Even If You Prevail In Litigation It Is Sometimes Slow And Expensive

The Decision

A published opinion of the Colorado Court of Appeals was released today in a lawsuit that I have been part of the team litigating actively for eight and a half years (I didn't participate in the briefing of this particular appeal, and I wasn't involved in the earliest parts of the litigation.) 

The main holding of the decision pertains to what documents must be attached to an application for attorneys' fees in a case whether a statutory fee shifting provision favors your client, which will be an important precedent on a nuts and bolts issue faced by lawyers in thousands of cases a year in Colorado. 

Litigation Can Be Slow and Expensive

But, the matter of more general interest to the public is that it provides an illustration of how long it can take to get justice in the civil court system and what it costs just one side in that dispute to do so. The Court of Appeals summarized the situation at the outset:

This case arose out of a property dispute between petitioner, Rita A. Nesbitt, trustee of the Rita A. Nesbitt Trust (Nesbitt), and respondents, Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott (collectively the Scotts). The dispute led to protracted litigation, including an action in trespass and private condemnation proceedings, that lasted nearly a decade and involved two reversals by divisions of this court. Ultimately, the trial court awarded the Scotts $400,431.85 in attorney fees and $35,066.25 in costs. Nesbitt mounts two challenges to this award of attorney fees and costs. 

The term "costs" in this context means filing fees, service of process fees, fees to have transcripts made of depositions and hearings, charges for copying, printing and mailing documents (honestly, there isn't much mailing these days although postage used to be a pretty significant item in many cases), mediator charges, and much more than everything else combined, fees paid to expert witnesses such as, in a property dispute/easement/access dispute, surveyors, real estate appraisers, and road construction cost experts. 

The other side incurred costs that may or may not have been recoverable if they had prevailed, for flying the judge and representatives for both parties in a helicopter over the mostly roadless land in Pueblo County that was the subject matter of the dispute to aid the judge in independently and personally evaluating against the filter of dueling experts testifying for each party, whether it was practicable for the land owner that sought access to do so over an alternative access route that was preferred legally.

The Court of Appeals went on to affirm the award of fees to our client in this case (the award does not include fees and costs incurred by the respective parties in the prior trespass litigation) in the amount noted. The judgment in favor of our clients (following a third appeal that affirmed the trial court's final ruling) had come earlier. (There was also a fourth appeal earlier on in the case regarding attorneys' fees that was mutually dismissed as moot along the way when a decision on the merits in favor of our clients was reversed.) The other side also incurred fees of the same order of magnitude, although, of course, not an identical amount.

So, in the end, it took a decade and many hundreds of thousands of dollars spent by the parties, in addition to a much more modest but not entirely insignificant investment of public resources (certainly well in excess of the filing fees paid) by the court system, and some time and inconvenience for third-party witnesses in the case, to get it resolved once and for all. Litigation to collect the fee award is ongoing, and it isn't impossible that the opposing party could try to appeal this favorable Colorado Court of Appeals decision on the fee award to the Colorado Supreme Court. If you consider both side's litigation costs in this case and also in the previous case that led up to it, and also the public sector and third-party witness costs at some reasonable valuation and assign some modest dollar amount per hour to the time that the parties on both sides devoted to managing this litigation, the total societal cost of resolving this property dispute was roughly one million dollars, and that costs continues to accrue.

One of the reasons that civil procedure and litigation process reforms are so attractive from a policy perspective is that solutions don't have to be that wonderful to be a significant improvement. If a proposed reform could have caused this case to be resolved the same way with five years of litigation instead of almost ten, with a combined societal cost of $500,000, instead of something on their order of twice that much, and also had similar benefits in the significant minority of long, expensive civil disputes like it, to be consistently resolved more quickly at less expense, this would be a huge policy win that doesn't seem like it should be outside the realm of possibility.

It is also worth understanding that the fee award in this case was quite moderate compared to what some large law firms in Colorado charge their client. There are firms in Denver that have charged more than this amount to their client for prevailing on a single motion to dismiss in the trial court with no evidentiary hearings, followed by an appeal to the Colorado Court of Appeals, and then another appeal from that decision in the Colorado Supreme Court.

Better funding of the court system, especially at the appellate court level, could make the process move much more quickly and could have trimmed many years off the length of this litigation, but would have only moderately reduced the cost of this litigation.

Were Either Side's Lawyers Stupid?

This also raises another issue for lawyers generally, and it isn't a simple issue of either side's lawyers being stupid or incompetent. The litigation decisions each side had to make at some key junctures of the case were not easy ones with clear answers.

The other side lost their case every early on in the trial court, in 2012, when neither side had incurred even a tiny fraction of the attorneys' fees and costs ultimately incurred. They appealed the decision, and I would be the first to agree that they had every right to do so, and in the short run, they were right, they won on that appeal. 

But, as a result, their client spent seven more years in litigation only to produce exactly the same outcome on the merits, but with a far larger attorneys' fee obligation for their client. If the money had not been spent on litigation, it could have been used to secure non-legal solutions to their underlying problem which was getting access to a parcel of land that they owned. In 20/20 hindsight, the opposing party would have been much better off giving up their legal fight at that point and accepting the trial court's initial ruling against them.

It isn't uncommon that continuing to fight in litigation after an initial setback is ultimately a bad decision, especially when you win on "technical" grounds that don't really go to the merits of your claim. But, it is very easy for even good lawyers and well intentioned clients acting in good faith to underestimate the possibility that a short term win will backfire. 

Moreover, in cases like this one, with a fee shifting statute that applies to the case, the decision making process in evaluating the possibility that a short term win will end up being more costly in the long term tends to get worse rather than better, because each side has a stronger incentive to win on the merits without regard to what is actually at stake on the merits, and this clouds their judgment and makes the right choice harder to determine.

Conversely, sometimes you get get a quick win on the merits for your client that increases the risk that a decision will be overturned by a higher court relative to a slower win (indeed, this is true of almost all quick wins in litigation that don't involve a settlement). If the quick win is later overturned by a higher court, this is usually less desirable for your client in the long run. But, it is very hard to pass up an opportunity for a quick win, because saving time (that has great value apart from the litigation cost related aspect of this) is valuable and this usually reduces litigation cost and expense. Also, appellate outcomes are hard to predict in practice, and most trial court wins are not overturned on appeal, either because they are not appealed or because they are affirmed on appeal.

Finding a way to reform civil procedure and substantive private law to discourage this kind of decision making is a non-obvious matter, which is an important reason that this system is still around after literally hundreds of years of experience with the same basic grounds rules, and many decades of experience with the most pertinent of the very specific civil procedure rules in question.

It would be possible to significantly reduce the time and expense related to collateral fee award disputes, but that is a subject for another day.

Musings On Relevance And Litigation Expenses

This post was mostly written on November 12, 2015.

TL;DR

One of the most powerful ways to make courts reach reasonable fair decisions quickly and at a relatively modest cost is to narrow the scope of the evidence that substantive law considers to be relevant to enforcing rights and resolving disputes.

Analysis

It is common place to blame lawyers or their clients for the fact that civil litigation is slow and expensive. But, a great deal of the blame really needs to be laid to placed upon the substantive and procedural law involved, and upon the underfunding of the public sector component of the judicial dispute resolution process.

Contrary to popular belief, the law is not simply a set of clear rules that can be called quickly and easily by a judge and all the participants, as players and umpires do in sports.

Often, the substantive law is inherently vague, setting forth standards rather than rules.  And, even when the law is not inherently vague, the proper application of the law to the facts is often ambiguous.

It doesn't help that civil procedure allows for clarification of how the law applies to a particular set of facts, in all but the clearest cases, until after all of the facts have been developed and presented to a tribunal.  Jury instructions, for example, are rarely finalized until all of the evidence in the case has been presented.

The rules of civil procedure generally allow the formal process of investigating the facts, known as "discovery" to extend not only to evidence that is relevant, but also to evidence that is reasonably calculated to lead to relevant evidence, even if it is not itself relevant to the dispute.

At a trial in a court, only relevant evidence is admissible, but the standard for what constitutes relevant evidence is a loose one, subject only to a handful of specific exceptions.

In an arbitration hearing, the standard for what evidence is considered relevant is loose indeed.  The American Arbitration Association rules, as they are usually applied, allow almost any evidence related in any way to the dispute to be considered, even if it does not meet the loose standard of relevance to an element of a legal theory applied in a court setting, on the theory that a legally trained arbitrator will not be swayed by legally irrelevant evidence.

