Chatfield State Park is arguably the ugliest state park in Colorado. It is almost devoid of natural beauty. Yes, you can see the foothills from Chatfield, but this is true of a 50 miles swath of land that runs from Wyoming to Arizona on both sides of the Rockies. But, of course, this isn't why the park was created.
Four floods devistating Denver in three decades the last of which killed nineteen people and displaced countless mobile homes, was enough to convince the Coloradans of the early 1960s that maybe the South Platte River needed a dam upstream from the Mile High City. In truth, tradition has it that the pre-European residents of Denver had been warning the new comers of the risk since before the 1850s. Mayor Speer was quicker, at least, to partially address the threat of Cherry Creek, in his City Beautiful plan. This plan, suitably, made the planning decision to devote the most flood prone land in the city to public park space. But, ultimately the solution to the threats posed by both Cherry Creek and the South Platte had to be state level solutions. The best place to dam each waterway was further upstream than Denver's boundaries.
Given its inauspicious beginnings, the park does serve a purpose beyond preventing waves of destruction from ravishing Confluence Park. It is a playground for people with big toys. There are abundant bike paths, although the predominant lack of shade mans that a camel back is absolutely necessary. The Marina provide a fine place to launch your big, ugly power boat, there is a model airplane field which appeared well used on my recent visit, there are numerous spots where you can camp in your RV, the roadways in the park are in good repair, and there is a swimming area, which, in season, has concessions and toilets. Indeed, toilets, in a distinctive 70s earth mother style, matched by distinctive concrete picnic umbrellas, are never far, in season, which hasn't yet arrived. The staff is nice. And, the Marina restaurant, while overpriced for mediocre offerings (you too can pay Coors Field prices for a hot dog without actually watching any baseball!), is a floating restaurant with sail in service, which is a novelty.
Now, who am I to grudge a venue that keeps flood waters and suburbanites with oversized toys out of my city, while keeping the water flowing from my tap even in droughts? And, without it, my kids might actually grow to believe that the ponds called "Smith Lake" and "Grassmere Lake" in Washington Park, were really lakes. Chatfield may be no ocean or sea, and isn't even a great lake, but it is, at least, one of the few legitmately lake sized bodies of water in the state.
So, surely, Chatfield State Park deserves our continuing support.
17 April 2006
13 April 2006
Urban Combat Skateboard.
Seriously, folks, this could be some of that misinformation stuff that DOD keeps getting slapped by Congress for wanting to distribute, but some of my usually reliable sources on military technology advise me that the folks at DARPA have developed the urban combat skateboard.
While the commentary in the link muddles the issue, presumably the idea is for a soldier to roll the skateboard down a hallway in a building where armed opponents await them, in order to to set off booby traps and confuse snipers, without a soldier on it, prior to said soldier actually walking down the hallway.
Others have suggested that it is a way to speed up the tedious business of crawling on your belly to avoid gunfire with lots of gear.
The "urban combat" part seems to primarily involve black paint on an otherwise ordinary skateboard.
Of course, if it works, good for them. I just hope that they aren't paying $1,000 each because they are painted black.
While the commentary in the link muddles the issue, presumably the idea is for a soldier to roll the skateboard down a hallway in a building where armed opponents await them, in order to to set off booby traps and confuse snipers, without a soldier on it, prior to said soldier actually walking down the hallway.
Others have suggested that it is a way to speed up the tedious business of crawling on your belly to avoid gunfire with lots of gear.
The "urban combat" part seems to primarily involve black paint on an otherwise ordinary skateboard.
Of course, if it works, good for them. I just hope that they aren't paying $1,000 each because they are painted black.
New CPR Guidelines Save Lives.
New CPR guidelines, which call for hard and fast chest compressions less rescue breathing, have tripled survival rates in a study of EMTs using the new approach. The new technique was previously mentioned on this blog here.
I Agree With Justices Roberts and Alito
Usually, Chief Justice Roberts, and Associate Justice Alito, both newly appointed by President Bush to the United States Supreme Court figure in my jurisprudential nightmares. But, even a broken clock is right twice a day and there is at least one matter upon which I agree with them. Both men favor allowing lawyers to cite to unpublished decisions of the federal courts.
Why? I am a firm believer in transparency in government, and especially the judiciary. The existing system gives insiders who have access to more unpublished decisions insight into how a court will rule, without presenting opponents with a way to address and distinguish arguments accepted in prior cases, and without letting people for settlement purposes know how a court is likely to rule. Surprisingly often it is hard to find cases that support well established settled rules of law, because judges take the unfortunate position that no further caselaw in the area is helpful. Yet, often a case that applies a settled rule to facts very similar to your own, can clarify the law in a helpful manner.
And, it is even worse for a court to ignore relevant prior decisions that it actually made than it is to refuse to take the effort publish a decision at all. This is an arrogance in ignoring the principal of stare decisis, which really shouldn't be allowed to stand.
Hat Tip to SCOTUS Blog.
The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1. . . . [T]he sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. . . . most of these opinions are available now on legal databases. . . . The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it. . . . [T]he Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday's vote may have been unsurprising. . . .The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.
Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges.
Why? I am a firm believer in transparency in government, and especially the judiciary. The existing system gives insiders who have access to more unpublished decisions insight into how a court will rule, without presenting opponents with a way to address and distinguish arguments accepted in prior cases, and without letting people for settlement purposes know how a court is likely to rule. Surprisingly often it is hard to find cases that support well established settled rules of law, because judges take the unfortunate position that no further caselaw in the area is helpful. Yet, often a case that applies a settled rule to facts very similar to your own, can clarify the law in a helpful manner.
And, it is even worse for a court to ignore relevant prior decisions that it actually made than it is to refuse to take the effort publish a decision at all. This is an arrogance in ignoring the principal of stare decisis, which really shouldn't be allowed to stand.
Hat Tip to SCOTUS Blog.
12 April 2006
Petition v. Caucus
Jason Bane nicely describes why the vast majority of candidates for elected office in Colorado do so via the caucus process, and not by petitioning onto the ballot. In short, getting the requisite number of signatures is harder than it appears.
Colorado's Probate Information Website Is Good
Of the 50 states and the District of Columbia, Colorado's online information about probate was ranked 5th in the nation by HALT, a law reform group aimed at improving the accessability of the courts to pro se parties (i.e. people without lawyers) and protecting people from abuses committed by lawyers.
This isn't the only area in which Colorado's probate system is exceptionally user friendly. On the merits, Colorado's version of the Uniform Probate Code establishes one of the cheapest and easiest ways of handling probate estates in the nation.
Colorado distinguishes between formal probates, where there is or could be a genuine dispute concerning the validity or existence of a Will, or the heirs of a person who died without a Will, and informal probates, which are handled summarily in a matter of minutes by a court clerk (with the title of "registrar") upon the presentation of some simple standard court forms (which are available online), an original Will, if there is one, and the filing fee. Unlike many states, in most cases, this fee is a flat filing fee, rather than a quasi-tax based upon the size of the estate.
About 93% of probates in Colorado, which are handled through the courts at all, are handled informally. And, a large percentage of formal cases in Colorado are cases handled by the public administrator, who handles estates when no one comes forward to deal with the affairs of a deceased person, who almost always uses formal probate procedures as the risk of a later contest is particularly great when no relatives can be located at the time of death. Colorado also has a liberal process of informal administration by affidavit of estates without real estate and less than $50,000 of assets, which doesn't appear in court records because this can be accomplished without any court involvement.
Colorado's probate laws also protect privacy, because they are structured so as to permit sensitive financial information like inventories and accounting of probate property to be disclosed only to interested parties, although financial disclosure can be accomplished by a public filing with a court clerk, something that is required in all probate cases in most states.
Most of the cost of probate administration in states which have not adopted the Uniform Probate Code are attributable to what is called in Colorado "supervised administration" which requires an executor to make detailed reports to the Courts regarding how estates are handled after a will is declared to be valid. Many non-UPC states make this the default method of handling estate assets. In Colorado, this is the rare exception, with the default assumption being that estates will be managed honestly that applies unless someone seeks special treatment. In Colorado, supervised administration is used in just 0.3% of informally probated estates and in just 8% of formally probated estates.
Supervised administration is usually used in Colorado only when an executor, actually called a personal representative in Colorado, is afraid of contests after the fact in a highly contentious situation, or less commonly, when an heir is concerned about misbehavior and an executor would prefer to limit the size of the bond that has to be posted by requiring himself or herself to make certain kinds of transfers only with court approval. The more usual remedy in the case of a concerned heir is a court requirement that the executor post a bond, something that is only required if specifically requested by an interested party. Dishonestly and mismanagement in Colorado's system, then, is usually dealt with through specific allegations brought by dissatisfied persons where there is a real likelihood that fraud or mismanagement is occurring, rather than procedural protections in advance.
Also, in Colorado, unlike many other states, such as New York, attorneys fees in probate cases are limited to an hourly charge for the work actually done, rather than based on the size of the estate, regardless of its complexity.
This isn't the only area in which Colorado's probate system is exceptionally user friendly. On the merits, Colorado's version of the Uniform Probate Code establishes one of the cheapest and easiest ways of handling probate estates in the nation.
Colorado distinguishes between formal probates, where there is or could be a genuine dispute concerning the validity or existence of a Will, or the heirs of a person who died without a Will, and informal probates, which are handled summarily in a matter of minutes by a court clerk (with the title of "registrar") upon the presentation of some simple standard court forms (which are available online), an original Will, if there is one, and the filing fee. Unlike many states, in most cases, this fee is a flat filing fee, rather than a quasi-tax based upon the size of the estate.
About 93% of probates in Colorado, which are handled through the courts at all, are handled informally. And, a large percentage of formal cases in Colorado are cases handled by the public administrator, who handles estates when no one comes forward to deal with the affairs of a deceased person, who almost always uses formal probate procedures as the risk of a later contest is particularly great when no relatives can be located at the time of death. Colorado also has a liberal process of informal administration by affidavit of estates without real estate and less than $50,000 of assets, which doesn't appear in court records because this can be accomplished without any court involvement.
Colorado's probate laws also protect privacy, because they are structured so as to permit sensitive financial information like inventories and accounting of probate property to be disclosed only to interested parties, although financial disclosure can be accomplished by a public filing with a court clerk, something that is required in all probate cases in most states.
Most of the cost of probate administration in states which have not adopted the Uniform Probate Code are attributable to what is called in Colorado "supervised administration" which requires an executor to make detailed reports to the Courts regarding how estates are handled after a will is declared to be valid. Many non-UPC states make this the default method of handling estate assets. In Colorado, this is the rare exception, with the default assumption being that estates will be managed honestly that applies unless someone seeks special treatment. In Colorado, supervised administration is used in just 0.3% of informally probated estates and in just 8% of formally probated estates.
Supervised administration is usually used in Colorado only when an executor, actually called a personal representative in Colorado, is afraid of contests after the fact in a highly contentious situation, or less commonly, when an heir is concerned about misbehavior and an executor would prefer to limit the size of the bond that has to be posted by requiring himself or herself to make certain kinds of transfers only with court approval. The more usual remedy in the case of a concerned heir is a court requirement that the executor post a bond, something that is only required if specifically requested by an interested party. Dishonestly and mismanagement in Colorado's system, then, is usually dealt with through specific allegations brought by dissatisfied persons where there is a real likelihood that fraud or mismanagement is occurring, rather than procedural protections in advance.
Also, in Colorado, unlike many other states, such as New York, attorneys fees in probate cases are limited to an hourly charge for the work actually done, rather than based on the size of the estate, regardless of its complexity.
University of Denver Law a Pro Bono Leader
Some law schools require their students to do free legal work for the needy as part of their law school education. Out of more than 170 law schools in the nation, the University of Denver's law school is tied for 5th in the nation by this measure, requiring 50 hours of pro bono work from their students. The University of Hawaii and the University of Washington each require 60 hours, and the University of Pennsylvania requires 70 hours. Appalachian law school requires 25 hours per semester.
SML Coffee
Denver's lastest addition to the coffee scene, open for about a week now, is SML Coffee at 244 Washington Street, which is just South of Speer Boulevard where Speer and Washington (which is one way going South) meet, in a former garage underneath a chiropractor's office (Back Solutions). Its current hours are 6 a.m. to 8 p.m. (7 a.m. on weekends).
I tried it this morning. The atmosphere is casual and mellow, but alternative. This is a beat-grunge family room, and the usual selection of coffee drinks (done reasonable well) and a selection of reasonably priced muffins and similar snacks. The barista when I went was a pleasant young man in a black t-shirt and jeans enjoying the barbituate enhanced music between smokes (outside). There was only one other customer while I was there, who arrived on a motorcycle and seemed to be a friend of the barista, but this is to be expected in a brand new business.
While SML is nice enough, its business plan seems a bit fragile. It has ample parking, but the only easy way to get there while driving is on Cherry Creek bound Speer Boulevard, and the part of Washington Street that it is on leads not to workplaces, but to residential neighborhoods. As a result, it gets most of its drive by traffic not during the morning rush hour, which is prime coffee time, but in the evening rush hour, when people are eager to get home to see their families and have dinner. Presumably the target audiences are people heading to work in Cherry Creek in the morning from the West side (for whom the scene is a bit low brow), and residents of the South Speer neighborhood, aka the Byers neighborhood, taking morning walks for whom the image is a good fit. Byers is dense, and has a fair amount of foot traffic, and there isn't any other competition within walking distance, however, so perhaps that will be enough. I can't imagine that either the start up expenses of the relatively bare bones shop, or the rent for the converted space can be that great, so perhaps it will last.
UPDATE: Mile High Buzz also has a review of SML yesterday (which I hadn't seen until after I wrote this one). Apparently they do have Wi-Fi. I was mistaken on that point as I didn't see a sign saying so on the premises.
And, while your mind is on coffee, I'll throw in the Left Off Colfax coffee mantra to help you start you day:
It is by coffee alone I set my mind in motion.
It is by the beans of Java that thoughts acquire speed.
The hands acquire shaking.
The shaking becomes a warning.
It is by coffee alone I set my mind in motion.
Get your mind moving!
I tried it this morning. The atmosphere is casual and mellow, but alternative. This is a beat-grunge family room, and the usual selection of coffee drinks (done reasonable well) and a selection of reasonably priced muffins and similar snacks. The barista when I went was a pleasant young man in a black t-shirt and jeans enjoying the barbituate enhanced music between smokes (outside). There was only one other customer while I was there, who arrived on a motorcycle and seemed to be a friend of the barista, but this is to be expected in a brand new business.
While SML is nice enough, its business plan seems a bit fragile. It has ample parking, but the only easy way to get there while driving is on Cherry Creek bound Speer Boulevard, and the part of Washington Street that it is on leads not to workplaces, but to residential neighborhoods. As a result, it gets most of its drive by traffic not during the morning rush hour, which is prime coffee time, but in the evening rush hour, when people are eager to get home to see their families and have dinner. Presumably the target audiences are people heading to work in Cherry Creek in the morning from the West side (for whom the scene is a bit low brow), and residents of the South Speer neighborhood, aka the Byers neighborhood, taking morning walks for whom the image is a good fit. Byers is dense, and has a fair amount of foot traffic, and there isn't any other competition within walking distance, however, so perhaps that will be enough. I can't imagine that either the start up expenses of the relatively bare bones shop, or the rent for the converted space can be that great, so perhaps it will last.
