31 May 2021

The Genetics Of Height And Weight In Hispanics

Height and weight have important environmental influences. Diet quality influences height at a population level. Similarly, the transition from traditional diets and active lives to modern diets and sedentary lives driving higher body mass index (BMI) levels for entire populations. But, controlling for diet and exercise, height and BMI are strongly genetic in character, as is the most subtle detail known as BMI-adjusted waist-to-hip ratio (WHRadjBMI).

Some of the relevant genes are common in many populations, but some genes relevant to these traits are found predominantly in specific ancestral populations, or are more notable there.

A new study (bioRxiv preprint here) by the HISLA consortium did an analysis of a large sample of Hispanic/Latino individuals (N=69,105) pooled from eighteen different genome studies to try to identify genes relevant to these traits. This is what they found:

[W]e discovered one novel BMI locus, two novel signals in established loci for BMI, and one secondary signal in an established locus for height. In our trans-ethnic meta-analysis, we identified three additional novel BMI loci, one novel height locus, and one novel WHRadjBMI locus. We also identified three secondary signals for BMI, 29 for height, and two for WHRadjBMI. We replicated 64 established anthropometric loci in Hispanic/Latino populations at genome-wide significance (28% of previously-reported index SNP anthropometric associations).
Identifying relevant genetic loci associated with these phenotypes, in addition to making it possible to construct a genetic risk index for individuals, also helps us to understand the biochemical mechanics of height, weight and waist-to-hip ratios, and to make educated guesses about the historical selective fitness factors that shaped modern genomes for these traits. This understanding can help us determine what approaches are and are not likely to be successful in reducing stunted growth and regulating weight in modern populations.

The large sample size makes it possible to identify genes with smaller effect sizes with statistical significance, while reducing the risk of false positive gene identifications.

The introduction to the paper provides interesting and notable context:
A complex interplay between political, social, and economic factors has led to an increasing obesogenic global environment.
In this modern context, many low- to middle- income nations have experienced a rapid transition from under-nutrition and growth stunting to overnutrition and obesity. Moreover, population-based surveys from 1975-2002 show that there is an inverse ecologic relationship between the prevalence of growth stunting and the prevalence of overweight seen among preschool children (0-5 years of age) in Latin America. Growth stunting of preschool children ranges from relatively rare (7%) in the Caribbean to notably common (20%) in Central America. Moreover, it is a risk factor for overweight/obesity independent of a child’s socioeconomic status. 
In Latin America, 35% of the total population was overweight and another 23% was living with obesity by 2016. In Mexico, more than 71% of adults are currently overweight; it is projected that by 2050 only 12% of men and 9% of women will have a healthy weight. And, in a recent study in Argentina, Chile, and Uruguay, the prevalence of obesity was 36%, but when using waist circumference as a measure of central obesity, it was far higher (53%). Within each of these populations, there are also disparities by sex and education. 
Race, ethnicity, and ancestry may play a role in anthropometric-related health disparities in Latin American. Previous studies have described the historical contexts leading to admixture in Latin American populations as characterized by highly diverse (variable) ancestral proportions from any of the following regions: the Americas, Europe, Africa and East Asia. 
In fact, proportion of Native American ancestry is associated with numerous biomedical traits, like obesity-related traits, and is most strongly associated with height. Height is inversely associated with proportion of Native American ancestry, even after taking into account the fact that globally over time populations have become taller due to mainly non-genetic nutritional factors. 
The ultimate drivers of this association remain to be elucidated; it is possible that genetic factors and/or socio-economic factors strongly associated with Native American ancestry could be responsible for these findings. Recent studies are starting to provide relevant insights on this topic. 
As an example, a recent genome-wide association study in Peru19 identified a missense variant in the FBN1 gene (rs200342067) that has the largest effect size so far described for common height-associated variants in human populations (each copy of the minor allele reduces height by 2.2 cm). In the 1000 Genomes Project samples, rs200342067 is only present in two American samples (MXL: 0.78% and PEL: 4.12%), and yet the authors reported that this missense variant shows subtle evidence of positive selection in the Peruvian population. 
Obesity in Latin America has quickly surpassed the levels previously seen only among adults of high-income nations, like Canada and the United States (US). In Canada the number of people reporting Latin American origins grew by 83% from the 2001 census relative to the 2016 census, representing 1.3% of the total Canadian population. In the US, both the population size and diversity in national origins (backgrounds) of US Hispanic/Latinos have been increasing over the past several decades. If past demographic trends continue, 24% of the US adult population will identify as Hispanic/Latino by 2065. 
Obesity-related financial costs in the US are projected to double every decade to ~$900 billion by 2030. US Hispanic/Latino adults and their children/adolescents face a greater burden of obesity than their non-Hispanic white counterparts.  

28 May 2021

Social, Political and Legal Barriers To Progress

Frequently, our society fails to achieve the progress it is technologically capable of providing for social, political and legal reasons. Often social issues drive political action or inaction, which in turn, creates legal barriers. Most often, the social issues are driven by fear.

The Case Of Affordable Housing

For example, the reason that affordable housing is scarce is not because we don't know how to build adequate housing for modest prices. In fact, a wide array of ways to do so are widely known. Instead, affordable housing is scarce is due to NIMBY (not in my back yard) political pressure at the local government level that officials at higher levels of government have chosen not to address. This is usually effectuated through land use regulations such as zoning and building codes, subdivision limitations, and similar municipal ordinances.

Affordable housing triggers a NIMBY response primarily because existing residents of neighborhoods don't want people who can only afford "affordable housing" living near them. In other words, people oppose affordable housing because they fear poor people. It is the poor people, and especially, concentrations of poor people, that they feel will make their neighborhoods less desirable places to live. 

