28 June 2021

Sixth Generation Fighters?

Defense contractors and senior military procurement officials are working on developing a successor to the F-22 and F-35, even though Congress seems to be more interested in taking a step backward with a new buy of upgraded F-15s.
[T]he Navy and Air Force are already courting concepts from the defense industry on separate sixth-generation successors to the F-35, called the FA-XX and Penetrating Counter Air respectively.

After the frustrations experienced in reconciling the Air Force’s and Navy’s differing demands for the F-35—and the mere 20 percent parts commonality that resulted between the two—the two services have little desire to jointly develop the Lightning’s successors. The PCA is intended to be a long-range escort fighter that can accompany forthcoming B-21 Raider stealth bombers into enemy airspace and protect them from enemy fighters. The FA-XX will likely be an interceptor that can better protect Navy carriers from enemy bombers and missiles.

From here

And why are we buying the F-15EX (an upgraded fourth generation fighters) again?

As simple as just building new F-22s may sound, the truth is, re-starting the F-22 production line would likely cost the same or potentially even more than simply developing an entirely new and potentially better fighter. Lockheed Martin cannibalized a great deal of the F-22’s production infrastructure to support the ongoing production of the F-35, meaning it wouldn’t be as simple as just re-opening the plants that had previously built Raptors. . . .

Boeing’s new F-15s are considered fourth-generation fighters that are sorely lacking in stealth when compared to advanced fighters like the F-22 and F-35, but the Air Force has agreed to purchase new F-15s at a per-unit price that even exceeds new F-35 orders. Why? 
There are a number of reasons, but chief among them are operational costs (the F-15 is far cheaper per flight hour than either the F-35 or the F-22), and immediate production capability. Boeing has already been building advanced F-15s for American allies in nations like Qatar and Saudi Arabia, so standing up a new production line for the United States comes with relatively little cost.
The F-22’s production line, on the other hand, hasn’t existed in nearly a decade. In a report submitted to Congress in 2017, it was estimated that restarting F-22 production would cost the United States $50 billion just to procure 194 more fighters. That breaks down to between $206 and $216 million per fighter, as compared to the F-35’s current price of around $80 million per airframe and the F-15EX’s per-unit price of approximately $88 million.

From here

UPDATE (July 1, 2021):

Meanwhile, the military of Switzerland has agreed to buy 36 F-35A fighters (Lockheed) for $6.5 billion, after having decisively defeated the bids from Eurofighter Typhoon (Italy’s Leonardo, the U.K.’s BAE Systems, and Airbus), the Dassault Rafale, and Boeing’s F/A-18E/F Super Hornet. Lockheed's F-35A bid was $2.16 billion cheaper over 30 years than the next lowest bid, and also outperformed its competitors for the contract in all respects in terms of performance measures:

[T]he F-35 scored better in effectiveness, product support and cooperation than the Rafale, Super Hornet and Typhoon. The Federal Council pointed specifically to the Joint Strike Fighter’s survivability and situational awareness as selling points that were seen as advantageous for the Swiss Air Force’s air-policing mission.

“In terms of effectiveness, the F-35A achieved the best result because ... it includes entirely new, extremely powerful and comprehensively networked systems for protecting and monitoring airspace,” the Federal Council stated.

Most People Live Near Sea Level

About 98% of the world's population lives at or below Denver, Colorado's elevation.

[Solid lines are cumulative distributions.] 

Approximately 1.88 × 109 people, or 33.5% of world population, live within 100 vertical meters of sea level. Only 15.6% of all occupied land lies below 100 m elevation. . . . Kopec estimated that 17% of all land (not limited to occupied land) lies below 100 m elevation.

From Joel E. Cohen and Christopher Small, "Hypsographic demography: The distribution of human population by altitude" 95 (24) PNAS 14009-14014 (November 24, 1998).

China Is Linguistically Diverse

China works hard to convey an image of monolithic unity to the world and to its own people. But the reality is more complex. 

China is still wrestling with how to rule over a diverse, ethnically mixed population that does not necessarily accept the dominance of the Han or the CCP [Chinese Communist Party] narrative. 
The challenge for the CCP is that ethnic minorities constitute only about 10 percent of the total population but inhabit 60 percent of the land mass, much of which is in sensitive border areas (the Guangxi Zhuang Autonomous region, Inner Mongolia Autonomous Region, Tibet Autonomous Region, and Xinjiang Uyghur Autonomous Region). 
The national language is a recent construct and has priority in schools over the local languages. About 30 percent of the population speaks a language at home other than the national language.

Some linguists call the various varieties of the Chinese language, which shares a common logographic script "topolects" which are sometimes described as "dialects" but many of which are really at least as different from each other as different languages within a language family like the Romance languages or Germanic languages or the Dravidian languages.

From here. The areas in white are arid regions of the extremely high altitude Tibetan plateau that have almost no permanent residents.

From here.

China's political subdivisions and neighbors (from Landsat):

China by elevation (Creative Commons Attribution License 4.0) from Hui Zhao, et al., "Preliminary study on alterations of altitude road traffic in China from 2006 to 2013"(February 2017):

For reference (rounded to the nearest foot):

1,609 meters = 5,280 feet (1 mile) = Denver
2,000 meters = 6,562 feet
Aspen = 8,000 feet
Vail = 8,150 feet
3,000 meters = 9,843 feet
4,000 meters = 13,123 feet
5,000 meters = 16,404 feet

Ecological regions of China:

27 June 2021

Adult Establishments Reduce Rape

There are plausible arguments that adult establishments would increase or decrease sex offenses. Empirical evidence shows that they decrease them.
This paper studies how the presence of adult entertainment establishments affects the incidence of sex crimes, including sexual abuse and rape. We build a high frequency daily and weekly panel that combines the exact location of not-self-reported sex crimes with the day of opening and exact location of adult entertainment establishments in New York City. We find that these businesses decrease sex crime by 13% per police precinct one week after the opening, and have no effect on other types of crimes. The results imply that the reduction is mostly driven by potential sex offenders frequenting these establishments rather than committing crimes. We also rule out the possibility that other mechanisms are driving our results, such as an increase in the number of police officers, a reduction in the number of street prostitutes and a possible reduction in the number of potential victims in areas where these businesses opened. The effects are robust to using alternative measures of sex crimes.
From here.