UPDATE: Mile High Buzz also has a review of SML yesterday (which I hadn't seen until after I wrote this one). Apparently they do have Wi-Fi. I was mistaken on that point as I didn't see a sign saying so on the premises.
And, while your mind is on coffee, I'll throw in the Left Off Colfax coffee mantra to help you start you day:
It is by coffee alone I set my mind in motion.
It is by the beans of Java that thoughts acquire speed.
The hands acquire shaking.
The shaking becomes a warning.
It is by coffee alone I set my mind in motion.
Get your mind moving!
11 April 2006
Testing With A Purpose
I am not opposed to high stakes, externally administered and designed tests for kids in the public schools. The problem with Colorado's CSAP exams is not that they are high stakes tests, but that they are no stakes tests that are used for purposes that student tests aren't well suited to serve. Colorado should have externally administered and designed tests in its public schools, but those tests need to be used for valid educational purposes.
What Isn't Wrong With Externally Administered Tests.
Many people are opposed to externally administered and designed tests, whether they are the SATs, the ACTs, the modern successors to the British eleven plus, O-Level and A-Level exams, New Zealand's bursary exams, medical school board exams, bar exams, Japanese and South Korean college entrance exams, the International Baccalaureate exams, the CSAPs, the Iowa Tests, or the Advanced Placement exams, often out of concern for racial or ethnic bias. This concern is unsound. An individual teacher's grades over the course of a semester or two are inherently suffused with the teacher's own personal biases arising out of months of regular contact with the student, and are almost never consciously designed to reduce cultural bias. While no test can probably ever be completely bias free, an externally administered and designed test is almost always consciously designed to minimize cultural bias and is free of a particularly teacher's prejudices. Such exams also consistent between institutions, while teacher based evaluations are highly influenced by a school's cultures of grade inflation and even individual teachers within a particular school often have materially different standards. An external test is a more fair way to judge a student's mastery of various subject than a student's transcript containing teacher awarded grades standing alone.
I also am not terribly concerned about the worry that teachers will "teach to the test". If the test is designed to test the right outcomes, then teaching to the test is not only tolerable, it is desirable. While we don't want to discourage creative teaching methods, we only want to encourage teaching methods that provide students with mastery of the materials. When creative teaching methods produce good results on tests that measure what we actually want the students to learn, this is well and good, but when creative teaching methods don't accomplish help students master what they need to learn, the teaching methods should be discouraged. This requires external test designers to put serious thought into designing their tests. But, it can be done. The IB system, the British external testing system, the pre-multiple choice era SATs (which were similar to the IB and British exams in the United States for most of the early 20th century) and the advanced placement exams are all examples of external testing programs respected for their ability to test what we want students to be learning in particular subject areas.
And, if we are going to devote considerable time, effort and money to establishing an externally administered and designed testing regime that tests what we want students to be learning in particular subject areas, it is all a horrible waste if they aren't used to guide educational decision making. There can be overkill of course. No test administered in a single setting is a perfectly accurate gauge of a student's ability and mastery of subject matter. The flu, a family tragedy, a missed night's sleep, the happenstance of a student chancing upon a disproportionate share of the subparts of a subject in which a student is weakest, or a hundred other factors can produce an inaccurate gauge of a student's abilities. Almost no test is so accurate that it should be the sole basis for an important decision in a student's life, and any testing regime needs to have provisions that allow a student having an off day to redeem him or herself, while at the same time, discouraging endless futile attempts to do better that are very unlikely to produce a different result.
What Do Tests Do Poorly?
The only purpose for the CSAPs used in Colorado right now is to evaluate particular schools, based on the aggregate test score results of the students who attend the school at a point of time, with a small nod to trend lines that, as often as not, are the product of changing demographics in the school's attendance area as they are a product of changing teaching quality.
This is a miserable way to evaluate schools. Overwhelming evidence shows that the primary determinant of a schools aggregate test score results is the characteristics of the students who are admitted to the school. There is probably no social scientific fact which is better established.
A school with poor kids who have personal issues outside of school, or have weak academic records before entering the school, almost inevitably, in the aggregate, will do very poorly on any point in time measure of their academic ability. A school with affluent kids from stable families with high socio-economic standing and strong prior academic performance will, almost inevitably, in the aggregate, do very well on any point in time measure of their academic ability.
This isn't to say that there aren't occasional exceptions. But, decades of intensive study of those outliers have failed to produce a readily reproducible formula for producing better than expected performance, and a close look at those outliers over a long time period, often reveals that this exceptional performance is often fleeting. Identifying outlier schools so that state officials can help other schools replicate their performance does not justify that time, effort and money that is devoted to the CSAPs.
Another equally useless purpose of externally administered and designed tests is to, as many states do, make graduation contingent upon passing them. Higher education in the United States is a national market, which has already identified other means of determining who is ready for college. High stakes requirements to earn a high school diploma, thus do not help colleges identify whom they should admit. Employers who are interested in a student's academic performance in high school can already easily request a transcript (or if they really want, test scores as well) to ascertain that, yet few employers do for jobs that require only a high school education. The only practical effect of making a high school diploma contingent upon passing high stakes externally administered and designed exams is to impose the stigma of being a high school dropout on a large number of mediocre high school students who do their work, but aren't up to grade level. Making life harder for these non-college bound high school completing students, who are already ill served by our educational system, serves no useful purpose.
What Do Tests Do Well?
So, why do I support high stakes, externally designed and administered tests? I support them because there are things that tests do well. Tests do not make students learn subject matter. Teachers do that. What tests do well is to sort students based upon what the test measures. Good tests, as a part of a number of other factors, are a good measure, in particular, of future academic performance. For example, while the LSAT does a rather poor job of predicting how well a lawyer will do once he is working in the profession, the LSAT does a rather good job of predicting how well a prospective law student will do in law school and how likely that student is to eventually be able to pass the bar exam.
College Admissions
We can know, to a considerable degree of accuracy, the likelihood that a particular college applicant will graduate from college, based upon test results and a number of other factors that can be determined from the face of a college transcript (not just the GPA, but also the courses taken). This in turn can be, and should be, used to allocate scarce higher education resources. I am of the strong opinion that we do students no favors by admitting them to college when we know, based on the information in their application, that they are almost doomed to fail in the program they have set out to complete. This doesn't mean that these students should have opportunities to benefit from continuing education. But, allowing a student who has a 5% chance of earning a four year degree in a liberal arts major to enroll in a four year liberal arts program is a waste of the student's time and the institution's money. Less charitably, this kind of practice exploits ill qualified students in an effort to secure formula based funding to benefit more able students. A student applying to a program he or she isn't prepared to succeed in should receive counseling on alternatives that are more realistic, rather than being set up for failure in an inappropriate program.
For instance, while most of the affirmative action debate in law school admissions has focused on admission to elite institutions, the data that is out there shows that a very large share of students admitted to law schools with low admissions standards through an affirmative action program either drop out, or complete law school only to never be able to pass the bar exam. No one should have to pay for three years of law school without being able to pay for it with a career as an attorney. It is hard enough to pay for it when you do become one.
Students who have a very low chance of success in a program don't necessarily have to be absolutely barred from admission. Everyone knows that one person who was an outlier and succeeded despite the odds. But, that kind of gamble is a poor use of scarce higher education funds. We would be better off making more progress in reducing financial barriers for students more likely to succeed in a program, or in allocating funds to programs that a rejected student is more likely to succeed in, than devoting large sums of money to go through the motions only to see the expected academic failures actually happen. Externally administered and designed tests can make this high stakes determination more fair and more accurate for a student than either teacher based evaluations or subject matter free tests like the SAT that I took in high school.
Intervening To Prevent Dropping Out
Another thing that testing and some related measures can predict quite well is which students are on track to drop out of high school, or at least, perform dismally in high school. While there is a long standing suspicion of tracking in the American educational culture, one of the things that tests do well is sort kids in a way that accurately predicts future academic performance. We can determine, with a great deal of confidence, which eleven years olds are going to, at age sixteen, drop out or perform miserably in high school, to the point where it is clear that they are not learning anything.
A child who drops out is at very high risk of imposing immense burdens on society at large. An eighteen year male high school dropout is stunningly more likely to end up as a convicted felony than, for example, an eighteen year old female enrolled in a community college. High school drop outs, in addition to being much more likely to have a life of crime, are far more likely to need help from government social programs, are far more likely to end up homeless, are far more likely to be unemployed, are far more likely to have out of wedlock children whom they are unable to provide for, and are far more likely to suffer health problems while uninsured. All of these outcomes impose a burden on society. And, high school drop outs are far less likely to generate any significant tax revenues to pay for those burdens.
In fact, we already do enough testing right now to predict who will drop out by late elementary school age, although we could do better if we tailored a test specifically for that purpose. But, we do very little with this information. Typically, drop out prevention and intervention programs in the existing system start in the months before or after a student drops out, despite the fact that this is an outcome that our educational system should have seen coming for many years in advance. Prior to that, intervention is typically half hearted and usually aimed at the very narrow goal of preventing truancy, which is itself, typically the symptom of far deeper problems outside the school environment, and of a school environment that is not serving that child's needs.
Letting predictable failures just happen is grossly irresponsible. It is one thing to have a sink or swim policy. It is another to have a sink or swim policy when you know in advance who has had swimming lessons and who is wearing life jackets.
We should be doing high stakes testing by late elementary school age to identify those students at high risk of ending up as high school dropouts or very poorly performing high school students for intensive, immediate intervention aimed at putting those children on a stable, self-sufficient track, which probably will not involve applying to enter a four year college program, over the next five years or so that the educational system has a mandatory ability to intervene. Accepting a palpable risk that a student will drop out and fail miserably in life, in exchange for preserving a mere glimmer of a possibility that the child might go to college and graduate may be idealistic, but exercising bad judgment by overstating the likelihood that the child will ever go to college in a way that sets that child up for failure doesn't do that child a useful service. Those high stakes tests need to be as accurate as possible to reduce the risk that we will inappropriately discourage someone from taking a college track, but the stakes involved make it all the more important that the tests by externally administered and designed, so that this decision is made fairly and accurately. School counselors are routinely accused, when they act more subjectively, of basing their recommendations on improper biases, which is one of the reasons that many are reluctant to express an honest opinion on a child's prospects at all.
Now, if all we are going to do is track students into the different streams of the same curriculum we have now, this kind of high stakes late elementary school testing is a fool's errand. But, if we put real money into the intensive intervention that the tests identify a need for, perhaps double state funding for students who need this kind of extra help, and specifically tailored curriculum to meet these student's needs, we as a society can save ourselves an immense amount of social costs down the road.
Helping Those In the Middle Find Career Paths
There is also a need to sort out what course of academic preparation is best for students who are neither college bound, nor on the path to dismal academic failure.
We ignore this group of students now in educational policy making, and I'm not personally a great expert in what approach would be best with these students, in part because those in the middle get less attention in academic research than students at the extremes. Probably the best precedent would be the testing regime used by the U.S. military to identify optimal military occupational specialties for incoming recruits, who are overwhelming drawn from the middle 50% of high school graduates as measured by class rank. More able students tend to go to college, less able students aren't wanted by the military. Adapting these kinds of tests to students in the middle of the road academically could allow them to be on paths more productive than the status quo.
The current system gives students in the middle a watered down college preparatory curriculum, supplemented by only a handful of half hearted vocational electives, even if they aren't actually college bound and would likely fail to complete a four year college program if they tried. Typically, these students, when they graduate, end up looking for a totally unskilled McJob, unless family connections or personal connections totally unrelated to the educational system, or a tour of duty in the military, set them on a more successful course in life, or they make a half hearted attempt to try a local community college or open admissions four year college. Obviously, military aptitude tests would have to be adapted to the civilian world. There isn't a lot of demand for artillery specialists in the civilian world. But, students who aren't college bound deserve the same broad range of career preparatory choices that college bound students who pick a major, military recruits and students at the secondary level in most industrialized countries receive.
These tests might be given around sophomore or early junior year in college, allowing students who aren't college bound (and by late freshman or late sophomore year, this should be quite clear for most students based on a long history of academic performance and college admission type testing) two or three years of free vocational preparation providing them with meaningful skills suitable for a viable career on the public school system's dime (perhaps followed by a year or two of further career preparation in community college), rather than taking a couple of more years of exclusively watered down college preparatory liberal arts courses, and doing the same thing at their own expense in proprietary trade schools or community colleges after graduating from high school. There could be some civics and personal enrichment oriented course work, but it shouldn't be the main focus of the curriculum for these students, as this is not their focus. The perennial complaint of high school students not headed for college is that the curriculum isn't relevant to their lives and goals. These tests wouldn't necessarily have to be as "high stakes" as the other tests discussed above, but, instead, could serve primarily to provide some impartial guidance on what kind of career choices really make sense for that student, and as a basis to limit admissions to vocational options where demand outstrips supply at the moment or failure rates are high.
Conclusion
Testing only makes sense if it has a purpose that it is good at fulfilling. Tests in their current form are a poor ways to grade schools. Tests are good, however, at making sensible recommendations about a future course of academic student for individual students. Tests are fundamentally sorting devices, rather than teaching devices, and used for this limited purpose, they can be valuable educational tools.
The benefits of high stakes testing in college admissions and in identifying potential high school dropouts for intensive intervention at an early age are clear. Testing could also be useful in helping students who are not college bound with a couple more years in the school system left, to identify and prepare for suitable careers.
A test toward the end of 5th grade designed to identify students who need immediate intensive intervention supported by extra resources to prevent them from dropping out of high school five years later, a test at the end of the 9th or 10th grade to identify which children have a realistic chance of completing a traditional four year college degree who will benefit most from the traditional college preparatory curriculum which would follow in the couple of years that follow, and a test at the beginning of the following year for students who are not college bound, to identify the most promising career paths for each student to help tailor that student's next two or three years of public education to that student's needs, all in a high stakes, externally administered and designed format, would serve Colorado's children much better than the more burdensome and mostly useless CSAP system that we have today which is used to provide a basis for school report cards.
This system of tests would devote significant public high school education resources from traditional college preparatory subjects to more career oriented subjects. This system of tests would also probably result in fewer students participating in traditional four year college and university programs in the state, but a similar number of college graduates, while diverting significant resources now used to teach ill prepared college students who ultimately drop out of their programs, to new less traditional programs for those students, designed to bridge the gap for them between high school and either a career or further education.
In each case, the focus should be on matching students to further instruction which is appropriate for them, before that effort is undertaken, rather than penalizing or rewarding students after the fact. And, testing is only justified for these purposes if it is matched by ample funding to back up what the tests indicate is appropriate for individual students.
What Isn't Wrong With Externally Administered Tests.
Many people are opposed to externally administered and designed tests, whether they are the SATs, the ACTs, the modern successors to the British eleven plus, O-Level and A-Level exams, New Zealand's bursary exams, medical school board exams, bar exams, Japanese and South Korean college entrance exams, the International Baccalaureate exams, the CSAPs, the Iowa Tests, or the Advanced Placement exams, often out of concern for racial or ethnic bias. This concern is unsound. An individual teacher's grades over the course of a semester or two are inherently suffused with the teacher's own personal biases arising out of months of regular contact with the student, and are almost never consciously designed to reduce cultural bias. While no test can probably ever be completely bias free, an externally administered and designed test is almost always consciously designed to minimize cultural bias and is free of a particularly teacher's prejudices. Such exams also consistent between institutions, while teacher based evaluations are highly influenced by a school's cultures of grade inflation and even individual teachers within a particular school often have materially different standards. An external test is a more fair way to judge a student's mastery of various subject than a student's transcript containing teacher awarded grades standing alone.
