation aren't easily reformed from the grass roots either.

The terrorist groups and the non-Islamic states that respond to their provocations are playing a dangerous game.  And, there will be blood, so much blood, before it is over.

21 March 2016

A Couple Quick Hits On Criminal Justice In Colorado

* Progress is being made on reducing the deplorable practice of having juvenile delinquency offenders, often younger children, appear in court in chains.  But, there is still room for improvement.
Under a 2015 directive from the Colorado Supreme Court, all 22 judicial districts have adopted individual policies for determining whether juveniles should be restrained in courtrooms. 
This time last year, juveniles who had ongoing cases and were in custody were allowed to appear without restraints in only three districts. Now, 18 judicial districts permit juveniles to appear without restraints unless certain circumstances exist. . . .

In 10 districts, juveniles charged with a serious or violent crime — such as a Class 1 felony — will remain in restraints. . . . In nine districts juveniles will be restrained if they have a mental health condition and are acting in a bizarre or erratic way. Eighteen districts will restrain juveniles if they have made threats or attempted to hurt themselves or others, 13 districts will use restraints if there is information about an escape plan and 10 districts require juveniles to be in restraints if their co-defendants are in the courtroom. At least two districts cited courtroom design and staffing availability as reasons to keep juveniles in restraints. None of the policies dictate how restraints are used outside the courtroom.
* The Sunday Denver Post did an in depth analysis of the costs and benefits of new policies related to parole in Colorado.  In a nutshell, there has been a significant decline in recidivism, although recidivism is still high for felons released on parole. But, a number of cases where the new policies prevented parole officers from getting felons who were committing or would later commit crimes, suggests that the reforms may need some fine tuning.

The main policy changes involve who "technical parole violations" (basically violations of parole rules that wouldn't be criminal offenses for someone not on parole) are treated under Colorado's new rules.  Pre-reform data showed that sanctioning parolees, often severely, for technical parole violations did little to prevent new crimes from being committed (on average) while increasing the incarceration rate as minor violations that were hard for parolees to avoid unless their parole officer was lenient and didn't write them up for them, sent parolees back to prison for long periods of time.

Short, swift jail sentences replace returning to prison in many cases, but sometimes those measures don't seem to be sufficient for parolees who are abusing the more lenient system severely.

SCOTUS Denies Oklahoma and Nebraska Relief In Suit Against Colorado Regarding Pot Legalization

The U.S. Supreme Court has original jurisdiction in lawsuits between states.  Oklahoma and Nebraska tried to sue Colorado on the ground that they suffered negative impacts from Colorado's state law legalization of marijuana.

Usually interstate suits involve issues like interstate water compacts (such as the case of Montana v. Wyoming and North Dakota decided the same day).

The U.S. Supreme Court today denied them relief by a 6-2 vote without an opinion other than from the two dissenting judges (Justice Thomas writing for himself and Justice Alito).  The dissent was on grounds of constitutional procedure and is illuminative of how the original jurisdiction of the U.S. Supreme Court works:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint.
While I agree with the results on the merits, Justice Thomas makes a respectable point on the process used to arrive at this conclusion.

Observations About Medical Mistakes

Vox has a nice article on medical mistakes that cause harm.

Medical mistakes involve a nest of probabilities that have to be well understood to made good judgments about what to do about them.

1.  Most people who are experiencing medical conditions that put them at high risk of bad outcomes seek medical attention.

2.  The outcomes of people who are at high risk of bad outcomes who seek medical attention on average are much better than the outcomes of those who don't.  The sweet spot of people at high risk of bad outcomes who are better off not seeking medical attention has grown smaller and smaller.

3.  There is a great deal of overlap between the people most qualified to provide medical attention and the people who actually do provide medical attention.

4.  Almost all medical providers make medical mistakes that cause harm at some point during their careers and frequently, they do so repeatedly.

5.  The more often and more seriously a medical provider makes a medical mistake, the more likely that medical provider is to do so in the future.

6.  The vast majority of medical providers who make medical mistakes provide benefits from their medical treatment that exceed the harm that comes from their medical mistakes over the course of their careers.

7.  The rate of medical mistakes per provider is much more a function of the quality of the systems in the organization where the person provides medical care than it is a function of the quality of the mind or education of the provider.

8.  The article focuses on the fact that medical providers not only don't want to make medical mistakes that cause harm, but also feel very bad about it when it happens to the point that they suffer mental health consequences.

9.  A medical provider who has spent most of a career making few and minor medical mistakes can be at much greater risk of making major medical mistakes when impaired for some reason.

10. Fear of liability discourages organizations that provide medical care from identifying all medical mistakes when they happen and devising means of making them happen less often, even though this means that the total number of medical mistakes may be higher.  This is rational in many cases for the provider since it may minimize the number of medical mistakes giving rise to claims even though it doesn't minimize the number of medical mistakes.

11. Subtle errors in medical treatment that are easy to make in the absence of exemplary systems to prevent them, and hard for anyone but the person making them and their close associates, can still have grave consequences.  For example, transposing a number, misplacing a decimal point, or confusing two very similar looking bottles can result in a drug administration error with deadly consequences.

12. Unless a medical mistake is extremely obvious, it is unlikely to have consequences legally unless the outcome is very bad.  Yet, when the outcome is very bad, litigation is likely even when no medical mistakes were made.  And, a large share of the funds spend on the system for compensating victims of medical mistakes go to transaction costs.  But, few non-meritorious medical malpractice suits prevail in litigation and result in large dollar awards to victims of medical malpractice.

13. We want to compensate victims of medical mistakes appropriately.  And, we don't want to spent too much time and effort on transaction costs relative to compensation, if possible.

14. We don't want medical providers who aren't excessively likely to make medical mistakes to continue to provide medical services because they do more good than harm and the alternative of replacing them is worse.