Also, property owners believe that if their neighborhood is less desirable, because it has more poor people in it, that the value of their property will decline, causing them economic harm. And, property owners who reside in a neighborhood at risk of become less desirable are disproportionately wealthy and disproportionately capable of mobilizing local government political action in local governments, compared to the hypothetical people who would move to the neighborhood if affordable housing were built there, for whom real estate developers are the main political proxy. But, real estate developers can often be encouraged to focus on new luxury housing that does not prompt a NIMBY reaction, in lieu of affordable housing with fairly modest tweaks to land use regulations and the hassles that can arise in both the short and long terms when there is community opposition to development.

The fears are often greatly exaggerated and are frequently fueled by socially shunned rationales, like racism and xenophobia. But they aren't entirely baseless either.

People who seek to live in affordable housing, almost by definition, have average or below average incomes. 

When a neighborhood has more lower income people, especially when concentrated in an income segregated community, rather than blended in with more affluent neighbors, the neighborhood tends to have homes that are less well maintained, more unruly behavior, less respect for minor social norms like picking up dog poop and not littering, more rudeness in the community, more crime, more gang activity, more domestic violence, and more child abuse and neglect.

Most of these impacts of lower income residents also drive up the cost of taxpayer provided services in the neighborhood that must be paid for, in part, with local tax dollars that disproportionately paid by higher income residents (even when local taxes are regressive) who don't directly utilize the services that those tax dollars finance.

Lower income people are disproportionately black, Hispanic, low skilled immigrants, or "white trash" (i.e. culturally Appalachian and/or poor Southern and/or poor rural in their origins). They are disproportionately less educated. They are disproportionately single parents and unstable cohabiting couple who have some children who aren't shared by both parents. 

Higher income people are disproportionately, Anglo whites with urban and "Yankee" origins, or are East Asian or South Asian, and/or are highly skilled immigrants. They are disproportionately more educated. They are disproportionately stable married couples who if they have children have only children shared by both members of the couple.

When a neighborhood has a mix of lower income people and higher income people, especially when there are stark demographic differences between them, members of these two communities often don't share the same social norms and priorities in ways that manifest in the community from parenting practices displayed in public to ideas about how it is appropriate to behave at home when one is home and how to maintain one's home and how to interact with neighbors.

Another factor that adds potency to opposition to affordable housing, where this factor is present, is that most U.S. jurisdictions determine which public schools that a school aged child may attend from of charge at taxpayer expense based upon where a child lives. Rightly or wrongly, parents and community members routinely evaluate school quality by the absolute academic performance level of the children at a school (rather than "value added"). The best and predominant predictor of the absolute academic performance level of children at a school is the socioeconomic status of the parents of the children at the school. So, when affordable housing allows less affluent people to move into a neighborhood, this is perceived as reducing the quality of the local schools, which also makes the neighborhood less desirable. Further, rightly or wrongly, many parents fear that exposure to children who are culturally different from their own children will be a "bad influence" on their children.

When these socio-economic and cultural divisions are absent, neighbors are often unconcerned about housing that they would normally oppose.

Colleges routinely house students in dorms that have very high residential density and don't provide residents with even their own bathrooms or kitchens. Military bases routinely house soldiers in barracks that have the same character. But neither kind of housing generates the same kind of opposition in neighboring communities.

Neighbors rarely mind "granny flats" (a.k.a. "accessory dwelling units) that are actually used to house the parents of the residents of a primary home, or are used to house older children of the residents of a primary home, or are used to house household servants of the residents of a primary home, likewise, rarely generate community opposition.

The main reason that there exists a class of "senior housing" restricted to older residents, which is almost always relatively high in residential density and is often relatively affordable, is the neighbors don't fear elderly neighbors who need someplace affordable to live as much as they fear younger people and families who need an affordable place to live. Elderly people are perceived (mostly accurately) to be unlikely to be significant sources of crime, unruly behavior, gang activity, troubling parenting practices in public display, incivility, and neglectfulness in maintaining their homes.

The Case of Transit

These issues discourage the level of residential density that create an environment that is favorable for transit, and for communities that are geographically compact enough to make getting around by walking and bicycling very viable for a large share of daily trips.

In addition to the indirect effects that socially driven barriers to high residential density and affordable housing create, similar factors also directly discourage well functioning transit systems.

In the United States, with just a handful of exceptions, such as resort communities, some college towns, and extremely dense large central cities (mostly in the Northeast and Pacific Northwest), municipal bus systems are predominantly used by people too poor to be able to afford to have a car of their own, by people whose illegal conduct has caused their driver's licenses to be revoked, and by low to middle income disabled people who can't drive.

One of the main barriers to increasing municipal bus ridership by people who have other options is the fear of incivility, unruliness, and crime from fellow riders. Prospective riders also disinclined to mingle with riders who they observe are often so ill kept that they are smelly because they haven't had the ability to shower or wash their clothes, beg of money, or otherwise simply make them uncomfortable to be around.

But unless one can overcome a tipping point caused by these barriers, the fact that only those people who absolutely must take the bus do so, means that the frequency of service is lower, especially in communities where fewer people have no choice but to take the bus, and that the ridership per bus that does arrive, especially in these more affluent communities, is often much lower. But the resulting low frequency of service makes taking the bus a slower and less viable alternative to driving, and the low utilization level makes the subsidy per passenger mile higher, increasing the tax burden created by the bus service and generating political opposition from the more affluent people who provide the taxes that pay for these subsidies.