25 June 2021

Friday At SCOTUS

Three decisions released today.

1. Justice Brett M. Kavanaugh delivered the opinion of the Court in TransUnion LLC v. Ramirez, No. 20-297. Justice Clarence Thomas issued a dissenting opinion, in which Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan joined. And Justice Kagan issued a dissenting opinion, in which Justices Breyer and Sotomayor joined.

HELD 5-4: In this case, a credit union inaccurately flagged 8,185 people as being on a watch list of terrorists, drug traffickers, and other serious criminals, but only 1,853 class members (including the named plaintiff Sergio Ramirez) had their misleading credit reports containing OFAC alerts provided to third parties during the 7-month period specified in a class action lawsuit. The trial court and 9th Circuit held that all 8,185 had standing, because the credit union violated a legally established right of the plaintiffs and all of them were awarded damages. SCOTUS rules that “Article III standing requires a concrete injury even in the context of a statutory violation" and rejects "the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” An injury in law is not an injury in fact. The 1,853 class members whose reports were disclosed suffered a harm with a “close relationship” to the harm associated with the tort of defamation. The Court has no trouble concluding that the 1,853 class members suffered a concrete harm that qualifies as an injury in fact. but the mere existence of inaccurate information, absent dissemination, traditionally has not provided the basis for a lawsuit in American courts. The plaintiffs advance a separate argument based on their exposure to the risk that the misleading information would be disseminated in the future to third parties. The Court has recognized that material risk of future harm can satisfy the concrete-harm requirement in the context of a claim for injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial. But the mere risk of future harm, without more, cannot qualify as a concrete harm in a suit for damages. Nor did those plaintiffs present evidence that the class members were independently harmed by their exposure to the risk itself. The risk of future harm cannot supply the basis for their standing. In two other claims, all 8,185 class members complained about formatting defects in certain mailings sent to them by TransUnion. But the plaintiffs have not demonstrated that the format of TransUnion’s mailings caused them a harm with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts. The plaintiffs argue that TransUnion’s formatting violations created a risk of future harm, because consumers who received the information in the dual-mailing format were at risk of not learning about the OFAC alert in their credit files and thus not asking for corrections. The risk of future harm on its own is not enough to support Article III standing for their damages claim. In any event, the plaintiffs here made no effort to explain how the formatting error prevented them asking for corrections to prevent future harm. The United States as amicus curiae asserts that the plaintiffs suffered a concrete “informational injury” from TransUnion’s formatting violations. But the plaintiffs here did not allege that they failed to receive any required information. 

ANALYSIS: The dissent argues that the problem with the ruling is that Congress ought to be able to define legislatively what acts constitute compensable harm, even if they weren't traditionally recognized as harms at common law. The dissent is right and this ruling could pose problems in the future, even if the ruling in this particular case isn't deeply troubling.

2. Justice Neil M. Gorsuch delivered the opinion of the Court in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Assn., No. 20-472. And Justice Amy Coney Barrett issued a dissenting opinion, in which Justices Sotomayor and Kagan joined.

HELD: Certain refineries were once exempt from an environmental law which authorized an extension of the exemption to be granted in some cases. The court interprets the law to allow extensions that reinstate lapsed exemptions, contrary to the usual meaning for the word extension. It is a bad decision, but one with narrow application.

3. And Justice Sotomayor delivered the opinion of the Court in Yellen v. Confederated Tribes of Chehalis Reservation, No. 20-543. Justice Gorsuch issued a dissenting opinion, in which Justices Thomas and Kagan joined.

HELD: Alaska Native Corporations are Indian Tribes for purposes of a Coronvirus relief bill aid provision.

23 June 2021


Four decisions were released today by the U.S. Supreme Court. 

1. Justice Elena Kagan delivered the opinion of the Court in Lange v. California, No. 20-18. Justice Brett M. Kavanaugh issued a concurring opinion. Justice Clarence Thomas issued an opinion, in which Justice Kavanaugh joined in part, concurring in part and concurring in the judgment. And Chief Justice John G. Roberts, Jr. issued an opinion, in which Justice Samuel A. Alito, Jr. joined, concurring in the judgment. 

HELD: There is not a categorical right to pursue to fleeing misdemeanor violator into his home without a warrant, although a true emergency may authorize law enforcement to do so. The case is remanded to determine if a warrantless search was authorized on this ground. This is a vanilla application of the Fourth Amendment that slightly clarifies the law by preventing the creation of a new categorical exception to the warrant requirement. It isn't a bad decision despite the fact that it makes it harder for law enforcement officers to know what to do.

2. Justice Alito delivered the opinion of the Court in Collins v. Yellen, No. 19-422. Justice Thomas issued a concurring opinion. Justice Neil M. Gorsuch issued an opinion concurring in part. Justice Kagan issued an opinion, ih which Justices Stephen G. Breyer and Sonia Sotomayor joined in part, concurring in part and concurring in the judgment. And Justice Sotomayor issued an opinion, in which Justice Breyer joined, concurring in part and dissenting in part. You can access the oral argument via this link.

HELD: Congress may not establish an independent agency led by a single director whom the President can remove only for cause. This gives force of law to the conservative "unitary executive" theory and echoes a similar recent decision related to the Consumer Financial Protection Bureau. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___, in which the Court held that Congress could not limit the President’s power to remove the Director of the Consumer Financial Protection Bureau (CFPB) to instances of “inefficiency, neglect, or malfeasance.” In so holding, the Court observed that the CFPB, an independent agency led by a single Director, “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.” This is a bad decision that limits the flexibility of Congress in organizing the structure of the government. 