15. We want a system in which mistakes are identified in a manner that causes organizations providing medical services to improve their systems to prevent them from happening in the future. This can only happen if the culture of medical professions is changed and the cultural change does not lead to net negative outcomes for the organizations that change their culture.

16. We want people to trust medical systems that on average make them better off even when medical treatment isn't zero risk.

17. Medical malpractice awards require proof of negligent conduct by a medical provider that causes harm.  But, proof of causation is difficult because even non-negligent conduct can lead to bad outcomes when someone has a medical conditions that requires treatment.  And, medical providers tend to think of negligence in terms of mistakes that a reasonable medical provider would never make in any entire career, while the law thinks of negligence in terms of something that a reasonable medical provider clearly wouldn't do if one was paying attention and mindful at that very moment. Also, unlike most litigants, medical providers, due to the long term reputational harms associated with settling a medical malpractice case are unlikely to settle in cases where they believe that they did not make a mistake. Thus, in this kind of litigation in particular, the least culpable providers are often the most likely to take a case to trial and even if they lose may be less culpable than those who settle promptly.

18. There are institutional barriers to proving medical malpractice because medical providers who testify as experts against other medical providers tend to be ostracized by their colleagues in all but the most obvious cases.

19. Medical technology is not so advanced that all treatments reliably work all of the time when used properly.  Many forms of medical treatment and diagnosis have error rates that cannot be eliminated with any amount of care using current technologies.  But, as medical technologies improve, a larger share of bad outcomes are due to medical mistakes and are preventable with exemplary care.

20. The threshold of care quality at which it is better to provide medical care than not to provide medical care is much lower than the state of the art medical care quality.

21. Some steps to prevent medical mistakes are cheap and easy, but are not implemented systematically.

22. Some steps to prevent medical mistakes are expensive and difficult, even to the point where the cost does not usually justify the precautions.  The best can be the enemy of the good.

23. It is often difficult to estimate the quality of an organization that provides medical care because organizations that do a better than average job in dire cases may still have higher rates of bad outcomes than organizations that do a below average job in dire cases but have fewer such cases.

24. For a patient, the experience of a bad outcome that is unavoidable even with mistake-free medical care is often virtually indistinguishable from a bad outcome that is caused by a medical mistake.

25. Bad outcomes often trigger grief on the part of both the patient, the patient's loved ones, and the medical provider, even when no medical mistake has been made and grief can lead to irrational or counterproductive action.

It is hard to devise a system for addressing medical mistakes that has the right incentives and produces the best possible outcome given this complex set of realities.

For example, one of the most common knee jerk tort reforms is to cap compensation for medical malpractice awards, even though, by definition, this reduces recovery from the people who actually are victims of medical mistake determined to the highest level of precision feasible in our system who suffer the most harm, rather than reducing transaction costs or costs associated with suits where there was a bad outcome but not medical mistake made.

20 March 2016

Dogs Are Still For Soup

A woman suffered serious injuries to her hands after she was mauled while trying to break up a fight between her three English bull terriers during what Longmont police are calling a "massive dog fight" on Saturday night. 
Cmdr. Jeff Satur said a St. Bernard also got caught up in the middle of the fight, but was not being aggressive with officers. All the dogs were injured, and one might not survive. Satur said police responded to 21 Exner Place at 10:30 p..m. on a report of a woman, 55, being mauled by multiple dogs and screaming for help. 
Five officers found the woman being attacked by the dogs, and they began to pepper-spray the dogs and hit them with batons, Satur said. Satur said officers were able to round up three of the dogs, but had to use a Taser to subdue the fourth one. "The fourth dog was not as easy," Satur said. "Eventually, it was clear that pepper spray was not convincing this dog to back down."
From here.

Unfortunately, this woman did not have a heroic cat to come to her rescue. (More heroic cats here).

18 March 2016

The Case For Legalizing All Psychoactive Drugs In A Nutshell

Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.

As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel. The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers. Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.

Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether. Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.

Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs. In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise. Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants. After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.” The Supreme Court of Brazil is considering a similar argument.
From Harpers via the Sentencing Law and Policy Blog.

Well regulated marijuana legalization in Colorado has been a great success.  Empirical evidence from other countries that have taken a public health approach rather than a criminal justice approach to other controlled substances have shown that the benefits of this approach aren't unique to marijuana.

Legalizing vice (including prostitution which no other country in the developed world prohibits as comprehensively as every place in the United States except a few counties in Nevada do), would not by itself empty our prisons from the world record levels of mass incarceration found in the United States. Too many violent crimes drawing very long sentences in the U.S. have nothing to do with the vice trade for that to happen.  But, it would make a huge dent in incarceration rates, especially at the federal level.

But, vice is the dominant funding sources for organized crime.  Payday lending, title loans and hard money lending, along with myriad forms of legalized gambling and the demise of unions to corrupt, have made drugs and prostitution the dominant source of revenues for organized crime.  Legalize them and the vast majority of the street gangs and drug cartels will wither, because their dominant sources of revenue will dry up.

Blue collar crimes like robbery, burglary and larceny have become increasingly irrelevant as tangible personal property has grown cheap and currency has grown rare relative to  real estate and intangible property, and improved technologies have motor vehicles harder targets and have made the odds of repeat offenders getting caught much higher.

Fraud remains an extremely profitable form of crime, but is both non-violent and requires more patience and skill than the vast majority of gang bangers with nothing to lose have at their disposal. Straight out kidnapping for ransom and extortion remain as potential organized crime revenue sources, but the overall crime level is low enough and law enforcement resources are great enough, that this offenses are too risky to engage in routinely for organized crime organizations.

