The Economic Foundation Of A Liberal Geopolitics And Political Economy

The liberal answer to the despotism of Russia, Venezuela, Saudi Arabia, and other petrostates is ultimately pretty straightforward: use technology to make oil and other fossil fuels, which are also damaging our environment and driving climate change, irrelevant, replacing this with energy obtained from cleaner and decentralized renewable energy and vehicles that run on electricity.

Authoritarianism thrives in economies where the key factor of production is ownership of resources, whether that's farm land, gold, sliver, coal, or oil.

In contrast, in a commercial economy, where the most important factor of production is not just labor, but intelligent, voluntary work, you need to spread out economic resources to induce those willing, smart economic contributions from many people. The decentralization of wealth and power that flows from that favors a more open, democratic society, since the funds to run a state must be obtained through taxation of the many secured with their democratic permission, and not just ownership of those resources.

Commercial economies need to be market based. But they don't need to be truly "capitalist" in the Marxist sense, and indeed, ideally aren't. In a truly capitalist economy, in this sense, capital (i.e. raw wealth) is they key factor of production and ownership of it, while more amorphous than wealth based upon ownership of raw resources, can lead to similar effects.

If owning the factory or equipment becomes as important as owning land used to be in medieval and early modern Europe, you get a society that may look like a commercial economy, but is just as controlled by oligarchs as the economies that came before it. In the extreme of a capitalist society, financial wealth can dominate and replace land or oil as the concentrated factor of production that facilitates an economy based upon ownership of the key factor of production by a few.

To be clear, this doesn't mean that we should resort to Marxism's flawed "labor theory of value." What matters is results, not effort. Treating goods and services made less efficiently as more valuable than the same goods and services made efficiently is just dumb. But ideally, know how and efficiency that maximize the value of labor relative to the value of ownership of property is the goal.

This approach, like every approach has winners and losers, which somewhat align with modern political identities. Right wing politics are favored on one hand, by people who want to increase the importance of ownership of property as a key factor of production, and on the other hand, by people who are only capable of providing inefficient labor, who don't benefit from a system that rewards widespread and diverse forms of efficient labor.

Another threat to the political structure of a decentralized commercial economy is intellectual property. When it is too strong, as it is in our economy, ownership of intellectual property prevents innovation rather than encouraging it, and concentrates wealth in whomever owns a right to royalties from it.

The fundamental project of those seeking a healthier political economy in the West is to undermine the importance of merely owning wealth and intellectual property.

In the case of intellectual property, we've kept that at bay so far, by making it easy to copy and having lots of opportunities to innovate and make older intellectual property grow obsolete, although laws weakening intellectual property rights would help.

In the case of finance, we've tried to create financial institutions that make it possible to funnel access access to resources to people who have good ideas, while lowering the returns to ownership with low interest rates and modest returns to ownership of equity. But tax laws that favor unearned income over earned income have helped undermine this, as has the weakening of estate and inheritance and gift taxation that facilitates the transfer of wealth to dumb money.

Military Technology Musings

Nuclear Weapons

Most of the nuclear weapons in the world are H-bombs (which create a nuclear fusion explosion from heavy hydrogen) and ICBMs (Intercontinental Ballistic Missiles that carry H-bombs) with multiple warheads that spread out over a large area, and a much greater explosive power than the Hiroshima and Nagasaki A-bombs (that created a nuclear fission explosion from uranium) that were the first and only time that nuclear weapons were used in combat in 80 years ago.

The problem with one of these typical weapons in nuclear arsenals worldwide is that blowing up everyone and everything in a major metropolitan area, irradiating that area for many years, doing significant harm to the global environmental, and risking a counterattack in kind from other nuclear powers under the Mutual Assured Destruction (MAD) doctrine, is almost never a militarily useful thing to do. We justify them primarily under the MAD doctrine as a way to discouraging anyone from ever using nuclear weapons.

Even for extreme military missions like "bomb Mecca", or destroying the headquarters of an enemy government in a capital where its top leaders are located, or destroying a large military base isolated from civilian populations, or penetrating deep bunkers (such as a North Korean or Iranian nuclear facility or an ICBM missile base or an underground submarine base in China), a single warhead much less potent than a typical U.S. ICBM or SLBM (submarine launched ballistic missile) and closer in explosive power to the Hiroshima and Nagasaki A-bombs, are more than adequate in terms of explosive power.

Really, the only mission for which such powerful weapons make any military sense is planetary defense, to break up a large incoming meteor or comet into small enough pieces to burn up in the atmosphere before doing serious damage, or to divert an incoming meteor or comet from a collision course with Earth, in the basically oxygen free environment of deep space.

Indeed, one of the main reasons that nuclear weapons haven't been used again for 80 years, despite the fact that quite a few countries now have them, is precisely because they aren't a good fit to any military objectives, and not because the countries that have them been particularly ethical.

Tactical nuclear weapons, such as the backpack sized "Davy Crocket" bomb from Cold War era, are another matter. These can be as potent as, or perhaps ten times as potent as the largest conventional missiles and bombs, but can be five hundred times less massive. This makes them the right size to bust deep bunkers, sink aircraft carriers and other large warships, or destroy a large dam, bridge, or military base, or a dictator's palace while the dictator and his top lieutenants are in residence, with a single blow. This could be delivered using a small hypersonic missile, or small fast supercavitating torpedo, or small stealthy drone, or a guided bomb delivered with a stealth warplane, or by special forces soldiers disguised in a civilian boat or car or ATV, that can more easily evade air defenses that could more easily intercept a conventional sized missile or conventional bomber aircraft. If one could make a tactical nuclear weapon with a much smaller yield than even the 10-20 kiloton Davy Crocket bomb, one would even use it to make much smaller anti-armor/anti-ship/anti-fortifications weapons - with a four to ten pound mini-missile doing the damage of the two thousand pound bombs that are the largest typically used by fighter aircraft and as conventional ship and submarine launched missiles.

But, the much smaller size of the bomb is less likely to provoke a civilization ending counterattack, and, particularly if it is an H-bomb that doesn't spread uranium or plutonium all over the place, leaves a much smaller area irradiated for a shorter time period and doesn't do nearly as much damage to the global environment.

What this means for policy is another matter. 

On one hand, it suggests that investing in large numbers of multiple kinds of large modernized nuclear missiles and bombs doesn't really make sense. Optimally, one wants no more of them than is necessary to present a credible MAD deterrent. Why, for example, should you have land based ICBMs at all, when they turn those bases into first priority targets in World War III and are easier to use missile defenses against than SLBMs and nuclear bombs delivered by stealth aircraft or shorter range hypersonic missiles launched from aircraft.

On the other hand, if you create a significant arsenal of tactical nuclear weapons, particularly if other nations and insurgent groups follow your example, it is much more likely that they will actually be used in war. And, honestly, existing conventional bombs are more than adequate to destroy or disable that most heavily armored vehicles and all but the deepest and most secure bunkers, without crossing the line of normalizing the use of nuclear weapons in war.