Some of this bias towards loose rules of discovery (some judges sum up this attitude by saying that they are "full discovery" judges),  and loose relevance boundaries on the admissibility of evidence, is driven by underinvestment in judicial resources.

Judicial engagement in a case earlier on in litigation to carefully analyze the legal issues presented and to narrow the scope of discovery and subsequent hearing evidence only to the matters that are really legally relevant is much more time consuming than allowing the parties to exchange information and present evidence at trial with minimal judicial intervention, even if this dramatically increases the cost of the litigation to the parties.

Given the extreme emphasis on the finality of decisions in private civil litigation, and an even greater emphasis on finality in arbitration settings, rational litigants need to prepare for every possible interpretation of the law or determination that facts could be relevant, even if that possibility is fairly remote.  Presentations at trial, and pre-trial discovery and presentations, could be dramatically shorter, if judges and arbitrators made clear at the outset which of many ambiguous interpretations of the law regarding what is relevant were provided.

It is also the case, particularly in a court forum, that it often simply takes a long time for a judge to rule on pending matters particularly at the higher end of the judicial hierarchy in general jurisdiction trial courts and in appellate practice.  This isn't a case of judges being lazy.  It is simply a case of a systemic underinvestment in judges relevant to the benefit which society would receive from having enough judges to produce more prompt rulings and to have a great ability to be involved in a case at its early stages.

In those rare areas where the scope of what is relevant at a particular stage of a case is narrow and well defined, such as in a foreclosure or eviction hearing, or an action to regain possession of tangible personal property, hearings can be quite short, can be held quickly, and can be resolved quickly and inexpensively.

In part, this is also because those decisions are highly structured.  In a foreclosure or eviction hearing, for example, the sole inquiry is usually whether there is a default in payments or in other contractual obligations which justifies the remedy sought, not a determination regarding the exact amount owed, which is deferred to a later date if a breach of the agreement is found to exist.

Similarly, in criminal cases, which are often decided quite swiftly, the sole decision presented to a judge or jury at trial is usually whether a criminal statute has been violated in a single, well defined incident, not the punishment that is appropriate to impose if indeed this is the case.

Reforming Absolute Immunity For Prosecutors and Judges

Background on Absolute Immunity

In general, criminal prosecutors and judges have absolute immunity from liability for acts conducted in the furtherance of their judicial system functions.  Normally, if you feel that you have been harmed by the conduct of a prosecutor or judge in the judicial process, you appeal their rulings or collaterally attack their judgment in state or federal court (e.g. habeas corpus petitions in federal court).  Note, however, that a prosecutor who acts in a non-judicial capacity, for example as part of a investigation of a crime, has only qualified immunity from liability just like other law enforcement officers for that conduct.

There is good reason for this immunity.  Both criminal prosecutors and judges are routinely grieved for alleged ethical violations by dissatisfied litigants in complaints that are almost never sustained following an investigation (usually because the complaints are "appellate in nature"), and only 1-2% of so of habeas corpus petitions (and prisoner's petitions generally) are found to have merit.

On the other hand, there are instances in which serious misconduct by prosecutors and judges, in blatant disregard for their legal duties, results in serious harm to litigants that is not easily remedied through appeals of a conviction.

Misconduct by Prosecutors

In the case of prosecutors, the most common issue is that prosecutors fail to disclose exculpatory evidence that they are constitutionally required to turn over to defense attorneys under the U.S. Supreme Court's Brady decision resulting in wrongful convictions (which are defended beyond all reason once the mistake is discovered about half the time).

While this is an ethical violation for prosecutors, in addition to a violation of a clearly established constitutional right, the proportion of cases where a Brady violation is found to have occurred in connection by an effort to vacate a criminal conviction that result in attorney regulation officials commencing cases against the prosecutors who violated the constitution in the case resulting in the wrongful incarceration is only about 1 in 100 in California where a rigorous study was conducted. It is a striking example of the capture of an agency by the people who are supposed to be regulated by it. The rate of adjudicated misconduct by prosecutors in California in that same year was roughly 1 per 500,000 people per year.  About 80% of cases where misconduct by a prosecutor is determined to have occurred, however, are not found to be sufficient grounds to overturn a conviction, under the harmless error doctrine. or on procedural grounds like failure to preserve an issue for appeal. Damages from misconduct by a prosecutor will typically be nominal where a court determining that such a violation took place still finds that the sentence should stand, but will be very substantial in cases where the conviction is overturned.

So, one might expect about 10 such cases a year in Colorado, and one case of attorney discipline for misconduct by a prosecutor per decade in Colorado (which isn't too far from our actual experience), resulting in about 2 overturned convictions per year.  Colorado has about 540 prosecutors employed by federal and state governments in any given year, and entry level positions typically have quite high turnover.  So fewer then 2% of all prosecutors in the state would be exposed to any civil liability if suits were allowed in adjudicated cases of wrongdoing as described below, and less if a significant number of the violations are committed by repeat violators as if often the case in these situations. Only about 0.4% of prosecutors in any given year would face substantial civil liability under the proposed rule.

Probably the next most common type of misconduct by a prosecutor, which is closely related, is to offer evidence from a witness who is known to be lying on the stand and then to fail to correct the harm caused by those lies.

The U.S. Supreme Court took up such a case in 2009 on the question: "May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants' substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?", after the 8th Circuit Court of Appeals dismissed the claims of parties who were framed by a prosecutor who offered knowingly false testimony due to a prosecutor's absolute immunity.   But, the U.S. Supreme Court then dismissed the case without an opinion when the parties settled the case, a result that kept the 8th Circuit absolute immunity precedent in place, while presumably resulting in a significant monetary settlement for the wrongfully convicted plaintiffs.

Misconduct By Judges

In the case of judges, the most typical situation (which is much less common) is for a corruption investigation to result in a criminal prosecution of a judge or a judicial ethics investigation of a judge to find wrongdoing.  Not too infrequently, these cases involve improper sexual or financial relationships with prosecutors or other criminal justice system participants.

For example, Pennsylvania judge Mark A. Ciavarella Jr. took bribes totaling $2,600,000 from a juvenile private prison operator, in exchange for inappropriately convict more than 5,000 juveniles of delinquency and/or inappropriately sentence them to the private prison in a scheme that lasted six or seven years.

Many of those juveniles were still serving their sentences when he first pleaded guilty.  The judge refused to accept the plea in light of an unwillingness to admit guilt and a belief that the 87 month incarceration deal was too sweet, after which Ciavarella was convicted of state and federal crimes for which he was sentenced to 28 years in prison, together with co-conspirators including another judge from the county who was sentenced to 17 and a half years.  One of the individuals paying the bribe was sentenced to 18 months in prison (partially in a halfway house) while the other was sentenced to one year in prison.  Both bribe payers also made large donations to charities for children in lieu of restitution or civil liability.  A class action lawsuit brought by the victims of this misconduct has so far not produced a judgment or restitution for them.

While pleading guilty (a plea that was not accepted), Judge Ciavarella denied that he actually meted out inappropriate sentences, but statistically, the evidence is pretty strong:

For years, youth advocacy groups complained that Judge Ciavarella was unusually harsh. He sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a state rate of 1 in 10. He also routinely ignored requests for leniency made by prosecutors and probation officers.

Thus, probably something like 60% of the people he sent to juvenile detention centers didn't belong there, and many of the rest probably got longer sentences than they deserved.  Several hundred juvenile sentences imposed by this judge were later vacated in a follow up investigation. In addition to excessive sentences, hundreds of juveniles were denied their constitutional right to counsel by Judge Ciavarella.

Or a West Virginia judge, Michael Thornsbury, who was sentenced to 50 months in federal prison for wrongfully incarcerating a man to prevent him from revealing that the county sheriff was illegally using prescription drugs not prescribed to him.

A Compromise Solution

There is a very sensible compromise between absolute immunity under current law, and the qualified immunity standard that applies to police officers, that would minimize litigation of groundless and frivolous cases against prosecutors and judges from their participation in the judicial process, while allowing the most glaring cases of injustice to give rise to civil liability.

Under the compromise solution, actions against judges and prosecutors currently barred by absolute immunity would continue to be barred except in cases where there was a final judicial determination that the official had violated a rule of professional ethics in connection with the Plaintiffs' case, or there was a final judicial determination in an underlying criminal action or collateral appeal of a criminal judgment, or in a separate criminal prosecution, that a constitutional right, ethical rule, or other legal duty of that official was committed by that official.