Attempted Murder By Spreadsheet In Michigan

On February 11, [firefighter Ryna] McCuen walked into this: a mother at wit's end, a bedridden 18-year-old on a ventilator, his emergency battery power soon running out, and electricity to the home cut off by the local power company. . . . 
It started as a routine call in Michigan for Clinton Township's Engine 5, a "nonemergency medical" as firefighters call it. 
What they found in the living room of this suburban Detroit double-wide mobile home was Troy Stone, who suffers Duchenne muscular dystrophy, a particularly debilitating variation of the muscle-wasting disease. Stone, who has limited movement of his limbs and is no longer able to breathe on his own, had a tracheotomy last December. His family has struggled financially, and they had fallen behind on payments to the local utility.

Christy Stone, Troy's mother, said their electric bill has gone up threefold since Troy had the breathing tube inserted. It now takes seven machines, all running on electricity, to keep him alive.

Despite having a letter from their doctor's office informing DTE Energy that "there must be electrical power in the home to maintain ... life support equipment," the power was still cut off.

"They said it wasn't the doctor's signature on it, it was the nurse's signature on it. So they said it was denied," an exasperated Christy Stone said. Nearly in tears, Stone described how she pleaded with the DTE representative to keep the power on: "How can you deny somebody that's on life support? So I did everything that I could and they just ... it's just messed up."

At first, a spokesperson for DTE Energy called the situation "unfortunate" and commended the "firefighter for his actions." However, citing privacy concerns, the spokesperson declined to discuss specifics of the Stones' case except to say "we are continuing to work with the family to ensure this situation doesn't reoccur and have referred their case ... to partnering agencies for assistance."

On Friday the utility issued an updated statement.

"This is a very unfortunate situation that we are working to rectify immediately," DTE said. "We will be working with this customer to get her the assistance she needs, which is the normal process we follow when our customers are faced with challenges in paying their bills. And we will be donating to the preferred charity of the generous and selfless firefighter who stepped up."

McCuen, a 7½ year veteran of the fire department, heard Stone on the phone with DTE and said his choice became clear. "He had about three hours of battery life," McCuen said. "He needed to be plugged back in. So it seemed obvious what the solution was, that they needed their bill paid."

Christy Stone was astonished at the matter-of-factness of this firefighter she didn't even know.

"Ryan was standing there and he looks at me and goes, 'I'm going to pay your electric bill,' and I was just like -- are you serious!?"

He was, and he did.

Snapping a picture of her bill, McCuen paid it, all $1,023.76 of it.
From CNN.

Fortunately, the firefighter had his priorities straight. And, honestly, the guy who actually shut off the power probably had no clue what was at stake when he did so, following orders from headquarters.

The really culpable parties are the bureaucrats at the electric company who rejected the request, that person's managers, and the executives and directors who put the policy in place that the bureaucrat was implementing.  They, collectively, are guilty of attempted murder over a $1,023.76 debt.

The law doesn't authorize the use of deadly force to prevent or punish a non-violent theft of that amount, and certainly doesn't authorize putting someone's life in peril over an unpaid debt when that is the natural and foreseeable result of its actions that the Stone family had clearly given the electric company knowledge of in a credible way.

Of course, at a deeper level, there is also something profoundly wrong with the fact that our society allows a child's ill health to push a family into poverty as our society did in the case of the Stones.

17 March 2016

Adult Dorms

A paywall protected WSJ article highlights the old but new again concept of dorm style living for adults (particularly urban young adults), called "coliving" as a way to address the affordable housing needs of the economy.  It is a concept that I've advocated for a long time whose barriers are partially regulatory, and partially a matter of culture and organizational structure.

Intellectual Property Laws Aren't Necessary For An Economy To Function

Intellectual property laws protect most functional and non-functional designs traditionally produced by men, such as mechanical inventions and scripts for plays. But, intellectually property laws do not protect most functional and non-functional designs for matters that were traditionally produced by women in the home, such as recipes and fashion designs.

Economics has gotten ahead of tradition.  Recipes and fashion designs are now big business.  And, while recipes can be protected as trade secrets that competitors must at least reverse engineer.  A fashion design, almost by definition, is disclosed in every article clothing produced in that design.

As a result, while unauthorized knockoffs of greatly admired designs governed by patent and copyright laws are mostly economic only when the designs enter the public domain, knockoffs are common in the food service industry and are even more dominant in the area of fashion where they are a major economic force.

Certainly, the lack of intellectual property protections for fashion have an impact on the way that the industry is structured.  Certainly, top fashion designers make less money per design as a result. Certainly, this makes the skill involved in being able to rapidly replicate someone else's design more valuable.

But, a lack of intellectual property protection almost certainly makes far more designs available to far more people at an affordable price.

It is also not at all obvious that the total amount spent on clothing is materially different as a result of a lack of intellectual property protection.  Indeed, one economic hypothesis with wide currency among fashion industry economists is that the lack of intellectual property protection increases total spending on fashion.  This is because these economists think that a lack of intellectual property protection causes fashions trends to shift more frequently than they would otherwise, and because clothing is often replaced not because it isn't functional any more, but because it is no longer fashionable.

And, while the amount of money that a fashion designer makes per design is surely less without strong intellectual property protections, the high fashion turnover rate and high demand for people who can copy original fashion designs, may mean that the number of designs per fashion designer may be greater, that the number of fashion designers employed by the industry may be greater, and that fashion design may be less prone to the "winner takes all" tendencies that pervade most aspects of our economy.

The bottom line is that while intellectual property laws have significant economic effects, that a lot of those effects have to do with the distribution of income within the industry and how the industry is organized, rather than being an existential problem for an industry.

We know from history that the same is true in the arts.  The music industry including music composition, for example, managed to flourish long before music copyright protections became available in the 20th century.  Shakespeare and the Greek playwrights managed to make comfortable livings for themselves in the absence of intellectual property protections.