I also am not terribly concerned about the worry that teachers will "teach to the test". If the test is designed to test the right outcomes, then teaching to the test is not only tolerable, it is desirable. While we don't want to discourage creative teaching methods, we only want to encourage teaching methods that provide students with mastery of the materials. When creative teaching methods produce good results on tests that measure what we actually want the students to learn, this is well and good, but when creative teaching methods don't accomplish help students master what they need to learn, the teaching methods should be discouraged. This requires external test designers to put serious thought into designing their tests. But, it can be done. The IB system, the British external testing system, the pre-multiple choice era SATs (which were similar to the IB and British exams in the United States for most of the early 20th century) and the advanced placement exams are all examples of external testing programs respected for their ability to test what we want students to be learning in particular subject areas.
And, if we are going to devote considerable time, effort and money to establishing an externally administered and designed testing regime that tests what we want students to be learning in particular subject areas, it is all a horrible waste if they aren't used to guide educational decision making. There can be overkill of course. No test administered in a single setting is a perfectly accurate gauge of a student's ability and mastery of subject matter. The flu, a family tragedy, a missed night's sleep, the happenstance of a student chancing upon a disproportionate share of the subparts of a subject in which a student is weakest, or a hundred other factors can produce an inaccurate gauge of a student's abilities. Almost no test is so accurate that it should be the sole basis for an important decision in a student's life, and any testing regime needs to have provisions that allow a student having an off day to redeem him or herself, while at the same time, discouraging endless futile attempts to do better that are very unlikely to produce a different result.
What Do Tests Do Poorly?
The only purpose for the CSAPs used in Colorado right now is to evaluate particular schools, based on the aggregate test score results of the students who attend the school at a point of time, with a small nod to trend lines that, as often as not, are the product of changing demographics in the school's attendance area as they are a product of changing teaching quality.
This is a miserable way to evaluate schools. Overwhelming evidence shows that the primary determinant of a schools aggregate test score results is the characteristics of the students who are admitted to the school. There is probably no social scientific fact which is better established.
A school with poor kids who have personal issues outside of school, or have weak academic records before entering the school, almost inevitably, in the aggregate, will do very poorly on any point in time measure of their academic ability. A school with affluent kids from stable families with high socio-economic standing and strong prior academic performance will, almost inevitably, in the aggregate, do very well on any point in time measure of their academic ability.
This isn't to say that there aren't occasional exceptions. But, decades of intensive study of those outliers have failed to produce a readily reproducible formula for producing better than expected performance, and a close look at those outliers over a long time period, often reveals that this exceptional performance is often fleeting. Identifying outlier schools so that state officials can help other schools replicate their performance does not justify that time, effort and money that is devoted to the CSAPs.
Another equally useless purpose of externally administered and designed tests is to, as many states do, make graduation contingent upon passing them. Higher education in the United States is a national market, which has already identified other means of determining who is ready for college. High stakes requirements to earn a high school diploma, thus do not help colleges identify whom they should admit. Employers who are interested in a student's academic performance in high school can already easily request a transcript (or if they really want, test scores as well) to ascertain that, yet few employers do for jobs that require only a high school education. The only practical effect of making a high school diploma contingent upon passing high stakes externally administered and designed exams is to impose the stigma of being a high school dropout on a large number of mediocre high school students who do their work, but aren't up to grade level. Making life harder for these non-college bound high school completing students, who are already ill served by our educational system, serves no useful purpose.
What Do Tests Do Well?
So, why do I support high stakes, externally designed and administered tests? I support them because there are things that tests do well. Tests do not make students learn subject matter. Teachers do that. What tests do well is to sort students based upon what the test measures. Good tests, as a part of a number of other factors, are a good measure, in particular, of future academic performance. For example, while the LSAT does a rather poor job of predicting how well a lawyer will do once he is working in the profession, the LSAT does a rather good job of predicting how well a prospective law student will do in law school and how likely that student is to eventually be able to pass the bar exam.
College Admissions
We can know, to a considerable degree of accuracy, the likelihood that a particular college applicant will graduate from college, based upon test results and a number of other factors that can be determined from the face of a college transcript (not just the GPA, but also the courses taken). This in turn can be, and should be, used to allocate scarce higher education resources. I am of the strong opinion that we do students no favors by admitting them to college when we know, based on the information in their application, that they are almost doomed to fail in the program they have set out to complete. This doesn't mean that these students should have opportunities to benefit from continuing education. But, allowing a student who has a 5% chance of earning a four year degree in a liberal arts major to enroll in a four year liberal arts program is a waste of the student's time and the institution's money. Less charitably, this kind of practice exploits ill qualified students in an effort to secure formula based funding to benefit more able students. A student applying to a program he or she isn't prepared to succeed in should receive counseling on alternatives that are more realistic, rather than being set up for failure in an inappropriate program.
For instance, while most of the affirmative action debate in law school admissions has focused on admission to elite institutions, the data that is out there shows that a very large share of students admitted to law schools with low admissions standards through an affirmative action program either drop out, or complete law school only to never be able to pass the bar exam. No one should have to pay for three years of law school without being able to pay for it with a career as an attorney. It is hard enough to pay for it when you do become one.
Students who have a very low chance of success in a program don't necessarily have to be absolutely barred from admission. Everyone knows that one person who was an outlier and succeeded despite the odds. But, that kind of gamble is a poor use of scarce higher education funds. We would be better off making more progress in reducing financial barriers for students more likely to succeed in a program, or in allocating funds to programs that a rejected student is more likely to succeed in, than devoting large sums of money to go through the motions only to see the expected academic failures actually happen. Externally administered and designed tests can make this high stakes determination more fair and more accurate for a student than either teacher based evaluations or subject matter free tests like the SAT that I took in high school.
Intervening To Prevent Dropping Out
Another thing that testing and some related measures can predict quite well is which students are on track to drop out of high school, or at least, perform dismally in high school. While there is a long standing suspicion of tracking in the American educational culture, one of the things that tests do well is sort kids in a way that accurately predicts future academic performance. We can determine, with a great deal of confidence, which eleven years olds are going to, at age sixteen, drop out or perform miserably in high school, to the point where it is clear that they are not learning anything.
A child who drops out is at very high risk of imposing immense burdens on society at large. An eighteen year male high school dropout is stunningly more likely to end up as a convicted felony than, for example, an eighteen year old female enrolled in a community college. High school drop outs, in addition to being much more likely to have a life of crime, are far more likely to need help from government social programs, are far more likely to end up homeless, are far more likely to be unemployed, are far more likely to have out of wedlock children whom they are unable to provide for, and are far more likely to suffer health problems while uninsured. All of these outcomes impose a burden on society. And, high school drop outs are far less likely to generate any significant tax revenues to pay for those burdens.
In fact, we already do enough testing right now to predict who will drop out by late elementary school age, although we could do better if we tailored a test specifically for that purpose. But, we do very little with this information. Typically, drop out prevention and intervention programs in the existing system start in the months before or after a student drops out, despite the fact that this is an outcome that our educational system should have seen coming for many years in advance. Prior to that, intervention is typically half hearted and usually aimed at the very narrow goal of preventing truancy, which is itself, typically the symptom of far deeper problems outside the school environment, and of a school environment that is not serving that child's needs.
Letting predictable failures just happen is grossly irresponsible. It is one thing to have a sink or swim policy. It is another to have a sink or swim policy when you know in advance who has had swimming lessons and who is wearing life jackets.
We should be doing high stakes testing by late elementary school age to identify those students at high risk of ending up as high school dropouts or very poorly performing high school students for intensive, immediate intervention aimed at putting those children on a stable, self-sufficient track, which probably will not involve applying to enter a four year college program, over the next five years or so that the educational system has a mandatory ability to intervene. Accepting a palpable risk that a student will drop out and fail miserably in life, in exchange for preserving a mere glimmer of a possibility that the child might go to college and graduate may be idealistic, but exercising bad judgment by overstating the likelihood that the child will ever go to college in a way that sets that child up for failure doesn't do that child a useful service. Those high stakes tests need to be as accurate as possible to reduce the risk that we will inappropriately discourage someone from taking a college track, but the stakes involved make it all the more important that the tests by externally administered and designed, so that this decision is made fairly and accurately. School counselors are routinely accused, when they act more subjectively, of basing their recommendations on improper biases, which is one of the reasons that many are reluctant to express an honest opinion on a child's prospects at all.
Now, if all we are going to do is track students into the different streams of the same curriculum we have now, this kind of high stakes late elementary school testing is a fool's errand. But, if we put real money into the intensive intervention that the tests identify a need for, perhaps double state funding for students who need this kind of extra help, and specifically tailored curriculum to meet these student's needs, we as a society can save ourselves an immense amount of social costs down the road.
Helping Those In the Middle Find Career Paths
There is also a need to sort out what course of academic preparation is best for students who are neither college bound, nor on the path to dismal academic failure.
We ignore this group of students now in educational policy making, and I'm not personally a great expert in what approach would be best with these students, in part because those in the middle get less attention in academic research than students at the extremes. Probably the best precedent would be the testing regime used by the U.S. military to identify optimal military occupational specialties for incoming recruits, who are overwhelming drawn from the middle 50% of high school graduates as measured by class rank. More able students tend to go to college, less able students aren't wanted by the military. Adapting these kinds of tests to students in the middle of the road academically could allow them to be on paths more productive than the status quo.
The current system gives students in the middle a watered down college preparatory curriculum, supplemented by only a handful of half hearted vocational electives, even if they aren't actually college bound and would likely fail to complete a four year college program if they tried. Typically, these students, when they graduate, end up looking for a totally unskilled McJob, unless family connections or personal connections totally unrelated to the educational system, or a tour of duty in the military, set them on a more successful course in life, or they make a half hearted attempt to try a local community college or open admissions four year college. Obviously, military aptitude tests would have to be adapted to the civilian world. There isn't a lot of demand for artillery specialists in the civilian world. But, students who aren't college bound deserve the same broad range of career preparatory choices that college bound students who pick a major, military recruits and students at the secondary level in most industrialized countries receive.
These tests might be given around sophomore or early junior year in college, allowing students who aren't college bound (and by late freshman or late sophomore year, this should be quite clear for most students based on a long history of academic performance and college admission type testing) two or three years of free vocational preparation providing them with meaningful skills suitable for a viable career on the public school system's dime (perhaps followed by a year or two of further career preparation in community college), rather than taking a couple of more years of exclusively watered down college preparatory liberal arts courses, and doing the same thing at their own expense in proprietary trade schools or community colleges after graduating from high school. There could be some civics and personal enrichment oriented course work, but it shouldn't be the main focus of the curriculum for these students, as this is not their focus. The perennial complaint of high school students not headed for college is that the curriculum isn't relevant to their lives and goals. These tests wouldn't necessarily have to be as "high stakes" as the other tests discussed above, but, instead, could serve primarily to provide some impartial guidance on what kind of career choices really make sense for that student, and as a basis to limit admissions to vocational options where demand outstrips supply at the moment or failure rates are high.
Conclusion
Testing only makes sense if it has a purpose that it is good at fulfilling. Tests in their current form are a poor ways to grade schools. Tests are good, however, at making sensible recommendations about a future course of academic student for individual students. Tests are fundamentally sorting devices, rather than teaching devices, and used for this limited purpose, they can be valuable educational tools.
The benefits of high stakes testing in college admissions and in identifying potential high school dropouts for intensive intervention at an early age are clear. Testing could also be useful in helping students who are not college bound with a couple more years in the school system left, to identify and prepare for suitable careers.
A test toward the end of 5th grade designed to identify students who need immediate intensive intervention supported by extra resources to prevent them from dropping out of high school five years later, a test at the end of the 9th or 10th grade to identify which children have a realistic chance of completing a traditional four year college degree who will benefit most from the traditional college preparatory curriculum which would follow in the couple of years that follow, and a test at the beginning of the following year for students who are not college bound, to identify the most promising career paths for each student to help tailor that student's next two or three years of public education to that student's needs, all in a high stakes, externally administered and designed format, would serve Colorado's children much better than the more burdensome and mostly useless CSAP system that we have today which is used to provide a basis for school report cards.
This system of tests would devote significant public high school education resources from traditional college preparatory subjects to more career oriented subjects. This system of tests would also probably result in fewer students participating in traditional four year college and university programs in the state, but a similar number of college graduates, while diverting significant resources now used to teach ill prepared college students who ultimately drop out of their programs, to new less traditional programs for those students, designed to bridge the gap for them between high school and either a career or further education.
In each case, the focus should be on matching students to further instruction which is appropriate for them, before that effort is undertaken, rather than penalizing or rewarding students after the fact. And, testing is only justified for these purposes if it is matched by ample funding to back up what the tests indicate is appropriate for individual students.
10 April 2006
Memo To Anti-Terrorism File
Creating a new court system from scratch is not a good "way to provide swift and severe punishment to foreign terrorists."
The Bush administration system of lawyering also operates in that non-reality based dimension that ordinary lawyers never seem to be able to call upon (emphasis added):
I have never found the whole ignoring the judge's ruling approach very effective, but apparently this works in Bush's personal legal system in Guantanamo, which he created without any input from the legislative or judicial branches.
The Bush administration system of lawyering also operates in that non-reality based dimension that ordinary lawyers never seem to be able to call upon (emphasis added):
In parallel litigation involving Mr. Khadr's detention as an "enemy combatant" -- although not the specific war-crimes charges before the commission -- U.S. District Judge Joyce Hens Green found that a 2004 Supreme Court opinion extended the Due Process clause to Guantanamo. Mr. Ahmad said under normal legal practice, when a higher court has decided an issue involving the same parties and facts, the loser may not reargue the matter. Thus, he contended, the military commission was bound to grant those protections to Mr. Khadr.
The trial prosecutor, a Marine major whose name can't be disclosed under Pentagon rules, hadn't cited Judge Green's opinion in his brief. The prosecutor said he ignored the ruling because he considered it wrong and expected it to be overruled in the government's pending appeal.
I have never found the whole ignoring the judge's ruling approach very effective, but apparently this works in Bush's personal legal system in Guantanamo, which he created without any input from the legislative or judicial branches.
The Fifteen Million Dollar History Question
One of the ironies of the United States legal system, with its origins in the American Revolution, is that a number of important legal issues hinge upon late 18th century English equity law. England traditionally had two separate court systems. The courts of law, which handled relatively straight forward personal injury and contract cases asking for money damages, and the courts of equity, which handled less cut and dry claims, often related to corporate or trust matters, and had the power to employ remedies other than money damages. While the United States has, with a handful of state level exceptions, abolished separate courts of law and equity, certain kinds of cases remain governed by the rules applied in courts of law, while other kinds of cases remain governed by the rules applied in courts of equity.
The most common situation where this comes up is the right to a jury trial. In almost every U.S. jurisdiction, civil cases that would have been tried in a court of law in England in the late 18th century carry with them a right to a trial by jury, while civil cases that would have been tried in an equity court in England in the late 18th century are tried before judges without juries. (Despite the fact that modern English law restricts juries to only a handful of obscure types a civil cases today.)
