31 August 2022

More On The Downsides Of Well Intentioned Lax Admissions Standards

[A] majority of people holding student debt have moderate incomes and low balances. Many have no degree, having dropped out of a public college or for-profit vocational school after a few semesters. They carry little debt, but they also do not get the benefit of a college degree to help them pay off that debt.

Defaults and financial distress are concentrated among the millions of students who drop out without a degree. The financial prospects for college dropouts are poor; they earn little more than do workers with no college education. Dropouts account for much of the increase in financial distress among student borrowers since the Great Recession.

And dropout is not at all rare. A bit less than half of college students don’t earn a bachelor’s degree. Some people earn a shorter, two-year associate degree. But more than a quarter of those who start college hoping to earn a degree drop out with no credential. A full 30 percent of first-generation freshmen drop out of four-year colleges within three years. That’s three times the dropout rate of students whose parents graduated from college.
From Susan Dynarski, writing in the NYT (emphasis mine).

I would quibble with the language in bold, however. People with "some college" do have earnings and unemployment rates significantly better than those who never attended college, although a lot of that is attributable to sorting effects, with people who don't attend college at all doing so because they are even less academically able.

26 August 2022

Solitary Confinement

About 4-5% of people in prison at any one time in the U.S. are in solitary confinement, about half of a percent of people in prison have been in solitary confinement for more than a year, and about one in a thousand people in prison have been in solitary confinement for a decade or more.

Colorado uses this form of punishment only very rarely.

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.

From here

Periods of more than ten years of solitary confinement were predominantly in Texas, Alabama, the federal Bureau of Prisons, and Nevada, with Idaho, Tennessee, Wisconsin, Washington, New Hampshire, and Connecticut having one to seven inmates in solitary confinement for that duration each. 

Colorado had no one who has been in solitary confinement for more than 29 days.

The State of Capital Punishment In Ohio

Jones was convicted of a murder committed in Ohio in 1997 for murdering a police officer trying to arrest him on outstanding felony warrants, and sentenced to death in 1998 following a sentencing hearing.
During the penalty phase, Jones’s counsel presented testimony from a clinical psychologist who diagnosed Jones with Antisocial Personality Disorder. The psychologist testified that Black men with this disorder (including Jones) would commit more murders—he claimed that about one in four “African-American urban males” suffered from the disorder, and the only treatment for them was to “throw them away, lock them up.” After hearing this testimony, the jury recommended the death penalty. The court accepted the recommendation and sentenced Jones to death. . . . 
In his post-conviction appeal, Jones did raise this ineffective-assistance claim and supported it with an affidavit from psychologist Hugh Turner. Dr. Turner, who had been contacted by post-conviction counsel, interviewed Jones and conducted new testing. In Dr. Turner’s view, Dr. Eisenberg’s diagnosis of APD was incorrect: Jones primarily suffered from post-traumatic stress disorder
How did Jones come to be betrayed in this fashion by his own court appointed lawyer?

Prior to the trial, held six months after he was indicted for murder, but the court wouldn't let him replace his court appointed counsel who he figured out was ultimately going to sabotage his case at the 11th hour.
the relationship between Jones and his appointed counsel deteriorated. Two hours after the jury was sworn in, attorney David Per Due filed an entry of appearance, having been retained by Jones’s family that day. The trial court held a hearing the following day to discuss the status of Jones’s representation. But after hearing from Jones and the attorneys, the court denied Jones’s motions for Per Due to substitute as counsel and for a continuance, finding that Jones’s relationship to his court-appointed counsel had not broken down beyond repair and that the request for a continuance was made in bad faith and for purposes of delay. The trial proceeded as scheduled with Doughten and Tobik representing Jones. At the close of trial, the jury found Jones guilty of aggravated murder. 

During the penalty phase, the court explained to the jury that they had four sentence options: (1) life in prison without parole eligibility for 25 years; (2) life in prison without parole eligibility for 30 years; (3) life in prison without the possibility of parole; or (4) death.
Appeals by Jones of the conviction and death sentence were rejected repeatedly by the Courts of Ohio, with the Ohio Supreme Court affirming the conviction and sentence on direct appeal in 2001, and a federal district court ultimately denying him relief in a collateral attack on the conviction and sentence.

But, after twenty-four years on death row, the U.S. Court of Appeals before the 6th Circuit vacates his death sentence, but not his conviction of the crime, for ineffective assistance of counsel.

This gross betrayal by his own lawyer and the expert witness his lawyer hired was corrected before any of the originally available sentencing options had been rendered moot after the incredibly prolonged appellate and post-trial litigation (which is typical of U.S death penalty cases). But spending twenty-four years on death row instead of in an ordinary prison sentence was an incredible psychological hardship and excessively severe punishment.

There was also a claim that his lawyers in the original murder trial failed to present evidence that another man had claimed to have murdered the police officer, but because this arguably could have been presented at that trial and was "harmless error" because courts found that the jury wouldn't have believed, this mistake by his trial lawyer went without a remedy and his conviction for murder was allowed to stand.

This is the quality of justice in Ohio's courts, which is very typical of cases in which the death penalty is imposed.

N.B. the 6th Circuit notes in a footnote that: 
During federal habeas proceedings, petitioner legally changed his name to Malik Allah-U-Akbar. For purposes of clarity and continuity, we continue to refer to petitioner by his former name.

Observations About IQ, Education, Financial Aid, And Student Loans

Some observations:

* IQ is real and isn't just a sexist or racist construct (and neither are standardized tests). It isn't the only thing about a person that matters or influences their success in life, but one thing that it is particularly closely aligned with is ability to succeed in conventional academic studies. 

* Individual differences in IQ among people are heavily influenced by genetics outside conditions of serious environmental deprivation, which prevent people from reaching their genetic potential, and conditions of extreme environmental favorability which can foster academic ability and realized IQ development that someone with a given level of genetic endowment otherwise wouldn't be able to reach. 

The level of environmental deprivation necessary to seriously damp IQ corresponds to a level a little bit in excess of the poverty, or worse - maybe 20% of the U.S. population. For example, when I evaluated data about school in Denver when my kids were starting to reach various school choice threshold ages, I noticed that even students who were identified as gifted and talented in elementary school in the Denver Public Schools, who attended West High School, the "worst" regular high school in the district at the time, were not certain to even graduate from high school and were very unlikely to go to college without needing remedial work before taking regular classes.