Technology has changed the equation by making it much cheaper to make large numbers of high quality copies of a design at a low price.  But, let's not kid ourselves.  For example, before people were pirating novels, there were still institutions like libraries which allowed hundreds of people to enjoy a book for the price of a single printed copy, profoundly suppressing demand, and the publishing industry survived anywhere despite the loss of revenues.

The question of whether intellectual properties laws help or hurt the economy in particular contexts remains an open question.  But, it is empirically well established that an economy can function quite well without them.

15 March 2016

And Then There Were Three

As expected, Rubio dropped out of the race today after being crushed by Trump in Florida, and Kaisch won his home state of Ohio, the first state where he has finished first.  Trump was also victorious in Illinois and North Carolina.

Cruz didn't manage a clear win anywhere, but is trailing trump by just 0.2 percentage points in Missouri, where Clinton leads Sanders by a similar margin.  Clinton won everywhere else, by a thin margin in Illinois and by a wide margin everywhere else.

717 GOP delegates have been awarded to non-Trump candidates, while 629 have gone to Trump. There are 2472 delegates in all, most of whom have already been pledged.

On the Democratic side, Clinton has won about 1/3 of the delegates including superdelegates, while Sanders has won roughly 1/6th of the delegates.  So, Sanders needs about 2/3rds of the remaining delegates to win, while Clinton needs about 1/3rd of the remaining delegates to win.  So, Sanders needs to win two delegates for every one that Clinton wins in the second half of the race to stay in contention.  The remaining states are more favorable to Sanders demographically than the states that have already voted, but probably not that much more favorable.

It is unclear which of the three remaining candidates will receive the biggest boost from the end of Rubio's candidacy.  Kaisch is the closest match as a fellow "establishment Republican", but Kaisch may not attract much support from newly liberated Rubio supporters, because his campaign seems so hopeless. Kaisch has fewer delegates than Rubio does and no hope of winning a majority or even a plurality of the delegates by the time that primary season is over.  I would guess that Rubio supporters would favor Trump over Cruz on balance, but it is a hard call.

Either a Trump victory or a Cruz victory would greatly help Clinton get elected as President in a general election, although a Trump victory would be considerably easier for Clinton than a race to defeat Cruz.

13 March 2016

The GOP's Choice Of Evils

Neither of the two remaining Republican candidates whom members of the Republican establishment could rally around are viable. Yet, even the Republican establishment dislikes both Trump and Cruz (who absolutely horrify Democrats and many independent voters).

Mark Rubio is already telling his supporters in Ohio to back Ohio Governor Kaisch in the winner take all Ohio primary that he doesn't have a prayer of winning (which gives Kaisch a key boost in a tight race).  This decision is colored by the fact that Rubio has little or no hope of winning the winner take all primary in his home state of Florida and is likely to drop out of the race soon after being defeated decisively by Trump in Florida (a fact Rubio surely knows even if he can't in good faith admit it to his supporters until he drops out).

Of course, for Kaisch, a win in Ohio doesn't make him, who has yet to win any state so far in the Republican primary season, a viable candidate either.  Trump has consistently outperformed Kaisch by wide margins in establishment Republican strongholds in the Northeast and Midwest.

So, Republicans have basically two options.  They can vote for Trump.  Or, they can Vote for Cruz who, with the support of delegates for other candidates who have dropped out of the race by the time the convention comes around, might deny Trump as majority in the Republican National Convention, and then hope that Cruz wins in subsequent rounds of balloting.

This isn't good news for our country. The rhetoric of an imminent crisis has become the norm.

The dire warnings in following piece from Ezra Klein writing for Vox is representative of recent commentary from Democrats and Republicans alike on Trump's candidacy:
He is a man with an evident appetite for suppressing dissent with violence, a man who believes America’s problem is that it’s too gentle to its dissidents. Trump is making an argument for a politics backed by force, for a security service unleashed from “political correctness,” for a country where protesting has consequences. The results are playing out before us, night after night, on our televisions. If Trump wins and this country goes down a dark path, we will never be able to say we didn’t see it coming. We will never be able to say we weren’t warned.
But, the Ted Cruz alternative, a man who has made the distaste that establishment Republicans he deals with every day have for him a badge of honor with angry conservative voters, isn't very reassuring either:
Trump is the candidate of the disoriented, the confused, the needy; Cruz is the candidate of the dogmatist, the moralist, the convicted. Trump gets the voters who fear and adore; Cruz gets the voters who hate and resent. Trump is all show; Cruz means what he says. Trump wants to be everybody’s boss; Cruz wants to be everybody’s master. Ted Cruz is much, much more dangerous than Donald Trump. . . . Whatever your worries may be about the possibility of a Trump presidency, perhaps you can take comfort, as I do, that the confusion of the Trump supporter is less dangerous than the conviction of the voters who support Ted Cruz. Trump supporters are looking for answers, Cruz supporters already know the answers. A fearful person may be made dangerous, but a cruel person is already there.
And, so, the effort to select a new Sith Lord for the United States continues.  There is a reason that I support the other political party, where the current primary season looks more like a contest between Hillary Clinton reprising the old Princess Leia of The Force Awakens, and Bernie Sanders as Yoda.

10 March 2016

Old Style New Order

New Order's 1980s hit, "Blue Monday" sounds awesome on obsolete 1930s instruments.

Unethical Prosecutors Are Leading Cause Of Wrongful Convictions In California

Prosecutorial misconduct and eyewitness identification were the most common errors in the flawed homicide prosecutions. When broken down by type of error, prosecutorial misconduct accounted for more of the cost in our sample than any other type of error. 
By contrast, the most common errors in our sample were Fourth Amendment search and seizure errors, and judicial mistake. These errors were resolved relatively quickly, however, and resulted in relatively little cost.
From here.