This happens, to a lesser degree, in intercity buses, which people avoid in favor of trains and planes and driving when they can.

The very same people who are loathe to take city buses, have no problem at all traveling by a chartered tour bus, or a school bus to a sports event or field trip, or to sending their children on a school bus to school. The issues are not technological, they are social.

Similarly, Israelis continued to make heavy use of buses even when suicide bombing tactics were common. Europeans, Latin Americans and the Japanese, all of whom mostly have systems that have surpassed a tipping point that prevents their systems from falling into a vicious cycle, make much heavier use of municipal buses and fixed route transit systems.


I'll address solutions and ways to address social, political and legal barriers to progress in a follow up post to this one.

27 May 2021

Lots of People Don't Have Kids

Data on men's fertility is harder to come by than it is for women, but in 2019, the Census released its first report on the subject (using 2014 data).

About 15% of women aged 45-50 (as of 2018) and 24% of men aged 45-50 (as of 2014) have never had children and most likely never will.

Unsurprisingly, men who were married at some point are much more likely to have had children than men who have never married. Among men aged 45-49 who have ever married (84% of men that age), 14.9% have never had children, while 73.6% who have never married (16% of men that age) have never had children. Fathers that age who have never married, also have somewhat fewer children on average (2.24) than men who have ever married (2.35), although the disparity isn't huge.

This is a relatively recent development in historical terms.

Being a childfree American adult was considered unusual in the 1950s. However, the proportion of childfree adults in the population has increased significantly since then. A 2006 study by Abma and Martinez found that American women aged 35 to 44 who were voluntarily childless constituted 5% of all U.S. women in 1982, 8% in 1988, 9% in 1995 and 7% in 2002. [Ed. 17.5% of women were childless, not necessarily all voluntarily, in 2018.]

These women had the highest income, prior work experience and the lowest religiosity compared to other women. Research by sociologist Kristin Park revealed that childfree people tended to be better educated, to be professionals, to live in urban areas, to be less religious, and to have less conventional life choices.

From 2007 to 2011 the fertility rate in the U.S. declined 9%, the Pew Research Center reporting in 2010 that the birth rate was the lowest in U.S. history and that childlessness rose across all racial and ethnic groups to about 1 in 5 versus 1 in 10 in the 1970s[.]

From Wikipedia

Non-Hispanic White men have the fewest children (1.7), then Asian-American men (1.7), then Black men (2.2), with Hispanic men having the most children (2.3). Foreign born men have more children (2.2) on average than native born men (1.7).

By education, men with associate's degrees have the fewest children (1.6), then men with "some college" (1.7), then men with bachelor's degrees (1.7), then high school graduates (1.8), then graduate school graduates (1.9), while high school dropouts have the most children (2.2).

These figures are for men aged 45-50, however, which has the benefit of capturing nearly their full number of children per lifetime, but has the downside of being a lagging indicator. The number of children that less educated and less affluent people have per lifetime has fallen relative to more educated and more affluent people since this cohort of men had children.

Most fathers have children with only one woman, but it isn't terribly uncommon for a man who has multiple children to have children with more than one woman. About one in six men (17%) who have two or more biological children (and 14.6% of men who have any children) have children with more than one mother.

Most fathers live with all of their minor children, but it is not uncommon for a father to not live with some or all of their minor children. Of fathers who have children under the age of eighteen, 72.6% of them live with all of their minor children, 7.2% live with some of their minor children, and 20.2% do not live with any of their minor children.

While most father's have biological children, 3.4% of fathers have only adopted children. About 2.4% of fathers are single father's to minor children. And 39% of fathers are also grandfathers.

25 May 2021

Higher Taxes For Whom?

The fact that California and New York can tax the rich and not lose them to emigration speaks volumes about the overall superior mix of policies that those states have in place. 

17 May 2021

Unconstitutional Non-Unanimous Jury Verdicts Don't Invalidate Old LA and OR Convictions

The U.S. Supreme Court previous held in Ramos v. Louisiana, 590 U. S. ___., that there is a constitutional right to a unanimous jury verdict in criminal cases where there is a right to a trial by jury, something that two states (Louisiana and Oregon) had allowed with U.S. Supreme Court authorization due to Apodaca v. Oregon, 406 U. S. 404. 

Edwards v. Vannoy addressed the question of whether this constitutional holding could be applied to cases where direct appellate review of a conviction were exhausted in a collateral attack on the constitutionality of the conviction. The 6-3 conservative majority held over a three justice dissent, that it could not be applied to those cases (a clerical error in the original opinion that doesn't go to the merits was corrected two days later).

Furthermore, the Court held that new rule of criminal procedure will never apply retroactively to cases whose direct appeals have been exhausted, repudiating Teague v. Lane, 489 U. S. 288 which held that new "watershed" rules of criminal procedure could be applied retroactively.

Justice Brett M. Kavanaugh delivered the opinion of the Court in Edwards v. Vannoy, No. 19-5807. Justice Clarence Thomas issued a concurring opinion, in which Justice Neil M. Gorsuch joined. Justice Gorsuch issued a concurring opinion, in which Justice Thomas joined. And Justice Elena Kagan issued a dissenting opinion, in which Justices Stephen G. Breyer and Sonia Sotomayor joined. 