The level of environmental favorability that can allow someone to exceed "par for the course" performance is even smaller, perhaps 5% of the U.S. population are in those circumstances, and those extremely favorable circumstances are predominantly present in families that are very affluent and where at least one parent has very high IQ. 

In the other 75% or so of the U.S. population that has reasonably livable and consistent day to day circumstances and attends schools that are within the normal range, individual differences in IQ are predominantly driven by genetics, which is to say that parental IQ is a powerful predictor of child IQ, with much of the rest of the variation driven by random variation in which genes a child inherits from the child's parents.

Since IQ is a significant factor in socio-economic success, and since extreme environmental favorability is predominantly found in affluent families with intelligent parents anyway, IQ and academic performance are quite strongly correlated with socio-economic status. No amount of education funding will change that disparity which is already strong visible in the correlation of socio-economic status and academic performance of students by 3rd grade if not earlier.

There are some indications that most critical time period of environmental deprivation that can cause a child to not reach their genetic potential of IQ is in utero and prior to about age six, although this evidence isn't unequivocal.

Differences in IQ between a group of people and their descendants, between different ethnic groups, and between different countries, however, are mostly driven not by genetic endowments (although that is a factor, for example, in the case of descendants of immigrants who were pre-selected for high IQ) but by environmental factors. The most striking recent and well documented example of this is the link between lead exposure and IQ.

* Ameliorating the environmental deprivations that prevent people from attaining their genetic potential IQ is an extremely fruitful place to invest public spending.

* The main factors that distinguish between people who graduate from high school and those who don't are anti-social behavior (especially in boys), pregnancy before graduating, and disruption in your personal life (e.g. homelessness). Notably, more than three-quarters of Colorado prison inmates are high school dropouts.

For example, most males who pass the GED exam, rather than graduating from high school, do so because their anti-social behavior caused them to be suspended or expelled from school and to be incarcerated for anti-social behavior, and earn their GED while or shortly after being incarcerated. Yet, a passing score on the GED requires greater IQ than the IQ of the average high school graduate.

A GED is far inferior to a high school diploma as a credential for use by employers, educational institutions, and military recruiters because it is so strongly correlated with a history of anti-social behavior, even though not all people take the GED for that reason.

Still, the factors that drive people to drop out of high school aren't entirely uncorrelated to academic ability, because anti-social behavior and pregnancy before graduating are often driven in part by students not getting much out of their studies because they have fairly low IQs. Low IQ is definitely strongly correlated with anti-social behavior, a factor also illustrated by the correlation between criminal offenses and lead exposure through the mediating variable of decreased IQ when one is exposed to lead.

Also, even when anti-social tendencies including mental health issues like substance abuse aren't closely tie to IQ, they are often heavily influenced by genetics and by cultural environment, and hence hereditary in practice, even when they aren't a function of low IQ.

* An extremely large share of students who start community college drop out, often after a single semester, without receiving a certificate or associate's degree, and without transferring to a four year college. A large share of students who start a four year college, especially for profit colleges and public colleges with open admissions or not terribly selective admissions standards, drop out, often within the first year or two.

* The likelihood that someone will drop out of college is closely related to academic preparation and IQ. Students who need remedial work to attain the college level when they finish high school, students who haven't completed a college preparatory high school curriculum, students with poor grades in high school, and students with poor test scores in high school are disproportionately likely to drop out.

Figuring out where to draw the college admissions line is difficult but not impossible. 

There is a certain level of academic ability above which students only drop out due to rare (for them) circumstances in the personal lives of such students (e.g. illness, pregnancy, physical injury, mental health breakdown, family crisis that needs to be attended to or impacts an ability to attend, conscription, criminal victimization, and committing a crime).

There is also a certain level of lack of academic preparation below which students graduate only through miracle-like perseverance and support from others.

But there is a big middle ground in which there is a non-negligible risk of dropping out, but it is hardly a certainty, with the likelihood of success being closely correlated with academic preparation. Even at moderately selective colleges and universities, six year retention rates as low as 60%-80% are not uncommon, and students who do not graduate within six years are disproportionately, but not entirely, at the bottom of the academic ability pool of incoming students.

Figuring out where to draw the line, and who should bear the economic risks that a student in the gray area will fail, in a way that isn't economically regressive, is a challenging policy decision that doesn't have an easy answer. 

Most Western societies have erred in being too open in admissions with significant public subsidies in a way that is wasteful, detracts from the quality of the higher educational enterprise, and does the students who predictably fail no favors. 

On the other hand, letting students attempt college, while bearing the economic costs through student loans, when the institutions admitting them and facilitating the loans know better than the students who take out those loans do that those students are likely to fail and receive little benefit from their expensive educations, also feels like fraud.

It isn't obvious that allowing students to take out student loans with no ability to have them discharged if the educational efforts aren't successful economically serves any valid purpose.

Keep in mind that students who receive government subsidized educations without loans will still end up paying the government back through taxes on their increased incomes and property values and taxed consumption anyway, which fairly reflects the benefits actually received by particular individuals from their educations.

* Tests measuring the academic and intellectual value added from college attendance show that students who are least academically prepared for college also receive the least benefit academically from attending college, even if they graduate. But, there is also solid statistical evidence that being admitted to college at all, and completing a degree, afford significant economic benefits to students who do so, due to sorting and signaling effects in the eyes of employers, and this benefit is greatest for the students who were only admitted and only graduated by the skin of their teeth without actually learning all that much in the process.

* It is a waste of money to encourage students to apply to publicly subsidized higher educational programs at which they are highly likely to fail.

* We as a society are doing no favors to students who are admitted to community college or four year colleges with little chance of success. They are not receiving value added from the experience, they are merely getting a sorting credential (often a "some college" sorting credential from being admitted and then dropping out) comes at the cost as dramatically demonstrating to them that they are academic failures.

* It isn't that high school graduates who are academically ready for college shouldn't be supported by the government and have a decent life path for themselves, and our society does a very poor job of laying out alternative paths for students for whom their weak academic ability as a result of not high enough IQ makes that a poor choice. But pushing them into a college track which is not what they need or even really want is not the right solution.

* On the other hand, the gender gap in college attainment is an area where pushing more boys to go to college (boys and girls on average have about the same IQs) might be wise.

* Moreover, the push to attend and if possible complete college as the only accepted mainstream route to a decent life also encourages employers to engage in degree inflation in job requirements imposing educational requirements that aren't really necessary for the jobs in question to sort out dysfunctional people generally, and unreasonably delays adult life, including getting married and having children (see also here), for far too many people. 