09 March 2016

Winners By State So Far In The 2016 Primary Season

Republicans Who Have Won Any States or Territories

Trump (15 states, 461 delegates) - Hawaii, Nevada, Michigan, New Hampshire, Massachusetts, Vermont, South Carolina,  Mississippi, Virginia, Georgia, Alabama, Tennessee, Kentucky, Louisiana, Arkansas.

Trump is still the clear front runner even though attacks from the GOP establishment have dampened his performance in the polls and he has merely a plurality and not a majority of delegates awarded so far.

Cruz (7 states; 360 delegates) - Iowa, Texas, Oklahoma, Kansas, Alaska, Idaho, Maine

People who need lots and lots of elbow room seem to like Cruz.  Everybody else, not so much.  He is the Republican party's last, best hope of defeating Trump.

Rubio (2 states/territories; 154 delegates) - Minnesota, Puerto Rico

It has been a while since Rubio managed to pull of second place in a state.  His only prospect of winning is via a brokered convention and it would be hard to imagine that a convention where the lion's share of delegates are pledged to Trump and Cruz would back Rubio instead.

Ohio Governor Kaisch, who has 54 delegates is the only candidate with a still active campaign who has not yet won a single state.  He hopes to change that by winning in Ohio on March 15.  But, even if he did win Ohio's winner take all delegates, he wouldn't have a prayer of winning the GOP nomination.

About 2% of GOP delegates (8 delegates for Ben Carson and 4 delegates for Jeb Bush) have gone to candidates who have now left the race.  They can vote for anyone they like at the GOP national convention this summer.

There are 2472 Republican delegates in all, so 1237 delegates are needed to win.

As I write, the CNN prediction market puts the odds on various candidates winning the nomination as follows:

Trump 75%, Cruz 18%, Kaisch 4%, Rubio 1%.

These estimates sound about right to me, although I'd be inclined to put Cruz a bit higher, Trump a bit lower and Kaisch a bit lower.

Democrats Who Have Won Any States or Territories

Clinton (12) - Nevada, Iowa, Texas, Massachusetts, Virginia, Tennessee, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Arkansas

The tally of states doesn't really reflect the decisive advantage that Clinton has with African-American voters relative to Sanders.  Clinton sometimes does better with African-American voters than Barack Obama did running in the primary against Clinton in 2008.

Sanders (10) - Colorado, Nebraska, Kansas, Minnesota, Michigan, Oklahoma, Vermont, New Hampshire, Maine, American Samoa

On average, Sanders has won states by smaller margins than Clinton which matters a lot when delegates are allocated proportionately as they are in many states.  And, Sanders is disfavored relative to Clinton by a 20-1 or so ratio among the very large numbers of Superdelegates with a say in the Presidential primary process.

As I write, the CNN prediction market puts the odds on various candidates winning the nomination as follows:

Clinton 88%, Sanders 10%.

These estimates sound about right to me, although I'd put the odds of a Sanders win closer to 15%-18%, and it is hard to explain the 2 percentage point gap which seems too high.

Prediction Market Prediction Of General Election Winner

As I write, the CNN prediction market puts the odds of various candidates securing the Presidency as follows:

Clinton 64%, Trump 20%, Cruz 10%, Sanders 2%, Rubio 1%.  This leaves a gap of 3% which is about right for Kaisch's odds of winning the Presidency consistent with the nomination percentages and subject to rounding error.

The separate contract of the odds of the Democrats winning the Presidency is 67% which is consistent up to rounding error.

This seems a bit too optimistic on the Democratic side to me.

Other Predictions

It puts the odds of the Democrats retaking the House at 4% and  the odds of the Democrats retaking the Senate at 26%. These predictions seem a bit low to me, I'd put the odds of retaking the House at more like 6%-8%, and the odds of retaking the Senate at more like 35%-40%.

It puts the odds of President Obama successfully seating a new U.S. Supreme Court justice to fill the current vacancy at 26%.  This also seems low to me, I'd put it at more like 40%-45%.

08 March 2016

Child Support Rarely Sought By Teen Mothers In Colorado

[O]nly about 2 percent of the 10,000 children of teen parents in Colorado have open child support cases, meaning the vast majority of young mothers aren't seeking child support[.]
From the Denver Post.

There is a reason for that.  Apparently the vast majority of fathers of children of teen mothers have very little ability to pay child support. But, the Court process to get a child support order is time consuming and isn't free.
[T]he purpose of enforcing the child support requirement for teen moms is not the money. Both sides agree that young fathers, especially if they're still in school themselves, won't have much to give.

"We don't expect to collect money from these kids," said [Colorado Counties, Inc. lobbyist Pat] Ratliff.

But she said going through the child support process is the "most obvious and most logical way to keep a father involved."
But in the 46 Colorado counties, anyone who wants money from the Colorado Child Care Assistance Program, or CCCAP, needs to have a child support order in place, unless you attend Denver's Florence Crittenton High School. The Colorado General Assembly is considering a bill, HB 1227, that would eliminate this requirement for teen mothers and domestic violence victims.

Also lurking out there, not always stated publicly, is another big reason that a lot of single moms don't seek child support orders (and often don't list the father's name on the birth certificate either, even when the father's name is known). Seeking a paternity determination or a child support order almost always invites a finding of some parenting time for the father, which is a price that teen mothers are overwhelmingly not willing to pay.

They don't want, often emphatically don't want, the guys who got them pregnant in their lives or their children's lives, because those guys are bad news or losers.  The guys worth keeping in their lives or their children's lives marry them or at least cohabit with them and help raise their children voluntarily.