SECONDARY HOLDING: Congress was within its rights to bar private causes of action against a government agency appointed conservator for actions taken within the scope of the conservatorship. "The “anti-injunction clause” of the Recovery Act provides that unless review is specifically authorized by one of its provisions or is requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” [12 U.S.C.] §4617(f). Where, as here, the FHFA’s challenged actions did not exceed its “powers or functions” “as a conservator,” relief is prohibited." This isn't a great decision either, although it is quite limited in its scope and its practical application is unclear. The application here, where it barred a suit against the agency for taking actions as a conservator that were in the agency and the economy's best interest but not in the best interest of the shareholders of the company under conservatorship, is not troubling.

3. Justice Breyer delivered the opinion of the Court in Mahanoy Area School Dist. v. B.L., No. 20-255. Justice Alito issued a concurring opinion, in which Justice Gorsuch joined. And Justice Thomas issued a dissenting opinion. 

HELD: It is unconstitutional for a public school to punish a student in anyway for out of school speech directed at a select group of friends on social media that does not substantially disrupt school activities and does not fall within some other category of speech (e.g. threats) that is not entitled to First Amendment Protection. The removal of the student from the junior varsity cheerleading squad for this speech violated her constitutional rights. This is a fair decision consistent with longstanding First Amendment jurisprudence.

4. And Chief Justice Roberts delivered the opinion of the Court in Cedar Point Nursery v. Hassid, No. 20-107. Justice Kavanaugh issued a concurring opinion. And Justice Breyer issued a dissenting opinion, in which Justices Sotomayor and Kagan joined. 

HELD: The State of California engaged in a compensable taking of property from farm owners when it authorized private union organizers to go onto a farmer's property for up to three hours a day up to 120 days per year to engage in union organizing of the farmer's employees there. The split was between the six conservative and three liberal justices. This is very bad law driven by anti-union animus.

Commentary: “Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine; For the first time, the 6-3 conservative majority powered a hard-right change in the law”: Josh Blackman has this post at “The Volokh Conspiracy.

Showing The Flag

Usually Stealth Is Better

When it comes to effectiveness in actively conducted combat operations, against "near peer" opponents, stealth is usually the clear winner.

Attack submarines greatly outmatch surface warships in naval engagements. 

The vast majority of air to air combat incidents (and the vast majority of kills by "fighter aces" in the post-World War II era) are one shot, one kill engagements where the air to air missile that will shot down the loser is in the air before the winner even realizes that an air to air combat engagement has begun.

In air to ground attacks, stealth fighters and bombers, low profile armed drones, and long range cruise missiles (especially hypersonic missiles that minimize the window of opportunity for evasive action or active countermeasures) are devastatingly effective against fixed ground targets like bridges, roads, rail lines, missile batteries, airfields and enemy bases, against armored military vehicles like tanks and mobile artillery batteries, against surface ships, and even against large massed gatherings of infantry troops. 

The main limitation of air to ground attacks has been the ability to identify legitimate targets and in this reconnaissance role, stealth too has always been acknowledged as critical. Satellites, stealthy drones, and special operations forces identifying targets with glorified smart phones, and old fashioned human intelligence networks, have been the order of the day.

In terms of strategic forces, nuclear ballistic missile submarines, currently the Ohio class in U.S. service, and long range stealth bombers, currently the B-2 in U.S. service, have always been are more difficult to counter nuclear missile threat than fixed missile silos. In the hands of countries and terrorist organizations with only limited or covert nuclear weapons capabilities, the biggest threat is often not a conventional intercontinental ballistic missile with a nuclear warhead, but a nuclear warhead smuggled into an enemy port on a yacht or fishing boat or in a shipping container, or a "backpack bomb", each presenting a different kind of stealth attack.

The U.S. military has not been insensitive to this development. It has a new generation of long range stealth bomber that basically updates the existing B-2 stealth bomber, the B-21, in the development process. Its "5th generation" fighters, the F-22 and F-35 have stealth designs. It is working on developing a new class of attack submarines to replace the Virginia class. The U.S. military's next generation of helicopters are being designed to be quieter and more stealthy.

Meanwhile, the general rule has been that visible is vulnerable. The U.S. Marine Corps is discontinuing the use of big, slow, easily located tanks. More generally, the U.S. Army and most other military forces in Europe, have greatly curtailed their use of tanks. Worldwide, heavy artillery batteries have been replaced by smaller missile batteries (usually mobile). 

While the U.S. has not done so to a great extent (in part, out of a desire to maintain long distance blue sea naval operations rather than short range defensive ones), most of the world's credible naval forces have been shifting away from large major surface combatant ships towards smaller, faster, and easier to hide missile boats and small diesel-electric air independent propulsion attack submarines. The latest U.S. destroyer, the Zumwalt class, the many foreign military frigates, have been designed to have reduced radar signatures.

China and Russia have been working on developing stealth fighters of their own and hypersonic missiles, to replace their fourth generation fighter aircraft (i.e. replacing their counterparts to the F-15 and F-16 in U.S. service).

Showing The Flag

The problem is that the vast majority of the time, active combat between near peers in international wars is not what military forces are called upon to do.

Any time that missiles are launched, bombs are dropped, or shots are fired in combat, the military has already failed at its primary purpose, which is to use the threat of force to influence the actions of other countries and para-military groups, without having to fire a shot.

Military forces looming at a contested border, for example, discourage aggressors from trying to take territory. Warships cruising in contested areas of the South China Sea, or the Persian Gulf, can discourage aggressors from preying on civilian ships.

A roar and flash warning shots from a noisy AC-130 gunship, or A-10 Warthog, or armed helicopter gunship serving as close air support has frequently caused an attacking force of ground troops to back off from attacking in the first place, or to retreat.

Soldiers patrolling neighborhoods, or tanks that take up positions near urban areas in time of civil unrest, and attack helicopters flying over neighborhoods, can restrain or prevent action from military insurgencies. 

An amphibious assault ship full of Marines just off the coast of a fragile friendly regime's shores, or a military base on the soil of a friendly regime, can discourage coups against that regime or outside attacks on that nation.