The Official Syllabus of the decision is as follows:


Argued November 30, 2020—Decided May 17, 2021 

In 2007, a Louisiana jury found petitioner Thedrick Edwards guilty of armed robbery, rape, and kidnapping. At the time, Louisiana law permitted non-unanimous jury verdicts if at least 10 of the 12 jurors found the defendant guilty. In Edwards’s case, 11 of 12 jurors returned a guilty verdict as to some crimes, and 10 of 12 jurors returned a guilty verdict as to others. After Edwards’s conviction became final on direct review, Edwards filed a federal habeas corpus petition, arguing that the non-unanimous jury verdict violated his constitutional right to a unanimous jury. The District Court rejected Edwards’s claim as foreclosed by Apodaca v. Oregon, 406 U. S. 404, and the Fifth Circuit denied a certificate of appealability. While Edwards’s petition for a writ of certiorari was pending, the Court repudiated Apodoca and held that a state jury must be unanimous to convict a criminal defendant of a serious offense. Ramos v. Louisiana, 590 U. S. ___. Edwards now argues that the Ramos jury-unanimity rule applies retroactively on federal collateral review. 

Held: The Ramos jury-unanimity rule does not apply retroactively on federal collateral review. Pp. 5–20. 

(a) A new rule of criminal procedure applies to cases on direct review, even if the defendant’s trial has already concluded. But the Court has stated that new rules of criminal procedure ordinarily do not apply retroactively on federal collateral review. The Court has stated that a new procedural rule will apply retroactively on federal collateral review only if the new rule constitutes a “watershed” rule of criminal procedure. Teague v. Lane, 489 U. S. 288, 311 (plurality opinion). When the Teague Court first articulated that “watershed” exception, however, the Court stated that it was “unlikely” that such watershed “components of basic due process have yet to emerge.” Id., at 313. And in the 32 years since Teague, the Court has never found that any new procedural rule actually satisfies the purported exception. Pp. 5–7. 

(b) To determine whether Ramos applies retroactively on federal collateral review, the Court must first ask whether Ramos announced a new rule of criminal procedure and, if so, whether that rule falls within an exception for watershed rules of criminal procedure that apply retroactively on federal collateral review. The Court concludes that Ramos announced a new rule and that the jury-unanimity rule announced by Ramos does not apply retroactively on federal collateral review. Pp. 8–14. 

(1) The Ramos jury-unanimity rule is new because it was not “dictated by precedent existing at the time the defendant’s conviction became final,” Teague, 489 U. S., at 301, or “apparent to all reasonable jurists” at that time, Lambrix v. Singletary, 520 U. S. 518, 528. On the contrary, before Ramos, many courts interpreted Apodaca to allow for non-unanimous jury verdicts in state criminal trials. And the Ramos Court expressly repudiated Apodaca. Pp. 8–10. 

(2) The new rule announced in Ramos does not qualify as a “watershed” procedural rule that applies retroactively on federal collateral review. In an attempt to distinguish Ramos from the long line of cases where the Court has declined to retroactively apply new procedural rules, Edwards emphasizes three aspects of Ramos
(i) the significance of the jury-unanimity right; 
(ii) Ramos’s reliance on the original meaning of the Constitution; and 
(iii) the effect of Ramos in preventing racial discrimination in the jury process. 
But the Court has refused to retroactively apply other momentous cases with similar attributes. In DeStefano v. Woods, 392 U. S. 631, the Court declined to retroactively apply Duncan v. Louisiana, 395 U. S. 145, even though Duncan established the jury right itself. In Whorton v. Bockting, 549 U. S. 406, the Court declined to retroactively apply Crawford v. Washington, 541 U. S. 36, even though Crawford relied on the original meaning of the Sixth Amendment to restrict the use of hearsay evidence against criminal defendants. And in Allen v. Hardy, 478 U. S. 255 (per curiam), the Court declined to retroactively apply Batson v. Kentucky, 476 U. S. 79, even though Batson held that state prosecutors may not discriminate on the basis of race when exercising individual peremptory challenges. There is no good rationale for treating Ramos differently from Duncan, Crawford, and Batson. Pp. 10–14. 

 (3) Given the Court’s numerous precedents holding that landmark and historic decisions announcing new rules of criminal procedure do not apply retroactively on federal collateral review, the Court acknowledges that the watershed exception is moribund and that no new rules of criminal procedure can satisfy the purported exception for watershed rules. Continuing to articulate a theoretical exception that never  actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. The watershed exception must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U. S. ___, ___ (slip op., at 11) (internal quotation marks omitted). Pp. 14–15. 


KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., THOMAS, ALITO, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. 
KAGAN, J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.

The conclusion of the majority opinion states:

To summarize the Court’s retroactivity principles: New substantive rules alter “the range of conduct or the class of persons that the law punishes.” Summerlin, 542 U. S., at 353. Those new substantive rules apply to cases pending in trial courts and on direct review, and they also apply retroactively on federal collateral review. New procedural rules alter “only the manner of determining the defendant’s culpability.” Ibid. (emphasis deleted). Those new procedural rules apply to cases pending in trial courts and on direct review. But new procedural rules do not apply retroactively on federal collateral review. 

Ramos announced a new rule of criminal procedure. It does not apply retroactively on federal collateral review. We affirm the judgment of the U. S. Court of Appeals for the Fifth Circuit. 

The concurring opinion from Justice Thomas argues that the same conclusions was compelled by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The concurring opinion from Justice Gorsuch tries to put the Court's ruling in the context of the history of writ of habeas corpus jurisprudence.

Justice Kagan argues in dissent that Ramos was a watershed rule which should have been applied retroactively under Teague.  

The practical effect of the ruling is that hundreds or up to several thousand inmates in Louisiana and Oregon who were convicted of felonies in non-unanimous jury verdicts will not receive new trials.