Nuclear Batteries

Nuclear power for military applications has only been used for military submarines and large ships like aircraft carriers and mega-cruisers, in part, because they have been hard to scale down in size, and in part, because the nuclear materials in them could be used by an enemy, if captured, to make nuclear weapons.

But nuclear batteries, using lighter radioactive isotopes than uranium and plutonium (like thorium), that are not nearly as suitable for use in nuclear weapons, share the immense energy density of existing nuclear power plants on submarines (which use only 10 kg of fuel for decades), and large warships, and can be scaled down to arbitrarily small sizes (e.g. a pacemaker or watch or single automobile). Nuclear waste from nuclear batteries using lighter isotopes is also reputedly easier to dispose of than uranium. This has tremendous (I hesitate to use this overused phrase but it's appropriate here) game changing potential to reduce the logistics burden of military units. 

In fiction, this is basically the innovation that makes Iron Man's suit possible. 

Nuclear batteries facilitate quieter, lower maintenance, all electric military systems that don't need to be refueled for years, and that can also use that spare power to recharge electric devices in the unit and military lasers and directed energy weapons, and they allow fuel supplies to be decentralized to individual vehicles, systems, and equipment items. It generates no smoke or emissions smells. Combined with night vision, IR sensors, and LIDAR these vehicles could operate without lights at night. If a ship with a nuclear battery were sunk, it wouldn't create an oil slick that would endanger sailors who abandoned ship. 

The logistics burden involved in providing water to troops could be reduced as well. In coastal areas and at sea, it could power a desalinator, at least for showers and cleaning use, even if it wasn't good enough to make tasty water for drinking. In deserts, it could power a device to extract clean water from the air. In jungles and forests, it could power a water purifier that would allow local water supplies to be used. It could also power heat pumps in places that were too hot or too cold.

No more tanker ships. Propeller and rotor driven aircraft could dispense with aerial refueling tankers. No more vulnerable, unarmored convoys carrying diesel fuel. No more vulnerable fuel depots. No more reliance of distant fuel supplies whose prices are influenced by foreign powers who may become adverse to you.

And, because nuclear batteries can be much more compact than conventional fossil fuel tanks or chemical batteries, without sacrificing range, there is one less thing in the military system which can be easily struck causing the vehicle or military system to explode from its own fuel, because nuclear batteries are a much smaller target and, if properly designed with this risk in mind, aren't necessarily explosive if hit with a high explosive round.

Things That Are Hard To Predict

The mix of drones (armed and unarmed), guided bomb and missiles, active defenses including but not limited to directed energy weapons and jammers, new materials that could make armor lighter and stronger, hypersonic missiles, prototype "invisibility" cloaks, claimed (but not demonstrated) sensors that can penetrate radar stealth, and the use of artificial intelligence to organize information in the fog of war, identify incoming targets and respond before a human could react, and guide drones and guided munitions without active direction from a human controller and guide sniper weapons more accurate, all combine to make the future of warfare hard to predict.

Active defenses, particularly as used by Ukraine and Israel in recent conflicts, and by U.S. naval ships, have made securing air superiority much more challenging, intercept something like 85-90% of incoming missiles and drones reversing the one shot, one kill trend established by the first guided weapons, and could be the only thing that rescues tanks and fixed forward operating bases from obsolescence (while allowing the use of less armor since threats only countered by heavier armor can be actively intercepted). 

And, these are only in the early days. There is plenty of room to make interceptor munitions less expensive (particularly with directed energy weapons), to make them and their associated sensors smaller, lighter, and more secure, to increase the percentage of incoming munitions that are intercepted, and to increase their range.

On the other hand, countermeasures to active defenses, like AI guided and wire guided suicide drones that make jamming ineffective, are being developed rapidly too, out of necessity. So far, suicide drones have been mostly crude modification of commercial, off the shelf quadcopters, but there is also plenty of room to make them quieter, harder to see, and to make them harder to discern with radar and electronic signals.

Part of what makes the future course of these technologies so hard to predict is the constant, rapid Red Queen hypothesis evolution of measures and countermeasures. 

For example, recent efforts to develop rail guns with unguided rounds that rely purely on kinetic energy without resort to explosives or guidance systems, which were set aside because they were too difficult technologically, may receive renewed attention for their immunity to active defenses based upon jamming, lasers, or other directed energy weapons (like microwaves), and may be possible to scale down in size as heavier armor is abandoned in favor of active defenses.

Armed drones are much smaller and cheaper than comparable manned warplanes, warships, submarines, and military ground vehicles, and can be used to take much greater risks since the smaller ones are expendable. They have become the dominant weapons in the Ukraine War and in military encounters directly between Israel and Iran, and have been one of the primary weapons used in the war on terrorism carried out by the U.S. in the wake of 9/11. They can strike targets well beyond the range of slug throwing artillery, and can be effective in precisely striking the most vulnerable parts of moving targets whose exact location isn't known when they are launched, while reducing the risk of friendly fire.

So far, simple, remote controlled, flying drones have been predominant in military applications. But, we have seen glimpses of other possibilities. Large sophisticated drone fighter aircraft are smaller, cheaper, and capable of higher-G maneuvers and faster reaction times than manned fighter aircraft. Flying drones have been used to resupply troops in war zones in environments where there is too much enemy fire or the terrain is too difficult for conventional logistics convoys. Drone jet skis and speed boats filled with explosives have destroyed large warships in the Black Sea. Small, comparatively inexpensive, drone ships carrying anti-ship missiles in shipping containers have been successfully tested against target test ships. Small anti-personnel aerial drones carrying small arms or grenade sized munitions have been prototyped but not yet widely used, but could facilitate sniper-like tactics in conditions where these tactics were previously not viable.

Reconnaissance drones can identify enemy forces in ways that previously took much larger and more expensive helicopters, fixed wing reconnaissance aircraft, and satellites, at a cost and size that make them cost effective for even platoon or squad sized army units to use organically for themselves in real time. Coast guard cutters can use them to patrol far more of the sea at once, and more quickly and in more places at once, than any ship or boat could. Smaller battery powered reconnaissance drones can be similar in size, speed, and noise level to birds, making them harder to detect. The smallest insect-sized reconnaissance drones can enter buildings or clear anti-drone netting, undetected, aren't that expensive, are harder to shoot down if detected, and can be deployed in swarms. There have also been successful efforts to put cameras on actual roaches and other insects for tasks like locating survivors in the rubble of collapsed buildings. Small remotely monitored sensors can constantly monitor roads, bridges, fields, buildings, and ports with a much reduced risk of detection. And, unlike a human scout or forward observer, who is also easier to detect, they can't reveal many secrets, or create a POW hostage situation or casualty if they are captured.

Submarine drones can be on constant patrol for days or weeks for enemy armed submarines, sea mines, and enemy ships, or could follow enemy submarines to their hidden bases, while appearing to sensors like sea life. Submarine drones or mostly submerged drone ships can be used to smuggle supplies in interdicted waters, in the way that drug dealers have used them. Submarine suicide drones (or armed submarine drones) can be used to destroy enemy ships without being detected until it is too late, at distances far exceeding what is possible with a conventional torpedo.