While a great many fathers of the children of teen mothers wouldn't pay child support or be involved, even if they were legally recognized as fathers, many single mothers, in general, prefer the control that comes from not having a father with whom they are not in a relationship in the picture, even given the modest financial cost of foregone child support from a man who often isn't very economically successful, even if he does have some earnings.  And, one of the great lessons of economics is that even people who you might not think are all that bright or capable usually act in a manner that is rational from their own perspective.

The fact that a significant number of teen mothers don't seek child support orders in and of itself isn't that surprising.  But, the fact that only 2% of them do, when the father's of the children of teen mothers are often in their twenties and at least sometimes employed (certainly less than 2% are uncollectible), is a surprise.

07 March 2016

Personality And Political Attitudes Are Related

Personality, which has been documented to have a significant hereditary component, and political attitudes, are related to each other, but probably not causally.

Bloomberg Out

The threat of a viable third party run has been largely eliminated now that Bloomberg says that he will not run for President.

This leaves two Democrats (Clinton and Sanders) and four Republicans (Trump, Cruz, Rubio and Kaisch) left with still functioning campaigns, half of whom (Sanders, Rubio and Kaisch) are already long shot underdogs.

The general election is now very likely to be either a Clinton v. Trump or a Clinton v. Cruz race. Both of those matchups favor Clinton.

SCOTUS Frees Wrongfully Convicted Man On Death Row

In yet another reminder that prosecutorial misconduct is rampant in much of the nation, the U.S. Supreme Court summarily reversed a Louisiana court that had denied post-conviction relief to a death row inmate.  The prosecutors had withheld a great deal of solid evidence in their control suggesting that the man was innocent, a violation of the U.S. Supreme Court's Brady decision.

They defended the conviction despite other strong evidence that was a product of ineffective assistance of counsel that other witnesses could have strongly established an alibi defense.

Judges Alito and Thomas expressed concern that oral arguments weren't held and that the U.S. Supreme Court should wait until a federal habeas petition was filed despite the fact that the issues were already clear and the fact that this man had been incarcerated for eighteen years or so too long already.

The six member per curium majority strongly rebuked both the entire criminal justice system of Louisiana and the dissent that wanted to put barriers in the way of correcting the injustices associated with the 1998 murder.

Examples of misconduct like this one, which also violate the professional ethical rules for prosecutors (although these attorneys are almost never disciplined for this kind of misconduct), show how eager some prosecutors and courts and conservative justices are for blood, and how inflexible they can be once it is clear that they have made a mistake.

In principle, Louisiana could retry the man, but it is highly unlikely.

Maryland REITs are like LLCs for Diversity Jurisdiction, Not Trusts

The U.S. Supreme Court Ruling

The U.S. settled a significant split of the circuit courts of appeal on the classification of Maryland business trusts (the most common organizational form of REITs) for diversity jurisdiction purposes in Americold Realty Trust v. ConAgra Foods, Inc. today.


Maryland Business Trusts

Maryland is the Delaware of real estate investment trusts (REITs) which are a federal income tax recognized passthrough entity similar to mutual funds for real estate portfolios.  These entities are organized as Maryland business trusts which typically have large numbers of publicly held shares, are managed by a board of trustees, and critically have the power under state law to sue and be sued.

Diversity Jurisidiction

Under federal law, diversity jurisdiction which provides access to the federal courts when the Plaintiffs and Defendants in a lawsuit have no state in common (something called "complete diversity") and the amount in controversy is more than $75,000 (occasionally updated by Congress).

State and territorial law corporations are considered citizens of the state where they are incorporated and the state where they have a principal office; federally chartered corporations are citizens of the state where they have their principal office in the United States.

Ordinary common law trusts are not entities and instead have trustees who sue and are sued in their official capacity in lieu of suing the trust entity, on the old chancery court theory that equity acts on the person.

All other commonly used entity forms (e.g. partnerships, limited partnerships (LPs), limited liability partnerships (LLPs), limited liability limited partners (LLLPs), limited liability companies (LLCs), and limited partnership associations (LPAs)) are citizens of every state where their partners, members, or other owners reside.

The Case

The REIT in the case argued that it should be treated as a trust for diversity jurisdiction, since it was called a trust and only the citizenship of the members of the Board of Trustees would be relevant. The Defendants who had a real estate dispute with the trust argued that it should be treated as an LLC since it was an unincorporated entity that was not a corporation.  Amici and the U.S. Solicitor General suggested that treating it as a corporation would be appropriate since it had publicly traded shares and in general was similar to a corporation in most other respects even though it was not called one.

The U.S. Supreme Court unanimously held in a short formalistic decision deferred to ancient precedents on the matter and held that since this entity could sue and be sued under state law that it was not really a trust, even though it was called one, and that since it was not called a corporation that it was an unincorporated business entity.  Therefore, the diversity jurisdiction applicable to LLCs applies to Maryland business trusts.


The rule chosen by the U.S. Supreme Court is simple to apply to future cases.  It has the net effect that REITs will almost never be eligible for diversity jurisdiction in federal court, since it will typically have shareholders in almost every state where it has members, and because it will be very hard for it to prove that no shareholder is a citizen of the state where it is in litigation, because its shares are constantly traded in the securities markets.

For REITs, which deal with real estate, where the main impact will be felt, this will keep lots of high end real estate litigation out of the federal courts (where it probably doesn't belong), and is unlikely to lead to much unfairness, because it is hard to argue that major property owners in a state, even they are basically absentee landlords, are likely to face serious discrimination in state courts.  After all, doing business in real estate (usually investment and commercial real estate) in a jurisdiction almost always makes it necessary for the owner to engage local counsel to deal with it anyway.