07 May 2021

Stray Thoughts On ADR

* One of the reasons to be skeptical of arbitration is that it is almost never mutually agreed to by the parties ex post. This isn't true of all methods of alternative dispute resolution (ADR). Parties routinely elect to participate in mediation ex post for example.

* I am not a great fan of the term "Alternative Dispute Resolution", because it confuses what the primary purpose of courts, and by association court substitutes like ADR, are really about. Court are not primarily "dispute resolution" forums. They are primarily "rights enforcement" forums, in which a fairly small minority of cases are seriously disputed (and even many disputed cases result in the enforcement of rights).

* Thinking about arbitration globally is also something that is commonly done and usually unhelpful. The predominant form of arbitration mandated in contracts and to which the Uniform Arbitration Act and Federal Arbitration Act are applied is a court substitute forum in which a private organization with professional, usually legally trained, professionals (often retired judges) serve as arbitrators and apply organization specific procedural rules. The most common rules are to apply the rules of civil procedure with only minor modification administered by private judges, or to apply one of the handful of rules of procedure that are type specific, established by the American Arbitration Association (AAA),with at least five other kinds of arbitration processes are fairly common: securities arbitration organized by the securities dealer's trade association, arbitration over commission disputes between members of the Realtors® organization organized by it, union-management arbitration of employment disputes arising during the term of a collective bargaining agreement, lawyer-client fee dispute arbitration organized by bar associations, and rabbinical divorce mediation organized by Orthodox Jewish denominations to apply Jewish law.

The currently active AAA rules for domestic U.S. binding arbitrations are:

Construction Industry

AAA Dispute Resolution Board Hearing Rules and Procedures

AAA Dispute Resolution Board Operating Procedures

AAA New Jersey Residential Construction Lien Arbitration Rules

Internet Domain Name Disputes

AAA Domain Name Disputes Supplementary Rules

AAA Nexus Disputes Supplementary Procedures

gTLD Dispute Resolution Procedures

Interim Supplementary Procedures for Internet Corporation for Assigned Names and Numbers (ICANN) Independent Review Process

Insurance Disputes

AAA Healthcare Payor Provider Arbitration Rules and Mediation Procedures

Employment Disputes

Multiemployer Pension Plan Arbitration Rules for Withdrawal Liability Disputes


Election Arbitration Rules (for non-government entity elections)

Wireless Industry Arbitration Rules (consumer and commercial).

Supplements To General Rules

*  I have litigated many arbitrations. They tend to be somewhat faster than litigation in court (although only marginally), but are almost never significantly less expensive and are often somewhat more expensive to litigate. The quality of the decision making in arbitration is almost uniformly worse, on average, than in the court process.

* The Federal Arbitration Act basically adopts the opposite of the better rule for addressing the question by expressing a strong preference for arbitration, even in close cases, and giving this preference pre-emptive effect. In the vast majority of cases, arbitration is inappropriate and verges on unconscionable as a contract term because arbitrators don't have to follow the law or make decisions consistent with the evidence, aren't subject to meaningful appellate review, and in most cases, show systemic bias towards the repeat players that named them or their organizations as arbitrators in their agreements. There are some narrow circumstances when arbitration can make sense, with more safeguards than exist under present law, but in the vast majority of cases, pre-dispute arbitration clauses should be invalidated as contrary to public policy.

* The existing civil litigation process admittedly does a poor job of handling some kinds of cases. For example, it is too expensive for medium sized (ca. $7,500 to $100,000) civil litigation of any complexity whatsoever (i.e. pretty much anything more complicated than a judicial foreclosure or  the collection of a promissory note). The civil litigation process is also too slow (especially at the appellate level). But arbitration doesn't do a significantly better job in these cases, and even when it reaches the right result, often creates an appearance of impropriety or injustice.

* What does the status quo in civil litigation do wrong in small cases? 

Some of the major factors are as follows:

(1) The finality of the factual determinations at trial profoundly increases the cost of preparing for trials and the cost of litigation; discovery and disclosures and pre-trial motion practice mostly exist to reduce uncertainty at trial, 

(2) a system designed around resolving everything in a final jury trial (even when the case will actually be decided by a judge without a jury at trial) prevents the scope of the case from being narrowed early on by have a judge resolve clear but disputed factual issues, 

(3) the substantive law frequently makes much more much evidence relevant than is necessary to resolve these disputes in a reasonably just manner greatly lengthening trials and increasing the costs of discovery and disclosures prior to trial, 

(4) a legal document heavy process is exceedingly difficult to navigate for pro se parties, even reasonably literate ones, and small cases more often have pro se parties, but lawyers are expensive (and "simplified" procedures that are document intensive don't solve the problem),

(5) there are insufficient intermediate options between hiring lawyers whose scarcity and expensive and time consuming educations make them expensive and representing oneself inadequately pro se, and

(6) underfunding of courts slows down the process and leads judges to adopt processes and courts to adopt legal doctrines that minimize judicial involvement until it is absolutely indispensable, even though this imposes great monetary and delay costs on the parties.

* Some plausible solutions that would help include:

Resolving as many legal and factual issues as possible (with some room for reconsideration by the same judge based upon additional evidence) with little or no discovery, just weeks after a case is "at issue" following a very early, abbreviated evidentiary hearing similar to what is done in eviction cases, writ of pre-judgment attachment cases, and cases where preliminary injunctions are sought. This would also parallel the criminal procedure process of having a prompt evidentiary preliminary hearing before a judge, prior to a full jury trial if the prosecutor's case is found to have merit. In cases where they are held, often these preliminary hearings in civil and criminal cases lead to merits based settlements that dispense with a final hearing where they are present. Only the narrow remaining issues not resolved at this stage, if any, would be the subject of further litigation, following discovery and motion practice, prior to a final hearing.