Nuclear batteries could be used to create drones or remote sensors that can operate autonomously for years without human contact or maintenance.

It is hard to know what kind of balance and mix of technologies will emerge as experience and economics guide the choices that make sense as these technologies become more mature. 

For example, lots of drone and missile guidance systems (and military aircraft) are expensive to a significant extent, not because they are expensive to manufacture, but because a large premium is being paid for the intellectual property rights arising from the development process. So, a significant part of the cost barrier to their use is economic and could be addressed without any technological advancement (perhaps the military would be better off paying for R&D itself on a work for hire basis and retaining all of the intellectual property).

Things We Can Predict

This said, there are some predictions and conclusions that can be reached with some comfort:

* Tanks and conventional warships without active defenses are as obsolete against a near peer opponent as horse cavalry, warships with sails and cannons, swords, and bayonets. Howitzers and mortars throwing unguided slugs will follow soon.

* Large, mostly unarmored and undefended forward operating bases near "front lines" (such as they are), massed formations of ground troops and armored vehicles, and small pillbox type fortifications are obsolete tactics against near peer opponents.

* No armor, unaccompanied by active defenses, is effective against anti-armor weapons, which are increasingly inexpensive, light, and effective, making large, heavy military systems that rely on armor ineffective against near peer opponents. Armor pretty much only makes sense against enemy forces or insurgents or civilians with only small arms.

* The cost and availability of the weapons necessary to be effective, in a cost-effective way, against a big budget sovereign nation military force has greatly declined.

* National borders, national waters, and military tactics organized around front lines have limited relevance when long range strikes are widely available.

* Large nuclear weapons will continue to not be used because they don't serve useful military objectives.

* Biological weapons are unlikely to be widely used until they can be better controlled, because the risk of blow back to the user is great.

* Despite being lumped in with nuclear and biological weapons, chemical weapons, at least historically, have not been significantly more effective than conventional weapons, and have been amenable to effective countermeasures when they have been used like air sealed vehicles with positive air pressure, filters, protective clothing, and gas masks.

* Advances in modern military weapons have made great strides in destroying distant and armored targets, but drones, missiles, and guided bombs can't hold or control populated territory, which is one of the most common military objectives, without boots on the ground.

What To Abolish?

Republicans want to abolish the Department of Education and the IRS. Both are horrible ideas. 

What should be abolished?

1. The Drug Enforcement Administration (DEA).

2. The Office of National Drug Control Policy.

3. The Alcohol And Tobacco Tax And Trade Bureau.

4. The Alcohol and Tobacco parts of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

5. The Article I Immigration Court system (transfer this duty to Article III courts).

6. U.S. Immigration and Customs Enforcement (ICE) (as opposed to the separate border control agency).

7. The Employment and Training Administration in the Labor Department.

8. The Export-Import Bank of the U.S.

9. The National Indian Gaming Commission.

10. Criminal and civil forfeiture enforcement of copyright and trademark violations (a similar statutory stand alone crimes).

11. Federal pornography possession enforcement.

12. Diversity jurisdiction in the federal courts.

13. Federal question jurisdiction in the federal courts in most cases involving private parties. 

14. The U.S. Court of Appeals for the Federal Circuit (merge into the U.S. Court of Appeals for the D.C. Circuit)

15. The Federal Arbitration Act.

16. Federal grand juries (would require a constitutional amendment).

17. Criminal punishment of illegal entry into the United States.

18. Federal enforcement of bank robbery laws.

19. Federal enforcement of intrastate controlled substance violations.

20.  Most federal agency law enforcement agencies.

21.  Merge the Commodity Futures Trading Commission into the SEC.

22. Slow speed, long haul passenger rail lines at AMTRAK.

23. Door to door rural mail delivery (replace it with P.O. boxes).

24. The Jones Act.

25. Grants to for profit colleges and universities.

26. Federal civil forfeitures.

27. For profit federal prisons and detention centers.

28. The Medicaid Estate Recovery program.

29.  FEMA grants to people suffering disaster losses after rebuilding in stupid zones.

30. The Office of the Director Of National Intelligence.

31. The Foreign Intelligence Surveillance Court (enforce the laws in regular Article III courts).

32. The Selective Service System.

33. Most tanks in the U.S. Army (transfer them to allies who want them like Ukraine and Taiwan).

34. New destroyers (of existing designs) for the U.S. Navy.

35. The U.S. military base at Guantanamo Bay.

36. Bomber aircraft in the Air National Guard.

37. Canon artillery in the Army National Guard.

38. The Space Force (which should be merged into the Air Force).

39. The Air Force (which should be merged into the Army).

40. Stealth fighters in the Air National Guard.

41. The Next-Generation Intratheater Airlift (NGIA) program in the Air Force (it duplicates a more advanced Army Future Long-Range Assault Aircraft program).

42. Foreign aid to Saudi Arabia.

43. The amphibious assault mission of the U.S. Marine Corps.

44. The U.S. Navy's nuclear-armed sea-launched cruise missile (SLCM-N) program.

45. Most U.S. military VIP transport aircraft.

46. The Armored Multipurpose Vehicle (AMPV) procurement of 522 M1283 General Purpose Vehicles, 993 M1286 Mission Command Vehicles, and 386 M1287 Mortar Carrier Vehicles. This would leave the AMPV program with 790 M1284 Medical Evacuation Vehicles and 216 M1285 Medical Treatment Vehicles.

47. The M10 Booker Mobile Protected Firepower program.

48. Retire the B1-B bomber (or transfer it to the U.S. Navy as a patrol aircraft).

49. The ban on travel by Americans to Cuba.

50. The U.S. Army Junior Reserve Officers' Training Corps (JROTC), which is a high school pre-ROTC program.

Selected Lesser Grievances

There are lots of big issues facing the United States, the biggest of which is the existential threat to its continued functioning as a democracy posed by Donald Trump's candidacy in this year's Presidential election. And, this blog spends plenty of time thinking about those big issues.

But, the world is also full of things that aren't "big issues" but are minor annoyances and lesser grievances that it would be nice to see remedied, even if they aren't really make or break issues. This post recounts some of them.

Computer System Treatment Of Hyphenated Names And Similar Issues

* There ought to be a law that mandates that government and big business computer systems accommodate people who have hyphens, apostrophes, spaces, and just one or two characters in their names. This may have been an issue at the start of the computer age, but we have reached a point where it is no longer that hard to do.

Fraud

* We do a poor job of dealing with fraud perpetrated by phone, text message, email, social media, the Internet more generally, and the financial system. It should be possible to click a 9-1-1 style universal fraud reporting code and send reports of fraudulent activity instantly to the appropriate law enforcement agency and telecommunications providers, with no further effort from the person reporting it required. This should shut down the fraudster's phone number, and email accounts, social media accounts, and freeze any associated financial accounts almost instantly, and launch investigations as a matter of course into the perpetrators and into the institutions used by them to perpetrate the frauds. The cost of an individual fraudulent communication is small and the fraudsters count on that to shield them from investigations, which when they do happen aren't nimble enough to address it because the perpetrators are long gone. Yet, we have a system that is much better a dealing with the much less serious problem of copyright infringement than it is at dealing with fraud. 