Another situation where this comes up is the question of remedies. U.S. federal district courts, like most general jurisdiction courts in the United States, have the power to impose any remedy that equity courts in the 18th century could have imposed. One of those remedies is disgorgement, i.e. the power to make defendants pay an amount equal not to the amount by which the plaintiffs have been harmed, but instead to the amount by which the defendants have profited from their illegal activities. Today, the 2nd Circuit Court of Appeals finds (starting at page 16) in the case of SEC v. Cavanagh that the English equity courts had this power, and that as a result, Securities and Exchange Commission enforcement suits, which sound in equity because corporate disputes were governed by equity courts in the 18th century, is entitled to this remedy in suits involved securities frauds today. As a result, the Defendants must pay not only a $1,000,000 fine, but an additional $15 million+ of disgorgement of their profits from the frauduluent pump and dump deal they conducted.
Incidentally, history and law, always close cousins, have other points of intersection. For example, the U.S. Supreme Court in the early American Republic routinely turned to foreign law in making its decisions, something so called originalist Antonin Scalia now decries. For example:
This just goes to show that history degrees aren't always useless.
The most common situation where this comes up is the right to a jury trial. In almost every U.S. jurisdiction, civil cases that would have been tried in a court of law in England in the late 18th century carry with them a right to a trial by jury, while civil cases that would have been tried in an equity court in England in the late 18th century are tried before judges without juries. (Despite the fact that modern English law restricts juries to only a handful of obscure types a civil cases today.)
Another situation where this comes up is the question of remedies. U.S. federal district courts, like most general jurisdiction courts in the United States, have the power to impose any remedy that equity courts in the 18th century could have imposed. One of those remedies is disgorgement, i.e. the power to make defendants pay an amount equal not to the amount by which the plaintiffs have been harmed, but instead to the amount by which the defendants have profited from their illegal activities. Today, the 2nd Circuit Court of Appeals finds (starting at page 16) in the case of SEC v. Cavanagh that the English equity courts had this power, and that as a result, Securities and Exchange Commission enforcement suits, which sound in equity because corporate disputes were governed by equity courts in the 18th century, is entitled to this remedy in suits involved securities frauds today. As a result, the Defendants must pay not only a $1,000,000 fine, but an additional $15 million+ of disgorgement of their profits from the frauduluent pump and dump deal they conducted.
Incidentally, history and law, always close cousins, have other points of intersection. For example, the U.S. Supreme Court in the early American Republic routinely turned to foreign law in making its decisions, something so called originalist Antonin Scalia now decries. For example:
[Justice] Story’s use of English law in American patent cases first appeared just three years after English troops had burned down the Supreme Court’s chamber in the Capitol, along with every government office in Washington except the Patent Office.
This just goes to show that history degrees aren't always useless.
Case Against Al-Marri Rooted In Torture
Slate reminds us that while Padilla has been released from custody as an enemy combatant, that Mr. Al-Marri, who has been in the criminal justice system before becoming the only other domestic individual detained as an enemy combatant (he was a legal immigrant on a student visa was detained as a material witness, and later was charged in a federal criminal indictment with various fraud offenses) is still there. And, as the prosecution has been forced, after years, to provide him with the full extent of the charges against him, it appears that they may have their basis in statements made by individuals who were being tortured by U.S. interrogators.
Al-Marri was arrested in December 2001 in a civilian setting within the United States without a fight and unarmed. It is now more than four years later. He has yet to see any charges against him reviewed by a Court. The delay is unconscionable. The breach this case creates in the United States reputation for protecting human rights is a grave danger to our national security. Wars are won with allies. The first part of winning allies is to convince them that you are the good guy. The Bush Administration, however, seems hell bent on making our own government as frightening to our allies as the terrorists. This makes us weaker.
Magistrate Judge Robert C. Carr, appointed in 1975 during the Ford administration, called the government's bluff. "You need to make your choice, because this deals with a man's freedom," he told prosecutors at a teleconference with lawyers from both sides, held at the end of February. The judge's skepticism had swift effect. Prosecutors took another look at the classified parts of the Rapp Declarations and decided to make most of them public after all. . . . They link al-Marri to the 9/11 plotters via Khalid Sheikh Mohammed, an al-Qaida member whom the CIA is holding in a secret prison. . . . Al-Marri's transfer from federal prison to brig is probably the result of what KSM told interrogators after al-Marri's 2002 indictment.
Which would mean it's also a safe bet that evidence against al-Marri was obtained through torture. A 2004 review by the CIA's inspector general found that Mohammed has been subjected to near-drowning while in custody (the term of art is "waterboarding").
Al-Marri was arrested in December 2001 in a civilian setting within the United States without a fight and unarmed. It is now more than four years later. He has yet to see any charges against him reviewed by a Court. The delay is unconscionable. The breach this case creates in the United States reputation for protecting human rights is a grave danger to our national security. Wars are won with allies. The first part of winning allies is to convince them that you are the good guy. The Bush Administration, however, seems hell bent on making our own government as frightening to our allies as the terrorists. This makes us weaker.
Foreign Born Persons In Colorado Prisons
The Pueblo Chieftan is reported on the foreign born population of Colorado's prisons:
The Pueblo Chieftan fails to make it clear, but merely being foreign born does not imply that you are a non-citizen, and certainly does not imply that you are an illegal immigrant. About 30% of foreign born people in the United States are U.S. citizens and close to two-thirds are either U.S. citizens or have valid visas to be in the United States (e.g. a "green card" aka lawful permanent residency status), although conviction of a felony is grounds for deportation of most immigrants other than refugees entitled to political asylum who are in the United States on valid visas.
Department of Homeland Security statistics estimate (table 7) that there were 144,000 undocumented immigrants in Colorado in 2000. In 2003, there were 433,000 foreign born persons in Colorado (table 41), of whom 22% had entered in 2000 or later. Thus, the percentage of foreign born persons in Colorado who are undocumented is somewhere between 33% (assuming all post-2000 entrants were documented) and 42% (assuming all post-2000 entrants were undocumented). In reality, probably about 36% of the foreign born population of Colorado is undocumented, making a realistic assumption that the mix of documented and undocumented foreign born person is similar in 2000 and 2003. Of course, the incaracerated population is almost certainly not typical of the foreign born population as a whole in many respects, just as the incaracerated native born population is not typical of the native born population as a a whole.
While foreign born people make up 9.7% of the population of Colorado, foreign born people make up only 6.6% of the prison population, meaning that foreign born people in Colorado are about a third less likely to be convicted of felonies in Colorado than persons born in the United States. This is particularly notable because the foreign born population is also, on average, less affluent and less educated than the native born population of the United States, which would lead one to normally expect a higher, rather than a lower percentage of incaracerated persons in that population. Compared to a sample of native born people of similar education and income, foreign born persons are far less likely to be convicted of felonies.
This is probably due in part to the facts that (1) their undocumented status and limited English ability causes many undocumented foreign born people to have low incomes as a result of taking jobs for which they are underqualified, so their socio-economic status may be higher than their current employment reflects, (2) in Mexico and many other major sources of immigration, not having a high school diploma is not restricted to kids are pretty much already on the road to delinquency, as it is in the United States among native born persons, so many people who are high school dropouts in Mexico would have graduated from high school had they grown up in the United States, so lack of a high school education is not a strong as a risk factor for crime in the immigrant population as it is in the native born population, and (3) people who are incapable of providing for themselves at all by legal means, who make up an important share of convicted felon population, tend not to immigrate to the United States or give up and return to the United States; immigrants, documented and undocumented alike, tend to be ambitious and work oriented compared to their peers who did not immigrate.
The Pueblo Chieftan also notes that:
The article also notes that parole hearings require translators for non-English speakers, and that prosecutors are generally indifererent to immigration status, rarely accepting deportation in exchange for dismissing charges, for example. Illegal immigrant prisoners may be subject to deportation upon release. The article closes by noting that immigrant prisoners do not have TB at rates greater than those of native Coloradan prisoners and are not otherwise more subject to health problems.
The bottom line is that immigrant felons, while a fiscal burden on the state, like all criminals, are less of a problem than anti-immigrant opponents would like us to believe.
Here is a breakdown of foreign-born prison inmates who make up 6.6 percent of the adult inmate population in Colorado:
Country Number Percent
Mexico 1,084 5%
Honduras 48 0.2%
Vietnam 41 0.2% E
El Salvador 27 0.1%
Germany 26 0.1%
Canada 19 0.1%
Cuba 17 0.1%
Guatemala 17 0.1%
All other countries 152 0.7%
Figures are as of Dec. 31, 2005
The Pueblo Chieftan fails to make it clear, but merely being foreign born does not imply that you are a non-citizen, and certainly does not imply that you are an illegal immigrant. About 30% of foreign born people in the United States are U.S. citizens and close to two-thirds are either U.S. citizens or have valid visas to be in the United States (e.g. a "green card" aka lawful permanent residency status), although conviction of a felony is grounds for deportation of most immigrants other than refugees entitled to political asylum who are in the United States on valid visas.
Department of Homeland Security statistics estimate (table 7) that there were 144,000 undocumented immigrants in Colorado in 2000. In 2003, there were 433,000 foreign born persons in Colorado (table 41), of whom 22% had entered in 2000 or later. Thus, the percentage of foreign born persons in Colorado who are undocumented is somewhere between 33% (assuming all post-2000 entrants were documented) and 42% (assuming all post-2000 entrants were undocumented). In reality, probably about 36% of the foreign born population of Colorado is undocumented, making a realistic assumption that the mix of documented and undocumented foreign born person is similar in 2000 and 2003. Of course, the incaracerated population is almost certainly not typical of the foreign born population as a whole in many respects, just as the incaracerated native born population is not typical of the native born population as a a whole.
While foreign born people make up 9.7% of the population of Colorado, foreign born people make up only 6.6% of the prison population, meaning that foreign born people in Colorado are about a third less likely to be convicted of felonies in Colorado than persons born in the United States. This is particularly notable because the foreign born population is also, on average, less affluent and less educated than the native born population of the United States, which would lead one to normally expect a higher, rather than a lower percentage of incaracerated persons in that population. Compared to a sample of native born people of similar education and income, foreign born persons are far less likely to be convicted of felonies.
This is probably due in part to the facts that (1) their undocumented status and limited English ability causes many undocumented foreign born people to have low incomes as a result of taking jobs for which they are underqualified, so their socio-economic status may be higher than their current employment reflects, (2) in Mexico and many other major sources of immigration, not having a high school diploma is not restricted to kids are pretty much already on the road to delinquency, as it is in the United States among native born persons, so many people who are high school dropouts in Mexico would have graduated from high school had they grown up in the United States, so lack of a high school education is not a strong as a risk factor for crime in the immigrant population as it is in the native born population, and (3) people who are incapable of providing for themselves at all by legal means, who make up an important share of convicted felon population, tend not to immigrate to the United States or give up and return to the United States; immigrants, documented and undocumented alike, tend to be ambitious and work oriented compared to their peers who did not immigrate.
The Pueblo Chieftan also notes that:
As a result, the state's 21,115-inmate population is made up of offenders from 60 different countries, said Walt Ahrens, public affairs officer for the Colorado Department of Corrections. Of those, 1,084 - about 5 percent of the state's inmate population - are natives of Mexico, according to DOC tabulations made on Dec. 31, 2005.
Gauging the cost of Mexico's immigrants on the state prison coffers is not easy. On average, it costs $71.46 a day to house male inmates and $76.44 a day to house female inmates, Ahrens said. That adds up to an average annual cost of between $26,082 and $27,900 per inmate.
Although the state does pay the lion's share of incarcerating non-citizens, there are some federal reimbursement.
"We receive money from the State Criminal Alien Assistance Program from funds administered by the federal Bureau of Justice Assistance. The state of Colorado received just over $2.3 million for fiscal year 2005," Ahrens said.
The article also notes that parole hearings require translators for non-English speakers, and that prosecutors are generally indifererent to immigration status, rarely accepting deportation in exchange for dismissing charges, for example. Illegal immigrant prisoners may be subject to deportation upon release. The article closes by noting that immigrant prisoners do not have TB at rates greater than those of native Coloradan prisoners and are not otherwise more subject to health problems.
The bottom line is that immigrant felons, while a fiscal burden on the state, like all criminals, are less of a problem than anti-immigrant opponents would like us to believe.
09 April 2006
The Denver County Democratic Party Assembly
Along with 700 plus other Democrats with a similarly strong sense of duty and great ability to tolerate excruciating parliamentary procedure nonsense, I participated in the Democratic Party Assembly yesterday.
The place was well chosen. Lincoln High School is in the middle of both House District 1 and Senate District 32, the only contested Democratic races this season.
Southwest Denver and Lincoln High School
At the intersection of South Federal Boulevard and Evans Avenue, the neighborhood that Lincoln High School serves is everything that Washington Park is not. They are the ying and yang of Denver. Washington Park is predominantly white, quiet, well tended, English speaking (except for the weekend visitors to the park who speak every language found on the globe from Farsi to Spanish to Mandarin), full of oversized houses, the product of recent pop tops or scrapes on tiny lots, joggers and people walking their pedigreed dogs. The Southwest Denver neighborhood served by Lincoln High is classic strip mall, less the national chains. Instead, signs in Spanish are as common as those in English, with a significant number sporting Spanglish instead, the shops are independent clones of their more famous franchise models with a Southwestern flair and less polish. The houses are small, single story 40s and 50s cottages on modest lots. Instead of pedigreed dogs walking down the street, there are mutts with bad dispositions chained up behind chain link fences. Instead of gleaming Lincoln Navigators parked in front of neo-Tudor mini-mansions, there are old Buicks almost eligible for classic plate status being washed with hoses and buckets.
This isn't to say that the neighborhood is a ghetto or truly distressed. The rent to own shops, payday loan store fronts, pawn shops, sex shops, and hourly motels of East Colfax were few and far between. Whether due to the drug free, tobacco free signs on the side of the school, or the abundance of out of the neighborhood visitors, or due to the character of the neighborhood, or the hour of the day, there were no clusters of menancing might be gang members hanging out on street corners.
If the statistics displayed prominently on the display case outside the auditorium in the school are correct, the student body at Lincoln is compliant but far behind the curve in what they are learning. The school has uniforms for its students. While the statistics related that Lincoln had almost 90% attendance (a bit better than the district average), a lower than district average dropout rate, and a graduation rate of 79% (just a hair under the district average), the recent history of the school's performance on CSAPs and the ACTs has been undeniably dismal.
No traditional public school in the Denver Public Schools is doing less well on the CSAPs. The state average in 2004 was 66% in reading, 42% in math and 53% in writing.
The trend, moreover, is towards declining performance. This, in large part, is a function of the school's poverty. Two-thirds of the students at the school are poor, as measured by eligibility for free or reduced price lunches (compared to a little less than half for Denver Public Schools as a whole). West High School is the only high school in the District (and quite possibly, the state) with a less affluent student body, and the student body at Lincoln is less "stable" than at West.
These scores are far under half the percentages found in the already less than stellar Denver Public Scoool district as a whole, whose averages closely approximately the new principal's goals for the school. Improvements in categories like students not eligible for free lunch (probably because those who don't qualify are mostly just barely over the limit or qualify but didn't apply), students who speak English only, students not in special education (only a small percentage are in special education), and students at the same school for two or more years, were only modest. The only category of students doing significantly better than the average at Lincoln High are the 8% of students or so who are white, and they are only coming close to the average achievement levels in the district.