In small consumer cases, handling proceedings predominantly remotely.

Authorizing independent legal paraprofessionals with narrow areas of practice who would be less expensive than traditional lawyers with an almost unlimited range of practice. I would also favor broadening the right to counsel at state expense to all issues of personal status (e.g. paternity, child custody, guardianships, and immigration), rather than only to criminal defense for indigent defendants and termination of parental rights cases.

Providing more funding for judges and courts to speed up the handling of cases and to promote earlier judicial involvement in cases.

Narrowing the right to a jury trial in civil cases, and greatly reworking the civil procedure process in cases where a jury trial is not available or not elected by the parties. 

The Impact Of A Judicial Finding That A Judge Is Racist

A Colorado Court of Appeals decision released yesterday sets forth the procedural next steps in a case where Colorado Supreme Court disciplined the judge who terminated their parental rights for racist conduct and the parents alleged that the judge's racism denied them a fair hearing (something that was discovered only once the appeal of their cases on other grounds was fully briefed).

The resolution was to order a limited remand for a hearing before a new judge over whether the disciplined judge's racism tainted the result in their case and should authorize a new hearing on that ground on an expedited basis. 

This is a sensible enough result, although it arguably would have been simpler and more efficient in this particular case to simply vacate the racist judge's ruling and order a new hearing on the merits before a new judge. 

Presumably, the Court of Appeals did not do so because it was sensitive to the risk that a huge swath of cases decided by the resigned racist judge would be upended despite the fact that many of the rulings probably had nothing to do with racial bias.

Still, this is a much better result than one which would have simply favored finality over the merits in the face of a judicially established case of judicial bias that plausibly applied in this particular case.

Another Quirk of Arbitration

Arbitrators can administer oaths and issue subpoenas under the relevant section of the Uniform Arbitration Act (adopted in some form in 35 states and codified in Colorado at Colorado Revised Statues § 13-22-217(1)). 

The Act states in pertinent part: 
An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena issued under this section shall be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or by the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.
Perjury in those cases could be prosecuted by a District Attorney or the state's Attorney General as a crime. 

As the Acts note, it takes a government appointed judge's order to enforce the subpoena. 

This language of the Uniform Arbitration Act is interesting because usually oaths can only be administered by government officials who take oaths of office themselves, or by a notary public who takes an oath of office upon receiving a government approved commission. 

The power to issue subpoenas is likewise usually limited to government appointed court clerks who swear an oath of office, to state licensed attorneys who swear an oath of office and sometimes to certain other sworn government appointed enforcement officers of regulatory agencies. 

But being an arbitrator isn't a regulated profession under the Uniform Arbitration Act, or under the laws of the vast majority of states. The parties to the contract decide who serves in that capacity. 

A nineteen year old high school dropout with felony sedition and perjury convictions who is an undocumented immigrant and is incarcerated at the time of the arbitration is still legally eligible to serve as an arbitrator. One can't be "disbarred" from serving as an arbitrator either.

This significance of this is somewhat diminished by the fact that both of these powers require the intervention of a judge in a court proceeding to be enforced, however (as does enforcement of an arbitration award involuntarily).

But, the Uniform Arbitration Act didn't have to make this unique exception. Other options could easily have been chosen instead.

Offering unsworn false testimony in an arbitration hearing would still usually constitute the crime of fraud. And, the perjury act could similarly have been amended to provide that unsworn testimony in an arbitration proceeding was punishable as perjury if an unsworn affirmation to that effect was made in the proceeding.

The Uniform Arbitration Act could have provided that arbitration subpoenas are issued by the clerk of the court of general jurisdiction where the arbitration is being held, or by a licensed attorney for a party in the case, just as it would be in a regular court case. 

Indeed, there is much to be said for imposing such a restriction, because how is an average person receiving a subpoena issued by an arbitrator supposed to know that this person, who outside of a contract written by private individuals is nobody special, has the power to exert this authority over them.

Alternately, the Uniform Arbitration Act could have required arbitrators acting under the Act to be commissioned by the state in a manner similar to that of a notary public or an attorney, subject to some sort of minimum standard to be appointed and subject to having the commission revoked for misconduct.

As a practical matter, it isn't a big problem. 

Almost no one is ever prosecuted for perjury for testimony in a judicial or quasi-judicial proceeding anyway, and perjury prosecutions for lying in arbitration proceedings are vanishing rare, so the administration of oaths or affirmations under penalty of perjury has little practical effect.

Likewise, while arbitrators could just be anybody, and this provision of law could be used to manipulate arbitration proceedings for improper purposes, for example, to gain access to otherwise confidential information in connection with a bogus arbitration which is really just a pretense to gain subpoena power, for whatever reason, this is very rarely done. 

The vast majority of arbitrators are attorneys, or if they are not attorneys, are distinguished professionals who are familiar with the Uniform Arbitration Act and Federal Arbitration Act and their roles within it.

Few arbitrators actually issue subpoenas on a regular basis, even though they can, and many don't bother to swear in witnesses, especially if they are not attorneys. And, there are reasons to have non-attorney arbitrators, especially in employment or construction or accounting or appraisal or marital dispute arbitrations with a narrow scope where the technical or religious expertise of the arbitrator is more important than general legal expertise.

But these anomalies are nonetheless notable.

05 May 2021

Robot Missile Barges

David Axe at Forbes recaps an idea (others have also proposed it) whose time may have come.