06 March 2016

Immigration Judges Are Still Nuts

I don't practice immigration law because the system is so unfair that it would drive me crazy. Life changing decisions are frequently made with processes that don't remotely stand up to any fair notion of due process.
A federal immigration judge believes migrant toddlers can defend themselves in court, according to a deposition in a court case brought by advocates seeking government-appointed attorneys for the youths.

"I've taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience," Judge Jack Weil said. "They get it. It's not the most efficient, but it can be done."
From the Los Angeles Times.  The Washington Post story from which the L.A. Times story was derived makes clear that this is not just a hypothetical.  The United States really does have children five years of age and younger represent themselves in deportation hearings and three Plaintiffs in the ACLU class action case are under the age of five.
According to Justice Department figures, 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December had no attorney. It is unclear how often children 5 or younger are forced to defend themselves, but attorneys and advocates for immigrants said it does happen.

Senate Minority Leader Harry M. Reid (D-Nev.) and other Democrats this month introduced a bill mandating government-appointed counsel for children in immigration court who had crossed the border alone or are victims of other duress such as abuse, torture or violence. In a Feb. 11 speech on the Senate floor, Reid said he was told about one case in which a 5-year-old girl was brought before an immigration judge.

“This little girl was clutching a doll and was so short she could barely see over the table to the microphone,’’ Reid said. “She was unable to answer any questions that the judge asked her except for the name of her doll: ‘Baby Baby Doll.’ That was the name of her doll.”

At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children — most of whom cannot speak English and must use government-provided interpreters — are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.

But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.
Judge Weil claimed in a deposition in an ACLU class action lawsuit, that "I have trained 3-year-olds and 4-year-olds in immigration law. You can do a fair hearing."

Judge Weil did concede that it might be hard for a one year old who can't talk yet to represent himself or herself fairly in an immigration hearing.

Weil is being offered as an expert witness for the federal government on this issue:
The government had offered Weil as an expert witness in the case, and submitted his deposition to the court in January to support its position that attorneys should not be mandatory for youths in immigration court.

A graduate of the University of Maryland and its law school, Weil served first as a law clerk in San Diego immigration court before rising through the ranks as an immigration judge in El Centro, Calif., and finally assistant chief immigration judge responsible for overseeing policies in the country's 58 immigration courts. He also oversees the training of judges, court administrators, interpreters, legal technicians and law clerks.
Anyone with a little common sense and any experience with children 3 or 4 years old, knows that his position is absurd. It destroys his credibility as an expert on anything.
Susan Terrio, an anthropology professor at Georgetown University, interviewed dozens of unaccompanied minors as well as immigration attorneys and judges for her book published last year, "Whose Child Am I? Unaccompanied, Undocumented Children in U.S. Immigration Custody."

All of the attorneys she interviewed received special training in immigration law before representing children in court, Terrio said.

"If a graduate of an American law school needs specialized training in order to provide competent legal representation, it strains credulity for an immigration judge to insist that he can train a young child in complicated legal concepts and procedures," she said, "particularly when that child is from a different culture, does not speak English, does not yet read in her native language, is apprehended and held in custody after an often dangerous and traumatizing journey to the U.S., and has no government-appointed attorney or child advocate."

All 31 of the immigration judges she interviewed supported providing legal representation for youths in immigration court, Terrio said, "because it would be more ethical and efficient."

The ACLU lawyer who deposed Weil said he was "mystified" and "flabbergasted" by the judge's comments — and by the department's backtracking.
The time has come for higher-ups to intervene in this litigation where the United States government is taking positions that President Obama can't possibly agree with himself.

We Could Afford Universal Housing Vouchers

If we did nothing to make the [existing federal housing] voucher program more cost-effective — and there is much we could do on this score — expanding housing vouchers to all renting families below the 30th percentile in median income for their area would likely require an additional $22.5 billion a year. The actual figure is likely to be somewhat less, as this estimate does not account for potential savings in the form of reducing homelessness, lowering health care costs and curbing other costly consequences of the affordable-housing crisis. 
We have the money. We’ve just made choices about how to spend it. In 2008 . . . federal expenditures for direct housing assistance totaled more than $40 billion, but homeowner tax benefits exceeded $171 billion[.]
From The New York Times Op-Ed page.

Indeed, in cases of full on vagrancy, a "housing first" approach has been demonstrated to save public funds, something an innovative new social development bond program in Denver that will provide housing and services to 250 of its most chronically homeless residents has set out to demonstrate.

A stretch of Denver's Park Avenue near a newly opened day center for the homeless called Samaritan House looks like this:

It's absolutely a problem, a biohazard, and a deprivation of the human rights of those who live there. But, that doesn't mean that Denver's short term solution to the problem is a good one.

Next week, Denver will be clearing this all out and will (despite having no obligation to do so) keep the personal property taken in a warehouse for a month so that people whose stuff is taken by the city can claim it. But, this doesn't address the deeper problem that large numbers of people can't afford to live here.

When you've reached the point where camping on Park Avenue is your best options, you don't have a lot of good choices.  Bed bug infestations, shelter rules, and scary fellow occupants lead many people to believe that they're better off sleeping on the streets than in shelters, at least when the weather isn't too bad.  Marshaling funds to pay for a first and last month's rent plus a security deposit can be virtually impossible.  Some people can afford a nasty motel on Colfax Avenue as a stop-gap solution that often seems to last indefinitely, with interrupted nights sleeping in a car or "camping" in a park on a street when cash flow is interrupted, but that isn't a long term solution.

Local governments almost everywhere discourage low income housing out of neighborhood NIMBY concerns, and out of economic self-interest.  Low income households place heavy demands on city services while paying less in taxes than higher income households (although local government taxes are more regressive than federal taxes).