The CSAPs are imperfect measures. As a means of ranking students academically against their peers in Colorado they are a reasonable, if rough, gauge of performance, in line with many other measures of the same things, like the ACTs, and this level of accuracy is acceptable to students as they suffer no personal consequences based upon their test performances.
As a means of rating the quality of teaching being done in schools, standing alone, the CSAPs are worthless. It is hardly a surprise that one of the least affluent student bodies in the state produces one of the lowest sets of test scores. Indeed, it is remarkable and a testament to the efforts of the teachers there, that the school functions with as much regularity as it does. Any meaningful use of the CSAPs to evaluate school performance needs to either look at change in performance of students at the school based on prior performance of the same students, or more crudely a model based on free and reduced lunch percentages, student stability, special education student percentages and English as a second language percentages.
The school's profile describes Lincoln High's transformation over the last generation:
The Process
The County Assembly, like most official Democratic party functions, was mostly speeches and empty formalism.
Some of the speeches were good. Andrew Romanoff (the Speaker of the State House who represents the House District adjacent to mine) and Bill Ritter (the Democratic candidate for Governor and a former District Attorney from Denver who lives in my House District) both made very clear that the Democratic party in Colorado is about bread and butter politics, about balancing budgets, making schools work and getting health care to average Coloradans, about maintaing a social safety net for the vulnerable and doing what is possible in the context of a budget process set up in the state constitution that is seriously flawed.
There was also ample opportunity to meet and greet Denver's elected officials and candidates, and many present took the opportunity to do so.
The formalism was painful. The assembly trudged through the approval of the party platform for the county in an exercise not all of those present fully understood, with the only notable point being an overwhelming rejection of a hard line approach to immigration. Outside the big races, discussed below, the rest of the process was a matter of unanimous approvals of standard steps in the process, and obtaining volunteers for the next stage in the process (in House District 3, which had a healthy four or five dozen people in attendance, the only one of the myriad positions to be filled for subsequent assemblies and conventions had more volunteers than spaces available, there was a three way race for a seat on the committee to draft the state party platform).
As usual, the bottom line is that the caucus process wastes a lot of valuable time of party activists that would be better devoted to other more useful ends. Yet, most of us came away from the event not even knowing first hand the results of the couple of votes that did matter at the event.
Next week, I will attend a fifteen or twenty minute meeting to ratify the only person running in House District 3 as a Democrat, Anne McGihon, the incumbent, as our nominee in 2006. At this time, I'm not aware of anyone running against her in the Republican party or a third party, although it isn't too late for a placeholder to appear out of the woodwork.
On May 20, 2006 in Greeley, I will help ratify the nominations of Diana DeGette, Bill Ritter and his running mate Barbara O'Brien in the Governor's race, Ken Gordon for Secretary of State, Cary Kennedy for Treasurer, and Fern O'Brien for Attorney General (Mr. Johnson won't make it onto the ballot after the convention vote in the attorney general's race), as Democratic party nominees, and rubber stamp the product of the state party platform committee which will promptly be ignored. Even the 7th Congressional District assembly will be a non-event, which will give Ed Perlmutter the top line place on the primary ballot, as the other two candidates in that race have chosen to petition onto the ballot. Perhaps, if we are lucky, there will be a spirited contested race for CU-Regent or the State Board of Education, although I'm not aware of one at this time.
The Big Votes
While I was there, as I am not in either HD 1 and SD 32, I missed the really important votes. So, I rely on others for reports of what happened. Commentator Dan Willis at Colorado Pols reports:
These are the only three candidates for the post of whom I am aware. Incidentally, these results to support the proposition that excellent goodies at the assembly do not produce votes for candidates on the merits. Margaret Atencio offered donuts which were, in my humble opinion, the best free goodies at Lincoln High, and yet came in a dismal third place. Hernandez offered no bribes worth mentioning to would be voters, and Labuda's bannanas were good, but not that good (although they were specifically chosen to be from the labor friendly bannana supplier possible, a thoughtful touch).
Atencio is an old hand state party official, while the other two have lower profile, but substantial political experience. Her defeat is something of a vote of no confidence in the party leadership, whom one might expect to be the most respected and talented of the people who are not elected officials in the party.
Commentator Lynn Pressnall states:
Romer and Mello are young, dynamic, rising stars in the party. Fran Coleman is an incumbent member of the state house.
Chris Romer is also seeking the SD 32 seat, but plans to petition onto the ballot rather than using the caucus process. Both Jennifer Mello and Fran Coleman made a strong enough showing to earn a place on the August primary ballot. The primary itself will be something of a toss up. It will be even more dicey if Romer makes it onto the ballot, as I suspect that he will. Three way races are always unpredictable. Insiders that I have encountered have been much more upbeat about Romer and Mello than Coleman (and to be perfectly honest, more of favored Romer than Mello from within that group -- I lack a strong opinion on any candidate in the face), but Coleman has far greater name recognition, which matters more in the primary, where voters have less information, than in the assembly, where candidates make speeches moments before the vote.
So, that is the political news from this weekend in Denver.
The place was well chosen. Lincoln High School is in the middle of both House District 1 and Senate District 32, the only contested Democratic races this season.
Southwest Denver and Lincoln High School
At the intersection of South Federal Boulevard and Evans Avenue, the neighborhood that Lincoln High School serves is everything that Washington Park is not. They are the ying and yang of Denver. Washington Park is predominantly white, quiet, well tended, English speaking (except for the weekend visitors to the park who speak every language found on the globe from Farsi to Spanish to Mandarin), full of oversized houses, the product of recent pop tops or scrapes on tiny lots, joggers and people walking their pedigreed dogs. The Southwest Denver neighborhood served by Lincoln High is classic strip mall, less the national chains. Instead, signs in Spanish are as common as those in English, with a significant number sporting Spanglish instead, the shops are independent clones of their more famous franchise models with a Southwestern flair and less polish. The houses are small, single story 40s and 50s cottages on modest lots. Instead of pedigreed dogs walking down the street, there are mutts with bad dispositions chained up behind chain link fences. Instead of gleaming Lincoln Navigators parked in front of neo-Tudor mini-mansions, there are old Buicks almost eligible for classic plate status being washed with hoses and buckets.
This isn't to say that the neighborhood is a ghetto or truly distressed. The rent to own shops, payday loan store fronts, pawn shops, sex shops, and hourly motels of East Colfax were few and far between. Whether due to the drug free, tobacco free signs on the side of the school, or the abundance of out of the neighborhood visitors, or due to the character of the neighborhood, or the hour of the day, there were no clusters of menancing might be gang members hanging out on street corners.
If the statistics displayed prominently on the display case outside the auditorium in the school are correct, the student body at Lincoln is compliant but far behind the curve in what they are learning. The school has uniforms for its students. While the statistics related that Lincoln had almost 90% attendance (a bit better than the district average), a lower than district average dropout rate, and a graduation rate of 79% (just a hair under the district average), the recent history of the school's performance on CSAPs and the ACTs has been undeniably dismal.
16% of students scored at the proficient or advanced levels in reading, 3% in math, and 9% in writing.
No traditional public school in the Denver Public Schools is doing less well on the CSAPs. The state average in 2004 was 66% in reading, 42% in math and 53% in writing.
The trend, moreover, is towards declining performance. This, in large part, is a function of the school's poverty. Two-thirds of the students at the school are poor, as measured by eligibility for free or reduced price lunches (compared to a little less than half for Denver Public Schools as a whole). West High School is the only high school in the District (and quite possibly, the state) with a less affluent student body, and the student body at Lincoln is less "stable" than at West.
These scores are far under half the percentages found in the already less than stellar Denver Public Scoool district as a whole, whose averages closely approximately the new principal's goals for the school. Improvements in categories like students not eligible for free lunch (probably because those who don't qualify are mostly just barely over the limit or qualify but didn't apply), students who speak English only, students not in special education (only a small percentage are in special education), and students at the same school for two or more years, were only modest. The only category of students doing significantly better than the average at Lincoln High are the 8% of students or so who are white, and they are only coming close to the average achievement levels in the district.
The CSAPs are imperfect measures. As a means of ranking students academically against their peers in Colorado they are a reasonable, if rough, gauge of performance, in line with many other measures of the same things, like the ACTs, and this level of accuracy is acceptable to students as they suffer no personal consequences based upon their test performances.
As a means of rating the quality of teaching being done in schools, standing alone, the CSAPs are worthless. It is hardly a surprise that one of the least affluent student bodies in the state produces one of the lowest sets of test scores. Indeed, it is remarkable and a testament to the efforts of the teachers there, that the school functions with as much regularity as it does. Any meaningful use of the CSAPs to evaluate school performance needs to either look at change in performance of students at the school based on prior performance of the same students, or more crudely a model based on free and reduced lunch percentages, student stability, special education student percentages and English as a second language percentages.
The school's profile describes Lincoln High's transformation over the last generation:
In the forty-two years that Abraham Lincoln High School has been serving Denver's southwest community, it has seen a dramatic shift in the students it educates. In 1960, 95% of the students at Abraham Lincoln High School were white. Since 1980, Lincoln High School has seen a steady growth of students from Sudan, Somalia, China, Vietnam, and Mexico. This current school year, 2002-2003, 80.5% of our students are of Hispanic descent, 8.4% White, 7.0% Asian, 3.3% African-American, and 0.8% American Indian.
The Process
The County Assembly, like most official Democratic party functions, was mostly speeches and empty formalism.
Some of the speeches were good. Andrew Romanoff (the Speaker of the State House who represents the House District adjacent to mine) and Bill Ritter (the Democratic candidate for Governor and a former District Attorney from Denver who lives in my House District) both made very clear that the Democratic party in Colorado is about bread and butter politics, about balancing budgets, making schools work and getting health care to average Coloradans, about maintaing a social safety net for the vulnerable and doing what is possible in the context of a budget process set up in the state constitution that is seriously flawed.
There was also ample opportunity to meet and greet Denver's elected officials and candidates, and many present took the opportunity to do so.
The formalism was painful. The assembly trudged through the approval of the party platform for the county in an exercise not all of those present fully understood, with the only notable point being an overwhelming rejection of a hard line approach to immigration. Outside the big races, discussed below, the rest of the process was a matter of unanimous approvals of standard steps in the process, and obtaining volunteers for the next stage in the process (in House District 3, which had a healthy four or five dozen people in attendance, the only one of the myriad positions to be filled for subsequent assemblies and conventions had more volunteers than spaces available, there was a three way race for a seat on the committee to draft the state party platform).
As usual, the bottom line is that the caucus process wastes a lot of valuable time of party activists that would be better devoted to other more useful ends. Yet, most of us came away from the event not even knowing first hand the results of the couple of votes that did matter at the event.
Next week, I will attend a fifteen or twenty minute meeting to ratify the only person running in House District 3 as a Democrat, Anne McGihon, the incumbent, as our nominee in 2006. At this time, I'm not aware of anyone running against her in the Republican party or a third party, although it isn't too late for a placeholder to appear out of the woodwork.
On May 20, 2006 in Greeley, I will help ratify the nominations of Diana DeGette, Bill Ritter and his running mate Barbara O'Brien in the Governor's race, Ken Gordon for Secretary of State, Cary Kennedy for Treasurer, and Fern O'Brien for Attorney General (Mr. Johnson won't make it onto the ballot after the convention vote in the attorney general's race), as Democratic party nominees, and rubber stamp the product of the state party platform committee which will promptly be ignored. Even the 7th Congressional District assembly will be a non-event, which will give Ed Perlmutter the top line place on the primary ballot, as the other two candidates in that race have chosen to petition onto the ballot. Perhaps, if we are lucky, there will be a spirited contested race for CU-Regent or the State Board of Education, although I'm not aware of one at this time.
The Big Votes
While I was there, as I am not in either HD 1 and SD 32, I missed the really important votes. So, I rely on others for reports of what happened. Commentator Dan Willis at Colorado Pols reports:
HD1:
Labuda
24 votes
44% - top line on ballot
Hernandez
19 votes
35% - 2nd line on ballot
Atencio
11 votes
20% - has option open to petition onto ballot
These are the only three candidates for the post of whom I am aware. Incidentally, these results to support the proposition that excellent goodies at the assembly do not produce votes for candidates on the merits. Margaret Atencio offered donuts which were, in my humble opinion, the best free goodies at Lincoln High, and yet came in a dismal third place. Hernandez offered no bribes worth mentioning to would be voters, and Labuda's bannanas were good, but not that good (although they were specifically chosen to be from the labor friendly bannana supplier possible, a thoughtful touch).
Atencio is an old hand state party official, while the other two have lower profile, but substantial political experience. Her defeat is something of a vote of no confidence in the party leadership, whom one might expect to be the most respected and talented of the people who are not elected officials in the party.
Commentator Lynn Pressnall states:
I participated in the vote count for SD32. There were 221 ballots cast.
129 Mello
85 Coleman
7 ballots not counted
I didn’t write down the reason for each of the 7 uncounted but the ballots were kept by the assembly so if someone wanted to check they could determine the reason for each. My recollection is 3 were unsigned and 4 named Romer. But again, I can’t say for certain.
Romer and Mello are young, dynamic, rising stars in the party. Fran Coleman is an incumbent member of the state house.
Chris Romer is also seeking the SD 32 seat, but plans to petition onto the ballot rather than using the caucus process. Both Jennifer Mello and Fran Coleman made a strong enough showing to earn a place on the August primary ballot. The primary itself will be something of a toss up. It will be even more dicey if Romer makes it onto the ballot, as I suspect that he will. Three way races are always unpredictable. Insiders that I have encountered have been much more upbeat about Romer and Mello than Coleman (and to be perfectly honest, more of favored Romer than Mello from within that group -- I lack a strong opinion on any candidate in the face), but Coleman has far greater name recognition, which matters more in the primary, where voters have less information, than in the assembly, where candidates make speeches moments before the vote.
So, that is the political news from this weekend in Denver.
07 April 2006
More Immigration Injustice
The Bush Administration refuses to honor the decisions of even its own immigration judges, who have a long track record of favoring the government over immigrants. In this case, Sri Lankan man Nadarajah, whom immigration judges have held qualifies for refugee status and granted a bond pending appeal, was not followed as he sat in jail for four and a half years, mostly based on anonymous police reports from Canada, not backed by any live testimony. Noting a 2001 U.S. Supreme Court case on point, a swift unanimous ruling the 9th Circuit Court of Appeals called:
It isn't a surprise. Can't someone, someday, teach the Bush Administration that the rule of law means something?
Nadarajah's jailing illegal and unreasonable and said the government's arguments were "patently absurd," "implausible" and "baffling."
It isn't a surprise. Can't someone, someday, teach the Bush Administration that the rule of law means something?
The Gnostic Gospels and Liberal Christianity
The translation of an authentic copy of the Gospel of Judas, one of many Gnostic writings decried as heresies in the part of the early Christian church that became the Roman Catholic Church, won't mean much to the Christian right theologically.