The idea is to build unmanned ships that have Vertical Launch System (VLS) missiles and little else at a cost of $100 million each on the proposed "large unmanned surface vehicle" (LUSV) platform or perhaps something even more basic and cheaper like a towed barge, or a modified ship that is already part of the U.S. Navy or Merchant Marine's fleet of transport ships. 

In contrast, a destroyer costs $2 billion to build and $80 million a year to operate, and even the latest U.S. frigates, which are being built based on an existing proven French Navy design, costs close to $900 million or more to build.

VLS missiles are the primary armament of all of the frigates, cruisers (22 year old ships which are about to leave service which have 122 VLS tubes each) and destroyers (with 96 VLS tubes each) in the U.S. Navy (except the three Zumwalt class destroyers and the Littoral Combat Ships which have been redesignated as frigates). The types of missiles used in VLS batteries include: Tomahawk surface to surface cruise missiles to attack ground targets, Standard Missiles (SM-6) and Harpoon missiles which are used to attack other surface ships, Enhanced Sea Sparrow anti-air and anti-missile missiles, and anti-submarine missiles.

(These ships also have advanced sensors, anti-aircraft weapons, torpedoes, anti-missile guns, 3" or 5" main naval guns, and machine guns, but these are either primarily defensive, or designed to use only a short range with less accuracy and a less potent effect. These ships also have armed helicopters.)

VLS missiles are also (together with torpedoes) the primary armament of about four Ohio-class guided missile nuclear powered, blue water submarines (SSGNs) originally designed to launch intercontinental nuclear ballistic missiles, which are 40 years old and soon to be decommissioned, but have 154 VLS missile tubes each.

The idea is that the missiles would be fired at targets communicated to the drone ship remotely, which were established with satellites, sensors on other ships and submarines, sensors on aircraft, land based sensors, and forward observers. Other surface ship drones, such as the 150 foot long, $35 million, medium unmanned surface vehicle (MUSV), might be part of this network of sensors for it. Proof of concept has already been established:
Last week off the California coast, drones on the surface and in the air chased down a target barge and relayed, via satellite, its location to the destroyer USS John Finn.

The destroyer fired a long-range SM-6 missile and sank the target from “well beyond the line of sight,” according to the Navy.

The idea echos the abandoned arsenal ship concept of the early 1990s which was similar but would have been manned.  The goal is to bring lots of firepower to bear at a minimum cost. 

The drone ships would be defended against hostile force threats like enemy missiles, enemy submarines, and enemy aircraft, thorough resources elsewhere in the fleet.

Meanwhile, there is also an effort underway to outfit the Navy's new Constellation-class frigates, its amphibious transport ships, 31 of its littoral combat ships in the next two years (15 of which will also be outfitted with long delayed anti-submarine modules and 15 of which will be outfitted with long delayed anti-mine warfare modules), coast guard cutters, and even modified Marine Corps Joint Light Tactical Vehicles (an armored replacement for Humvees and the MRAP vehicles) called NMESIS with either VLS missile tubes, or a new class of missile called a "Naval Strike Missile" with a 115 mile range with a 500 pound warhead, similar to but smaller than the VLS, to dramatically increase their capacity to effective take on enemy warships or coastal targets. 

There are also efforts underway to equip these ships with active defenses such as lasers that can be used against incoming missiles, drones, aircraft, naval guns, artillery shells and smaller armed boats, decoy launchers, and anti-aircraft missiles similar to the man portable anti-aircraft missiles like the Stinger or the M-SHORAD systems used on its Stryker armored personnel carriers, which are in use in the U.S. Army.

(The three Zumwalt class destroyers are being considered seriously as a platform for a new class of hypersonic missiles starting in 2025 in lieu of its 155mm naval gun that never had any ammunition designed for it.)

There are other solutions to the same problem of how to increase the firepower at the "tip of the spear" without going into the battlefield in what amounts to an RV which is basically what a traditional manned surface combatant warship does. 

But, this one is simple, cheap, could be effective, and deserves more attention with any modifications that further examination of the concept brings to light.

U.S. Birth Rates Continue To Fall

Fears of overpopulation were exaggerated. The pandemic accentuated trends that were already underway.
The birthrate declined for the sixth straight year in 2020, the federal government reported on Wednesday, early evidence that the coronavirus pandemic accelerated a trend among American women of delaying pregnancy.

Early in the pandemic, there was speculation that the major changes in the life of American families could lead to a recovery in the birthrate, as couples hunkered down together. In fact, they appeared to have had the opposite effect: Births were down most sharply at the end of the year, when babies conceived at the start of the pandemic would have been born.

Births declined by about 8 percent in December compared with the same month the year before, a monthly breakdown of government data showed. December had the largest decline of any month. Over the entire year, births declined by 4 percent, the data showed. There were 3,605,201 births in the United States last year, the lowest number since 1979. The birthrate — measured as the number of babies per thousand women ages 15 to 44 — has fallen by about 19 percent since its recent peak in 2007.

The declining birthrate is just one piece of America’s shifting demographic picture. Combined with a substantial leveling-off of immigration, and rising deaths, the country’s population over the past decade expanded at the second-slowest rate since the government started counting in the 18th century. The pandemic, which pushed the death rate higher and the birthrate even lower, appears to have deepened that trend.

Kenneth Johnson, a demographer at the University of New Hampshire, has calculated that together with the rise in deaths — up by about 18 percent from 2019 — the drop in births is contributing to the aging of the American population: A total of 25 states had more deaths than births last year, Dr. Johnson said, up from five at the end of 2019. “The birthrate is the lowest it’s ever been,” he said. . . .