The trouble is, however, that stealth is precisely what one does not want to make a threat of force. The whole point of a threat of force is that you "show the flag" and make a credible threat of military action that your adversary is aware of, that leads to the desired action being taken without any shots being fired and without anyone dying. War is an awful thing, and if a visible and credible threat of force can prevent it, that is a much greater win than prevailing in combat that leads to mass death and destruction (even if that death and destruction is to your opponent).

One of the best justifications for continuing to use large surface combatant warships, despite the fact that they are extremely vulnerable to a wide variety of modern military threats from attack submarines, to sea mines, to hypersonic missiles, to air to surface missiles and bombs from enemy aircraft, to interrupted supply lines of food and fuel, to swarm attacks from small craft, to sabotage attacks while in port like the U.S.S. Cole incident, is that they are an effective way to very visibly and publicly show the flag and communicate a credible threat of the use of military force.

One of the best justifications for big, noisy, non-stealth aircraft like the B-52, or the A-10, or the AC-130, or the Apache AH-64 gunship, or fourth generation fighters like the F-15 or F-16, is that they can be effective ways of showing the flag, either to enemy forces on the ground, or to aircraft considering invading your airspace and threatening your air dominance in a region.

You can't show the flag with an attack submarine. You can't show the flag with a B-21 bomber. Or, rather, you can - this was basically how the MAD (mutually assured destruction) nuclear deterrent strategy worked. But it only works is your adversary is sophisticated enough to recognize that it is there and if some use of the threatened force is not so remote that it has lost its visceral emotional effect with your adversary's decision makers.

The threat of a nuclear attack, for example, has grown to have diminished effectiveness (although it is still considerable) because the last time such an attack was used in real life, in 1945, is now more than 75 years in the past, beyond the lifetimes of most modern decision-makers, and it is increasingly recognized that a country that has nuclear weapons may refrain from using them because the collateral damage to civilians and to themselves through global environmental impacts, may be too high to leave that option on the table.

And, of course, if your showing the flag military assets work well enough to discourage any significant actual near peer combat from ever breaking out, the fact that those military assets have significant vulnerabilities precisely because they aren't very stealthy, may be irrelevant. 

On the other hand, it may also be the case, the economic interdependence, rather than the threat of military force, is really what has driven a sustained period without major, international wars between nations with advanced military forces.

Non-Near Peer Threats

Large visible warships and non-stealth aircraft have, for many decades now, been sufficient to discourage warfare between the U.S. and its near peer nations. And, while these highly visible military assets are indeed vulnerable to the sophisticated modern weapons of near peer nation-states, these systems aren't very vulnerable in asymmetric conflicts such as counter-insurgency missions and "small wars" in second-world and third-world countries, whose control over their air space can be wiped out in an instant, and who have no naval resources adequate to pose a serious threat to modern U.S. warships, with which the U.S. has been engaged in actual combat over the last two decades.

The Gulf War, the Iraq War, the initial catastrophic collapse of the Taliban regime after 9-11 in 2001, the missile strikes the U.S. has made on Libya and Syria, and effective joint anti-piracy missions in the Indian Ocean off the coast of Somalia, have all demonstrated in recent living memory that U.S. military capabilities are indeed dominant over developing country and third-world military forces. 

On the other hand, the impotent U.S. response to the Russian seizure of Crimea from Ukraine, to border incursions by Russian backed troops in Ukraine, and to Russian involvement in the Syrian civil war, have similarly demonstrated that these forces may not be nearly so effective against "near peer" military forces.

The current dominance of the U.S. over lower tier opponents, however, may be short lived. Increasingly, these countries are gaining access to weapons  that are effective against non-stealth forces, like modern anti-aircraft missiles (both man portable and larger batteries), like unsophisticated cheap Cessna aircraft with advanced air to air and air to ground missiles and avionics, like drones and drone swarms, like IEDs, like suicide attacks, like guided missiles, like AI assisted sniper weapons, and like light anti-armor weapons.

What Makes Sense For Military Planners Now?

The question going forward for U.S. military planners is how to balance the vulnerabilities of visible showing the flag military assets that even then are not really vulnerable to non-near peer opponents, with the great combat effectiveness of stealthy military assets. 

New military systems that show the flag visibly, while either being less vulnerable to these threats somehow, or by limiting casualties in the early rounds of combat before stealth military resources come to the fore that are survivable, is a largely unrecognized gap and need in military procurement. 

I don't have an answer to that question in this post, although I do think that this post helps better focus the process of looking for a solution of this kind.

For example, the general strategy of developing numerous smaller highly visible military assets that keep everything but the "point of the spear" out of harm's way, like missile boats supported by far "over the horizon" tenders ships (or tender submarines), or easily visible military aircraft (since 95% of the personnel that operates a military aircraft is back at a distant airbase rather than in the air in combat), or large visible unmanned systems, all present possible options for this niche requirement.

Of course, another cheap and easy way to "show the flag" with more stealthy military assets is to disavow a tradition of secrecy by selectively lifting the veil of national security secrecy that has been instinctively applied to these military assets. 

The military can, instead, publicly display the effectiveness of stealthy military assets in missions that are secret when carried out, or are training exercises, or even in realistic fictional portrayals of the use of military force, so that potential adversaries are aware of these threats enough to be influenced by them, even though they aren't literally visible. To some extent, this is already being done.

22 June 2021

Classic Relationship Issues

A few classic situations pop up again and again in interpersonal relationships, real and fictional.

To Confess Or Not To Confess

Perhaps the most classic one involve two friends with sexual orientations that would not be inconsistent with having a romantic relationship with each other. One friend can "confess" a desire to transform their friendship into something more. But this carries risk. The friendship is valuable in and of itself. A rejected confession could result not just in the friendship not being transformed, but also in the loss of the friendship. 

Even an accepted confession resulting in a mutually agreed transformation of the relationship involves risk. Romantic relationships are often more vulnerable to breakups, largely because they demand more of the people involved, than mere friendships. The romance might flourish briefly, only to sour into a breakup, sacrificing the valuable close friendship.