* We should do a better job of dealing with deceptive business practices by credit reporting agencies that try to trick you into paying for services that they are required to provide for free.

* We should do a better job at shutting down businesses that dupe people into paying to get government services that are available cheaper or for free from the actual government.

* Credit cards should have PIN numbers the way that ATM cards do. This would dramatically reduce credit card fraud and reduce the incentive to steal credit cards.

* Food labeling should be more tightly regulated to discourage spurious and misleading health claims like "antibiotic free" in foods where antibiotics aren't allowed anyway, or claims that a food that ordinarily would have sugar but not fat anyway is "fat free".

Regulated Occupations

* We should have a central database of people who are sanctioned or "disbarred" from particular professions in a particular state or local jurisdictions, so that these people are prevented from going to some other state or local jurisdiction, or some other licensed occupation where the same conduct would also be disqualifying.

* The construction trades should be regulated at the state level, not the local level. This prevents an unreasonable barrier to entry for legitimate reputable construction contractors, which causes construction trade licensing to be ignored or overlooked, while also making it too easy for someone who has had their construction trade license rightfully revoked to just go to another locality that hasn't caught up with them yet.

Arrest Records

* We should also have a way of purging the official arrest records of people who are arrested or charged, but are ultimately not convicted of anything, from public records and databases (that do not at least disclose the exoneration with the arrest record report). Similarly, there should be a better process to purge or annotate criminal convictions that are vacated.

Mail, Package Delivery, And Porch Piracy

* The U.S. Postal System and all other package delivery firms should be liable for damages when it delivers a package to the wrong address (or doesn't deliver it at all), preventing the intended recipient from receiving it, even without requiring the sender to procure insurance, at least up to a certain dollar amount. 

* A parallel and similar system for dealing with fraud via mail to the one suggested above for telecommunications fraud should also be put in place. Violators (both firms and their managers and principals) should have their right to send mass mailings suspended for some period of time in addition to any other relief.

* A certain percentage of packages should have tracking chips that can be used to locate the packages if they are taken by porch pirates, allowing the perpetrators to be found, and creating too high of a risk for people contemplating porch piracy to consider doing so.

* Mutual funds should be required to make information about their funds publicly available, but mailing prospectus-like disclosure documents to their investors on a regular basis just kills trees without providing meaningful improvements in investor knowledge.

* The same is true of privacy policies. Require them to be made available in some standardized place, but don't mail them out to everyone connected to a business.

* Low advertiser postal rates for "junk mail" that don't reflect reduced costs for the postal system due to, e.g., pre-sorting, should be abolished and instead, all mail should have to pay first class mail rates. If it isn't worth sending a first class mail rates, it isn't worth bothering people with the unsolicited junk mail.

* Congressional franking privileges should be abolished and replaced with a budget for postage for each U.S. House and U.S. Senate office, based upon the population of the state in question for U.S. Senate offices. This privilege is widely abused by office holders and undermines the economic viability of the U.S. Postal Service.

* Mail-In Ballots should have business return postage type treatment so that the voters doesn't have to attack any postage to return their ballot through the mail, paid for by the governmental body conducting the election.

* Registered voters should indicate (in a database that is not public record at an individual level, just at a statistical level), their preferred language for election related information and communications. Thus, election related disclosures and ballots would go to voters only in their preferred language rather than in both English and Spanish with other language versions available upon request. This would make ballots more readable, and cut in half the amount of paper wasted in pre-election disclosures. It would also significantly reduce the burden on voters who need to receive translations into languages other than English or Spanish.

Long Ballots 

Ballots are too long, in part, because we have voters do too much. But long ballots discourage voting generally and lead to uninformed decision making.

* We should not elect, at any level coroners, surveyors, engineers, dog catchers, assessors, treasurers, clerks, or secretaries of state, who are supposed to be carrying out technocratic tasks with only limited discretion.

* Elections should not be administered by partisan elected officials, or by partisan political appointees.

* Judicial retention elections like the ones held in Colorado make ballots much longer (just short of half the questions on my ballot this year are judicial retention elections) and demand a great deal of effort from voters who try to make those decisions in an informed manner, but provide very little benefit. Typically only one or two judges in the entire state are not retained in any election cycle, and sometimes, none are. Only about 1% of judges are ever removed this way, which inadequate purges inadequate judges. And, a significant share of judges who are removed are removed for decisions that are legally required but unpopular. Simply put, the general voting public is ill-equipped to make this decision even with state supplied information pamphlets, and it is a great burden on voters that makes ballots too long. There might be a place for retention elections, but only in cases which are singled out as "high risk" in some reasonable manner, for the voting public to focus upon.

* In Colorado, the Taxpayer's Bill Of Rights, requires voters to approve tax increases and to authorize retention of revenues from existing taxes if those revenues grow fasters than a formula in the state constitution. I don't have a problem with the first kind of voting requirement for new taxes. But, votes on retention of revenues from existing taxes (called "debrucing" ballot issues, after Doug Bruce, the author of TABOR in Colorado) should not be required and make our ballots unnecessarily long.

* Similarly, while voters should have to authorize increased debt limits for local governments, they should not have to authorize incurring debt at levels previously authorized by voters and paid for with existing taxes, after the original debt is paid down, at least in part.

* The CU Board of Regents and the state school board, should not be chosen by the general public in elections, let alone, in partisan elections.

* Perhaps in addition to petitions to establish a minimum threshold of support for a ballot measure before putting it on the ballot for the general public to consider, citizen's initiatives should face a public opinion poll test and only be granted ballot access if it can garner at least, say, 35% support, in a public opinion poll conducted by a reputable and certified firm.

Notarization

* The requirement that statements made under penalty of perjury be presented in a notarized affidavit made under oath should be replaced with a rule allowing unnotarized declarations made under penalty of perjury in court documents, something that is already the case in the federal court system, and the court systems of Colorado and Utah, at least.

* Notarized but not otherwise witnessed wills are valid in Colorado. This should be the norm nationally.

Copyrights, Rights Of Publicity, And Privacy

Copyright laws are too strong for a digital age. Some examples:

* There should be more legally binding safe harbors for fair use. Far too many cases are in gray areas decided on a case by case basis by a particular judge and jury.

* Some version of a fair use defense or dramatic remedy limitation should be available in the cases where someone is sharing content made available by a copyright holder or a licensee for free on the Internet or via freely available broadcast television or radio.

* There should be a mechanism for mandatory licensing of orphan works and for translations of works that are not available in a particular language.

* There are overly expansive protections for derivative works in areas such a fan fiction that should be dialed back.

* Statutory damages in lieu of actual economic damages, and the availability of attorneys' fees in actions for copyright infringement, should also be greatly curtailed. In general, copyright remedies and rights should be closer to an unjust enrichment tort remedy and less like a property right. 

* Rights of publicity should be governed by a single, preclusive, federal law, not by a mishmash of state laws.