Births declined across all age groups in 2020, except among women in their late 40s and girls in their early teens, groups that were tiny fractions of total births. The birthrate was down by 8 percent among teenagers, compared with 2019, and by 6 percent among women ages 20 to 24. The rate among women in their early 20s is down by 40 percent since 2007. . . . Teenagers have had the sharpest decline, down by 63 percent since 2007. . . . Today the average age at first birth is 27, up substantially from 23 in 2010.
From the New York Times. The source for the story notes that:
The provisional general fertility rate (GFR) for the United States in 2020 was 55.8 births per 1,000 women aged 15–44, down 4% from the rate in 2019 (58.3), another record low for the nation. From 2014 to 2020, the GFR declined by an average of 2% per year. 
GFRs declined for each of the race and Hispanic-origin groups from 2019 to 2020, down 3% for non-Hispanic NHOPI [Native Hawaiian or Pacific Islander] women; 4% for non-Hispanic white, non-Hispanic black, and Hispanic women; 7% for non-Hispanic AIAN [American Indian-Alaska Native] women; and 9% for non-Hispanic Asian women.

The provisional total fertility rate (TFR) for the United States in 2020 was 1,637.5 births per 1,000 women, down 4% from the rate in 2019 (1,706.0), another record low for the nation. The TFR estimates the number of births that a hypothetical group of 1,000 women would have over their lifetimes, based on the age-specific birth rate in a given year. 
The TFR in 2020 was again below replacement—the level at which a given generation can exactly replace itself (2,100 births per 1,000 women). The rate has generally been below replacement since 1971 and has consistently been below replacement since 2007.

The provisional birth rate for teenagers in 2020 was 15.3 births per 1,000 females aged 15–19, down 8% from 2019 (16.7), reaching another record low for this age group. The rate has declined by 63% since 2007 (41.5), the most recent period of continued decline, and 75% since 1991, the most recent peak. The rate declined an average of 7% annually from 2007 to 2020. The number of births to females aged 15–19 was 157,548 in 2020, down 8% from 2019. 
The provisional birth rates for teenagers aged 15–17 and 18–19 in 2020 were 6.3 and 28.8 births, respectively, down by 6% and 7% from 2019, again reaching record lows for both groups. From 2007 to 2020, the rates for teenagers aged 15–17 and 18–19 declined by 9% and 7% per year, respectively. 
The provisional birth rate for females aged 10–14 was 0.2 births per 1,000 in 2020, unchanged since 2015
The provisional birth rate for women aged 20–24 in 2020 was 62.8 births per 1,000 women, down 6% from 2019 (66.6), reaching yet another record low for this age group. This rate has declined by 40% since 2007. The number of births to women in their early 20s also declined by 6% from 2019 to 2020. 
The provisional birth rate for women aged 25–29 was 90.0 births per 1,000 women, down 4% from 2019 (93.7), reaching another record low for this age group. The number of births to women in their late 20s declined 5% from 2019 to 2020. 
The provisional birth rate for women aged 30–34 in 2020 was 94.8 births per 1,000 women, down 4% from 2019 (98.3). The number of births to women in this age group declined by 2% from 2019 to 2020. 
The provisional birth rate for women aged 35–39 was 51.7 births per 1,000 women, down 2% from 2019 (52.8). The number of births to women in this age group declined by 2% from 2019 to 2020. 
The provisional birth rate for women aged 40–44 in 2020 was 11.8 births per 1,000 women, down 2% from 2019 (12.0). The rate for this age group had risen almost continuously from 1985 to 2019, by an average of 3% per year. The number of births to these women was essentially unchanged from 2019 to 2020. 
The provisional birth rate for women aged 45–49 (which includes births to women aged 50 and over) was 0.9 births per 1,000 women, unchanged since 2015. However, the number of births to women in this age group declined 4% from 2019 to 2020.

The decline was most marked in the fourth quarter of 2020, the first to show COVID-19 impacts. Birth rates were lower in the fourth quarter of 2020 than at any time in history in the territory that is now the United States in every age category.

My analysis of the same report for 2019, about a year ago (making deep time depth and international comparisons), is here.

04 May 2021



In all likelihood, Baggett didn't really "shoot down the plane", instead, he presumably shot and killed the pilot with his pistol causing it to crash.

Killing or disabling the operator (either human or AI) of an aircraft, or ship, or tank, or missile battery, or other vehicle or military system requires profoundly less explosive force and a profoundly smaller projectile than using a projectile transmitting explosive force to render the equipment being operated inoperable.

There are a couple of fictional examples of the idea.

One is in the anime Gargantia on the Verdurous Planet (2013) in which a mecha fires tiny guided missiles to kill or tranquilize (I don't recall) the members of the enemy crew on a warship bent on destroying the peaceful flotilla of our hero's friends.

Another is Frank Herbert's Dune series (the first volume, was published in 1965 and contained the point key to this post) in which war between massed armies has been largely abandoned because shields are effective against most projectiles, and atomic weapons sufficient to overcome shields are too destructive to be used without destroying what one wants to conquer. Instead, war is waged primarily via bird sized assassination drones targeted at enemy leaders and other key personnel. 

At the time Dune was written, the technology to do this was hopelessly out of reach. In 2013, it was imaginable, but still an extreme concept. In 2021, we are approaching an area, however, where this kind of tactic might be viable.

03 May 2021

The Mysteries of Guy Stuff

Our heroine was stranded at the home of a male companion overnight without her usual toiletries, and had to improvise before heading off to her college classes. Her question was understandable.