So, it is only wise to confess your feelings for a friend if that feelings turn out to be mutual, and if transforming the relationship will produce a stable romance. If one isn't confident that either of these things won't happen, one shouldn't ask.

The trouble is that lots of people are bad in accurately predicting who someone else will respond to an expressed desire to transform the relationship, i.e. to a confession, and in accurately predicting whether a relationship would work if they agreed to go down that relationship path. And, one wants to gather information about a predicted outcome in a way that doesn't defeat the purpose of not damaging the existing positive friendship, if possible.

When people are well socialized and socially observant, they unobtrusively collect clues from the other person's actions, and leave clues about their own feelings, that makes the outcome clear and leads to a correct decision about whether to confess (or what kind of transformation in the relationship to seek), in a way that doesn't threaten the existing relationship. 

But if clues and signals from the other person are misinterpreted (perhaps because one person did something easily misinterpreted, or perhaps because one person reads too much into an action because they want it to mean something), or simply not considered at all, the wrong decision can be made. 

Maybe a potential relationship that both people want and that would thrive doesn't happen, because neither person can accurately read what the other is feeling. Maybe one person misreads a signal as a sign of interest when it isn't one and makes an inappropriate confession that is rejected, and damages the relationship.

A shared culture can provide a script to navigate these situations, by giving both people in the relationship a way to assign a shared meaning to hints dropped, and by preventing "false positive" interpretations of something not intended as a hint of interest or disinterest as something that it isn't. A shared culture also makes it possible to more accurately distinguish between giving and receiving hints that won't damage a relationship, and making an actual confession of feelings or desires that can threaten a relationship.

Even this isn't perfect, however. One of the reasons that hints are just hints, is that a person's reaction to a confession can depend upon how heartfelt and firm the confession itself is. A person receiving a confession might accept a bold, unwavering, and unconditional request to begin a romantic relationship even if they were "on the fence" before being asked, but might reject a lukewarm confession.

Also, even if one person has perfectly understood the other person's hints and clues, and accurately predicts the other person's immediate reaction, predicting how stable the more romantic relationship will be once begun, involves more than just guessing accurately what the other person is thinking immediately.

For example, an otherwise compatible couple might differ strongly about their desire to have children soon, or some other unknown strong incompatibility, that neither has had any occasion to learn from the other.

But, part of the issue here is that intense relationships can and more often than not do fail when they fail, for reasons completed unrelated to miscommunications, like financial pressures, lack of family or community approval, and circumstances that force a burdensome long term relationship. The factors that determine if a relationship will survive are very different than those that determine if one will form.

For a variety of reasons, our emerging shared culture is less good at dealing with this situations than it could be, although there is plenty of room for improvement. 

Solutions in this case mostly involved developing a clearer shared understanding of what does and does not count as a hint that is widely enough known that even socially inept people can navigate it.

Educations that helps people develop accurate, evidence based, understandings of what makes relationships last and fail would also help.

Of course, in practice, the law, the education system, and formal institutions more generally, don't even acknowledge what is going on in classic relationship situations like these, let alone providing meaningful, accurate, useful, and widely shares understandings about them.

Education isn't the first problem, however. One can't communicate a share of shared cultural understandings and evidence based data about relationship survival until those things exist and are the subject of widespread consensus understandings. But disruptions to the status quo, like feminism, have left with a vacuum, or awash in a maelstrom of dispute. This isn't to say that the old status quo was good and should be returned to, but a new status quo consensus doesn't exist yet, as a result of widespread cultural change and disruption.

Consent To Sex

Consent to sex is a form of transformation of a relationship that fits this model. Whether or not you agree concerning what "hints" did mean or mean now, one can certainly imagine a plausible world in which going out on a date with someone, in which accepting a date ending in eating out with the man paying for drinks which the woman accepts, an agreed lack of curfew and relocation to the man's home after eating out, a woman wearing sexy lingerie and a lot of make up and a party outfit, a man dressing up, a date that is one on one, and a previous steamy kiss exchanged by the couple at a previous date, are a set of mutually accepted clues that an expressed desire to have sex at the man's home at the conclusion of the date will be received positively and accepted. This doesn't dispense with the need to actually ask, but it greatly reduces the risk of asking.

But with accepted shared cultural understandings about the meanings of "hints" like these in a state of flux, it is not much harder to interpret hints in advance of asking for sex. This disruption was no accident. Feminist reformers concluded that the status quo made it too hard for a woman to say no to sex even when they felt uncomfortable about it, resulting in harm, on average to women, and deliberately set out to disrupt the path of socially accepted hints that laid the groundwork for this happening. But because the movement that did this didn't have a good appreciation of the importance of shared understandings regarding hints that a question will or will not be accepted favorably before it is actually asked, the subtle point of needing to ask even following lots of clues that the answer will be "yes", resulted in a wiping away of previous shared understandings about the meaning of subtle clues under the old status quo, without the real development of a new script or a new set of widely share understandings about clues regarding an intent to have sex. This, of course, led to  more misunderstandings between couples over these issues, even if it did have the desired effect of reducing the pressure on women to have sex when they were uncomfortable doing so. 

Lost In Translation Issues

Another miscommunication issue is more common in the context of an ongoing, more or less stable relationship.

One person in a relationship wants the other person in the relationship to take some action. Maybe they want to be praised out loud for doing something good, or wants to be asked about what is going on with them more often. Often, this is something that the other person in the relationship would be happy to do if they understood its importance to their partner.

So, the person who wants their partner to do something says or does something that they believe communicates their desire to their partner. But, their partner totally doesn't gain the desired understanding from the statement or action that was intended to communicate the desire. But an inability to even communicate a desire to a partner can be frustrating at a minimum and, in a worst case, can do long term harm to a relationship.

Usually, this happens because the person communicating the desire is too subtle or conceptualizes their desire in a way that doesn't fit into a framework of understanding of the person to whom the desire is communicated. Sometimes it is too subtle out of politeness. Sometimes it is too subtle because it is a "big ask" and the person communicating the desire wants to do so in a way that can be discouraged is asking too much without damaging the relationship.