* Europe's General Data Protection Regulation (GDPR) is far too expansive and far too protective of privacy rights to the detriment of other legitimate interests.

* The scope of the applicability of the GDPR to people who are not in Europe, but can have dealings with Europeans over the Internet is far too unclear.

Traffic Laws

* Speed limits should reflect the speed that an ordinary reasonable driver would travel on a road as it is designed. Local governments should not be allowed to set lower speed limits than the road conditions reflect in response to local community pressure. If a local government wants traffic to move more slowly than the legally authorized speed limit given the road conditions, it needs to redesign the road, rather than just creating a speed trap.

* When push comes to shove, bicycles should be regulated as pedestrians not as motor vehicles. They should go on sidewalks and designated bike paths in most cases, rather than being expected to share designated highways and arterial streets with automobiles. A bicycle crashing into a pedestrian is much less serious than a car crashing into a bicycle.

Debt Collection

* It should be a serious offense to try to collect zombie debts that are barred by the statute of limitations or have been discharged in bankruptcy.

* It should be a serious offense to try to collect debts from the next of kin of debtors who have not guaranteed the debt in writing, rather than the decedent's probate estate.

Medical Billing

* Until the day when we have universal health care, health care providers to patients with health insurance should be forbidden from trying to collect their bills directly from the patient beyond a health insurance policy authorized co-pay to be paid at the time of service. Any provider that accepts any payment from that patient's health insurance should be required to honor the health insurance company's disallowance of their charges. And, health insurers should have to pay the full allowed charge to the health care provider and then collect the patient's share of that charge under the insurance policy from the patient. Patients shouldn't be put in the middle and as a guarantor in the face of disputes between health care providers and health insurers. A patient should be able to know exactly what he or she will owe simply by reading their health insurance policy.

* Emergency rooms shouldn't be allowed to charge more to someone who errantly went to an ER instead of an urgent care facility for the same services. The task of getting someone to the right level of care takes medical knowledge and should be the responsibility of the health care provider.

* Health care providers shouldn't be allowed to charge different rates for the same work done at a hospital affiliated facility (which is often billed at a higher rate) than at another facility.

* When there are contingent fee lawsuits for personal injuries, health care providers with health care liens on the recovery should have to share the risk in a way that afford the injured person some benefit of the lawsuit according to a standard formula that doesn't have to be negotiated on a case by case basis.

Court E-Filing Discrepancies

* Court E-Filing systems should have much less authority to just reject filings. Instead, if there is problem with the way that the filling was put into the e-filing system, that correction should just be made by the system, and if there is a problem with the document filed itself, it should issue an order to show cause directing the filer to correct it in a clearly described manner before a reasonable deadline to prevent it from being stricken with a loss of the original filing date.

Municipal Ordinances

* Municipalities and local governments should not be permitted to punish ordinance violations with incarceration or arrest. Incarceration should be limited to violations of state laws.

* Colorado should abolish municipal courts and require municipal ordinance violations to be enforced in civil actions brought by city attorneys in county courts that are part of the state court system.

Expanding Fair Use

There is one major content based categorical fair use exemption from copyright. It is for parody. I would propose at least two others:

1. Advocacy. People who are advocating for a view or position want their works to be widely distributed and aren't creating content for the purpose of making a profit. Infringement of copyrights for works of advocacy should be categorically classified as fair use.

2. Scholarship. Academic scholars likewise want their works to be widely disseminated, so long as their works are properly attributed, and earn most of their incomes from salaries as professors or researchers, not from royalties earned on their academic work. Infringement of copyrights for works of academic scholarship that give attribution to the authors should also be categorically classified as fair use.

Selected Wishes

They aren't prayers, because there is no one to pray to and prayers don't work.

They are just select, somewhat realistic, wishes or dreams, and I have little ability to do much to make them happen or not.  

U.S. Politics

* Harris wins the Presidential election.

* Democrats win the U.S. House and the U.S. Senate.

* Democrats hold CO-8 and win CO-3 and maybe even CO-5.

* The filibuster is abolished in the U.S. Senate.

* The U.S. Supreme Court is expanded to 13-15 seats, allowing Harris to appoint 5-7 new liberal justices.

* D.C. gains statehood status.

* Trump is sentenced to and serves several years in prison on his current charges of conviction, is not released pending appeal, and is ultimately convicted of at least some charges in the three other criminal cases that were brought against him with the classified documents case dismissal reversed on appeal.

* Justice Thomas is punished for corruption.

* Abortion bans fall one by one, state by state.

* The MAGA movement collapses.

U.S. Culture And Daily Life

* Christianity continues to decline in the U.S. in favor of secular worldviews.

* The percentage of people who own guns falls.

* Crime rates continue to fall.

* Police become less likely to use excessive force and less likely to act inappropriate when accountability measures and training are improved.

* Life expectancies and general health improves with new medical advances and better public health measures.

* Southern and country culture, and cultures of honor ebb and wane.

U.S. Economics

* Electric vehicles increase their market share.

* Coal consumption continues to plummet.

* Petroleum consumption plummets.

* Fossil fuel dependent economies like Wyoming, Alaska, and Texas see huge, long term stagnation similar to what was seen in the Rust Belt.

* The U.S. becomes more urbanized.

* Anti-fraud enforcement becomes more successful.

* Lawns and grass landscaping become more rare in the arid West.

* Land use regulations are relaxed.

* Unnecessary occupational regulation is relaxed.

* Immigration remains substantial and undocumented immigrants are largely legalized.

* Copyright laws and other intellectual property laws are weakened.

International Affairs

* Ukraine wins its war with Russia.

* Putin dies or is removed from office.

* The Houthis are defeated in Yemen.

* Hezbollah is defeated in Lebanon.

* Iran's efforts to make war with Israel prove futile.

* North Korea and Russia cease to be able to support their large military forces and greatly reduce them.

* Countries with fossil fuel economies like Russia, Venezuela, and Saudi Arabia see long term stagnation as fossil fuels become less important in their economies, and this undermines their authoritarian leaning regimes.

Rants And Quick Hits

 * There really ought to be a law forcing firms to make their IT systems accept names that many current databases do not, such as hyphenated names, names with apostrophes, names with accented letters, single names with two words and a space, and names with only one or two letters in them. It is such a godawful pervasive form of discrimination against a specified class of people (that includes me, my son's girlfriend, and my wife and in-laws even before we married). It is also very easy to fix with only a modest amount of non-laziness.

* I similarly hate the limitations on file names in many Microsoft Products (One Drive/Sharepoint, here's looking at you) that other programs lack. This is one of Microsoft's many sins that is a persistent pain in the ass.

* There ought to be a defense to disabled parking offenses for someone who doesn't have a tag or license plate but is actually assisting a disabled person in their car on a particular trip.

* The construction trades really ought to be regulated at the state level, rather than having separate licenses for every municipality and for the unincorporated part of every county, usually without even any reciprocity system.

* Building codes should be a copyright free part of the public record. So should the Restatements of Law. It is unconscionable for authoritative sources of law to be available solely on a pay per view basis. If necessary, have the government use the power of eminent domain to buy out the copyright holders.