* People are much less likely to continue and complete their educations when they have children, especially, but not only by any means, women. This also impacts career paths since educated women who have kids are less likely to get high returns from their educations. Most often in societies with more education this means birthrates fall. It isn't clear how much this is necessarily true, and intrinsic to the task of trying to balance parenting and studying which is harder than studying without having other responsibilities, and how much this is just a matter of tradition and custom. See also here on marriage, divorce and education.

* In the case of graduates, part of the issue is that the sorting and signaling effect of a college degree for employers represents not just selection on intellectual ability and knowledge, but also selection on an ability to consistently function in a structured environment without much close supervision for enough years to earn a degree, and to be socialized as a member of college educated class to not engage in conduct that members of that class would consider anti-social.

* The high and moderately predictable dropout rate from college in the U.S. suggests that we have too many community college, college and university slots in our system. 

* But some colleges do a better job of graduating students in the gray area than others and this needs to be replicated widely to target students in this middling range of academic preparation.

* There is another huge factor in who gets college degrees in addition to academic preparation and a certain level of ability to consistently function in a structure environment (what one professor has called the W factor for "work ethic"). This is family finances.

Controlling for academic ability, a student from a non-affluent family is highly likely to not attend college and to not graduate if they do attend college, while a student from an affluent family is highly likely to attend college and graduate thanks to strong financial resources and support resources that family facilitates and to a lesser extent a lack of cultural hurdles, even if they are academically well below the level of someone who usually managed to graduate by the skin of their teeth.

Low income students don't go to college, or don't finish college, not just because they can't secure enough financial aid, but also because they don't want to take on student loans which many of their less academically able peers were unable to repay creating a burden on them and their families.

Probably the single biggest step we could take to make our society meritocratic would be to guarantee 100% grant based financial aid for the full extent of their financial needs broadly defined, for lower income students with high enough academic performance to have a good chance of graduating. And, since socio-economic class is strongly correlated with academic performance, this group of students, while very significant in number, also isn't a huge percentage of all students.

The benefit of financially backing academically able lower income students in their pursuit of higher education isn't just a matter of social equity. Unlike academically unprepared students, the value added from the educational experience to academically well prepared students is great and this translates into great increases in lifetime productivity (at least when the educated people live in places with healthy urban economies) that make our economy as a whole more productive. See also here.

* Most states subsidize all in state college students with significantly lower tuitions than out of state college students. This is a bad policy. 

It doesn't reflect the future benefit that students could provide to the economic of the states where the college is located if they stay after they graduate. Students going to college and leaving college are at one of their most geographically mobile times. But from the perspective of a state's economy, it is in the interest of a state to lure as many people likely to graduate from college to their state as possible with favorable financial terms for obtaining a college education. 

It subsidizes students in open admissions or only weakly selective admissions institutions even when they aren't academically prepared for college and are likely to drop out with little value added, thereby wasting a lot of the money used to subsidize these students. 

It subsidizes affluent students who make up a large share of college students and don't need public subsidies to finish college debt free, in a regressive use of public funds.

Need based subsidies restricted to students who are academically well prepared for college is a much better use of public funds, providing more benefits for the money spent without being regressive in spending on people who don't need to economic help.

* Higher education has grown much more expensive. Some of this is a result of decreased state support for higher education per student. Some of this is a result of sticker prices for tuition, room, board, books and health care being inflated in order to allow a de facto sliding scale based upon ability to pay. Some of this is due to government guaranteed student loans and grants increasing the ability of students to pay. 

But, separate and apart from this, the actual cost of providing higher education has grown.

In general, technological advances and increased productivity and international trade have tended to reduce the cost and increase the quality of goods much more than services, especially services that are not easily offshored to cheaper labor markets, like higher education, since cheaper labor markets typically give rise to more compromises in quality than producing goods in those markets. And, many kinds of higher education beyond introductory courses can't be efficiently provided in large classes without individualized attention to students with a low student to teacher ratio.

Also, colleges and universities have seen administrative expenses crowd out payroll for instructors. This is a truly huge and widespread issue that needs to be addressed.

Finally, at some institutions, a large share of costs are for research rather than instruction, which is also an appropriate function of a higher educational institution, but which shouldn't unduly burden students paying to be educated and instead should be financed by other means.

* Loan based financial aid falls mostly on middle income families. Students from very affluent families who make up a surprisingly large share of college students who ultimately graduate don't need student loans. Students from low income families tend to receive a larger share of grant aid in their financial aid packages than students from middle income families. But, at many institutions (especially for pre-professional degrees in law, medicine, business and the like) most students who are not from very affluent families graduate with substantial student loans. The aggregate amount of student loan debt outstanding has soared and seriously impaired the ability of young managerial-professional workers starting their careers to build wealth, own homes, save for retirement, marry, and have children.

* Student loans are almost impossible to discharge in bankruptcy, despite the fact that they are almost never debt incurred wrongfully. There is reasons for this, since new graduates have lots of debt intended to be paid over time perhaps a decade or so, can't be made to surrender the human capital that they received in exchange for the funds spend, and have few assets. But the current system goes to too far of an extreme in making this difficult even when the human capital purchased turns out to be not worth very much (often through no fault of the students other than being gullible about their prospects, a known cognitive bias), or when other hardships or reasonable life choices make repayment very difficult.

* Student loans that are actually in default tend to be smaller loans (a median of about $11,000) owed by students who attended low quality programs or programs for which they were ill prepared and shouldn't have been admitted, often at for profit colleges. Often these students predictably dropped out, or weren't able to get the occupational license necessary to use their degree if they secured one, depriving them of the economic benefit that the spending on their eduction was supposed to provide, and as noted above, often they had little valued added learning from classes they took before dropping out because they weren't academically prepared enough to receive that knowledge and benefit from it.

* There are quite a few tax expenditures that subsidize higher education and student loan interest. But they don't very coherently distinguish between situations where this is money well-spent on an academically well prepared student or not, only dimly address actual financial need.

Ideally, the tax code would seek to end the status quo strong preference for capital in the form of property over human capital. In part, this is because the macroeconomic theories driving tax policy making have failed to adequately recognize the importance of investments in human capital.