It common place for members of the American Christian right to proclaim that the King James Bible is the only divinely inspired Biblical text, that all others are in error, and that the Bible should be viewed literally. They wholeheartedly agree with people like Irenaeus, the bishop of Lyons, France, who condemned the Gospel of Judas in his polemic "Against Heresies," in A.D. 180. This is a bit of a lark, as they Christian right generally condemns the Catholic tradition seeking instead to return to the "early Christian Church." Yet, that tradition profoundly shaped the text that eventually evolved into the King James Version of the Bible that the Christian right uses.
For folks like myself, non-Christians with a general interest in ancient history, the Gospel of Judas is interesting, but in the same way as a new Greek mosaic or a discovery of the Aztec recipe for berry beer. It can be fascinating, but doesn't change our worldview.
The people most likely to be influenced by the Gospel of Judas and similar discoveries are liberal and mainline Christians, who have for centuries acknowledged the human historical roots of the texts that they turn to for spiritual guidance, and people already on the brink of breaking away from the conservative branch of Christianity, for whom this might be the straw that breaks the camel's back of their belief in Biblical inerrancy.
As the New York Times, picked up by the Denver Post, which is linked above, describes the matter:
The Times quote above isn't quite right. Serious, conscious, historical-literary criticism of the Bible dates to the early 19th century in mainline Protestantism, and scholars of ancient history have been away of the diversity of early Christian since the Renaissance, as many classic texts were again made available to Western scholars, often via Islamic and Byzantine scholars with whom Italian merchants traded. The "Second Great Awakening" that gave birth in the early 1800s to the distinctly American Christian movement that has become the Christian right was, to a significant extent, intellectually a reaction to the crisis created by the emerging historical-literary criticism.
While many of the important Gnostic writings were discovered before World War II, it wasn't until the 1960s that these discoveries have had a notable theological impact in American Christianity. Leonard Bernstein's "Mass", which premiered in 1971, saw a crisis of faith as the primary religious issue of that generation. This crisis of faith was driven, in part, by a recognition that the Bible and creeds that formed a foundation for mainline Christians were crafted by a process less pure than most lay people had realized before then.
But, the Times is correct in noting that this understanding is, in the current generation, trickling down to a much larger pool of people, as the people who internalized this understanding in the early 1960s and 1970s have shared their revelations with a much broader audience as they have moved into positions of instruction and authority in the church. Also, the extremism of the Christian right, which has grown dramatically in the past generation or so, in clinging to Biblical literalism to the point of absurdity, has caused the mainstream of Christianity and its liberal wings to react by embracing their distinction from them on this point.
And, while the discoveries have been deeply troubling for many believers, they have been liberating for others. I am unaware of any major schismatic movement within American Christianity to embrace a Gnostic theology as a whole. But, feminist movements within mainline and liberal Christianity have looked to the Gnostic gospels to refute patriarchal claims rooted in more traditional Christian texts about the role of men and women in the early Christian community, among other issues. The Gnostic gospels have largely been used to counterbalance the Epistles of Paul. Their proponents have used them to argue that Paul's views were not monolithic or as authoritative as they seem when they provide the primary window into early Christian practice. They form an important basis for a more inclusive religious worldview which is less strident in its defense of any specific view of what God commands as they acknowledge a diversity of opinions dating to the earliest days of the church.
Liberal and mainline Christianity, including Catholicism, is in a crisis right now. In both the United States and Latin America, these parts of the faith are losing ground to more evangelically oriented versions of the Christian faith on one hand, and the secularism on the other. Pope Benedict XVI sees the secularism which has swept Europe, and more invisibly swept that part of the American Catholic church without recent immigrant ties, as the single greatest challenge facing the Catholic Church. Cardinal Ratzinger, who recently became Pope Benedict XVI, called it "A dictatorship of relativism" shortly before the conclave that elevated him to Pope, and said a few weeks earlier that:
Unlike Catholicism, liberal protestant Christianity doesn't have the inclination or the tools to enforce the orthodoxy necessary to banish an emerging historical understanding of Christianity's historical roots from theological consideration, even if this may engendered. They must change and find a way to embrace these developments or die as a religious movement.
Most mainline Christian denominations have had a deer in the headlights response. The have been paralyzed and internally torn in the face of new challenges. They National Council of Churches, their formal coalition, has seemed persistently impotent in recent years, despite the fact that, on paper they represent more people than the political 800 pound gorilla, the AARP (American Association of Retired Persons), and have a more deeply connected membership.
The United Church of Christ, perhaps the only truly Christian denomination to have taken the crisis facing it by the horns and formulated a response, has firmly decided to cross the line from being a mainline denomination to being a liberal one, and has set out to buy mass market advertising to evangelize by selling the Church as inclusive, and by implication attack other denominations for the lack of inclusivity. Liberal Christianity's fate large lies in the hands of the UCC, and those who choose to imitate its efforts, either within existing denominations, or as new movements.
Liberal Christians have been aware of this for a long time, but the movement is just starting to make headway, perhaps as a consequence of the way the blogosphere has allowed dispersed but likeminded individuals to coordinate their efforts. While liberal Christians have been grumbling about the need to take action for decades, until those people were able to echo among themselves on the Internet, no one (with rare exceptions) seems to have the courage to believe that anyone would follow if they tried to act. Sites like Street Prophets (a spin off of political blog heavy weight Daily Kos), has started to informally organize the community of liberal Christian grumblers.
For them, the Gospel of Judas is a major ingredient added to an already simmering intellectual stew. It would suggest a movement in the direction of a religious approach that is not only inclusive in the people to whom it wishes to spread the Christian message, but also in the sources to which its leaders turn in presenting that message. The mere fact that writers have conflicting accounts in Gospel and Christian texts written many decades after the fact doesn't necessarily imply that Jesus is not in divinely connected (although the nature of that connection becomes more ambiguous). Indeed, every new document that emerges strengthens what they do have in common, the notion that some major religious event close to the time assigned it by historical tradition, perhaps a historical Jesus, did have broad impact in the few hundred years that proceeded Constantine's establishment of Christianity as the Roman Empire's state religion in the 300s. What a liberal Christian movement loses in theological certainty, it gains in the ability of its followers to keep the faith in the face of emerging historical discoveries.
Often, major theological movements are associated with a convention, or a journal, or a new Bible translation. One could imagine a new liberal Christian movement drawing vigor from a new edition of the Bible that includes not just the canonical books of the Protestant Bible, supplemented perhaps by the Catholic apocryphal texts, but also the Gnostic Gospels, the secular historical texts relevant to the question of the existence of a historical Jesus and the experience of the early Christian church, a format that shows the discrepancies of source and interpretation present in the source texts that gave rise to modern translations -- rather than resolving the issues, historical religious documents (such as liturgies, creeds and the rules of religious orders) and perhaps even lengthy annotations placing those documents in context.
Whether it will be enough to fuel it on its way to reaching a boil and creating a mass movement, and what that mass movement will look like, is something we will have to wait to determine.
It common place for members of the American Christian right to proclaim that the King James Bible is the only divinely inspired Biblical text, that all others are in error, and that the Bible should be viewed literally. They wholeheartedly agree with people like Irenaeus, the bishop of Lyons, France, who condemned the Gospel of Judas in his polemic "Against Heresies," in A.D. 180. This is a bit of a lark, as they Christian right generally condemns the Catholic tradition seeking instead to return to the "early Christian Church." Yet, that tradition profoundly shaped the text that eventually evolved into the King James Version of the Bible that the Christian right uses.
For folks like myself, non-Christians with a general interest in ancient history, the Gospel of Judas is interesting, but in the same way as a new Greek mosaic or a discovery of the Aztec recipe for berry beer. It can be fascinating, but doesn't change our worldview.
The people most likely to be influenced by the Gospel of Judas and similar discoveries are liberal and mainline Christians, who have for centuries acknowledged the human historical roots of the texts that they turn to for spiritual guidance, and people already on the brink of breaking away from the conservative branch of Christianity, for whom this might be the straw that breaks the camel's back of their belief in Biblical inerrancy.
As the New York Times, picked up by the Denver Post, which is linked above, describes the matter:
The Gospel of Judas is one of many texts discovered in the past 65 years, including gospels of Thomas, Mary Magdalene and Philip, believed to be written by Gnostics.
The Gnostics' beliefs were often viewed by bishops and early church leaders as unorthodox, and they were frequently denounced as heretics.
The discoveries of Gnostic texts have shaken up Biblical scholarship by revealing the diversity of beliefs and practices among early followers of Jesus.
As the findings have trickled down to churches and universities, they have produced a new generation of Christians who now regard the Bible not as the literal word of God but as a product of historical and political forces that determined which texts should be included in the canon and which edited out.
For that reason, the discoveries have proved deeply troubling for many believers.
The Times quote above isn't quite right. Serious, conscious, historical-literary criticism of the Bible dates to the early 19th century in mainline Protestantism, and scholars of ancient history have been away of the diversity of early Christian since the Renaissance, as many classic texts were again made available to Western scholars, often via Islamic and Byzantine scholars with whom Italian merchants traded. The "Second Great Awakening" that gave birth in the early 1800s to the distinctly American Christian movement that has become the Christian right was, to a significant extent, intellectually a reaction to the crisis created by the emerging historical-literary criticism.
While many of the important Gnostic writings were discovered before World War II, it wasn't until the 1960s that these discoveries have had a notable theological impact in American Christianity. Leonard Bernstein's "Mass", which premiered in 1971, saw a crisis of faith as the primary religious issue of that generation. This crisis of faith was driven, in part, by a recognition that the Bible and creeds that formed a foundation for mainline Christians were crafted by a process less pure than most lay people had realized before then.
But, the Times is correct in noting that this understanding is, in the current generation, trickling down to a much larger pool of people, as the people who internalized this understanding in the early 1960s and 1970s have shared their revelations with a much broader audience as they have moved into positions of instruction and authority in the church. Also, the extremism of the Christian right, which has grown dramatically in the past generation or so, in clinging to Biblical literalism to the point of absurdity, has caused the mainstream of Christianity and its liberal wings to react by embracing their distinction from them on this point.
And, while the discoveries have been deeply troubling for many believers, they have been liberating for others. I am unaware of any major schismatic movement within American Christianity to embrace a Gnostic theology as a whole. But, feminist movements within mainline and liberal Christianity have looked to the Gnostic gospels to refute patriarchal claims rooted in more traditional Christian texts about the role of men and women in the early Christian community, among other issues. The Gnostic gospels have largely been used to counterbalance the Epistles of Paul. Their proponents have used them to argue that Paul's views were not monolithic or as authoritative as they seem when they provide the primary window into early Christian practice. They form an important basis for a more inclusive religious worldview which is less strident in its defense of any specific view of what God commands as they acknowledge a diversity of opinions dating to the earliest days of the church.
Liberal and mainline Christianity, including Catholicism, is in a crisis right now. In both the United States and Latin America, these parts of the faith are losing ground to more evangelically oriented versions of the Christian faith on one hand, and the secularism on the other. Pope Benedict XVI sees the secularism which has swept Europe, and more invisibly swept that part of the American Catholic church without recent immigrant ties, as the single greatest challenge facing the Catholic Church. Cardinal Ratzinger, who recently became Pope Benedict XVI, called it "A dictatorship of relativism" shortly before the conclave that elevated him to Pope, and said a few weeks earlier that:
The real culture clash in today’s world is not between different religious cultures, but between those who seek a radical emancipation of man from God and the major religions.
Unlike Catholicism, liberal protestant Christianity doesn't have the inclination or the tools to enforce the orthodoxy necessary to banish an emerging historical understanding of Christianity's historical roots from theological consideration, even if this may engendered. They must change and find a way to embrace these developments or die as a religious movement.
Most mainline Christian denominations have had a deer in the headlights response. The have been paralyzed and internally torn in the face of new challenges. They National Council of Churches, their formal coalition, has seemed persistently impotent in recent years, despite the fact that, on paper they represent more people than the political 800 pound gorilla, the AARP (American Association of Retired Persons), and have a more deeply connected membership.
The United Church of Christ, perhaps the only truly Christian denomination to have taken the crisis facing it by the horns and formulated a response, has firmly decided to cross the line from being a mainline denomination to being a liberal one, and has set out to buy mass market advertising to evangelize by selling the Church as inclusive, and by implication attack other denominations for the lack of inclusivity. Liberal Christianity's fate large lies in the hands of the UCC, and those who choose to imitate its efforts, either within existing denominations, or as new movements.
Liberal Christians have been aware of this for a long time, but the movement is just starting to make headway, perhaps as a consequence of the way the blogosphere has allowed dispersed but likeminded individuals to coordinate their efforts. While liberal Christians have been grumbling about the need to take action for decades, until those people were able to echo among themselves on the Internet, no one (with rare exceptions) seems to have the courage to believe that anyone would follow if they tried to act. Sites like Street Prophets (a spin off of political blog heavy weight Daily Kos), has started to informally organize the community of liberal Christian grumblers.
For them, the Gospel of Judas is a major ingredient added to an already simmering intellectual stew. It would suggest a movement in the direction of a religious approach that is not only inclusive in the people to whom it wishes to spread the Christian message, but also in the sources to which its leaders turn in presenting that message. The mere fact that writers have conflicting accounts in Gospel and Christian texts written many decades after the fact doesn't necessarily imply that Jesus is not in divinely connected (although the nature of that connection becomes more ambiguous). Indeed, every new document that emerges strengthens what they do have in common, the notion that some major religious event close to the time assigned it by historical tradition, perhaps a historical Jesus, did have broad impact in the few hundred years that proceeded Constantine's establishment of Christianity as the Roman Empire's state religion in the 300s. What a liberal Christian movement loses in theological certainty, it gains in the ability of its followers to keep the faith in the face of emerging historical discoveries.
Often, major theological movements are associated with a convention, or a journal, or a new Bible translation. One could imagine a new liberal Christian movement drawing vigor from a new edition of the Bible that includes not just the canonical books of the Protestant Bible, supplemented perhaps by the Catholic apocryphal texts, but also the Gnostic Gospels, the secular historical texts relevant to the question of the existence of a historical Jesus and the experience of the early Christian church, a format that shows the discrepancies of source and interpretation present in the source texts that gave rise to modern translations -- rather than resolving the issues, historical religious documents (such as liturgies, creeds and the rules of religious orders) and perhaps even lengthy annotations placing those documents in context.
Whether it will be enough to fuel it on its way to reaching a boil and creating a mass movement, and what that mass movement will look like, is something we will have to wait to determine.
06 April 2006
Private Justice
The case of BFN v. Adair, decided today in the Colorado Court of Appeals, is legally unexceptional. A collection of all the cases which, like this one, have held that parties in a contract with an arbitration clause can't have the merits of their case decided by a court would probably fill more pages than the Internal Revenue Code and all of the regulations that go with it. But, the window that opinion provides into the shadow world of private justice that the case involves is notable.
BFN hired Adair to build to a couple of large apartment complexes in Colorado. BFN was unhappy with some of the charges and/or work done, and withheld payment from Adair. We don't know exactly how big the projects were, or how much was withheld, but we do know that Adair was awarded $1.3 million by arbitrators out of the amount withheld by BFN which was presumably less than the total amount that BFN withheld. It is safe to guess that the total deal involved, at least, tens of millions, if not hundreds of millions of dollars. In short, this was a big time construction deal, between two large, sophisticated companies in the construction industry.