A shared culture can provide a script to navigate these situations as well. But often, ways of communicating within a relationship are highly gendered, so that even opposite sex couples that have a shared culture are insufficiently well-socialized to understand what particular words or acts are really intended to mean. 

For a variety of reasons, our emerging shared culture is less good at dealing with this situations than it could be, although there is plenty of room for improvement. 

Solutions in this case mostly involve helping couples to develop a language that accurately communicates desires to their partners with an appropriate level of urgency so that mistranslations don't occur and are responded to appropriate in the context of social scripts that are developed for couples to use.

Again, the formal institutions in our society don't even attempt to engage with these interpersonal interactions at such an up close and fact rich level of detail and understanding, even though most people are intuitively aware of the issues which often end up being addressed in comedy and humor, rather than with any kind of formal instruction.

15 June 2021

Fraudulent Inducement To Porn And Prostitution Is Now A Serious Crime

One of the basic lessons of first year law school criminal law is that sex between otherwise consenting adults induced by fraud, other than fraud concerning who the victim is actually having sex with, is not within the crime of rape, even though usually obtaining a desired end through fraud is a serious felony.

But, the crime of "human trafficking" is changing the rules by allowing serious punishment for fraud to induce a "commerical sex act" (i.e. pornography acting or prostitution), even when an adult is the victim of the fraud, which eliminates a lot of "gray area" conduct (like lying about a desire to marry or having a good job in order to secure non-commercial consensual sex):
On Monday, a federal court in California sentenced Girls Do Porn performer Ruben Andre Garcia to 20 years in jail. Garcia had previously pled guilty to federal counts of sex trafficking by force, fraud, and coercion, as part of the ongoing federal case against the company.

In 2019, Girls Do Porn owners were found guilty of intimidating and coercing 22 women into having sex on camera. Garcia and the other producers bullied the women and lied about how widely they’d distribute the videos. Garcia was the male performer in the majority of the videos, though his face never appeared on camera.

After telling the women that the videos would only be distributed abroad and to private collectors, they appeared on the Girls Do Porn website. The videos also reached millions of viewers after Girls Do Porn uploaded then to Pornhub and other porn tube sites, where women were often doxed in the comments. The doxing in turn led to the women being harassed at their jobs and schools. Multiple women said the harassment was so vicious, they've contemplated suicide.

Garcia’s sentencing took several hours to finish. More than 20 anonymous women gave impact testimony detailing how Garcia and Girls Do Porn had hurt them.

Girls Do Porn founders Michael Pratt, and associates Matthew Wolfe, Garcia, and Valerie Mosers were charged with federal counts of sex trafficking in November 2019. Pratt fled and is still at large. The FBI placed him on its Most Wanted List as is offering a $10,000 reward for information leading to his arrest.

Garcia originally pled not guilty to all charges but changed his plea to guilty in 2020. The FBI published a full account of his plea, which detailed Garcia’s admissions. According to the admission, Garcia and his co-conspirators blocked doors with furniture when women tried to leave. They also “threatened to sue them, cancel their flights home, or post the footage that was already filmed online, which, unbeknownst to the victims, was going to happen anyway.”

The U.S. Department of Justice press release regarding the guilty plea stated:

Adult film performer and producer Ruben Andre Garcia pleaded guilty in federal court today to sex trafficking charges, admitting that he conspired with the owners of the adult websites GirlsDoPorn and GirlsDoToys to fraudulently coerce young women to appear in sex videos.

Garcia pleaded guilty before U.S. Magistrate Judge Jill L. Burkhardt to Conspiracy to Commit Sex Trafficking by Force, Fraud and Coercion, and Sex Trafficking by Force, Fraud and Coercion. Garcia, the first of six defendants to plead guilty, admitted that he worked from 2013 to 2019 as a recruiter and adult film performer for GirlsDoPorn and GirlsDoToys adult websites, which were run by co-defendants Michael James Pratt and Matthew Isaac Wolfe. Both sites offered paid subscriptions and featured videos of young adult women appearing in their first pornographic video. The websites generated millions of dollars in revenue and the videos were viewed millions of times.

Garcia admitted in his plea agreement that in order to recruit victims to appear in the videos, he and his co-conspirators threatened, deceived and lied to them, promising that the videos would never be posted online, that “no one” would ever find out, and that the videos would never be released in the United States. In actuality, the co-conspirators were posting the videos on GirlsDoPorn, GirlsDoToys, and PornHub, one of the world’s most heavily-trafficked porn sites. Many of the victim videos were viewed millions of times.

Garcia also admitted that he recruited and paid other young women to act as “references” to falsely reassure reluctant victims that the videos would not be posted online and that there was “no way” anyone would find out. Garcia used young women as recruiters, because victims “were more likely to believe other young women.” The references were paid a fixed fee for every victim they attempted to recruit and additional compensation for victims who agreed to film a video.

Victims were recruited from throughout the United States and Canada. Once they arrived in San Diego, they were taken to local hotels or short term rental units where the videos were produced. The defendant and other co-conspirators continued to falsely assure the victims that the videos would not be posted online and that no one would find out. Garcia and other co-conspirators used aliases and companies with misleading names to ensure that the victims could not discover that they were behind GirlsDoPorn and GirlsDoToys.

Before the video shoots, Garcia offered victims marijuana or alcohol and some drank or smoked with Garcia before filming. When some victims changed their minds about going forward or finishing the video shoots, Garcia and other co-conspirators threatened to sue them, cancel their flights home, or post the footage that was already filmed online, which, unbeknownst to the victims, was going to happen anyway.

Garcia admitted that victims were also misled about how long the video shoots lasted. Most were told that the video production would take around 30 minutes, when they typically lasted for several hours. Garcia admitted that the sex was rough and caused many victims pain, and, in some cases bleeding. When victims asked to stop filming, Garcia and other co-conspirators told the victims that they had to keep going and finish the videos.  Hotel room doors were often blocked by camera and recording equipment.