The cause of action would begin to accrue for statute of limitations purposes when the Plaintiff learned of, or should reasonably have discovered with reasonable diligence, the final judicial determination and all other elements of the cause of action.

Thus, individuals harmed by a judge taking bribes from a private prison operator, or having an affair with the prosecutor in a case where the individual was a party, or a prosecutor who violated someone's Brady rights, could be sued at that point for civil rights violations and any other applicable causes of action related to the misconduct by the public official.

The Argument For The Compromise Solution

Such violations by judges are very rare, and cases of prosecutors being judicially determined to have committed ethical violations, crimes or to have violated Brady in a post-conviction collateral attack on a judgment, are still quite rare, and would surely become more rare if violating these constitutional rights gave rise to any reasonable possibility of civil liability for prosecutors (many of whom would probably suddenly decide that it was a good time to institute an "open file" system for the lion's share of criminal prosecutions, implementing Brady institutionally in the way that most countries protect similar interests).

The earlier judicial determinations would often have collateral estoppel effect in the suit for civil liability, effectively establishing on day one a key element of the claim, which is the existence of wrongdoing in a case involving a Plaintiff.  Not all of these decisions would have collateral estoppel effect (e.g. if the prosecutor who violated constitutional rights didn't participate in the collateral attack on the judgment proceeding), and not all of these claims would prevail.  But, this rule would identify a group of cases in which there is a very high proportion of meritorious cases, for which civil lawsuits would be allowed, while continuing to screen 99.9%+ of all cases (overwhelmingly without merit, on average) in which the absolute immunity rule would continue to apply.

The new rule, would by definition, limit civil liability to pre-established "bad apples", whom defenders of the system constantly claim that they want to remove from the system.

It is also particularly glaring and injust for the legal system to openly and definitively after due process is had acknowledge that criminal laws, ethical rules or constitutional rights or other legal duties were violated, and yet still deny the victim of this wrongdoing any remedy, even then.

Prosecutors who have been proven to have secured wrongful convictions by violating the constitution, and judges whose corruption has been determined to have taken place in courts of law who have harmed litigants, should normatively have civil liability for their wrongdoing.  It isn't even a hard call from a moral perspective, and the systemic and bureaucratic need to screen non-meritorious cases can be easily addressed with this compromise rule.

The Case For Patent Law Reform

Is patent law broken? How should it be fixed?

An empirically oriented new book on the subject, "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk," by James Bessen and Michael J. Meurer (Princeton Univ. Press, 2008), looks at the issue and is reviewed in the link.

Bessen and Meurer's central thesis [is] that patents fail to "work as property." By this, the authors mean that patents, a type of "intellectual property" that protect rights in intangibles, fare badly when compared with private property systems that protect tangibles (such as land) -with deleterious economic consequences.

Specifically, the contemporary patent system fails to provide adequate notice of the legal rights patents confer, so that patent owners and potential infringers alike often cannot readily ascertain who owns what rights - a degree of legal uncertainty Bessen and Meurer argue would be intolerable in a system of tangible property rights. This "notice failure" (the inability to provide predictable property rights) undermines the economic utility of patents and therefore the effectiveness of the US patent system (pp.53-54). . . .

Bessen and Meurer criticize the PTO for allowing vague patent claims to issue, which are subsequently enforced by the courts (pp.57-58). They are also critical of the
practice of filing so-called "continuation" patent claims, which allow inventors to "hide" modifications to pending (and even published) applications and thus to delay public awareness of exactly what inventors claim as their property right - a practice that has grown seven-fold since 1984 (pp.62-63). Bessen and Meurer fault the Federal Circuit for failing to develop workable guidelines to assist lower courts in interpreting the meaning and scope of patent claims and for
employing a de novo standard of review for claim interpretation on appeal.
These practices prevent a definitive ruling on the meaning of patent claim language until a late stage in litigation, thus prolonging uncertainty as to what the relevant legal rights at issue are. The Federal Circuit and many district courts
also are to blame, the authors contend, for unduly expanding patent owners'
rights by increasingly interpreting abstract patent claims very broadly, particularly in the areas of software and "business-method" patents (pp.64-68). . . .

[T]he most important conclusion presented is that the benefits of patent ownership vary dramatically between industries. Indeed, the authors conclude that since the 1990s it is only in the chemical and pharmaceutical industries that the benefits of patent ownership clearly outweigh the costs (p. 140). For most other industries, particularly high-tech and computer and software companies, patents act as a disincentive to innovation (p. 141-46). . . .

Chapter 7 evaluates potential alternative explanations for the decline of the patent system, such as increasing business-tobusiness litigiousness, the rise of patent "trolls" - who enforce patents but do not manufacture or commercialize any products - or the supposed decline in patent examination quality in the PTO. Bessen and Meurer conclude that patent notice decline is the strongest explanation that comports with the empirical evidence. . . . And Chapter 9 focuses on the specific - and acute - notice problems associated with abstract software and business methods patents. . . .

The final two chapters of the book advocate for numerous reforms to both patent law and institutions . . . These reforms include: strengthening the "nonobviousness" requirement for patentability (p.236); instituting a deferential standard of review in the Federal Circuit to patent claim interpretations made by the PTO (during the application process) and the federal district courts (during patent litigation)(p.237); creating specialized trial-level patent courts (p.238); requiring patent
applicants to draft clearer patent claims and permitting the PTO to issue opinion letters on patent claim interpretation (pp.230-240); mandating early publication of patent applications and eliminating expansive post-application amendments (pp.242-243); creating special burdens for the patentability of most software and business-methods patents (pp.243-247); increasing the fees for required renewals of issued patents (p.247); and strengthening certain defenses to patent infringement lawsuits
(pp.248-25 1).

This agenda is having an impact.

The U.S. Supreme Court is well on the way in recent years to narrowing the scope of patentability generally, both through a stricter interpretation of obviousness in patent law, and a narrowing of the sorts of software and business method patents that can be secured. It has also opened the door to the notion that injunctions are not always available.

But, as is often the case, the factual argument about what is happening is stronger than the reform proposals. In my view, more radical reform is necessary.

The Case Against Ideas As Property

Legal rights that protect the economic interests of people who create valuable ideas are appropriate and even necessary. But, property rules don't fit the bill. A set of liability rules, drawing upon the law of restitution (also known as unjust enrichment), would work better. The intellectual property system needs to move from a property rights paradigm to an unjust enrichment paradigm.

In almost all cases, the presumptive remedy, as is the case in most unjust enrichment cases, should be compensatory damages in the form of money damages that reflect the monetary gain of the infringer and an additional amount representing the cost of enforcing those rights, in the form of reasonable attorneys' fees and costs. In cases of ongoing violations, a court imposed royalty is a suitable sanction.

Injunctive relief, punitive penalties, and criminal sanctions, which make sense in the property rights paradigm do not make sense in an unjust enrichment setting. The harm is not in making a worthwhile product with a new idea, but in failing to afford the true creator a fair share of the profits. Penalties under the current regime, like statutory damages and criminal penalties are often grossly disproportionate to either the gain realized by the violator.

The gist of the "patent troll" concern is that one can be a snake in the grass, ignoring the losses taken on investments made by others with your ideas that fail, while cashing in on profits made by successful ideas that have been developed on the assumption that the person using the idea had clear title to that idea. While property rule work in "ex ante" negotiations, they aren't fair when someone emerges as an unanticipated holdout who can prevent an enterprise from going forward, that holdout can demand far more in returns than would have been negotiated for if the patent owner had been know early on the in development process.

Depriving the public of a valuable product created using a good idea until a newly emerged creator of an idea that went into the end result can work out ownership arrangements is not a constructive response to the situation. Rather than mitigating damages, this harms all involved, including the person making the claim, whose potential pot of recovery is reduced if an injunction is granted. It also harms the public. For example, even if a flu vaccine is a blatant violation of a patent, reducing the amount that can be produced with an injunction makes far less sense than assigning most or all of the profits from the flu vaccine to the patent owner. If a proven way to cure a disease is out there, the public should not be deprived of it while the creators of the cure fight over shares of the profits.

The unjust enrichment analysis should look first, at what profits were actually earned from the venture, and second, what share of those profits the person with the idea could reasonable have expected to secure if his claims had been made known, the parties had negotiated in good faith, and an agreement that would not have prevented a venture from moving forward at all had been reached, before the venture got started.