Notably, despite the scale of the job and sophistication of the parties, only a small part of the contract was actually individually drafted for this job. Much of the contract, probably the bulk of it, consisted of boilerplate standard terms incorporated by reference, prepared by the American Institute of Architects, which in turn referenced boilerplate rules of arbitration procedure of the American Arbitration Association. This is not unusual. Commercial agreements are usually done with standard forms, a fact which has attracted a great deal of attention from academics who study contract law.
The "dickered" agreement tailored to the specific circumstances of a transaction is the marginal exception in our economy, rather than the norm, despite the fact that the notion of a dickered individually tailored contract is the paradigm upon which Anglo-American contract law is based, even in big dollar transactions between sophisticated parties whom one often thinks of as the typical place where individually negotiated contracts would be used. (European commercial practice is for statutes to supply many of the terms found in boilerplate contract terms in Anglo-American law, resulting in far shorter contracts, often prepared by legally trained non-lawyers employed by the companies involved in their legal or contract departments or by legally trained independent notaries). In practice, dickered custom agreements are far more common in non-commercial contracts between two one time players, often without counsel, than they are in the ordinary deal by regular participants in a particular industry.
One of the main benefits of choosing arbitration (i.e. having a private third party rather than a court resolve disputed over contract), generally, is that your case is heard by decision makers who have time to listen to the evidence promptly on a schedule that suits the parties. This is certainly in evidence in this case. The case went from an initial request for arbitration to a preliminary judgment on the merits (with jurisdiction retained to supervise how their judgment was carried out) in just seven months, yet the arbitrators found time to take nineteen days of testimony. In contrast, it would be years before an ordinary court would have time to hold nineteen days of trial in a case like this one, and when it did, it would be unlikely to be able to break up the hearing into multiple piecemeal parts, as the arbitrators appear to have done in this case.
The arbitration also put the decision into the hands of more sophisticated decision makers than the court system would have in a case like this one. It would not be at all unusual for a case like this to be tried to a judge who had never handled a construction case in private practice in his entire life (quite likely the judge's background would have been in criminal law), and a jury of six ordinary people with no sense outside the trial of what was involved in a multi-million dollar construction project. In contrast, the arbitrators almost certainly had considerable specific experience in dealing with construction contracts on large projects, and hence would have been familiar with construction industry norms, how these projects are usually handled in real life, and what facts the participants would have considered important at the time.
This, of course, didn't come cheap. I suspect that it cost the parties something on the order of $100,000 give or take a factor of two, and probably didn't save either party a huge amount of attorneys' fees, although it probably did compress those attorneys' fees into a shorter amount of time.
This case is typical of arbitration cases. One of the biggest downsides of arbitration is that it is almost never possible to appeal the arbitrator's decision, even if they a grossly incorrect on the law or the facts. As a result, arbitration is usually inserted in a contract only where expediency is more important that getting precisely the right result in each particular case. People in one time transactions who can't afford to lose if they are in the right almost never choose arbitration. (Colorado's newly revised rule of civil procedure 122, providing for private judges who are in almost all respects but availability the exact equivalent of a judge on the public payroll are designed to offer the scheduling benefits of arbitration without the other downsides that have so far largely prevented parties from agreeing to it after the fact.) But, two big companies who engage in numerous multi-million dollar deals can afford to take that kind of risk. So, can large employers with unions with hundreds of thousands of employees, another situation where arbitration agreements are common.
When you see arbitration clauses in consumer contacts, they are almost always found in boilerplate contracts of adhesion drafted by repeat players who don't really care how individual cases come out, so long as the results, on average, can't threaten to cripple the merchant. In these cases, one of the other important factors is that consumers may be discouraged from taking action at all. A consumer faced with an arbitration clause knows that he or she will be before decision makers chosen in a process established by the merchant (who will lose the merchant's arbitration business if they consistently rule against the merchant, regardless of whether that is or is not the right decision), that he or she will forego legal rights that they had in the ordinary courts, and that the high costs of an arbitrator may end up being paid by him or her if the merchant wins. Consumers agree to these terms only because they have no choice and recognize that the vast majority of the time that there will not be a dispute.
The private justice of arbitration has proven far less popular than most people suspected that it would when it was first catching on. Parties to a real dispute that has already arisen very rarely agree to it. The expense involved and need for court involvement to enforce an award once an arbitrator makes one (a key factor in consumer cases where collectability is often a bigger issue than liability), has discouraged most businesses engaged in small, simple transactions that are handled satisfactorily in limited jurisdiction courts from choosing it. For example, residential landlords and businesses that make small unsecured loans, very rarely include arbitration clauses, even though they could easily do so, because the court process, which often ends in a prompt default judgment or agreed settlement or short and prompt trial, works well enough and creates judgments that are immediately enforceable against third parties. Other businesses have declined to use arbitration clauses as a matter of business marketing because consumers rightly view them as unfair to them, and the downside of not having an arbitration clause for the business is often modest. However, the low budget approach of the inexpensive publicly operated limited jurisdiction courts is unattractive in a case where big dollar amounts are at risk.
The availability of arbitration is one of the main reasons that there is no "commercial law reform" movement out there to rival the "tort reform movement" and that the demand for courts designed to serve commercial cases has been subdued. Tort cases often involve people who had no relationship with each other prior to an accident happening, and hence can't be governed by an arbitration clause entered into in advance. Thus, people involved in those cases have no choice but to make the public court system work for them. In contrast, in contract cases, people who are unhappy with the system often can systemically opt out of the public court system, so they don't need to reform it. However, if we do ever want to substantially reform the courts so that parties in the kinds of cases that go to arbitration now don't choose to opt out of the system, arbitration shows us what features that system needs to have (particularly prompt rulings reached by decision makers who have ample judicial resources to actually hear evidence).
BFN hired Adair to build to a couple of large apartment complexes in Colorado. BFN was unhappy with some of the charges and/or work done, and withheld payment from Adair. We don't know exactly how big the projects were, or how much was withheld, but we do know that Adair was awarded $1.3 million by arbitrators out of the amount withheld by BFN which was presumably less than the total amount that BFN withheld. It is safe to guess that the total deal involved, at least, tens of millions, if not hundreds of millions of dollars. In short, this was a big time construction deal, between two large, sophisticated companies in the construction industry.
Notably, despite the scale of the job and sophistication of the parties, only a small part of the contract was actually individually drafted for this job. Much of the contract, probably the bulk of it, consisted of boilerplate standard terms incorporated by reference, prepared by the American Institute of Architects, which in turn referenced boilerplate rules of arbitration procedure of the American Arbitration Association. This is not unusual. Commercial agreements are usually done with standard forms, a fact which has attracted a great deal of attention from academics who study contract law.
The "dickered" agreement tailored to the specific circumstances of a transaction is the marginal exception in our economy, rather than the norm, despite the fact that the notion of a dickered individually tailored contract is the paradigm upon which Anglo-American contract law is based, even in big dollar transactions between sophisticated parties whom one often thinks of as the typical place where individually negotiated contracts would be used. (European commercial practice is for statutes to supply many of the terms found in boilerplate contract terms in Anglo-American law, resulting in far shorter contracts, often prepared by legally trained non-lawyers employed by the companies involved in their legal or contract departments or by legally trained independent notaries). In practice, dickered custom agreements are far more common in non-commercial contracts between two one time players, often without counsel, than they are in the ordinary deal by regular participants in a particular industry.
One of the main benefits of choosing arbitration (i.e. having a private third party rather than a court resolve disputed over contract), generally, is that your case is heard by decision makers who have time to listen to the evidence promptly on a schedule that suits the parties. This is certainly in evidence in this case. The case went from an initial request for arbitration to a preliminary judgment on the merits (with jurisdiction retained to supervise how their judgment was carried out) in just seven months, yet the arbitrators found time to take nineteen days of testimony. In contrast, it would be years before an ordinary court would have time to hold nineteen days of trial in a case like this one, and when it did, it would be unlikely to be able to break up the hearing into multiple piecemeal parts, as the arbitrators appear to have done in this case.
The arbitration also put the decision into the hands of more sophisticated decision makers than the court system would have in a case like this one. It would not be at all unusual for a case like this to be tried to a judge who had never handled a construction case in private practice in his entire life (quite likely the judge's background would have been in criminal law), and a jury of six ordinary people with no sense outside the trial of what was involved in a multi-million dollar construction project. In contrast, the arbitrators almost certainly had considerable specific experience in dealing with construction contracts on large projects, and hence would have been familiar with construction industry norms, how these projects are usually handled in real life, and what facts the participants would have considered important at the time.
This, of course, didn't come cheap. I suspect that it cost the parties something on the order of $100,000 give or take a factor of two, and probably didn't save either party a huge amount of attorneys' fees, although it probably did compress those attorneys' fees into a shorter amount of time.
This case is typical of arbitration cases. One of the biggest downsides of arbitration is that it is almost never possible to appeal the arbitrator's decision, even if they a grossly incorrect on the law or the facts. As a result, arbitration is usually inserted in a contract only where expediency is more important that getting precisely the right result in each particular case. People in one time transactions who can't afford to lose if they are in the right almost never choose arbitration. (Colorado's newly revised rule of civil procedure 122, providing for private judges who are in almost all respects but availability the exact equivalent of a judge on the public payroll are designed to offer the scheduling benefits of arbitration without the other downsides that have so far largely prevented parties from agreeing to it after the fact.) But, two big companies who engage in numerous multi-million dollar deals can afford to take that kind of risk. So, can large employers with unions with hundreds of thousands of employees, another situation where arbitration agreements are common.
When you see arbitration clauses in consumer contacts, they are almost always found in boilerplate contracts of adhesion drafted by repeat players who don't really care how individual cases come out, so long as the results, on average, can't threaten to cripple the merchant. In these cases, one of the other important factors is that consumers may be discouraged from taking action at all. A consumer faced with an arbitration clause knows that he or she will be before decision makers chosen in a process established by the merchant (who will lose the merchant's arbitration business if they consistently rule against the merchant, regardless of whether that is or is not the right decision), that he or she will forego legal rights that they had in the ordinary courts, and that the high costs of an arbitrator may end up being paid by him or her if the merchant wins. Consumers agree to these terms only because they have no choice and recognize that the vast majority of the time that there will not be a dispute.
The private justice of arbitration has proven far less popular than most people suspected that it would when it was first catching on. Parties to a real dispute that has already arisen very rarely agree to it. The expense involved and need for court involvement to enforce an award once an arbitrator makes one (a key factor in consumer cases where collectability is often a bigger issue than liability), has discouraged most businesses engaged in small, simple transactions that are handled satisfactorily in limited jurisdiction courts from choosing it. For example, residential landlords and businesses that make small unsecured loans, very rarely include arbitration clauses, even though they could easily do so, because the court process, which often ends in a prompt default judgment or agreed settlement or short and prompt trial, works well enough and creates judgments that are immediately enforceable against third parties. Other businesses have declined to use arbitration clauses as a matter of business marketing because consumers rightly view them as unfair to them, and the downside of not having an arbitration clause for the business is often modest. However, the low budget approach of the inexpensive publicly operated limited jurisdiction courts is unattractive in a case where big dollar amounts are at risk.
The availability of arbitration is one of the main reasons that there is no "commercial law reform" movement out there to rival the "tort reform movement" and that the demand for courts designed to serve commercial cases has been subdued. Tort cases often involve people who had no relationship with each other prior to an accident happening, and hence can't be governed by an arbitration clause entered into in advance. Thus, people involved in those cases have no choice but to make the public court system work for them. In contrast, in contract cases, people who are unhappy with the system often can systemically opt out of the public court system, so they don't need to reform it. However, if we do ever want to substantially reform the courts so that parties in the kinds of cases that go to arbitration now don't choose to opt out of the system, arbitration shows us what features that system needs to have (particularly prompt rulings reached by decision makers who have ample judicial resources to actually hear evidence).
05 April 2006
Is General Motors upside down?
What if General Motor's positive net worth is simply a product of an accounting flaw?
One way of interpreting the liability-equity side of a balance sheet, is as a list of people who have claims on the assets of the company. If pension liabilities are understated to the point that shareholder equity is negative, then bondholders and employees are the true financial owner's of the company, and shareholders don't really deserve to have a say in the company's affairs any more. Indeed, in Colorado, there is some case law holding that when a corporation gets upside down, that the board of directors owes fiduciary duties to the creditors, rather than the shareholders, at that point.
Of course, $43 million is just barely upside down in a huge publicly held company like General Motors, which has about 835 million shares outstanding. The per share deficit would be about a nickle a share (indicating that unlimited liability would hardly crush most people), and there is always some possibility that the company will turn itself around. But, it has a market capitalization of about $12.5 billion (quite close to its balance sheet value which is encumbered with historical costs), and if shareholder's equity is really even a little negative, General Motors should be a penny stock.
New accounting proposals, not yet in place, would require companies to report their pension deficits. With the GMAC sale, the new accounting rules would leave GM with a negative shareholders' equity of $43 million (instead of the positive $14.6 billion under existing rules).
One way of interpreting the liability-equity side of a balance sheet, is as a list of people who have claims on the assets of the company. If pension liabilities are understated to the point that shareholder equity is negative, then bondholders and employees are the true financial owner's of the company, and shareholders don't really deserve to have a say in the company's affairs any more. Indeed, in Colorado, there is some case law holding that when a corporation gets upside down, that the board of directors owes fiduciary duties to the creditors, rather than the shareholders, at that point.
Of course, $43 million is just barely upside down in a huge publicly held company like General Motors, which has about 835 million shares outstanding. The per share deficit would be about a nickle a share (indicating that unlimited liability would hardly crush most people), and there is always some possibility that the company will turn itself around. But, it has a market capitalization of about $12.5 billion (quite close to its balance sheet value which is encumbered with historical costs), and if shareholder's equity is really even a little negative, General Motors should be a penny stock.
Form Over Substance In Kentucky
Usually, the statute of frauds requires certain contracts to be in writing. There are a number of exceptions to the rule. One is for partially performed contracts. Another is when the opposing party admits in his pleadings a term of the contract. The reason for excluding testimony about oral argeements supported by nothing but the statement, of course, is to prevent someone based solely on the biased testimony of someone who was a party to the contract and perhaps some of their friends regarding what was said. But, this rationale is problematic when the party who is alleged to have entered into the agreement says so on tape.
It will be interesting to see what happens on appeal. The fact that this case got to trial means that the contract must have been denied in the Answer. Perhaps, this is an appropriate time to invoke a very serious sanction under Rule 11 or as a discovery sanction in this case.
In a secretly recorded June 2001 conversation played at Sawyer's trial, Mills agreed to pay $1 million, plus $65,000 for a new car, over a series of payments lasting 10 years. . . . Last week, Judge James D. Ishmael said that the oral agreement is not legally enforceable because it was not in writing. His opinion, which dismissed the lawsuit, cited the Statute of Frauds, originally drafted in 1677 in England to prevent bogus oral contracts.
Sawyer's attorney, Michael J. Cox, disagrees. He is appealing the ruling.
Cox says that because Mills was capable of paying the bonus -- Mills allegedly received at least $22 million in attorneys fees, according to briefs filed by Sawyer's attorneys -- the oral agreement is enforceable.
More importantly, Sawyer fulfilled her part of the deal, Cox said.
It will be interesting to see what happens on appeal. The fact that this case got to trial means that the contract must have been denied in the Answer. Perhaps, this is an appropriate time to invoke a very serious sanction under Rule 11 or as a discovery sanction in this case.