* Hurray for the iPhone abandoning under E.U. insistence, the lightning power connector in favor of a USB-C connection. The U.S. government should have done the same thing.

* I dread the potential merger of Kroger and Albertsons, which would put almost every "regular" grocery store in Colorado (in contrast to niche organic or gourmet grocery stores with higher prices) under common ownership except a few stores divested to Win-Dixie in an effort to appease regulators (which could easy close down a few years later). A grocery store monopoly in Colorado would be horrible for consumers, and would likewise be horrible in other states similarly impacted.

* Unpopular opinion, but 1950s houses and "mid-century modern" are extremely fugly, far more so than the new homes criticized for that today.

* U.S. cities really made an early strategic mistake in classifying sidewalks as easements that property owners have to maintain to a certain standard of maintenance and snow removal, rather than as public roads for pedestrians which would be maintained by the city as part of its general expenses from property tax and other revenues the way that city streets are handled. Sidewalks are a "network" asset that work only as well as the worst link in the network, and collectivized snow removal would be vastly more efficient (and prevent a lot of injuries and deaths of the elderly and infirm trying to do it themselves) than the status quo of homeowner clearing of sidewalks.

* Someday, when I am not dealing with more urgent repairs like the remedying of the removal of a structural wall that a contractor said wasn't a structural wall, I will get around to replacing the last couple hundred square feet of conventional lawn in my home with a lower maintenance xeriscape alternative. Bluegrass lawns make absolutely no sense in the arid western U.S. I really like the Western U.S. centered Sunset magazine aesthetic and cultural movement that is responsive to its local conditions in that regard and I am pleased to learn that is hasn't gone out of business even though it suspended publication for a number of months and isn't as widely available in grocery store magazine stands anymore:

In March 2020, with the magazine struggling financially due to loss of advertising revenue during the COVID-19 pandemic, the company put most of its employees on unpaid leave. During the pandemic, the company briefly ceased printing the magazine but returned to print with the December 2020 issue.

* In the same vein as xeriscaping, the Western U.S. should transition to something like the Old Mexico daily schedule that is quiescent in the hot midday, but has more public activity in the evenings. 

* Similarly, the American business and professional class should continue to recognize that business suits and ties invented to meet the needs of professional in London, Berlin, Paris, and Northern Italy are ill-suited to sweltering summers of most of the United States which are virtually unknown in Europe (most of which doesn't even routinely need air condition in the summer). French and British colonists themselves didn't feel so constrained when they presided over colonial governments in tropical Africa and India in shorts and short sleeves. Americans need not straight jacket themselves into Ataturk's mandate that businessmen and professionals in Turkey wear wool, European style suits and top hats in the early 1900s in an effort to "modernize" (even though his basic insight that cultural change in inseparable from modernization and economic development wasn't fundamentally wrong). We need to think more like the Japanese on the verge of ending a long period of isolation, whose Emperor sent emissaries out all over the world to see how other countries more advanced than them at the time did things and then picked, chose, and adapted Western ways of doing things in a way that was sensitive to their own local conditions and culture.

* The big picture is that we should be changing our culture to be in better harmony with the conditions of the world we live in, rather than being so tradition bound culturally, whether its yards, the hours we have dinner and work outside, or our clothing.

* The U.S. has backfilled its falling total fertility rate a.k.a. TFR (i.e. number of children per women per lifetime) with immigration to keep its population stable as it has undergone demographic transition with its economic development. The capacity of China, Japan, Korea, and Japan to do the same, in a manner that is within the realm of the politically possible is much more difficult. None of these cultures is very receptive to immigration. This is true even between these East Asian nations with a lot of shared history and culture. Korean migrants are ill treated in China and Japan. Chinese people aren't too welcome in China either. Korea has an officially sponsored pride in its national homogeneity although South Korean farmers who can't find wives are starting to secure wives from Southeast Asia especially. China's 1.4 billion people with dramatically falling TFR has a need for people to refill its workforce that greatly exceeds the supply of people willing to relocate there. Maybe it is good to have a smaller global population as we are approaching peak global population, to place less of a strain on our planet's carrying capacity, and maybe the demographic transition that comes with economic development reflects a buried hidden wisdom that a higher standing of living ideally supports fewer people.

* The similarities between much of the Islamic world and the Victorian era and early 20th century are striking. It suggests that the Islamic world may sooner or later experience a cultural transition similar to the West from the Victorian era to the present. In the fights over the hijab in Iran, we see echos of the 1920s flappers. Most Islamic countries are treating women a lot better now than they did half a century ago even though it can be hard to see when comparing these countries to the modern West. Even though Islam allows polygamy, Tunisia and Turkey have banned it as a matter of secular law that doesn't force anyone to do something that Islam bans. The death penalty and corporal punishment are much more common in the Islamic world than in the West (and this is also common in communist countries for some reason), but apart from holdouts like Iran and Saudi Arabia, its declined a lot just as it did in industrial era Europe. Countries like Iran and Turkey are genuine, if flawed, Islamic democracies, although Afghanistan seems to have regressed. What does the Islamic transition to modernity look like? How does a global transition to a post-petroleum economy impact that?

* The nation's legal system is really digging into Trump. On the civil side, he had to settle the Trump U. case, he lost the rape/defamation case, he lost a major motion for summary judgment in a case in New York related to asset value fraud. And then he has the New York criminal fraud case, the January 6 case, the Georgia election fraud case, and the Florida classified documents case, all on track as the election comes in. And, the insurrection disqualification cases are pending.

* In 1970s the G-7 countries contained 67% of global GDP, today it's only 30%. There is every reason to think that this trend will continue. It is easier to have a higher GDP growth rate percentage when you are copying economic solutions and technologies that someone else has already proven to work successfully than it is to come up with new ways to grow the economy from scratch. So the percentage gap between G-7 countries and non-G-7 countries in GDP per capita should narrow and at the same time, less economically developed countries are growing as their population grows at a higher percentage rate than more economically developed countries whose populations are often shrinking or stagnant. As the G-7 countries dominate the global economy less strongly over time, all sorts of things change, among them the character of international trade and the feasibility of an across the board export based economy like the U.S. had post-WWII because WWII destroyed the economic infrastructure of the rest of the world more than it did the economic infrastructure of the U.S. which just had to shift its factories from making swords to making ploughshares. Probably, we'll see more orientation towards domestic production and more specialized export markets in each country.

* Intellectual property laws and privacy laws need reforms. IP laws need to be weaker. Privacy laws need to be more manageable - our current reactions are too cumbersome and overrate privacy against other values, including free speech.

Common Misconceptions About Law

This is a list of common misconceptions people have about the law (to be clear, every statement below is false):

Sources of Law

* The law is mostly the same everywhere.

* The law is the mostly the same everywhere in the U.S.

* Legal terms almost always mean exactly one thing no matter where they are used.

* The law mostly fits a criminal law paradigm of statutes that prohibit you from doing something and impose a punishment if you do that.