So, there is little political pressure to tweak building codes and zoning regulations to allow alternatives between one bedroom apartments with parking at market rates and homelessness, such as: flop houses (now called "single occupancy hotels"), high density studio apartment complexes, manufactured housing (a.k.a. "mobile homes"), RV Parks,  "tiny houses", and granny flats (a.k.a. "accessory dwelling units").

Homelessness and a lack of affordable housing are largely problems of a lack of political will and not costs so great that we can't afford them, or compromises so great that they would ruin our communities if widely adopted.  But, who wants to innovate and attract more down on their luck individuals and families in poverty to their neighborhood?

04 March 2016

Law School Grades, Law School Attrition, LSAT Scores And Bar Prep Classes

Law School Attrition and Median LSAT Scores

The median LSAT scores of entering 1L's at a law school are strong predictors of the likelihood that first year law school students at the school will drop out of that law school.

Law schools with median LSAT scores of 160 or more have drop rates of about 0.2%.  Law schools with median LSAT scores of under 150 drop out at rate of about 13%.  There are material differences in drop out rates in between for law schools with median LSAT scores of 150-154 (5%) and 155-159 (2%), respectively.

Keep in mind that these are only the percentage of students who drop out.  It doesn't include the large number who don't pass the bar exam, who pass (perhaps on a second or later try), but never find legal employment.

Note that since even the lowest performing law schools have drop out rates of less than 25%, the LSAT score at which there is a high risk of attrition for individual law students will typically be significantly below the 25th percentile LSAT score at these schools, not the median LSAT score.

I have previously estimated that an LSAT score of about 145 is close to the floor at which attending law school can make sense for an individual.

Law School Grades and Bar Preparation Course Participation Predict Bar Passage Rates

Bar preparation courses as part of the law school curriculum are very helpful to students who do poorly in their first year of law school, but provide no benefit to those who do well in their first year of law school.

A study from the University of Denver Law School looked at bar passage rates based upon first year law school grades (in four bins, under 2.6, 2.6 or more but under 2.9, 2.9 but under 3.5, and 3.5 or more), and participation in three school sponsored bar preparation oriented courses.

100% of 1L's who had first year law school grades of 3.5 or more passed the bar exam.

96.5% of 1L's who had first year law school grades of 2.9 or more (including those with 1L grades) passed the bar exam (about two-thirds of DU law students are in this category).

83.2% of 1L's who had first year law school grades of at least 2.6 but less than 2.9 passed the bar exam.

64.5% of 1L's who had first year law school grades of less than 2.6 passed the bar exam (about one-eighth of DU law students are in this category).

Participation in one or more of the law school sponsored bar exam preparation courses provided no material benefit to students with first year law school grades of 2.9 or more.  But, participation in these courses materially improved the bar passage rate for students with 1L grades between 2.6 and 2.9, and profoundly improved the bar passage rate for students with 1L grades under 2.6.

How important are undergraduate, 1L and overall law school grades and LSAT scores to bar passage rates?

Certainly, they matter a lot, but they don't provide a full explanation either.  As the cited study explains (emphasis added):
Researchers often using correlation tests to explore whether two variables are associated with each other. Using the Pearson ProductMoment Correlation test, we determined that LSAT, 1LGPA, and GLGPA [ed. i.e. law school GPA for all years] were all positively correlated to bar exam scores with statistical significance (LSAT: n=637, r=.444, p=.000; 1LGPA: n=591, r=.626, p=.000; GLGPA: n=642, r=.721, p=.000). 
LSAT shows a medium positive relationship, 1LGPA shows a large positive relationship, and GLGPA shows an even stronger positive relationship. 
In order to determine the amount of variation shared by the independent variables (LSAT, 1LGPA, and GLGPA) and the dependent variable (bar exam scores), we squared the value of r to obtain the coefficient of determination. We found that LSAT and bar exam scores share about 20% of variance (r2=.197), 1LGPA and bar exam scores share about 40% of variance (r2=.391), and GLGPA and bar exam scores share about 50% of variance (r2 =.519). In sum, traditional law school variables share a moderate to strong relationship with bar exam scores but still leave nearly 50% or more of bar exam scores explained by other variables. 
For reference with respect to admissions, the correlations between UGPA and LSAT are nil (n=591, r=.049, p=.218) because the relationship as visualized on a scatterplot is virtually horizontal and the low correlation is not statistically significant. 
In contrast, the correlation between LSAT and 1LGPA is statistically significant but weak (n=591, r=.341, p=.000). That means that the relationship is only explained by about 15% in shared variation (r2=.149). The correlation between UGPA and bar exam scores is statistically significant (n=631, r=.300, p=.000) but even weaker with a shared variation of only about 9% (r2=.09). Based on our data, it is very difficult to predict bar exam scores or even law school grades based on just LSAT and UGPA.
Also, while the study doesn't really spell it out, virtually all of the variance in actual bar passage rates, which is all that really matters, happens at the low end of the LSAT and grades scale.  Students with good grades and LSAT scores almost universally pass the bar exam, because it is not too hard of an exam for these students if they are prepared. And, nobody ever asks what score you got on the bar exam if you passed it, so their bar exam scores are irrelevant.

In contrast, while most students at the low end who are admitted to DU Law also pass the bar exam, while a significant number do not. And, this is where all of the variance in bar exam scores that matters occurs.

Indeed from an analytical perspective, if you are trying to get at the factors that matter for the students who aren't almost sure to pass the bar exam, a regression model that includes the two-thirds of students who are virtually shoe ins to pass the bar exam isn't very helpful.  Any relationship between other variables and the bar exam scores of these higher achieving law students is noise that could distort the signal regarding the factors that matter for low achieving law students.  For example, including high achieving law students in a regression model will understate the importance of bar preparation classes for bar passage in the case of less academically able law students.