25 August 2022

Legalize Pot

The federal government should legalize cannabis de jure with respect to federal law, as it has already done de facto in states that have chosen to do so, in a policy that has survived both Democratic and Republican administrations.
This commentary examines federal cannabis prohibition and enforcement through a public health lens. In the United States, approximately 47 million adults use cannabis, with federal prohibition resulting in 820,000 arrests per year. In applying social-epidemiological methodology, we examine the Potential Years of Lost Life (PYLL) of federal cannabis prohibition in the US — citing individual examples of realized lost life. We then compare the years of life lost from cannabis prohibition to the PYLL from the most deadly retail, consumer product in the world: combustible cigarettes. Our results state, resoundingly, that the most dangerous thing about cannabis — is being caught with cannabis. We confirm the conclusion reached by Greenstein & DiBianco (1972): cannabis prohibition functions as a crime against humanity.
Dale S. Mantey, LaTrice Montgomery, & Steven H. Kelder, Cannabis Prohibition - A Crime against Humanity SSRN (2022).

24 August 2022

What Can A Warship Mounted Laser Weapon Do?

A U.S. Navy destroyer can generate a lot of electricity to power a laser weapon with, but what can the state of the art production models actually do? 

They do have military utility, but it is mildly underwhelming, and it isn't clear how much time it takes to damage or destroy one target before moving onto the next. 

If the rate of target destruction is potent enough and the strikes are powerful enough (the two points are not unrelated), these active defenses could make warships much less vulnerable to a variety of attacks (except torpedoes and mines) than they are now.

The U.S. Navy's Arleigh Burke class destroyer USS Preble is now armed with a High-Energy Laser with Integrated Optical Dazzler and Surveillance system, or HELIOS. Preble is the first of the service's ships to be equipped with HELIOS, which is a 60-kilowatt class directed energy laser weapon, and is also the first to have any such weapon integrated with the Aegis combat system. . . . 
HELIOS, as its name indicates, is a multi-purpose system. It is powerful enough to damage or destroy certain target sets, such as smaller drones and boats. In this way, it offers something of a limited substitute for the lost CIWS and provides a layer of defense against these targets, which can be particularly threatening to ships like Preble when operating in swarms.

The system can also act as a "dazzler" to blind or confuse optical sensors on enemy ships and aircraft, and optical seekers on incoming missiles and other munitions. When used in this way, HELIOS can potentially throw off incoming weapons or limit an opponent's general situational awareness and surveillance capabilities.

Lastly, HELIOS has its own optical sensors, which are primarily used to spot, track, and cue the laser, but that can also be used in a secondary surveillance role.

From here

Note also that 60 kilowatt isn't really all that much power. It is equivalent to 80 horsepower and there are street legal cars with more than 12 times as much power. A Tesla Model S has more than 1,020 peak horsepower. There is no good reason that a naval warship shouldn't be able to field a 750 kilowatt directed energy weapon that would be far more effective than a 60 kilowatt directed energy weapon.

Werewolf Politics And Bureaucracy

There seems to be a divide between total anarchy and the justification of having a werewolf council to keep everyone in check in the first place. And yes, they are generally ineffective. Sadly, that's kind of the point of bureaucracy, and good bureaucrats know it. You get a handful of things done, but it's really all about making sure that power struggle continues. If the power struggle stops, someone will step into the resulting vacuum, and almost all of the time, it's going to be the last person you want in power. 
Werewolves work the same way! They don't do a lot as a council to go after each other, but they also prevent anyone from stepping in and going full werewolf dictator of Michigan.
From the author's comments on today's episode of How To Be A Werewolf.

22 August 2022

The Courts of India Explained

Comparative law is useful to someone seeking to reform their own legal system because it shows both proof of concept and relatedly can quash a "parade of horribles" analysis.

The case of the court system of India is particularly notable because it involves a legal system in a big, complicated, multi-cultural, federal county.

Of course, very few people would argue that the court system of India is superior to that of the United States. 

For example, it has far too few judges for its case loads, resulting in a very slow pace of legal action (for reasons that aren't entirely clear given the civil service appointment system, although low compensation and poor working conditions may be important factors), and also has a populace that often can't afford to use it in the intended manner with competent legal counsel due to a lack of financial means.

The Indian court backlog numbers in the millions. The legal maxim justice delayed is justice denied is honored only in the breach. On average about 20% of approved judicial positions are vacant. The annual backlog increase is less than 2%. If the vacancies were filled, the backlog would decline. Minor infractions make up nearly half of pending cases.

In 2015, some 400 vacancies were reported in the 24 high courts. The Supreme Court backlog is around 65,000 cases. Some 30 million cases await resolution in various courts. The budget allocation is a 0.2 per cent of gross domestic product. The judge-population ratio is 10.5 to one million, about 20% of the recommended 50 to one million.

The government is the largest single litigant, adding cases to the docket, losing most, and then appealing to the next court. The Law Commission found that most such appeals were pointless.

Jagdev claimed that the Judiciary does not attract the best legal talent in part because of disparity in compensation. In recent years scandals have besmirched the judiciary's reputation. The sub-ordinate judiciary works in appalling conditions.

On 12 January 2012, the Supreme Court said that confidence in the judiciary was decreasing, posing a threat to the country. It acknowledged the problems of vacancies in trial courts, unwillingness of lawyers to become judges, and the failure of the apex judiciary in filling vacant HC posts. One proposal is that access to justice must be made a constitutional right requiring the executive to provide the necessary infrastructure for protecting that right. The Court also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.

Undertrials outnumber convicts in the prison population. Ordinary citizens have been imprisioned for espionage for overstaying their visa or straying across international borders, languishing in prison for years due to the slow redressal process.

To reduce pendency, 'Fast-track courts', 'Evening courts/Morning courts' were set up and met with mixed success. Mobile courts were set up to bring 'justice at the doorsteps' of litigants of judge-poor rural areas.

Lok Adalats is an informal, alternative mechanism that has been a success in tackling backlogs, especially in pre-litigation matters, settling cases before they enter the courts.

According to a report released by Centre for Public Policy Research and British Deputy High Commission "a total of 16,884 commercial disputes [are] pending in High Courts with original jurisdiction. Of these Madras High court tops with 5,865. With the number of commercial disputes growing rapidly, facilitating a seamless dispute resolution system through alternate means has become crucial."

Economists Boehm and Oberfeld calculated that the backlog costs the Indian economy several percentage points of GDP.

Also, while India's courts are arguably less politicized than U.S. courts, they are also more prone to instances of judicial corruption.

But, it is nonetheless interesting to see how it handles the issues of judicial appointments in a far less political manner (really modeled on the British system).