* The constitution tells you everything you need to know about the law.

* Only the U.S. Supreme Court has jurisdiction to decide the constitutionality of something.

* Usually, a determination that something is unconstitutional involves finding that a treaty, statute, ordinance, or regulation is unconstitutional.

* The law is mostly contained in statutes.

* It is rarely necessary to look at case law or regulations to determine the meaning of a statute.

* The "common law" is the same in every state.

* Only one state or country's law applies to a business operating on the Internet. In a variant of this, the most important way to determine which law applies to a business on the Internet is where its servers are physically located.

* The law is static and has changed only a little over time.

* Modern U.S. law is very similar to modern English law.

* The Declaration of Independence creates enforceable U.S. law.

* The U.N. Universal Declaration of Human Rights creates enforceable U.S. law.

* International law consists mostly of legal rules that can be litigated in international courts producing judgments that matter.

Judges

* Judges are heavily influenced by their personal feelings about litigants and their personal relationships to litigants and are strongly biased against particular people.

* Judges can do whatever they want and the person who wins is mostly determined not by what the law says but by which side has the best lawyers which is mostly a function of much each side spends on their lawyers.

* Family court judges are intentionally or ideologically biased against men.

* Judges are basically umpires with no independent ability to interpret the law in different ways.

* A judge's political philosophy and judicial ideology have no impact on how a judge rules in a case.

* Judicial decisions are purely a matter of legislating from the bench.

* Judge are being dishonest when they utilize "legal fictions."

Dishonesty

* Criminal defense lawyers are bad people who unethically try to make it possible for people guilty of serious crimes to avoid responsibility for their actions by being acquitted at trial of all of the charges against them.

* It is unethical to represent someone you as a lawyer know is guilty or liable for wrongdoing.

* Pleading not guilty in a criminal case when you are guilty is perjury.

* Lawyers are allowed to lie.

* Prosecutors are routinely punished when a court determines that they withheld exculpatory evidence from a criminal defendant in a case.

* Negotiated compromises are dishonest.

* Cops are legally required to tell the truth to criminal suspects.

* Cops almost always tell the truth in court.

* Cops are routinely punished by their employers or a court when a court finds that they violated a criminal suspect's constitutional rights.

* Perjury in court is frequently prosecuted criminally.

* People are more likely to tell the truth when they are under oath or are making a statement under penalty of perjury.

* You can make an evidentiary objection to testimony presented in court on the grounds that the person giving the testimony is lying.

Certainty

* The law mostly involves general principles that can be stated at a high level of generality and logically applied to any new situation.

* If you know the facts of a case with perfect certainty you can know the legal consequences of those facts with certainty. Conceiving of the law as rules rather than standards.

* The law has a clear answer to every hypothetical situation one can imagine.

* Legal questions that don't have clear answers are rare.

* Traffic laws clearly establish that one person is at fault and another person is not at fault in a car accident most of the time.

* Jury trials are highly accurate at reaching outcomes consistent with the true facts and the law.

Arbitration

* Arbitrators have to follow the law based upon the facts presented to them the way that judges do.

* Arbitration awards can be reviewed on the merits in an appeal.

* Arbitration is usually less expensive than going to court.

* Arbitration is usually much faster than going to court.

* Arbitrators are not more biased in favor of one side over the other than judges are.

* You can only be compelled to arbitrate a dispute if you sign a contract agreeing to arbitrate the dispute.

* Only contract disputes are subject to arbitration.

Criminal Justice

* Criminal cases can be filed only if the victim files a complaint with a law enforcement officer.

* People who are released from prison after having their convictions overturned are automatically entitled to substantial compensation.

* People who are acquitted in criminal cases usually receive compensation for their legal fees and the disruption that their lives experienced.

* The police and prosecutors have an enforceable legal obligation to prevent, investigate, and prosecute crimes committed against you, if they can.

* People who commit crimes other than murder are usually caught and punished for their crimes.

* When a criminal law is repealed, people incarcerated for violating that law are routinely released from prison.

* The fact that a witness recants testimony provided in a criminal trial that gave rise to a criminal conviction makes it highly likely that the person convicted will have their conviction vacated and be released from prison.

* Prosecutors routinely cooperate in having wrongful convictions which they secured overturned.

Finality

* Mistaken findings of fact made in a trial can usually be corrected in an appeal.

* Mistakes made in hearings and trials can usually be corrected later, and information provided in hearings and trials can usually be supplemented after the fact. 

The Value Of Legal Training

* Lawyers are mostly charging people for the written documents that they produce.

* Any reasonably literate person can quickly learn what they need to know to effectively act as their own lawyer with a modest amount of self-study on the Internet.

* Doing legal work yourself saves money while also giving rise to few risks.

* Non-lawyers can learn to be competent judges with tens of hours to a couple hundred hours of training.

* When you have a dispute with someone, you can have a lawyer write the person you have a dispute with a letter for a minimal fee or no legal fee and the other person is likely to concede that you are right and cooperate.

* People who win legal disputes usually have their attorney fees awarded to them in the United States.

* A large share of losing lawsuits fit the law's description of a legally frivolous, groundless, or vexatious lawsuit.

The Effectiveness Of The Law And Justice

* The law is self-executing.

* People rarely get away with breaking the law.

* People almost always conform the behavior they would have taken otherwise to what the law requires. The law powerfully influences everyday behavior.

* The law almost always produces fair outcomes, unless someone incompetently makes a mistake in applying it.

* Every wrong has a legal remedy.

* All violations of constitutional rights and obligations have a legal remedy.

* There is always someone who is legally liable for the harm caused by an accident.

Contracts

* Economic pressure is enough to make a contract involuntary and invalidate it.

* Statements made by someone involved in a circumstance that gives rise to a legal case that aren't corroborated in writing aren't "proof."

* Contracts are never binding unless they are in writing.

* Contracts are only binding if you have read them and understood their terms.

Miscellaneous Other Specific Legal Issues

* Obligations to a child depend on the nature of the events that led to the child's conception and the relationship between the parents.

* Children must always take the surname of their father.

* In the United States, illegitimate children can't inherit from their fathers.

* You can't be an intellectual property infringer if you don't make a profit and give credit to the source of the work.

* Bank deposits are basically currency in a safe waiting for you to need to use it.

* Debts for fraud and other willful misconduct are automatically non-dischargeable in bankruptcy without any need for the creditor to take legal action to establish the nature of the debt in the bankruptcy case.

* Non-citizens don't have legal rights.

* The doctrine of "corporate personhood" usually hurts the average person in a legal dispute with a big business.

* People who engage in criminal conduct or civil wrongs in the course of their employment by a corporation are immune from liability for their actions.

* The U.S. Constitution, the Second Amendment to the U.S. Constitution, and the Declaration of Independence create a legal right to overthrow an unjust government.

* Texas has a right to secede from the United States.

A Proposal For Circuit Splitting Precedents

Background: What Is A Circuit Split?