In the case of a conceptually unified and simple invention, like a new medical drug, a large share of the net profits would have gone to the inventor, since drug manufacturing and marketing has become standardized and commodified.

In contrast, in the case of a complex invention that relies upon multiple separate innovations of different people, something typical in the high tech industry, the share of the inventors collectively would have been shared, unequally, with the least replaceable and most necessary ideas receiving the highest share of the profits, and the ideas that are secondary to the venture (e.g. allowing a product to have a less important feature, or solving a problem that could also be solved in other ways) a smaller share of the profits.

Similarly, assigning punitive penalties and criminal sanctions in the vast majority of situations where there is knowledge of a potential claim, but that claim is disputed for some reason and has not been finally adjudicated, is problematic. Normally, we don't assign punitive or criminal sanctions in disputable disagreements over business arrangements between commercial actors.

Famous cases involving patents claims related to established blockbuster products like the Blackberry, Microsoft Word and Windows Vista, illustrate the trouble with allowing patent injunctions and a property rights like price negotiation long after the profitability of these products has been established and they have gained widespread usage of critical systems by end users.

Fourteen Years As A Lawyer

Fourteen years ago today, I was formally admitted to the practice of law, in New York State. A little later, I would move to Colorado and practice law there. New York State has several hundred more years of history (New York has had a continuous governmental regime longer than the United States, for example), and has spent much of that history at a reasonably high population. This shows in their legal system, which has case law on everything and statutes cluttered with exceptions and anachronisms.* But, both the Colorado and New York systems work well enough, most of the time.

* It isn't just me that thinks New York's legal system can be quaint:

[V]oters might be ready to consider a full-scale constitutional convention to overhaul New York's rambling document - which addresses such minutiae as the size of ski trails and railroad grade crossings but is unclear on leadership succession. Just 12 days ago we noted that it had been 42 years since the last convention. That effort in 1967, however, cost $6.5 million - and not one recommendation was subsequently approved by the voters.

Colorado's constitution has a deeply flawed, overconstrained budget process, mostly due to TABOR, but due to regular "housekeeping" amendments passed by Colorado voters, is comparatively uncluttered with spent provisions and minutiae.

Predictable Tragedies (Again)

In nearly every serious regional airline accident during the past 10 years, at least one of the pilots had failed tests of his or her skills multiple times, according to an analysis of federal accident records.

In eight of the nine accidents during that time, which killed 137 people, pilots had a history of failing two or more "check rides," tests by federal or airline inspectors of pilots' ability to fly and respond to emergencies. In the lone case in which pilots didn't have multiple failures since becoming licensed, the co-pilot was fired after the non-fatal crash for falsifying his job application.

Pilots on major airlines and large cargo haulers had failed the tests more than once in only one of the 10 serious accidents in this country over the past 10 years, according to a USA TODAY review of National Transportation Safety Board (NTSB) accident reports.

At a time when fatal aviation accidents have become increasingly rare, regional carriers have had four since 2004, compared with one by a major airline. Regional airlines fly roughly half of all airline flights, carrying about 20% of passengers. . . . Three of the accidents in which pilots had repeatedly failed tests involved a single airline conglomerate, Pinnacle Airlines.

From here.

We don't know precisely how many commercial pilots who have multiple check test failures have managed to keep jobs as commercial pilots from the story. There are about 115,000 people licensed to fly commercial airplanes, about 69,000 pilots and co-pilots employed at airlines that offer scheduled service, and about 8,300 commercial airplanes in service. Simply failing once is not uncommon. Failing many times in a few years is uncommon. Five accidents of any kind for commercial pilots in the time period involved is also incredibly safe (even considering the multiple fatalities that occur in many serious accidents), compared to either general aviation flying or driving a car.

Richard Strock was arrested for drunken driving 18 times before he killed anyone.

In his 19th case, his 63-year-old ex-wife was thrown into the windshield and died. . . .

A Denver Post examination of 195 vehicular homicide-DUI cases since 2005 found that at least 30 percent of the defendants had other drunken-driving cases. Twenty-two drivers had multiple DUI arrests before they killed people.

Three picked up new drunken-driving charges after killing people while under the influence. One was arrested for driving drunk the day after he ran a red light and killed a woman. . . .

The Post analysis of Colorado vehicular homicide-DUI cases also found that:

• Like Strock, many defendants had ignored orders to stop driving. Nearly 40 percent had been arrested for driving with suspended or revoked licenses. Forty-four were driving illegally when they were charged with vehicular homicide. One had been arrested seven times for driving with a suspended license.

• Fifteen percent of the defendants were too young to buy alcohol legally. Three were 16 years old, six were 17, five were 18.

• More than half of those charged with homicide while driving drunk were sentenced to four years or less in prison. . . .

Unlike most states, Colorado has no felony law for the third, fourth or 10th drunken-driving offense. A habitual traffic offender who drives drunk with a revoked license can face up to 18 months in prison on a low-level felony charge.

And there are 53,201 people who have three or more drunken-driving offenses in Colorado, according to Division of Motor Vehicle records provided to The Post. Fifty-one have 10 or more drunken-driving cases in Colorado. . . .In the vehicular homicide-DUI cases The Post examined, Strock was among the 59 drivers who had at least one prior drunken-driving arrest. He had 18, and others had as many as seven.

From here.

The situation in Colorado is very similar to the situation in Ohio summed up in a 2006 report in the Columbus Dispatch:

Ohio toughened its law against repeat drunken drivers two years ago, yet more than 35,000 of them still sit behind the wheel. Columbus prosecutors sometimes lie to the state about motorists who refuse to take Breathalyzer tests, resulting in shorter license suspensions....

In Ohio, 40 percent of traffic fatalities are alcohol-related, and drunken driving is the top killer of people ages 6 to 33, according to Mothers Against Drunk Driving.... Yet, only a trickle of new felony charges for repeat offenders have been filed since Ohio strengthened the DUI law in 2004....

Ohio has 35,825 motorists with four or more drunken-driving convictions, according to the state Bureau of Motor Vehicles. However, only 52 people have been indicted for felony drunken driving in Franklin County the past two years, according to Common Pleas Court records. The State Highway Patrol, which cites 25,000 drunken drivers a year, has filed only 359 felony DUI charges statewide since the law took effect.

The commercial pilot and drunk driver situations are in some ways totally different. But, both represent situations in which a known risk factor known to the government is associated strongly with tragic "accidents" but the response taken to the risk is insufficient to prevent the accidents from happening.

The single greatest advance that improved data analysis technology and modern social scientific and statistical analysis provide us from a policy perspective is the ability to empirically identify predictable tragedies and to use this data to better prevent those tragedies from happening in the first place.

This still doesn't make drawing the line easy. While the risk of someone with repeat DUI convictions causing a vehicular homicide death is much higher than it is for members of the general public, it is still less than 0.1%. There is a roughly 99.9% chance that someone with multiple DUIs won't kill someone while driving.

The number of people with three DUIs or more on the record is also roughly two and half times the total number of people in prison in the state. Simply locking people away for long prison terms for repeat DUI offenses would be crushingly expensive. But, a large percentage of people convicted of DUI drive despite having suspended or revoked driver's licenses, so in many cases simply revoking a license isn't enough to protect the public. The offense to take more seriously may be driving with a suspended license, or with a DUI suspended license, rather than DUI per se.

Similarly, lots of pilots have failed checkride tests, many more than once, and the vast majority still manage to avoid accidents. Revoking a commercial pilot's license means taking away not just someone's job, but someone's career. And pilots appear to agree that soome FAA examiners impose tougher standards in checkride tests than others.

The regulatory decision making process isn't easy. Excessively tough regulation of a risk factor that rarely actually produces harm imposes a great deal of hardship while producing only modest improvements. But, ignoring risk factors that are highly statistically significant, even if their impact is fairly weak, causes predictable tragedies. One has to find a response to risk factors that effectively reduces the public's risk while at the same time not doing more harm to those impacted than necessary.

I floated one trial balloon at the Sentencing Law and Policy blog as something other than license suspension, prison or expensive vehicle interlocks that can be circumvented by using someone else's car (typos in original corrected):

There are about 23,000 in state prison in Colorado for all offenses combined. Putting everyone in the state in prison for a long term would be cost prohibitive. Imprisoning everyone with multiple DUIs for a year would cost more than $1 billion, and wouldn't necessarily prevent all that much recidivism. It might even increase recidivism by reducing the stability of these people's lives leading to devil may care attitudes and a return to alcohol problems. Colorado prisons are not known for their quality substance abuse program successes.