Some of the other notable quirks of India's court system are highlighted in the discussion below, such as the lack of a strict correspondence between what are basically state supreme courts and state boundaries, the national effect of precedents in intermediate appellate courts, its village court system based on traditional or customary law (found in many other non-European countries), its special corruption court, some of its other specialized tribunals which don't have direct parallels in U.S. law (for human rights, company law, consumer disputes, and anti-trust cases), and the limited inquisitorial features of its criminal courts (e.g. the power to call witnesses or obtain evidence sua sponte).

Also notably, India completely abolished the institution of the jury trial in 1959, even in serious criminal cases and in extremely limited classes of civil cases where jury trials have been retained in England.

I leave for another day the significant differences that exist (fairly few) in other areas of civil and criminal procedure.

Court structure and hierarchy

12. What is the general court structure and hierarchy?

The Indian judicial system is a single integrated system. The Constitution of India divides the Indian judiciary into superior judiciary (the Supreme Court and the High Courts) and the subordinate judiciary (the lower courts under the control of the High Courts). 
The Supreme Court of India is the apex court of the country and sits in New Delhi. It is presided by the Chief Justice of India. There are twenty-four High Courts in the country. Each state has one High Court, although some High Courts have jurisdiction over multiple states and Union Territories. For example, the Guwahati High Court exercises jurisdiction over the states of Assam, Nagaland, Mizoram and Arunachal Pradesh, all of which are situated close to each other in the north-eastern part of India. 
For administrative convenience, states are further sub-divided into districts, each of which has its own District Court. Barring a few states, the original jurisdiction for both civil and criminal cases vests with the District Court. The judicial system also consists of tribunals and commissions which are established under, and to deal with, specific statutes.

13. To what extent are lower courts bound by the decisions of higher courts?

The judicial pronouncements by the Supreme Court of India are binding precedents on all courts, judicial authorities and tribunals in India. Similarly, High Court decisions are binding on all subordinate courts, authorities and tribunals in India, unless there is a contrary decision from another High Court. If there is a contrary decision from a different High Court, the decision from the court with the larger judge bench usually prevails. District Court decisions are not binding on any other court.

14. Are there specialist courts for certain legal areas?

Under the Indian judicial system, certain traditional courts have been specifically tasked to deal with certain areas of law. District Courts usually have courts formed under specific statues, such as: 
* Family courts to deal with issues relating to marriage, inheritance, guardianship of minors and maintenance. 
* The Special Court of Central Bureau of Investigation to deal with cases of corruption and bribery. 
* Some High Courts and District Courts, which house commercial courts which deal only with commercial matters of specified value, including matters relating to arbitration. 
With the socialist aim of making legal remedies accessible and affordable to all, the Indian judicial system has constituted Lok Adalats and Gram Panchayats at the village level. These bodies apply traditional or customary laws and primarily work towards settling local disputes by using alternative dispute resolution mechanisms.

15. Are other quasi-legal authorities commonly used?

Apart from the courts, the Indian judicial system comprises tribunals, commissions and quasi-judicial authorities that derive their authority from specific statutes. These bodies include the: 
* Central Administrative Tribunal, which adjudicates disputes that relate to the recruitment and conditions of service of public servants.
* National and State Human Rights Commissions for the protection of human rights. 
* National Company Law Tribunal and National Company Law Appellate Tribunal, which adjudicate issues relating to company law, including insolvency and bankruptcy matters. 
* Consumer disputes forums at national, state and district level to deal with consumer disputes. 
* Competition Commission of India to promote and protect market competition. 
* Ombudsman for banking, Insurance, Income tax and electricity matters. 
* Income Tax Appellate Tribunal, Central Excise and Service Tax Appellate Tribunal and Sales Tax Appellate Tribunal to hear tax and excise matters. 
Most quasi-judicial bodies oversee administrative actions and impose restrictions on administrative agencies.

16. Does the constitution provide for an independent judiciary?

There are several provisions under the Constitution of India that ensure an independent judiciary. For example: 
The judges of the Supreme Court and the High Courts have secured tenure and cannot be removed from office (unless there is proven misconduct or incapacity)
The Constitution empowers the Supreme Court and the High Courts to punish any person for its contempt. 
Appointments and transfers of judges of the Supreme Court and the High Courts is made through a collegium system. The collegium comprises the Chief Justice of India and a forum of four of the most senior judges of the Supreme Court. Remarkably, this system is not expressly found in the Constitution and was created by the Supreme Court while deciding a matter in 1998. Facets of an independent judiciary are found even in the subordinate judiciary, where matters relating to removal and disciplinary actions fall under the control of the High Courts.

17. How are members of the judiciary typically appointed?

Appointment of judges up to the highest level in the subordinate judiciary are either made by the state Public Service Commissions or the High Courts. These appointments are usually made on the basis of performance in dedicated examinations (that is, the Lower Judicial Services Examination or Higher Judicial Services Examination). Judges from the subordinate judiciary are regularly promoted and some are even appointed as High Courts or Supreme Court judges. 
The appointment procedure in the superior judiciary is slightly different as the appointments are not made through judicial service examinations. High Court judges are appointed either through promoting judges from the subordinate judiciary or by direct elevation of advocates. Supreme Court judges are appointed either through promotion or direct elevation of judges from the High Courts. Supreme Court and High Courts judges are appointed through a collegium system, comprising the Chief Justice of India and a forum of the four most senior judges of the Supreme Court. 
For a person to be eligible to sit the Lower Judicial Services Examination, he or she: 
* Must be a citizen of India. 
* Must be graduate in law.  
* Should have been enrolled or qualified to be enrolled as an advocate. 
The age limit for candidates varies from state to state and is usually between 21 to 35 years. 
For the Higher Judicial Services Examination, a candidate must: 
* Be a graduate in law 
* Have the prescribed minimum experience as an advocate (usually seven years) or as a judge. 
For a person to be eligible for an appointment as a High Court judge, he or she must: 
* Be an Indian citizen. 
* Be under the age of 62 years. 
* Have either held a judicial office in India for ten years or practised as an advocate of High Court(s) for ten years. 
For a person to be eligible for an appointment as a Supreme Court judge, he or she must: 
* Be an Indian citizen. 
* Be under the age of 65 years.
Have been a: 
* judge of a High Court for at least five years; 
* an advocate of a High Court for at least ten years; or 
* a distinguished jurist in the opinion of the President of India.

Litigation (civil and criminal)

18. Do the courts use an adversarial, non-adversarial or other system?

The Indian legal system is mainly adversarial. However, in certain aspects it is hybrid of adversarial and inquisitorial functions. Particularly the criminal justice system is not strictly adversarial, as some provisions in the criminal code require the judge to perform inquisitorial functions. For example, the judge will undertake active fact-finding exercises, such as: 
* Directing further investigation. 
* Assisting in the framing of charges. 
* Calling any person as witness and procuring evidence.