The status quo rule in the federal courts is that a published decision of a panel of the U.S. Court of Appeals (the intermediate level appellate courts in the federal court system) on a question of federal law is binding precedent on the courts whose decisions are appealed to the federal appeals court circuit of the panel making the decision and are persuasive authority in other federal appeals court circuits.

For example, if three judges in the 11th Circuit by a 2-1 margin, decide in a published appellate court opinion that cryptocurrency profits aren't income under the Internal Revenue Code, all U.S. district court judges and bankruptcy court judges in the 11th Circuit have to follow that decision. But this decision is only persuasive authority for a judge in the U.S. District Court for the District of Colorado which is in the 10th Circuit.

Once a precedent is in place in a circuit, district courts generally can't deviate from that precedent unless the U.S. Supreme Court rules otherwise, or the relevant statute in a case of statutory interpretation, is amended.

Sometimes, judges on one circuit decide a question of federal law one way, a judges in another circuit decide a question of law another way. 

For example, even if a panel in the 11th Circuit decides in a published appellate court opinion that cryptocurrency profits aren't income under the Internal Revenue Code, a panel in the U.S. Court of Appeals for the 10th Circuit might decide in a published appellate court opinion that cryptocurrency profits are income under the Internal Revenue Code.

When this happens, it is called a circuit split. The U.S. Supreme Court tries to resolve circuit splits granting certiorari to do so in many cases, but it doesn't handle enough cases to resolve all of them. So, when there is a circuit split, the meaning of federal law is different in different parts of the United States.

The Problem

The problem with this rule is that a decision as feeble as one made by just two judges on a three judge panel on a question of first impression that isn't subjected to review en banc or successfully appealed to the U.S. Supreme Court, remains good law in a very large area of the country and is very hard to change, even if it is badly decided or creates inconsistencies in the overall framework of the federal law in question.

This particular post was initially inspires by the case of Mirage Editions, Inc. v. Albuquerque A.R.T. Company, 856 F.2d 1341 (9th Cir. 1988), which found, contrary to the copyright law first-sale doctrine, that the defendant could not buy a book, remove illustrated pages, add stuff to them and sell them, even though the defendant only used physical media and never made any copy of copyrighted material. They found that this infringed copyright not by copying but by making a derivative work.

There's a circuit split on the issue with the opposite position taken in Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997) and in Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 533 F.3d 1287 (11th Cir. 2008). The decision in Lee also noted that “Scholarly disapproval of Mirage Editions has been widespread.”

This concern is also driven by the increasing partisanship of the federal judiciary which makes outlier decisions of two or three judges in a given federal circuit more likely to arise.

A Proposed New Rule

One way to mitigate the harm caused by circuit splits, albeit at the cost of certainty in any particular circuit, would be to downgrade the effect of a precedent, even in the circuit in which it was decided, from binding precedent to persuasive authority, on any point of law with regard to which there is a live circuit split that has not been resolved by U.S. Supreme Court ruling, statutory change in the law, or an en banc decision in the same case that the panel decided.

This would bring more judges into the process of considering the issue decided by the initial panel on the policy and precedent merits as a case of first impression, rather than pursuant to a precedent which has been seriously questioned.

If the panel decision downgraded to persuasive authority is well argued, it will still be followed. But, if it was poorly reasoned, other judges considering the issue will decline to follow it. 

This rule would also put more pressure on the U.S. Supreme Court and Congress to resolve legal issues upon which circuit splits arise. This pressure should be present because many firms and organizations and even individuals need to take an action which will ultimately be subject to legal review in more than one circuit and a circuit split cements the inability of these people to predict the legal outcome of that issue since they don't know where it will arise.

Twenty-Five Hot Legal Issues

I am a lawyer who sees the issues presented by my clients and the issues I get inquiries about from potential clients. In that capacity I also read essentially all the new published decisions of the Colorado Supreme Court, the Colorado Court of Appeals and most of the new decisions of the U.S. Supreme Court, receive updates in some legal areas from regular services to which I subscribe, and read the Colorado Bar Association and Denver Bar Associations monthly publications on a regular basis.

I sometimes participate in providing answers at Law Stack Exchange and Politics Stack Exchange (where I am a moderator), regularly read How Appealing, the Volokh Conspiracy and at least three law professor's blog (in the sidebar), a blog about the legal profession (About the Law), a blog about legal issues with national security implications (Lawfare, in the sidebar), and economics and politics sites that routinely discuss legal issues. 

I also encounter emerging or increasingly relevant legal issues in the general mainstream media (e.g. CNN, the New York Times, the Washington Post, and the Denver Post), as people ask about or discuss issues on Facebook.  

As a result, I have some sense of what areas of law are emerging, more relevant than they have been previously, or are in a state of flux. 

This post identifies twenty-five of those legal areas (yes, what constitutes one or multiple legal issues is somewhat arbitrary, one could vary the number simply by being more of a lumper or more of a splitter):

1. Jurisdiction, choice of law, and tax issues pertaining to remote work both interstate and international.

2. Jurisdiction, choice of law, income tax, sales and VAT tax, copyright, patent, rights of publicity, defamation, intellectual property licensing, occupational and professional licensing, business licensing, European and California privacy law, terms of service contracts, online fraud remedies, harassment and cyberstalking, obscenity, human trafficking, and revenge porn considerations that apply to Internet commerce and activity.

3. Privacy laws, in general, including those related to health information, doxing, cancel culture tactics, educational information, and information about Internet activity.

4. Laws about the legality of audio and video recording of conversations and events.

5. Non-competition agreements and non-disclosure agreements. 

6. International sanctions laws, war crimes laws, anti-terrorism laws, and extraterritorial jurisdiction.

7. Cryptocurrency issues, especially with regard to income and estate taxation, duties to disclose assets, and money judgment enforcement.

8. Election law (especially election administration law), treason and sedition law, and governmental liability.

9. The propriety of national injunctions, especially in federal public law cases, and issues of forum shopping.

10. Separation of powers issues in the federal government.

11. Dormant commerce clause limitations on legislation.

12. Laws regulated to COVID and public health restrictions.

13. Issues related to abortion law in the U.S.

14. Issues related to gay rights.

15. Gun control.

16. Family law issues in non-traditional families (i.e. in families other than married couples who children, if any, are all traditionally conceived children of both spouses, and other than divorces of such couples), and in non-traditional reproduction means (like surrogacy and IVF).

17. Indian tribe related adoptions, international adoptions, open adoptions, stepparent adoptions, same sex couple adoptions, and means by which a father's parental rights can be terminated to facilitate an adoption.

18. Partition law, i.e. the law of disentangling co-owners of real property outside the context of a divorce.

19. Home owner's association related disputes.

20. Disputes between neighbors regarding property lines, trees, and noise remain surprising relevant and often, surprisingly complex. 

21. Issues related to owning real property abroad.

22. Legal issues related to partial marijuana decriminalization.

23. Laws related to black box AI and machine learning decision making, and AI autonomy.

24. Laws related to the civilian and military of drones (especially airborne drones).

25. The legal status of non-citizens in the U.S. both documented and undocumented, of areas outside U.S. states in U.S. jurisdiction, and of Indian country.