Merely suspending or revoking licenses wasn't sufficient, however. More than 40% of vehicular homicide drivers with prior DUIs had revoked licenses. Technological restraints on cars only work if someone drive's their own vehicle, and so also might not work.

Colorado does have felony punishments for people who have multiple DUIs and drive with suspended or revoked licenses, although it is the lowest grade felony offense, and those do appear to be the people who pose the highest risk. But, again it is hard to tell how much that would cost and whether it would work.

It might be both more effective and less expensive to require repeat DUI offenders who drive with a suspended or revoked license to have their hands tattooed in a way that indicates that they aren't allowed to be served or sold alcohol, or to drive a car, ever (at their expense), and then to have them report to a probation officer once of month to confirm that it has not been removed. Such a tattoo might also be a legal authorization similar to being on probation or parole for an immediate breathalyzer test without consent at the scene of any traffic stop even if no DUI offense was suspected, and would also provide probable cause for an immediate driving with a revoked license arrest, even if the person was using an alias or fake ID.

A prominent facial tattoo might follow for those who drink and drive again after receiving a hand tattoo, something that would warn anyone allowing the individual to use their car or have a drink, no matter how careless the person negligently entrusting the person with a car or alcoholic drink was, and something that would probably prompt 911 calls from passing drivers.

Tattoos would be a permanent serious sanction. But, this would be far less severe than historical corporal punishments like chopping off the hands of thieves or many lashings or castration, but might have more preventative effect than even moderately long prison sentences. It probably wouldn't be quite a much of a bar to gainful employment or lifetime income as some kind of a felony record or a period of imprisonment in state prison. It would also be theoretically reversible with laser tattoo removal surgery in a case of a miscarriage of justice in the criminal justice process.

While it would be a shaming punishment as well, it would be a rather restrained one at a first tattoo offense level. By avoiding places where alcohol is served and keeping your hands in your pockets or in gloves, someone with a hand tattoo could avoid casual detection. The social shame risks involved also might have more impact on typical DUI offenders than the possibility of some time in prison, particularly for those who have already served brief jail terms and aren't quite as scared by the concept of incarceration, per se.

I'm not really sure how I feel about tattoos as punishment, or for that matter, castration as a punishment for certain offenses. I have a gut reaction that leaves me prone not to trust that approach. Tattoos have been taboo in criminal justice circles since the Nazis used them. But, the current criminal justice system focused on either often ineffectual probation sentences or expensive and still often ineffectual prison sentences for non-violent offenders produces incredible human waste. It is also not clear to me that the psychological impacts of several years spent in prison are any less permanent than a tattoo. It is clear that we need to look outside the box for intermediate alternatives that effectively prevent future offenses and punish at a much lower cost to the public, to the offender, and to dependent upon the offender. For a middle class repeat DUI offender, with a steady job, who drove with a suspended license, a hand tattoo probably looks better than three years in prison despite the fact that it is permanent, and might prevent a repeat offense better too, serving the public in the process.

All Law Reform Is Local

Despite decades of efforts to build legal institutions abroad that would encourage economic development at a cost of billions of dollars, the results have been negligable. The assumptions of "law and development" aid groups have failed to sufficiently acknowledge the importance of local culture, "society" if you will, and it turns out that legal institutions are hard to transplant.

"The effects of this burgeoning rule-of-law aid are generally positive, though usually modest. After more than ten years and hundreds of millions of dollars of aid, many judicial systems in Latin America still function poorly. Russia is probably the single largest recipient of such aid, but is not even clearly moving in the right direction. The numerous rule-of-law programs carried out in Cambodia after the 1993 elections failed to create values or structures strong enough to prevent last year’s coup. Aid providers have helped rewrite laws around the globe, but they have discovered that the mere enactment of laws accomplishes little without considerable investment in changing the conditions for implementation and enforcement….

Efforts to strengthen basic legal institutions have proven slow and difficult. Training for judges, technical consultancies, and other transfers of expert knowledge make sense on paper but often have only minor impact." Matters are worse than this grim passage lets on . . . . During the same period, in excess of a hundred million dollars was spent in Africa on law and development, with results that have been characterized as “pretty depressing.” Throughout the law and development literature there is “a strong current of disappointment.”

I attended a panel at the Law and Society Conference in Denver a week ago on the role of lawyers in liberal democracy in Singapore, Sudan and India, that was also less than heartening. Singapore remains deeply authoritarian, despite having a functioning business law system. Sudan exiled or imprisoned most of its lawyers. India, the oldest of the post-colonial regimes, did better because it has had the time necessary to assimilate colonial legal culture and respect for rule of law, but even it has a tortured relationship with its constitution and did not develop a consensus on a key rule of law issue related to the constitution until after a state of emergency was declared and then lifted in the 1970s.

None of this comes as a great surprise to me. I've followed law and development issues for a quarter century, since before I went to college. In explaining what works, Brian Tamanaha explains:

“Context matters,” “local conditions are crucial,” “circumstances on the ground shape how things work”—variations of this insight has been repeated so often it is nearly a cliché. What stymies law and development projects time and again is the “the extreme interrelatedness of everything with everything else in a society.”

He also notes that, the "rule of law—law setting limits on government—can be easily transposed into rule by law—law as an instrument of government rule," and that "'palace wars in the North,' as one commentator put it, are being exported to and played out in the South," where the political issues that matter do not correspond to the hot issues in the developed aid providing world.

Put another way, "law and development" is simply one aspect of political reform, and all politics is local. The reason that law and development projects fail is essentially the same as the reason that so many post-colonial governments have coups. A thin Western style legal and political system riding atop a society total foreign to this imposition doesn't function well. When the English left Sudan, their system didn't work without the imported senior bureaucrats and political culture that colonial officals had supplied. Despite a small cadre of lawyers and judges highly trained to operate a British style court system, which was sucked up in multiple waves to provide political leadership, a few dozen people can't run a huge country with a system that has no grass roots base.

The places that I think will be the most successful in the long run are those that have adapted institutions of their own to their own circumstances. China and Iran, for example, have developed political and legal institutions more or less unique to their own countries. In Thailand, the monarchy has been crucial in intervening at key points to get the country on track (not that it has been a model of stability). Afghanistan's government has more legitimacy than that of Iraq, because at least a pretense was made at using local traditional processes to establish it. One of the reasons that the British were as successful as they were in India is because they were too few in number to impose their political and legal system coersively; they had to engage in local politics with local players to pull of a functional colonial system. Japan pro-actively decided in a deliberative way what to copy from the West, rather than having it imposed upon them by colonial rulers (and still its modernization came through great tumult and the legal and political system on paper works very differently in practice than it does in the societies that it used as models).

Simply getting out of lock step with international models opens the door to local innovation, which merely by being home grown has a greater prospect for success. The popular alternative history Korean Manhwa (i.e. manga) "Goong" suggests a Korea where the Korean monarchy had been reinstated after the Japanese withdrew and become a part of a British style Constitutional monarchy. While the story is largely a romance, the premise of the story, that the road to modernization would have been less rocky had the Koreans reinstated the monarchy and provided a symbolic center for the country, is plausible. This certainly seems to have been the case in Japan and Thailand.

Encouraging this kind of political development is a sensitive matter which requires someone with rare skills and outlooks and a light hand. But, I think that it could be done with rather modest resources by the right people.

Pew On Evidence Based Sentencing

The Pew Center on the States has a new report (via Think Outside the Cage) on evidence based sentencing, and in particular on preventing recidivism for the majority of people sentenced to felonies who are on probation rather than serving prison sentences.

The trouble is that while the report repeatedly urges state legislatures to adopt evidence based sentencing programs and says that they work (well duh, otherwise they wouldn't be evidence based), it is remarkably thin on what these proven programs actually involve. Indeed, the opening paragraph of the report seems to be a persausive argument for more incarceration:

Sixty to 80 percent of state felony defendants are placed on probation, fined or jailed in their local communities. Although the United States has the highest incarceration rate in the world, there are nearly three times more offenders on probation than in state prisons. Recidivism rates among these felony defendants are at unprecedented levels. Almost 60 percent have been previously convicted and more than 40 percent of those on probation fail to complete probation successfully. The high recidivism rate among felons on probation pushes up state crime rates and is one of the principal contributors to our extraordinarily high incarceration rates. High recidivism rates also contribute to the rapidly escalating cost of state corrections, the second fastest growing expenditure item in state budgets over the past 20 years.