From here

Wikipedia further discusses the courts at each level as shown below. Particularly notable is that in the model of the English Court of Chancery, "Revenue Courts" have jurisdiction over many aspects of real property law that are handled by ordinary civil courts in U.S. law. India's courts also follow the British practice of having higher courts which are courts of first instance in serious civil matters in addition to being predominantly appellate courts.

Supreme Court

The Supreme Court is the highest court established by the Constitution. The Constitution states that the Supreme Court is a federal court, guardian of the Constitution, and the highest court of appeal. Articles 124 to 147 of the Constitution lay down the court's composition and jurisdiction. 
Primarily, it is an appellate court that takes up appeals against judgments of the High Courts of the states and territories. It also takes writ petitions in cases of serious human rights violations or any petition filed under Article 32, which is the right to a constitutional remedy, or if a serious case involves needs immediate resolution.

The Supreme Court comprises the Chief Justice and 33 judges.

It first sat on 26 January 1950, the day India's constitution came into force, and thereafter delivered more than 24,000 reported judgements.

Proceedings are conducted in English only. The Supreme Court Rules of 1966 were framed under Article 145 of the Constitution, which exists to regulate its practices and procedures. Article 145 was amended and is governed by the Supreme Court Rules of 2013. 
High courts

27 High Courts operate at the state level. Article 141 of the Constitution mandates that they are bound by the judgements and orders of the Supreme Court of India by precedence. These courts have jurisdiction over a state, a union territory or a group of states and union territories. High courts were instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Constitution.

The High Courts are the principal civil courts of original jurisdiction in the state (along with the subordinate District Courts). However, High Courts civil and criminal jurisdiction applies only if subordinate courts are not authorized to try matters for lack of pecuniary or territorial jurisdiction. High Courts may enjoy original jurisdiction in certain matters if so designated in a state or federal law. For example, company law cases are instituted only in a high court.

The primary work of most High Courts consists of deciding appeals from lower courts, and writs in terms of Article 226 of the Constitution. Writ jurisdiction is also an original jurisdiction of High Courts. The precise territorial jurisdiction of each High Court varies by province.

Judges in these courts are appointed by the President after consultation with the Chief Justice of India, Chief Justice of the High Court, and the state governor. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.

The Calcutta High Court is the country's oldest, established on 2 July 1862, while the Allahabad High Court is the largest, hosting 160 judges.

High Courts that handle large numbers of cases have permanent benches (or a branch of the court). For litigants of remote regions, 'circuit benches' work on those days when judges visit. 
District / Subordinate courts

The District Courts of India are established by state governments for every district or group of districts, taking into account the number of cases and population distribution. These courts are under administrative control of the state's High Court. Decisions are subject to the appeal to the High Court.

The district court is presided over by one District Judge appointed by the Governor with the consultation of High Court. Additional District Judges and Assistant District Judges may be appointee depending on the workload. The Additional District Judge has equivalent jurisdiction as the District Judge. The District Judge is called a "Metropolitan session judge", when he is presiding over a district court in a city which is designated a "Metropolitan area" by the state government.

The district court has appellate jurisdiction over subordinate courts on all matters. Subordinate courts, on the civil side (in ascending order) are Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court. In Family Courts deal with matrimonial disputes.

Family Court and Mahila Court matters are handled by the Principal Judge. The Judges appointed to this post are from the pool of District Judges. In Maharashtra, Andhra Pradesh and some other states, judges are appointed from the pool of retired judicial officer either directly or through exam. 
Executive and Revenue Court

Below the judicial hierarchy sits the executive hierarchy. Cr.P.C. empowers the Executive Court to deal with petty offences, but the power does not imply that they hold judicial power. Section 3 of CrPC clearly splits matter to be handled by both magistrates. Section 20 of CrPC empowers the State Government to appoint Executive Magistrates (EM) in every metropolitan area and in every district. It has the authority to appoint one Executive Magistrate as the District Magistrate and to appoint any EM as the ADM. Such a magistrate has the same power as enjoyed by the District Magistrate (DM).

If the office of a DM is left vacant then any officer who temporarily succeeds to the executive administration of the district exercises the same power as enjoyed by the DM. The State Government is empowered to give charge of a sub-division to the EM, who is called Sub-divisional Magistrate. The EM role generally maintain law and order under section 107–110, 133, 144, 145, and 147 of the CrPC., cancelling or granting licenses, handling land acquisition matters, or any other matter raised by state government.

Section 21 empowers state government to appoint special Executive Magistrates (Sp. EM). Under Section 20(5) of Crpc, the Commissioner of Police (CP) can be appointed as EM, but only when the district is declared by state government as a Commissionerate. The DG(P) holds the rank of CP but can't exercise power of EM (special) until his designation changes into CP. The appeal of executive court lies in the court of Session Judge or Additional Session Judge of the district or to the High Court. 
Order Executive Court
3 Other Executive Magistrate

To deal with the land revenue matters, each state established a Revenue Court. These courts adjudicate matters related to: 
land revenue
tenancy (ownership - in a loose sense)
property boundaries
land transfers
partition of holdings
removal of encroachments, eviction of trespassers, and in some states, declaratory suits.

The Revenue Court is a quasi-judicial body and holds only limited power to deal with specific civil matters. As per Section 5(2) of Civil Procedure Code; Revenue Courts have jurisdiction to deal with suits related to rent, revenue or profits of land used for agricultural purposes, but does not include civil court matters. Therefore, certain matters of the Revenue Courts are barred from jurisdiction of Civil Courts as specified under the code. The Court of Additional Commissioner and above are appellate courts. However, it is a state controlled organization. 
Generally the officers of the rank of Collector and above are from the pool of the Indian Administrative Service, while lower positions can be from either IAS or SAS and inferior to that are from the State Administrative Services. 
Order Revenue [ed. appointing civil service system omitted] 
1 Board of Revenue 
2 Principal Revenue Commissioner 
4 Additional Commissioner 
5 Commissioner Land Record
6 Additional Commissioner Land Record
8 Addl. Collector
9 Chief Revenue Officer
10 Sub Divisional Officer
11 Assistant Collectors
12 Settlement Officer 
13 Assistant Settlement Officer
14 Record Officer
15 Ass. Record Officer
17 Additional Tahsildars
18 Naib Tahsildars

Village courts / Panchayat / Rural Court

Village courts, Lok Adalat (people's court) or Nyaya panchayat (justice of the villages), offer alternative dispute resolution. They were recognized through the 1888 Madras Village Court Act, then developed (after 1935) in various provinces and (after independence) Indian states. The model from Gujarat State (with a judge and two assessors) was used from the 1970s onwards. In 1984 the Law Commission recommended to create Panchayats in rural areas with laymen ("having educational attainments"). The 2008 Gram Nyayalayas Act had foreseen 5,000 mobile courts in the country for judging petty civil (property cases) and criminal (up to 2 years of prison) cases. However, the Act was not enforced, with only 151 functional Gram Nyayalayas in the country (as of May 2012) against a target of 5000. The major reasons were include financial constraints, reluctance of lawyers, police and other government officials.