The GirlsDoPorn and GirlsDoToys websites generated millions of dollars in revenue from this scheme. For his part, Garcia was paid a commission for each victim that he recruited on top of an hourly wage for his time. Garcia will be ordered to pay restitution in an amount to be determined by the court at sentencing.

“This defendant was a key player in a despicable fraud that has devastated the victims,” said U.S. Attorney Robert Brewer. “We will continue to fight for justice for them, and to prevent others from becoming victims of these schemes.” Brewer commended the excellent work of Assistant U.S. Attorneys Joseph Green and Alexandra F. Foster, as well as FBI agents and members of the San Diego Human Trafficking Task Force, on a case that resulted in tremendous pain for the victims.

FBI Special Agent in Charge Suzanne Turner said, “The FBI is committed to investigating those who prey upon trusting women and girls, causing pain and humiliation for their own personal gain. Today’s guilty plea of Garcia is just a small victory in the ongoing battle with those who commit sex trafficking.”

Garcia is scheduled to be sentenced by U.S. District Judge Janis L. Sammartino on March 5, 2021 at 9 a.m. The next hearing in the ongoing case is January 22, 2021 at 2:00 p.m.

Any additional victims of the alleged crime are encouraged to call the San Diego FBI at 858-320-1800.

The FBI is offering a reward of up to $10,000 for information leading to the arrest of Michael James Pratt. Individuals with information about Pratt should contact their local FBI office or the nearest American Embassy or Consulate. 

The charges were:
Count 1 (charging all defendants)

Conspiracy to Commit Sex Trafficking by Force, Fraud and Coercion, 18 U.S.C. § 1594(c)

Maximum Penalty: Life in prison, $250,000 fine, and a special assessment of $5,000 under 18 U.S.C. § 3014.

Count 2 (Pratt)

Production of Child Pornography, 18 U.S.C. § 2251(a) and (e)

Minimum penalty: Fifteen years in prison; Maximum penalty: 30 years in custody, $250,000 fine, and a special assessment of $5,000 under 18 U.S.C. § 3014.

Count 3 (Pratt)

Sex Trafficking of a Minor by Force, Fraud and Coercion, 18 U.S.C. § 1591(a)(1) and (2)

Minimum penalty: Fifteen years in prison; Maximum penalty: life in custody, $250,000 fine, and a special assessment of $5,000 under 18 U.S.C. § 3014.

Counts 4 (Pratt, Wolfe, Garcia), 5 (Pratt, Garcia), 6 (Pratt, Wolfe, Garcia), 7 (Pratt, Garcia, Gyi), 8 (Pratt, Garcia, Gyi)

Sex Trafficking by Force, Fraud and Coercion, 18 U.S.C. § 1591(a) and (b)(1)

Minimum penalty: Fifteen years in prison; Maximum penalty: life in custody, $250,000 fine, and a special assessment of $5,000 under 18 U.S.C. § 3014.
The core statute (18 U.S.C. § 1591), enacted on October 28, 2000 and amended six times since then, states:
18 U.S. Code § 1591 - Sex trafficking of children or by force, fraud, or coercion

(a)Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),

knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

(b)The punishment for an offense under subsection (a) is—

(1) if the offense was effected by means of force, threats of force, fraud, or coercion described in subsection (e)(2), or by any combination of such means, or if the person recruited, enticed, harbored, transported, provided, obtained, advertised, patronized, or solicited had not attained the age of 14 years at the time of such offense, by a fine under this title and imprisonment for any term of years not less than 15 or for life; or

(2) if the offense was not so effected, and the person recruited, enticed, harbored, transported, provided, obtained, advertised, patronized, or solicited had attained the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title and imprisonment for not less than 10 years or for life.

(c) In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or solicited, the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.

(d) Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be fined under this title, imprisoned for a term not to exceed 25 years, or both.

(e)In this section:

(1) The term “abuse or threatened abuse of law or legal process” means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.

(2)The term “coercion” means—

(A) threats of serious harm to or physical restraint against any person;

(B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or

(C) the abuse or threatened abuse of law or the legal process.

(3) The term “commercial sex act” means any sex act, on account of which anything of value is given to or received by any person.

(4) The term “participation in a venture” means knowingly assisting, supporting, or facilitating a violation of subsection (a)(1).

(5) The term “serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm.

(6) The term “venture” means any group of two or more individuals associated in fact, whether or not a legal entity. 

14 June 2021

Quote of The Day

[T]o a pretty good approximation, is that law enforcement is soon going be able to identify the perp in all cases where DNA evidence is available. Decades of unsolved rapes, assaults, and murders will be cleared up – in as little as a couple of years, if we make a serious effort.

Exceptions? DNA from your evil twin, and DNA from truly obscure groups with no representatives in the US. People will write murder mysteries featuring Andaman Islanders -they’ll have to.

We will not find that all or most prominent people have a criminal past (I think) – but quite a few will, undoubtedly including people you would never have guessed. It will even include people that I never suspected. Successful guys that rarely think about that perfectly understandable mistake that happened ever so many years ago will suddenly find themselves wearing orange jumpsuits.
- G. Cochran at West Hunter (June 12, 2021) (emphasis in the original).

There are definitely cases where the presence of DNA at a crime scene does not imply guilt. But it certainly makes a huge difference in narrowing down possibilities and causing a suspect to be considered seriously.

11 June 2021

COVID Vaccine Results In Colorado: It Works!

The COVID vaccine has been highly effective in Colorado, although it isn't perfect. It has saved more than a thousand lives in the last five months in the state.

Since Jan. 15, there have been 168,944 confirmed cases of COVID-19 in Colorado. . . only 2,916 cases — or 1.7% of the total — occurred among fully vaccinated Coloradans. . . . Only 0.1% of all fully vaccinated Coloradans have developed a confirmed infection. . . .   
Those who get COVID-19 despite being vaccinated are more likely to have mild cases. However, 218 fully vaccinated people have been hospitalized with the coronavirus in Colorado. And 38 vaccinated people have died. . .
In Denver, 70% of people 12 years and older have received at least one dose of COVID-19 vaccine . . . almost 2.7 million Coloradans are fully immunized and another 404,301 people are partially immunized.
From the Denver Post.