Most voters would be shocked by this fact and assume that probation is much harder to come by for felons than it actually is in practice.

Perhaps the 2007 paper in the Indiana Law Journal, which this seven page brief purports to summarize, is more informative.

I don't doubt that there are programs that have been proven to prevent recidivism. But, Pew should be telling us what they are and showing us the research in summary form, not simply telling us that they are good, mostly sight unseen.

Solving Colorado's Election Crisis

A number of changes to state law (a few of which would also require tweaks in the state constitution or federal law) can be done to solve the problems with how Colorado runs its elections.

They include:

Simplify voter registration and limit bad faith challenges.

* Maintain a statewide voter registration database to prevent multiple registrations for one person in the same state.

* Allow election day voter registration.

* Allow voter registration over the Internet in most cases.

* Presume that anyone who has ever previously been registered to vote in the United States, or has served in the United States military, or has served on a jury in the United States, who registers to vote signing a statement that they are age eighteen or older and a U.S. Citizen, is currently age 18 or older and is a U.S. citizen until proven otherwise.

* Require any challenges to voters who have been registered to vote for at least one year on any basis other than residency or current incarceration in a prison to be filed and served on the person challenged not less than six months prior to the election involved.

* Require challengers to compensate anyone unsuccesfully challenged to compensate the person challenges for the costs, reasonable attorneys' fees, and lost income suffered to rebut the challenge, plus an additional amount equal to compensation for one day as a juror in the state.

* Allow anyone who shows up at a polling place that does not appear to be that person's registered address to vote on a provisional ballot, and then if the polling place is later determined to be the wrong one, invalidate that person's provisional ballot only with regard to those races the person would not have been entitled to vote in had the person appeared at the proper polling place.

* Auomatically send a deregisration notice in the paperwork for new inmates at state prisons.

* Allow parolees to vote, thereby simplifying the process of purging voter lists of felons and reviewing eligibility to vote when processing voter registration. Under this rule, any U.S. citizen resident who can show up at a polling place can legally vote. This also encourages parolees to integrate themselves back into society.

* Limit to a civil fine the penalty for negligently voting when not allowed by law to do so.

Improve mail-in ballot procedures and mandate hybrid elections.

* Send every active registered voter a mail-in ballot in every election, but allow anyone who is shown to have had a ballot sent to them by mail which is not marked as received to vote at the polls without having to present the mail-in ballot allegedly sent to them on election day. Mail ballots received on election day would be held until after the polls are closed and not counted until checked against the list of people who voted in person that day.

* Use envelopes to both deliver and return mail-in ballots that are large enough to eliminate the need to fold the ballot, using multiple pages of ballots if necessary.

* Mandate prepayment of return postage for mail-in ballots.

* Place someone on an inactive voter registration list only if the person has been registered to vote for nine or more years, and (i) the person has not voted any election or particpated in any causus in the last nine years, (ii) mail addressed to the voter at the registered address from election officials has been returned as undeliverable, (iii) a change of address form is filed by the person with the post office, or (iv) an election official has determined that the person no longer resides at the address after physically appearing at the address and obtaining affirmative evidence that the person no longer resides at that address.

Soften the bite of identification and residency requirements.

* Allow alternative options for proving identification other than a state ID or driver's license. Allow voters who have no proof of identification at all to cast provisional ballots then establish their identity after the fact.

* Provide state IDs free of charge to people who do not have driver's licenses and have the identification bureacracy make home calls to provide ID to people who can't easily come to a driver's license bureau.

Accomodate voters with special needs more intelligently.

* Shorten ballots by printing each ballot entirely in a single language, and then allowing voters, when they register to vote (or at any time thereafter) to designate a preferred ballot language. This also has the virtue of making it far less expensive to accomodate non-English speakers who are small in number in a jurisdiction.

* Establish a state office for assisting local governments in translating election documents into languages other than English, for every language in which there are at least 50 requests statewide for a ballot language.

* Allow governments to comply with the ADA for election purposes by allowing them to have at least one ADA compliant location in every county and every state house district where anyone who wishes may vote without an advanced request for accomodations on the same basis that they could if they voted in their precinct.

Certify voting equipment early.

* Require voting equipment to be certified long before the elections in which it will be used.

Shorten the ballot.

* Exclude uncontested races from the ballot to simplify the ballot, even if this means that the write-in option is sacrificed. If there are no ballot issues or contested candidate elections on a given primary or general election day in a particular jurisdiction, cancel that election entirely for the affected precincts and notify voters in those precincts of that fact in advance by postcard.

* Do not allow ballot issues or non-partisan races to appear on the ballot in partisan primary elections.

* Find an alternative to automatic retention elections to determine if judges should be retained in office, a process that requires a massive amount of electoral system energy, while retaining 99% of judges. There are better ways to screen judicial performance that don't impose such as huge burden on the electoral system, such as allowing recall elections from time to time when there is actually a problem with a judge, or requiring some level of dissent (perhaps two people, or one-third of the members) on the committee that votes to recommend or not recommend retention of a judge before an election is held.

* Stop electing the state treasurer, county treasurers, county coroners, and county surveyors, all of whom have ministerial responsibilities amenable to civil service examinations or a merit based interview process, rather than policy making authority. Contrary to the beliefs of the early 20th century progressives, insisting that someone be a politician to hold an office is not a good way to assure that they will be honest and independent.

* Stop electing the members of the University of Colorado Board of Regents and instead find an alternate way to select the members of that Board as we do for similar boards of all other higher educational institutions in the state.

Legal Notices Pointless

The New York Times joins the U.S. Supreme Court and Douglas Adams in observing that legal notices in newspapers are mostly pointless.

On The Brink Of The Social Security Hole

Social security was invented, in part, as a safety net for widows and orphans. Usually, no matter what else happens, a widow and her children will be entitled to survivor's benefits until the children are grown, and when the widow is over the age of sixty-five. But, some cases are close ones.

The Facts

Tim Longmore was an expectant father, married only four days when he was killed in a car accident last week. "It's horrible. I can't believe it," said his wife, Krista Longmore, 22, who is 5 1/2 months pregnant. . . . [he] was on his way back to work at Home Depot in Glendale, returning from his lunch break at home. Shortly before 1:30 p.m., he was driving north on Colorado when he apparently ran a red light, crashing his Cadillac into a southbound sedan making a left turn onto Mississippi. . . . Tim Longmore had been working in the paint department at Home Depot for two years, after spending a year painting houses on his own. . . . They had been together since seventh grade. . . . Krista Longmore said their son will be named Timothy Sean Longmore Jr., after his father.

Tim Longmore graduated from high school in the class of '04 and was 22 years old.

Holes In the Safety Net

Deaths that happen going from home to work while on your lunch break often don't qualify for worker's compensation benefits. In contrast, if he had died while on a job related errand would likely qualify his wife for a lifetime pension.

He probably didn't, especially in the post-no fault era in Colorado, have a car insurance policy that provided benefits upon his death in an accident where he was at fault, which the newspaper article strongly suggests, and a wrongful death lawsuit is also an unlikely source of support for his survivors. If he had mandatory insurance coverage, however, he probably at least will have enough coverage to pay for any harm his car did to the other car in the accident.

At twenty-two, he had probably accumulated little wealth other than wedding presents.

He probably also hadn't yet bought significant life insurance, although he probably would have if he had lived even a little longer. Most employees don't sign up for life insurance through an employer when hired, if they are single and have no children at the time, as he was in this case. Most people buy private life insurance after they have kids, not when they have kids on the way, and usually, it doesn't matter.

He probably did have group life insurance through his employer for a couple times the amount of his salary. The $40,000 to $100,000 a group life policy would pay would probably have been enough to allow his grieving widow to get by for a while until she reached a point where she could return to single life and supporting herself. But, this amount of money doesn't last long when it is supporting a widow and a baby

A child who has lost both parents generally receives either financial support from the state government though the foster care system, or financial support from adoptive parents who are vetted prior to the adoption for their ability to financially support an adopted child.

Welfare, Medicaid and food stamps might help for a couple of years, once the life insurance money runs out, but welfare insists that she look for work immediately upon seeking benefits and stops after two years.

She can remarry, perhaps for love, but perhaps, just to survive. It is a pressure Kristina doesn't need right now.