The Mahila Court (open access) is mentioned above only in passing but is an interesting Indian innovation: 

The ‘women's court’ (mahila adalat or mahila mandal) is a fairly recent but increasingly prevalent phenomenon in contemporary India. A particular kind of alternative dispute-resolution forum specifically designed to address women's marital and related family problems, it aims to provide a safe and unthreatening environment wherein women can air their grievances, work out satisfactory settlements with husbands and in-laws, or find ways to escape their difficult situations altogether. It encourages women to resolve domestic disputes informally, rather than by resort to the state's judicatory institutions. Most women's courts are run by women's NGOs, often with financial support from foreign donor agencies or, in some cases, from governmental or semi-governmental agencies such as State Women's Commissions or Legal Aid Societies.

This paper discusses the structure and workings of some of these women's courts, based on two decades of ethnographic observations and interviews in such venues as well as on the work of other scholars who have studied similar bodies more intensively than I. It highlights some of the unique features of these ‘courts,’ shows why they are the forum of choice for so many poor women, and asks how effective they are in delivering justice to those who come to them for help.

19 August 2022

Births Outside Of Marriage

There is great variation in the percentage of births which are to married mothers by country. I don't have great theories to explain the overall trends.

From here.

Per the CDC data from 2018 for U.S. states:

Quote Of The Day

Whales often mate in threes, so while one male is having intercourse with the female whale, the other male whale will swim and have its penis rise out of the water while patiently waiting for his turn for intercourse.

From here

18 August 2022

A Mid-Term Election Forecast

It is still early in the mid-term Congressional election calendar, and 538 has data and survey driven election forecasts for the midterm Congressional elections. 

The Senate race predictions are favorable to Democrats who currently hold the 50-50 Senate with the support of a Democratic Vice President ruling with them in tie votes, compared to a "normal" midterm election where the party of the President usually loses ground, in substantial part because Republicans have fields some weak candidates in competitive races. The most likely outcomes are a continued 50-50 split or 51-49 seat Democratic majority in the Senate.

But, the current forecast is that the Democrats are more likely than not to lose their 221-214 majority (218 seats are needed for a majority, so Democrats can lose 3 seats and retain their majority) in the U.S. House of Representatives. The most likely result would be about a 229-206 seat Republican majority, flipping about 15 seats "currently held" by Democrats (although since the maps are post-redistricting maps with some states losing seats and other states gaining them, the "currently held" language shouldn't be taken literally).

Democrats have been improving their predicted outcome since the U.S. Supreme Court overruled Roe v. Wade, but it isn't clear whether those gains will last long enough and be strong enough to tip the balance in November.

538 also has Governor's race forecasts (Kansas is the only toss-up race):

A New D.C. Think Tank Advancing Technological Progress And High-Skilled Immigration

As the Republican party grows to be Trumpist, the smart and principled people who were in that orbit of the old GOP coalition, from libertarians, to big business advocates, to neoconservatives, to neoliberals, are heading in new directions. Meanwhile the mass migration of affluent college educated people into the Democratic coalition has also shaped the factions within it which are asserting themselves. 

A new think tank in D.C. is representative of this trend.

I’m a fan of all kinds of immigration — I think they all strengthen our country. But I pay special attention to high-skilled immigration, for a number of reasons — because it’s strategically important, because it gives our economy an especially big boost, and because convincing skilled immigrants to come is not always easy.

In the last year or so, the Institute for Progress — a new think tank in D.C. championing policies to speed up technological progress — has been pushing hard to increase skilled immigration. So I asked IFP cofounder Alec Stapp and Senior Immigration Fellow Jeremy Neufeld to write a guest post laying out the case for focusing on skilled immigration, and what specific steps they’re looking at.
From the preface of a guest post at the Noapinion blog of Noah Smith entitled "The case for high-skilled immigration reform (and how to make it happen)."

The substance of the article is notable too, and I excerpt some highlights from it below.

The foundation sees encouraging "brain drain" from elsewhere as critical to American prosperity.
Immigration is America’s superpower. According to research by William Kerr at Harvard, between 2000 and 2010, America received more migrating inventors than every other country combined.

However, for decades, our broken immigration system has stacked obstacles in front of immigrants, succeeding in spite of itself thanks to the overwhelming desire of global talent to move here. But this pattern of migration that has served the U.S. so well is starting to change. Facing ever-growing wait times for green cards in the United States, talented immigrants are increasingly looking abroad for opportunities. According to a survey released last year by Boston Consulting Group, for the first time Canada has replaced the U.S. as the most desirable location for migrants moving for work. . . .

For a given level of immigration, scientists, engineers, inventors, and entrepreneurs deliver the largest benefits. Despite making up just 14% of the population, immigrants are responsible for 30% of U.S. patents and 38% of U.S. Nobel Prizes in science. A team of Stanford economists recently estimated that nearly three quarters of all U.S. innovation since 1976 can be attributed to high-skilled immigration. . . .  Recent analysis by the National Foundation for American Policy found that 55% of billion-dollar startups in the U.S. were started by immigrants. Somewhat ironically, the U.S. is actually the home of the most valuable company cofounded by someone born in “South Africa (Tesla), Russia (Alphabet), Ireland (Stripe), Taiwan (Nvidia), Kenya (Cognizant), Lebanon (Moderna), or Bulgaria (Robinhood),” as Byrne Hobart recently pointed out. . . .

One recent paper looked at competitors in the International Math Olympiad competition and followed them throughout their careers. This study found that “migrants to the U.S. are up to six times more productive than migrants to other countries — even after accounting for talent during one’s teenage years.” Further, immigrants help bring technologies from the frontier to developing countries.