The vaccination rate in Colorado for the state as a whole is currently about 47%.

There have been 1334 COVID deaths in Colorado since January 15, 2021. So, 2.9% of Colorado COVID deaths in that time period were breakout cases. 

About 1.3% of breakout cases result in death. About 0.77% of non-breakout cases result in death. 

The population of Colorado is about 5.9 million in 2021, so there are about 3.2 million Coloradans who are not fully vaccinated from whom there have been 166,028 cases, so about 5.2% of people who aren't fully vaccinated were infected with COVID in Colorado since January 15, 2021 (as opposed to 0.1% of people who were vaccinated). So, the COVID vaccine reduces the risk of a COVID infection by a bit more than 98% in practice in Colorado.

The vaccine has prevented at least 137,700 COVID cases in Colorado.

The COVID death rate in Colorado (for the period from January 15, 2021 to the present) is 0.04% for people who are not fully vaccinated and 0.0013% for people who are fully vaccinated. 

So, in Colorado, the COVID vaccine reduces the risk of dying of COVID by 96.75%. The reduction in risk is actually much more than that, because the risk of dying of COVID among fully vaccinated people, if they had not received the vaccine would have been much higher than for people who actually didn't receive the vaccine, because higher risk people were vaccinated first.

The vaccine has prevented significantly more than 1,042 COVID deaths in Colorado over the last five months.

UPDATE June 16, 2021: 

According to the Colorado Sun, there have been more than 10,400 COVID-19 hospitalizations since January 15, so less than 2.1% of those hospitalized have been vaccinated.

10 June 2021


In French, the term that corresponds to a cohabiting couple, legally defined as a “union of fact, characterized by a shared life presenting a character of stability and continuity, between two persons, of different sexes or of the same sex, who live as a couple," is "concubinage" and a member of such a cohabiting couple is a "concubine." See French Civil Code, Article 515-8 (adopted in 1999). 

In France, government and HR forms which ask about your marital status frequently have four check the box choices which are: "married", "registered civil union member" a.k.a. PACS (including many opposite sex couples, even though this option was initially invented for same sex couples), "concubine" and "single."

By French reckoning, most of us are now concubines, or were formerly concubines.

The term (inflected for gender) had substantially the same meaning, without the modern English language connotations, in pre-Christian Rome, although it was most often used then for couples who were legally prohibited from marrying because they did not come from the same social class. 

Concubinage was actively vilified as Christianity became more common in the Roman Empire, acquired a negative connotation at that time, and was eventually banned. The term retained the negative connotations that it has in the English language in French, although never quite as strongly negative as they were in English (in which the term "concubine" is limited to women and implies a status only marginally better than "sex slave"), until roughly the 1960s, when the term came to acquire, in French, its more neutral and descriptive current connotation. 

This was the case until the 1960s, despite the fact that all of the daughters of Charlemagne (the legendary medieval king seen as the founder of the French nation) who became mothers were concubines and yet continued to participate in his court in good standing, despite the fact that none of Charlemagne's daughters married, and despite the fact that Charlemagne himself was a concubine (as the French currently define the term) for part of his life. In short, Christian influence on this aspect of French culture ca. 800 CE, was minimal, despite the fact that Charlemagne was a strong supporter of the Roman Catholic Church.

09 June 2021

Counterbalancing And The Second Amendment

The original political theory of the Second Amendment is called "counterbalancing" in modern political theory. 

Counterbalancing means that armed civilians, including citizen militias, but also Presidential guards, secret police, paramilitary forces, and the like, counterbalance the military with the hope, usually, of discouraging a coup or authoritarianism. 

Three years ago, a major new empirical study which has been widely cited since its publication, Erica De Bruin’s How to Prevent Coups d’├ętat: Counterbalancing and Regime Survival, examined outcomes of this strategy looking at examples from 20th century history.

The bottom lineCounterbalancing doesn't prevent coups but does make coup attempts more deadly and more likely to escalate into full fledged civil wars.

08 June 2021

Prosecutors Don't Always Have Absolute Immunity From Civil Liability

Usually, prosecutors have absolute immunity from prosecution. But this rule doesn't imply to a prosecutor's involvement in the investigative phase of a case, during which prosecutors have only qualified immunity. 

Conrad Truman sued state prosecutor Craig Johnson and various Orem City police officers for violating his civil rights by fabricating evidence that was used against him in a murder prosecution. Mr. Truman was prosecuted twice for the murder of his wife. According to Mr. Truman’s complaint, the prosecution knowingly falsified measurements of the murder scene to rule out the possibility of suicide or a self-inflicted accidental wound. As a result, the state medical examiner deemed Mrs. Truman’s death a homicide and Mr. Truman was indicted and successfully prosecuted for murder. After his conviction, he learned of the 2 mismeasurements and the state court granted him a new trial. In the second trial where proper room measurements were admitted into evidence, Mr. Truman was acquitted.

These events led Mr. Truman to file a 42 U.S.C. § 1983 action against the prosecutor and the police. The district court found that the prosecutor was entitled to qualified immunity as a matter of law and the claims against the police officers were barred by previous holdings in state court.

Exercising jurisdiction under 28 U.S.C. § 1291, we disagree with the district court that the prosecutor is entitled to qualified immunity at this stage in the proceedings. At the motion to dismiss stage, the allegations in the amended complaint plausibly allege the elements of a fabrication of evidence claim. As a result, dismissal based on qualified immunity was inappropriate. But summary judgment was appropriate as to the police officers because Mr. Truman forfeited his argument regarding issue preclusion in state court and did not argue for plain error review on appeal.

We therefore REVERSE the dismissal of the fabrication of evidence claim against the prosecutor and AFFIRM the entry of summary judgment in favor of the police officers.

The full 10th Circuit opinion is here