In order to qualify for survivor's benefits under Social Security, you need a certain amount of time in the system, usually ten years. He probably didn't have that much time in the system.

Fortunately, for Kristina and the child she is likely to have, under a special rule, if you have worked for only one and one-half years in the three years just before your death, benefits can be paid to your children and your spouse who is caring for the children. Kristina's husband had worked at least two of the last three years at a job covered by Social Security. So, she is probably entitled to receive a modest pension from Social Security every month once the child is born, until her child is sixteen years old or she remarries, no questions asked (half of that is still payable until the child is eighteen whether or not she remarries). The amount of the benefit is on the order of $1,700 a month. It won't be enough to live on by itself, but it will be a huge help to her.

Social security and group life insurance benefits combined will probably be enough to allow her to stay home with her child for a few years before getting a job. And, even a pretty marginal job on top of Social Security benefits (which are adjusted for inflation) will probably be enough for a family of two to live on.

If this had happened two years earlier, however, when he had less than a year and a half in the system and didn't have benefits as a self-employed painter, the picture would be dire.

Analysis

The survivorship requirement for Social Security survivor's benefits was probably invented to keep women who had been in the work force only briefly from qualifying for Social Security benefits. This limitation has outlived its usefulness.

The number of decedents who die with less than five years of work experience who leave a minor child and don't qualify is infinitessimal. About 98 of every 100 children could get benefits if a working parent dies from Social Security. Roughly one person in 1100 dies between the ages of 16 and 24, by which time the vast majority of adults with children have worked long enough at Social Security covered jobs to qualify. About 75% of children have mothers who are aged 25 or older at birth. The average married man is about two years older than the average married woman, and unmarried fathers tend to be older than unmarried mothers by a greater number of years. It is safe to guess that fewer than one in 4,000 children are in the Social Security hole that this post identifies, which this family narrowly dodged, and that in many of these cases that worker's compensation or a wrongful death suit will provide a realistic hope of support.

Considering that you have to come up with a death certificate and a child's birth certificate (easily confirmed with DNA testing) to qualify, the potential for fraud is very small.

But, those people who don't qualify, the rule hurdle for Social Security survivor's benefits will make life a lot harder, and most cases impacted by the work experience requirements look a lot like this family.

The Koran, the Torah and the Christian Bible both say that we have a duty to care for widows and orphans. The Social Security system and other parts of the social safety net in the United States usually does so. But, in a handful of cases very much like this one, it makes a heartless exception to the rule that makes no sense.

Pipe Dream: Shrinking the Federal Courts

Why Shrink The Federal Courts?

Liberals still have a love affair with the federal courts, as they were pivotal in bringing about societal change, over the objections of Southern segregationists and law and order conservatives, during the Civil Rights era. It is time to break up.

The simple fact of the matter is the judicial ideology matters. No judge leaves his or her political worldview at the door when he or she steps onto the bench. And, despite a significant number of holdovers from more liberal administrations, the federal judiciary is now dominanted by one of the most deliberately conservative judiciaries in the nation, short of the Texas Court of Criminal Appeals.

Democrats have regained control of Congress, although progressives still don't have a strong enough hold on the U.S. Senate to reliably prevent conservatives from being appointed to the federal bench. Democrats have a real chance of tightening their hold in Congress and getting a Democratic President elected in 2008. But, because federal judges hold their offices for life, restoring balance to the federal judiciary will take far longer.

What should liberals do about it? They should dramatically reduce the importance of the federal court system where possible. How? It is really quite simple.

Shrinking the Federal Civil Docket

A dramatic reduction in the federal civil docket that still protects the important federal values for which liberals have long valued the federal courts could be accomplished in a single piece of legislation only a few pages long.

1. Repeal 28 U.S.C. Section 1331 (ordinary federal question jurisdiction).

2. Repeal 28 U.S.C. Section 1332 (ordinary diversity jurisdiction).

This would still allow many kinds of civil cases that have a separate jurisdictional basis to be brought in federal court. They include (with reference to the appropriate section of Title 28):

Cases involving governmental or quasi-governmental parties, or sovereignty derived rights:
actions against foreign states (1330)
Surface Transporation Board orders (1336)
postal matters (1339)
federal tax cases (1340)
civil rights and election cases (1343)
election disputes (1344)
United States plaintiff (1345)
United States defendant (1346)
United States party real estate cases (1347)
diplomatic cases (1351)
Indian rights (1353)
land grants from different states (1354)
federal fines and penalties (1355)
federal seizures other than admiralty (1356)
suits against persons collecting U.S. taxes and enforcing voting rights (1357)
eminent domain (1358)
federal mandamus (1361)
Indian tribe parties (1362)
federal juror's rights (1363)
direct actions against insurers of diplomats (1364)
Senate actions (1365)
unfair intentional trade counterclaims (1368)

Cases where often no state or no one state would have jurisdiction over the entire case:
admiralty cases (1333)
bankruptcy cases (1334)
interpleader (1335)
certain commerce and anti-trust cases (1337)
intellectual property cases (1338)
alien tort claims (1350)
federal bonds (1352)
national bank liquidations and receiverships (1348)
large interstate class actions (1369)

But, this change would still dramatically reduce the scope of federal civil litigation involving exclusive private parties, while preserving jurisdiction in cases where federalism interests or interests in national uniformity are important.

There are about 260,000 civil suits filed each year in federal district courts (exclusive of bankruptcy cases). About 44,000 are U.S. party cases, about 49,000 are civil rights and prisoner's petition cases, about 2,000 are admiralty cases and about 12,000 are intellectual property cases. So, these 107,000 or so cases would remain in federal court, as would a small portion of the remaining private party cases. But, something on the order of 150,000 cases involving private parties would end up in state court instead -- this would be a 57% reduction in federal civil litigation, although it would be an even greater reduction in practice, because many diversity cases are more time consuming than a good share of the cases like U.S. government collection cases and prisoner's petitions, which would remain in federal court.

A large share of the civil cases no longer in federal court would involve employment litigation, interstate contract disputes, and personal injury suits involving diversity of citizenship. This means that many federal laws involving employment law or consumer protection would end up in state court where often less conservative state court judges would interpret the laws, and where smaller, often urban, jury pools would provide juries in many cases. Opportunities for forum shopping would also decline.

Meanwhile, federal judges would still remain, via civil rights suits and prisoner's petitions, as a source of recourse for unconstitutional acts by local government officials and state criminal justice systems.

Shrinking The Federal Criminal Docket

Crafting legislation on the criminal side of the docket would be more involved, but the basic premise would be to remove from the books, or bar enforcement of in areas where state courts can assert jurisdiction, crimes involving non-federal parties that are duplicative of state laws, like most federal drug crimes implicating events occuring in a single state.

About 66,000 federal criminal cases are commenced each year. About 16,000 of them involve drug offenses which could in a large share of cases be tried under state law instead. About 11,000 involve frauds, thefts and robberies (the robberies are principally bank robberies) that likewise could be prosecuted under state laws. And, about 8,000 are for firearms offenses that could be prosecuted under state laws.

Some cases would have to remain in federal jurisdiction. About 16,000 cases involve immigration offenses that cannot, for federalism reasons, exist under state law. Several thousand more are brought in federal court because the arise on federal property or in Indian territory where state courts don't have jurisdiction (including about 3,000 traffic offenses). But, a reduction in federal criminal caseloads by 25%-50% by reducing the number of prosecution made where state courts could handle the cases, often to take advantage of federal law mandatory minimum sentences, is significant.

Indeed, pending legislation, a President could simply make it Department of Justice policy not to bring such cases. This would make problems with the federal criminal justice system like harsh sentencing guidelines, mandatory minimum sentences, and often conservative interpretations of federal criminal laws put in place by conservative federal judges, irrelevant. It would also give state district attorneys more power in the plea bargaining process, because their dispensations could not be undercut by federal U.S. attorneys.

Legality

Article III of the United States constitution allows many cases to be heard in federal courts, but does not require that this be done, at least so long as cases and controversies can be litigated elsewhere.

These changes would also be possible without a constitutionally amendment. For most of the nation's history, some federal question and diversity cases, usually those asserting smaller claims, could only be brought in state court. The precedents that allowed this then, would continue to make simple legislation sufficient to accomplish this end.

Also, Presidents have always prosecuted federal laws selectively. Indeed, a tamer version of the policy of not using federal criminal laws when state criminal laws will do, already exists.