And immigrants aren’t just economic contributors. Lawmakers in Washington increasingly recognize that skilled immigration can be a powerful lever against a belligerent China. Today, defense-related industries disproportionately turn to international talent to find workers with advanced STEM degrees. And there is nothing new about the idea that attracting the best and brightest can be a major strategic asset — it has been a major benefit to U.S. security from the Civil War through WWII, the Cold War, and beyond. . . .

The article then examines how to achieve this goal politically, arguing that high-skilled immigration has greater bipartisan support and gives rise to less political backlash than low-skilled immigration (much of which is extended family based in U.S. law):

In a paper analyzing U.S. election data, Anna Maria Mayda and coauthors show that high-skilled immigration does not carry a political cost (in fact it appears to be a political asset), but low-skilled immigration does. Research by Martin Ruhs shows that greater high-skilled immigration is correlated with a country being more open to immigrants.
Countries like Canada and Australia, though smaller than the U.S. in absolute size, have a much higher foreign born share of their population. They’ve been able to do this, in part, by using some version of a “point system” or other selection mechanisms that tilt immigration toward highly educated or skilled workers. In the U.S., only 36% of immigrants have a college degree, while in Canada and Australia, the shares are 65% and 63% respectively.

We can also look to the U.K. as a case study. Prior to Brexit, E.U. citizens were able to live, work, and study in the U.K. and negative public sentiment toward immigration rose with the annual rate of immigration. But after the Brexit referendum, once the public felt they were in control of their borders, negative sentiment toward immigration plummeted while immigration rates remained high, according to recent analysis by the Financial Times. And after free movement ended post-Brexit, the U.K. government expanded opportunities for high-skilled workers, launching its Global Talent visa and the High Potential Individual visa.

. . .

A majority of Americans (66%) say they would prefer to either increase the rate of immigration or keep it the same, according to Gallup. A minority — 31% — want to decrease it. But here’s the catch: Voters who oppose immigration care about the issue much more deeply than voters who support immigration. And their willingness to vote on this issue in Republican primaries is why many Republican politicians campaign on immigration restriction. Polls also show that voters “trust” Republicans more than Democrats on immigration (37% to 27% in one recent poll), which is why Democrats’ electoral chances suffer when the salience of this issue goes up in the media (e.g., when there’s video on cable news of migrants at the Southern border).

Fortunately, voters are more positive about high-skilled immigration. According to Pew, 78% of voters support high-skilled immigration, including 63% of those who said the country should allow fewer or no immigrants. . . .

The article then gets down to the brass tacks of specific ways that legislation and executive action could increase high-skilled immigration with incrementalist changes to existing immigration laws and related executive orders, as opposed to comprehensive immigration reform which has repeatedly stalled in Congress: 

The America COMPETES Act, which included a provision for a green card cap exemption for immigrants with advanced STEM degrees, passed the House of Representatives in February with nearly every Democrat voting in favor of the bill.

Republicans seem to be interested too. Senator Todd Young said earlier this year that “in terms of skills-based immigration reform, I think it’s essential to maintaining our national competitiveness.“ His comments have been echoed by other members of his caucus such as Senators Cassidy, Cornyn, Braun, and Lankford. Even Senator Chuck Grassley, a longtime immigration skeptic, has said this is an issue on which he has “changed [his] mind completely.” 
Source: CSIS

With the return of Great Power politics, policymakers understand that high-skilled immigration is how we can beat China and Russia. Less than 0.1% of China’s population is foreign born. On surveys, potential migrants do not say they want to move to China. And since Russia’s invasion of Ukraine, the tech talent pipeline is flowing out of Russia, not into it. . . .

There’s much for Congress to do, from allowing international students “dual intent” to make it easier for them to stay after graduation, to providing the necessary resources to USCIS to process visas efficiently and bring their system into the digital age.

The most essential action Congress should take is to lift the overly restrictive caps that are holding back green cards from highly qualified and promising talent. Employment-based green card caps are the key bottleneck for high-skilled immigration that only Congress can fix.

This bottleneck imposes major limitations on U.S. potential in two ways. 
First, it makes the U.S. a less attractive destination for potential immigrants, especially as compared to other countries like Canada and the UK which have taken active steps to attract talent with faster, more flexible options for permanent residency. 
Second, they force the immigrants who still want to come here through poorly designed and restrictive temporary visa programs that limit their opportunities while they wait for a green card. Many students who lose the H-1B lottery elect for more schooling they don’t really want since they are barred from employment. And many people stay at “safe” companies rather than take risks with startups. . . .

the executive branch also has significant power to improve high-skilled immigration. In January, the White House announced four initiatives to help the U.S. attract and retain STEM talent from around the world. It was an excellent first step, but large opportunities remain.

The O-1 visa for extraordinary ability is an uncapped category established by Congress, where the specific criteria for what counts as “extraordinary ability” is left to the executive. It does not require an employer-sponsor and gives recipients much more freedom to work, change jobs, or start new companies than other visas. An ambitious administration could use the discretion left by Congress to turn the O-1 into a visa program to rival the H-1B among the most talented people looking to come to the U.S. The administration should consider making it easier for startup founders to use the O-1, and broadening eligibility for people working in critical fields such as artificial intelligence.

The J visa for exchange visitors is another uncapped category ripe for additional executive reform. The Bureau of Educational and Cultural Affairs is empowered to determine valid exchange categories. The current list could be expanded to promote intellectual exchange in both academia and the private sector. Further, the executive branch could adjust the requirement that exchange visitors return home for two years after the end of their program. This requirement doesn't apply to visitors from countries that have decided to waive it, and the U.S. benefits when such visitors decide to stay. The executive branch could retain more exchange visitors if a government body with an interest in securing STEM talent in the American workforce (such as the National Science Foundation or the Department of Defense) established objective eligibility criteria for J-1 holders to apply for an Interested Government Agency Waiver.

The H-1B is the biggest high-skilled program in the United States, and it too has significant problems that could be addressed by executive action. This year, employers filed nearly 500,000 petitions for 85,000 H-1B visas. Instead of allocating these scarce visas to the most valuable talent, USCIS runs a lottery in which world class experts have essentially the same chance of winning as entry-level IT workers. The lottery was established by USCIS, not Congress, and replacing this system has bipartisan support — the Trump administration attempted to replace it by executive order and it featured in a Biden campaign promise. While Trump’s attempt was ultimately struck down by the courts, it was for procedural reasons (it was an action taken by an unlawfully sitting DHS Secretary) and not on the merits of the proposal.