Administrative Impact

The administrative burden on state courts would be relatively modest, as so small a share of all civil litigation is handled in the federal courts. For example, in Colorado, probably on the order of 5% or less of civil litigation, measured by judicial resources devoted to the cases, is decided in federal court. This would be on the order of have two years of ordinary caseload growth in a single year.

Also, it isn't as if federal judges would be left sitting on their hands. Right now the federal courts over overburdened. A major reduction in caseloads would take that pressure off, freeing judges to pay more attention to the cases that they have left, but would still leave federal judges with meaningful caseloads. Indeed, a reduced workload would be a cheap alternative to the prospect of a pay increase for judges, something that several successive Chief Justices of the U.S. Supreme Court have said is necessary. A U.S. District Judge's pay (the pay can't be reduced under the U.S. Constitution) would be a pretty sweet deal for a three-quarters time job, and a less demanding case load makes sense of a judiciary with a large share of judges who are often older and have already had long, high pressure careers in private or governmental service as attorneys.

The average age at time of judicial appointment is 52 years for circuit court judges and 50 years for district court judges. By that age, most individuals who have been tapped for the bench have spent 20 to 25 years building their careers.

The average non-senior federal judge is probably about 58-60 years old, not necessarily elderly, but not necessarily interesting in working crushing 70 hours weeks either.

Also, even after reaching age 65-70, when many federal judges "retire" (possible after 15 years of service at age 65 or 10 yers of service at age 70), they often remain "senior judges" on a part time basis for decades. This contingent work force could be trimmed back if the case load for active judges got too low without offending the constitution.

Conclusion

The combined effect would be greatly decreased influence for the conservative federal courts, which would often benefit employees and consumers. This change would do so without scaling back the substantive protections of federal laws to benefit these individuals, which would be enforced primarily in state courts. It would also do so without expressly results driven jurisdiction rules that have characterized many conservative jurisdiction stripping legislatie efforts; these changes would be facially neutral. The conservative U.S. Supreme Court could intervene somewhat by granting certiorari from state supreme courts in federal law cases, but there is a real limit on its capacity to handle the volume of cases that come up, as it decides only a few dozen cases a year.

The end result would be good for progressive values, and would likely secure support also from many conservatives who have an ideological commitment to a weaker federal government separate and apart from the policy implications of that stance.

The Myth of Shareholder Control

The power of shareholders to replace the board is a central element in the accepted theory of the modern public corporation with dispersed ownership. This power, however, is largely a myth. I document in this paper that the incidence of electoral challenges during the 1996–2005 decade was very low. After presenting this evidence, the paper analyzes why electoral challenges to directors are so rare, and then makes the case for arrangements that would provide shareholders with a viable power to remove directors.

From here via the Securities Law Prof Blog.

Sometimes old news is still true.

Ackerman On Policy Wonks

Bruce Ackerman also has good words at Balkinization on the audience for progressive legal scholarship and the means by which it can accomplish its ends:

Heather Gerken is on to something important . . . that goes well beyond election law and enlightens the general predicament of progressive legal scholarship today. Quite simply, we’ve lost the federal courts for a decade, and maybe longer, so who precisely is our audience?

Presidents and governors, Congresses and legislatures, and agencies and NGOs-- ­ when progressives manage to gain the upper hand. And, more broadly, ordinary citizens.

But to make sense to these audiences, we must better understand their distinctive interests and modes of understanding. Whatever you might think of federal judges, our new audience . . . [is] often interested in the public good. To be sure, professional politicians will turn away if policy prescriptions are plainly inconsistent with their interest in reelection, but there are lots of reforms that are in the grey zone where the merits matter. And, of course, Gerken is right to insist that politicians pay a lot more attention if a policy initiative can somehow penetrate the fog that surrounds their constituents, who generally don't have much of a clue about what’s going on.

So what’s a poor legal-policy wonk to do? How is he going to grab the attention, of his new audiences?

This is a general problem-- ­ ask any tax lawyer or environmental lawyer or intellectual property guru.

As someone who sees himself very much as a progressive legal scholar and legal-policy wonk, this is huge. It is hard enough to decide what is good policy, and it is harder still to secure the power needed to make it into law.

After you spend a sufficient amount of time in the pseudo-utopian world of trying to make sense of what is good public policy, you start waking up to the fact that many of approaches that this mode of thinking leads you naturally into, like proposals for amendments to the United States Constitutions, or bold, theoretically pure liberal legislation, is a theoretical dead end in the sort to medium term.

Gay rights activists, for example, have known since the Stonewall riots in 1969, that passing laws banning employment discrimination on the basis of sexual orientation was the right thing to do. This is been clearly the right thing to do as a matter of public policy in the larger realm of legal-wonkdom since, at least, the mid-1980s. Colorado only finally got around to making this law in 2007, however, and achieving this at the national level is still on the "to do" list, and we continue to this day to discharge gay soldiers from the U.S. military, right in the middle of conducting two regional wars in Iraq and Afghanistan respectively.

Alas, Ackerman's suggestions, as well as those of Gerken, to whom he is reacting, are less inspiring than their joint identification of the problem.

Gerken's construct of the conflicts within the progressive movement are also on target:

[T]he structure of the reform process determines what kind of reform gets passed. Or, in the case of the United States, the structure of the reform process means almost nothing gets passed. Rather than continuing to fight reform battles on this hostile turf, we should focus on changing the underlying terrain.

The most effective way to change the terrain, in my view, is to blend ideas from the two major intellectual camps in my field. On one side are the participatory democrats, who favor bottom-up, grass-roots reform. On the other side are the competitive democrats, who subscribe to an elite-centered vision of politics and chide the participatory theorists for ignoring the role that power and elite incentives play in shaping electoral politics.

If we want to create a virtuous cycle for reform, we must combine elements of these two theories. We should take advantage of the many ways in which political elites generate political energy -- serve as "conversational entrepreneurs," to use Robert Bennett’s term -- and redirect that energy into a conversation about reform. And we should make it easier for citizens to take part in that conversation. As I noted yesterday, these two strategies are mutually reinforcing. If partisan self-interest is redirected toward reform, political entrepreneurs have an incentive to find new ways to frame, and draw citizens into, reform debates. If citizens become more engaged in reform debates, political elites will have more incentive to care about reform.

As in many things, of the two groups of "lowercase d" democrats described above, I am inclined to think that Joseph Schumpeter, who is the central intellectual figure among the "competitive democrats" is closer to the mark than his opponents.

I am, for example, deeply impressed by the extent to which supposedly participatory democratic institution, like the citizen initiative and the caucus process, are dominanted by political elites. I am also impressed by the degree to which public protest is an ineffective means of bringing about political change absent the most extreme circumstances.

I worry about pure grass roots reform efforts not only because they often don't work as advertised. I also distrust grass roots effort at specific legal reforms in fairly obscure areas, because, while the grass roots are good at knowing that the system is broken, the man on the street is far less adept at proposing thoughtful solutions to those problem that will actually work. Uninformed intuition is often a poor guide to predicting the impact that specific legal reforms will produce.

The most recent case in point is Amendment 41 in Colorado. Amendment 41 was widely supported by Colorado voters in 2006 who agreed that its basic premise that it is constitutional and proper and desirable to remove opportunities to secure private personal gain from political office, was sound. But, because it was drafted in an overly expansive and ham handed manner, it has fiercely divided people of good will with similar political values, and has become a political liability, rather than a political triumph for reform. The fact that even many relatively sophisticated political players failed to see the flaws in how it was drafted illustrates the perils of relying on the grass roots to implement specific political changes.

Instead, my credo of tactics includes some of the following:

1. Secure reform by the most innocuous means possible. Don't use a constitutional amendment when an executive order or change in regulation or local ordinance will do.
2. In times of divided government, focus on reform in areas with weak partisan implications; in times of partisan control, focus on reform in areas where there is widespread consensus within the ruling party.
3. Approach problems in ways that reduce the importance of hostile institutions. If the courts are hostile, find non-legal solutions; it the federal government is hostile, fine state and local solutions; if state and local government is hostile, find federal solutions; if government is hostile, find private solutions.
4. Involve multiple people with deep policy expertise in the nitty gritty of preparing detailed reform measures.
5. Use generalized discontent to public policy failures as a impetus to develop groups of informed laypeople and experts to suggest specific reforms and provide a theoretical explanation for what is wrong with the status quo.
6. Educate politicians regarding policy issues sufficiently to allow them to artfully articulate calls for reform as political issues.