04 April 2006
The RTD Strike and the Constitution
Colorado's regional transportation district has half of its employees or so on strike. Obviously, this disrupts bus and light rail service. Far less obviously, there are all sorts of other govermental employees who are not on strike.
The doctors, nurses, adminstrators and orderlies at Denver Health and the Veteran's Administration Hospitals are carrying on business as usual. The Denver Public Schools are open. The garbage trucks are still making their rounds for the city. The parking enforcement division of the City and County of Denver is still operating with its regular efficiency. The regionally funded museums and cultural facilities are open for business, and no concerts at the regionally funded stadium district have been cancelled. Denver's Auraria campus is still full of students, and students are still going to class in Boulder at CU. The Post Offices are open, and Amtrack is still delivering people to Nebraska at a massive loss. The regional entity Denver Water is still keeping our taps running with clean water, and the regional entity that runs the sewage system is not ignoring clogged mainline sewers.
Most of the time, we bemoan how fragmented our government is, to the point where most people are only dimly aware, if aware at all, what governmental entities serve them, and what divisions of those governments are tied to what elected officials and taxes. But, when an institutionally paralyzing event occurs, like a strike involving much of a governmental entity's work force, or a federal government shutdown resulting from the failure of Congress to pass all of the appropriations bills necessary to keep things running occurs, the benefits of this fragmentation are obvious, if often overlooked.
If we had a more consolidated system of government, where, for example, RTD and the Denver Public Schools were all in the same governmental entity, it is very likely that the labor issues impacting RTD would produce a wider labor action involving the entire city. Precedents set in negotiations with city bus drivers would be certain to impact negotiations with garbage truck and school bus drivers. Police, who are now something of an uninvolved party during an RTD strike, as they maintain boundaries between protesting strikers and RTD management, might have quite a different measure of distance if they were direct employees of the managment against which RTD drivers were striking.
If there were a single regional government handling all of the regional government functions in the metropolitan area, water and sewage system operators might take a much greater interest in the fate of RTD drivers, and the talks might directly impact, for example, museum delivery truck drivers.
The benefits, of course, come with powerful downsides. A government that many voters don't know exist, and fewer voters have the ability to meaningfully police even at election time, simply because they don't know the candidates and don't know what the incumbents have been doing, are not going to be as responsive, and hte more entities there are, the harder it is for voters to keep track of all the races. Decisions in downticket races are often not made until a few days before a voter goes to the polls and often based on extremely limited information. The fragmentation of government budgets among many entities also makes it almost certain that some governmental functions will be overfunded, while others are underfunded, for reasons that have little or no relationship to the relative urgency of that entity's need for our tax dollars.
If voters end up approving a tax increase for more than turns out to be needed to improve the zoo and art museum, the funds can't be shifted to some line item of spending that turned out to be insufficient, perhaps bridge repair or ER staffing. There is no mechanism to weigh the respective requests for funds in anything approaching a fine tuned manner. Voters tend to focus on gross factors -- would a new art museum be nice, or are my taxes burdensome, rather than the details of precisely how much is requested in a ballot issue. A city council, or state legislature, in contrast, routinely makes those kinds of choices, deciding perhaps, whether to upgrade old community college laboratories or the county fairground's electrical system in the same capital budget, or shifting dollars from enforcement of traffic violations to watering parks.
Thus, as we think about the little "c" constitution, that is, the way government is organized (far less of which is set out in a single comprehensive document that most people realize), it is important to balance the robust ability of fragmented governments to carry on, with the unresponsiveness and misallocation of resources that inevitably flows from such an arrangement.
The doctors, nurses, adminstrators and orderlies at Denver Health and the Veteran's Administration Hospitals are carrying on business as usual. The Denver Public Schools are open. The garbage trucks are still making their rounds for the city. The parking enforcement division of the City and County of Denver is still operating with its regular efficiency. The regionally funded museums and cultural facilities are open for business, and no concerts at the regionally funded stadium district have been cancelled. Denver's Auraria campus is still full of students, and students are still going to class in Boulder at CU. The Post Offices are open, and Amtrack is still delivering people to Nebraska at a massive loss. The regional entity Denver Water is still keeping our taps running with clean water, and the regional entity that runs the sewage system is not ignoring clogged mainline sewers.
Most of the time, we bemoan how fragmented our government is, to the point where most people are only dimly aware, if aware at all, what governmental entities serve them, and what divisions of those governments are tied to what elected officials and taxes. But, when an institutionally paralyzing event occurs, like a strike involving much of a governmental entity's work force, or a federal government shutdown resulting from the failure of Congress to pass all of the appropriations bills necessary to keep things running occurs, the benefits of this fragmentation are obvious, if often overlooked.
If we had a more consolidated system of government, where, for example, RTD and the Denver Public Schools were all in the same governmental entity, it is very likely that the labor issues impacting RTD would produce a wider labor action involving the entire city. Precedents set in negotiations with city bus drivers would be certain to impact negotiations with garbage truck and school bus drivers. Police, who are now something of an uninvolved party during an RTD strike, as they maintain boundaries between protesting strikers and RTD management, might have quite a different measure of distance if they were direct employees of the managment against which RTD drivers were striking.
If there were a single regional government handling all of the regional government functions in the metropolitan area, water and sewage system operators might take a much greater interest in the fate of RTD drivers, and the talks might directly impact, for example, museum delivery truck drivers.
The benefits, of course, come with powerful downsides. A government that many voters don't know exist, and fewer voters have the ability to meaningfully police even at election time, simply because they don't know the candidates and don't know what the incumbents have been doing, are not going to be as responsive, and hte more entities there are, the harder it is for voters to keep track of all the races. Decisions in downticket races are often not made until a few days before a voter goes to the polls and often based on extremely limited information. The fragmentation of government budgets among many entities also makes it almost certain that some governmental functions will be overfunded, while others are underfunded, for reasons that have little or no relationship to the relative urgency of that entity's need for our tax dollars.
If voters end up approving a tax increase for more than turns out to be needed to improve the zoo and art museum, the funds can't be shifted to some line item of spending that turned out to be insufficient, perhaps bridge repair or ER staffing. There is no mechanism to weigh the respective requests for funds in anything approaching a fine tuned manner. Voters tend to focus on gross factors -- would a new art museum be nice, or are my taxes burdensome, rather than the details of precisely how much is requested in a ballot issue. A city council, or state legislature, in contrast, routinely makes those kinds of choices, deciding perhaps, whether to upgrade old community college laboratories or the county fairground's electrical system in the same capital budget, or shifting dollars from enforcement of traffic violations to watering parks.
Thus, as we think about the little "c" constitution, that is, the way government is organized (far less of which is set out in a single comprehensive document that most people realize), it is important to balance the robust ability of fragmented governments to carry on, with the unresponsiveness and misallocation of resources that inevitably flows from such an arrangement.
More On Tax Cheats
Who cheats on their taxes?
Sometimes, even simple steps can make tax reporting more accurate. For example, when the IRS starting requiring social security numbers to claim deductions for dependents "seven million dependents had suddenly vanished from the tax rolls, some incalculable combination of real pets and phantom children [which] generated nearly $3 billion in revenues in a single year."
Hat Tip to Tax Profs Blog.
[T]he I.R.S. conducted the National Research Program, a three-year study during which 46,000 randomly selected 2001 tax returns were intensively reviewed. . . . Using this sample, the study found a tax gap — the difference between taxes owed and taxes actually paid — of $345 billion, or nearly one-fifth of all taxes collected by the I.R.S. This sum happens to be just a few billion dollars less than the projected federal budget deficit for 2007 . . . .
The key statistic in the I.R.S.'s study is called the Net Misreporting Percentage. It measures the amount that was misreported on every major line item on those 46,000 returns. In the "wages, salaries, tips" category, for instance, Americans are underreporting only 1% of their actual income. Meanwhile, in the "nonfarm proprietor income" category — think of self-employed workers like a restaurateur or the boss of a small construction crew — 57% of the income goes unreported. That's $68 billion in unpaid taxes right there.
Why such a huge difference between the wage earner and a restaurateur? Simple: The only person reporting the restaurateur's income to the IRS is the restaurateur himself; for the wage earner, his employer is generating a W2 to let the IRS know exactly how much he has been paid. And the wage earner's taxes are automatically withheld from his every check, while the restaurateur has all year to decide if, and how much, he will pay.
Sometimes, even simple steps can make tax reporting more accurate. For example, when the IRS starting requiring social security numbers to claim deductions for dependents "seven million dependents had suddenly vanished from the tax rolls, some incalculable combination of real pets and phantom children [which] generated nearly $3 billion in revenues in a single year."
Hat Tip to Tax Profs Blog.
03 April 2006
U.S. Supreme Court dodges Padilla Case
It takes four votes on the U.S. Supreme Court to take a case by granting certiorari. The U.S. Supreme Court declined to do so in the case of Jose Padilla today. It was considered eight times by the Justices. Three of them filed a dissenting opinon saying that they would have granted certiorari (Ginsberg, Breyer and Souter). An unusual concurring opinion joined by Roberts, Kennedy and Stevens refused to grant certiorari, on quasi-mootness grounds, while expressing concern about the government's actions in the case. Justices Alito, Thomas and Scalia were silent.
The opinion of the U.S. Court of Appeals for the 4th Circuit, which upheld Padilla's detention and accepted the government's argument more or less completely, remains the only binding valid precedent on the issue.
On the whole, it remains a bad day for civil liberties, although it is possible that the case will resurface with a happier result at a later time.
The opinion of the U.S. Court of Appeals for the 4th Circuit, which upheld Padilla's detention and accepted the government's argument more or less completely, remains the only binding valid precedent on the issue.
On the whole, it remains a bad day for civil liberties, although it is possible that the case will resurface with a happier result at a later time.
Muse Mugged
A vile gang of bacteria has mugged my muse. She is recovering, but is in a guarded condition. Posting will resume as health is restored.
01 April 2006
A Decade In Colorado
I came to Colorado ten years ago, starting my first job in the state ten years ago today. Many people come to Colorado because they want to live in Colorado. My own decision was more neutral. I didn't ski, didn't mountain bike (a big attraction of Grand Junction, where I started), didn't snow shoe, and generally preferred a nice of fine dining and a play to a night under the stars. While I actually have distant relatives in both Denver and Akron, Colorado (and a few other hamlets as well), I didn't know it when I decided to take a job here. I needed a job (having been laid off from my first real job after two weeks as a result of a major client's corporate merger), I had seen a classified ad from a law school alumn and Colorado didn't have any strong negative connotations (I'm not sure that I could have convinced my wife to move to Alabama, for example).
Buffalo, New York, which I left to come here, had lost half of its population, while doubling its supply of lawyers in the last few decades. Colorado, in contrast, was economically booming, and had a less saturated market for attorneys.
A little more than six years ago (after a year getting to know the area in an apartment), I move to Washington Park. Grand Junction was a place where you could swiftly become a big fish in a small pond, and practicing law there is very collegial, but, the city also tends to be close minded, lacks cultural amenities, and necessitates a life style that involves crossing the mountains to Denver to do everything from flying to visit relatives to buying a decent suit or reasonably priced car, to participating in the bar association, to watching a foreign film. It wasn't a city where I felt comfortable raising a family.
The neighborhood offered easy access to a wonderful park with a recreation center, a decent elementary school within walking distance, and one of the state's better malls minutes away, easy access to downtown Denver's amenities. The bus system is workable here. It has the structural elements that are driving people are seeking in the "New Urbanism" movement. It has walkable sidewalks on tree lined streets full of people out walking the neighborhood, heading to the park, or walking their dogs. People park their in front of their homes before walking into the house through the front door allowing you to interact with them, rather than gliding into their garages and disappearing, as they do in the suburbs. Instead of having distant houses surrounded by large yards that are never used, each house has a small yard, just big enough for a garden, a pet to play in, a barbeque, a kid's birthday party, or a snowman, while holding in common a large park that is both heavily used and is somebody's else's responsiblity to maintain. There are coffee shops, bars, pizza places, hair salons and convenience stores within walking distance, and soon, we will have our own light rail stop. One way streets facilitate rapid commutes towards downtown and there is also quick access to the freeway, but the side streets are relatively tranquil. Unlike a newer subdivision, you don't have to suffer the innane restrictions of a typical home owner's association.
Over time you do get to know your neighbors, but it doesn't come with the same kind of social pressure that you get in the suburbs. At Christmas Time, on our street, you'll see a lit tree in someone's living room through an open window, or neutral lights hung on eves, not massive pagentry with plastic figurines and a light show that belongs in its own theater. Our street has at least one lesbian couple, many single people (some of whom are single parents), older couples with grown children, and a few other families with young children like ours. The urban ethic of privacy is real in our neighborhood.
While there are large houses in the neighborhood, there are also many small ones like our own. Armoires are a popular furniture item because the houses weren't build with enough closet space. Dispensing with unnecessary junk isn't just a virtue, it is a necessity in places with limited square footage. The houses don't have parlors that no one uses, or other waste spaces. Each street is a string of jewels, for the most part lovingly maintained inside, with little well tended gardens to greet everyone else on the street.
The result is a timeless, healthy neighborhood that strikes a healthy balance between downtown living and suburban living. Colorado is still thriving, and I decade later I'm glad to live here.
Buffalo, New York, which I left to come here, had lost half of its population, while doubling its supply of lawyers in the last few decades. Colorado, in contrast, was economically booming, and had a less saturated market for attorneys.
A little more than six years ago (after a year getting to know the area in an apartment), I move to Washington Park. Grand Junction was a place where you could swiftly become a big fish in a small pond, and practicing law there is very collegial, but, the city also tends to be close minded, lacks cultural amenities, and necessitates a life style that involves crossing the mountains to Denver to do everything from flying to visit relatives to buying a decent suit or reasonably priced car, to participating in the bar association, to watching a foreign film. It wasn't a city where I felt comfortable raising a family.
The neighborhood offered easy access to a wonderful park with a recreation center, a decent elementary school within walking distance, and one of the state's better malls minutes away, easy access to downtown Denver's amenities. The bus system is workable here. It has the structural elements that are driving people are seeking in the "New Urbanism" movement. It has walkable sidewalks on tree lined streets full of people out walking the neighborhood, heading to the park, or walking their dogs. People park their in front of their homes before walking into the house through the front door allowing you to interact with them, rather than gliding into their garages and disappearing, as they do in the suburbs. Instead of having distant houses surrounded by large yards that are never used, each house has a small yard, just big enough for a garden, a pet to play in, a barbeque, a kid's birthday party, or a snowman, while holding in common a large park that is both heavily used and is somebody's else's responsiblity to maintain. There are coffee shops, bars, pizza places, hair salons and convenience stores within walking distance, and soon, we will have our own light rail stop. One way streets facilitate rapid commutes towards downtown and there is also quick access to the freeway, but the side streets are relatively tranquil. Unlike a newer subdivision, you don't have to suffer the innane restrictions of a typical home owner's association.
Over time you do get to know your neighbors, but it doesn't come with the same kind of social pressure that you get in the suburbs. At Christmas Time, on our street, you'll see a lit tree in someone's living room through an open window, or neutral lights hung on eves, not massive pagentry with plastic figurines and a light show that belongs in its own theater. Our street has at least one lesbian couple, many single people (some of whom are single parents), older couples with grown children, and a few other families with young children like ours. The urban ethic of privacy is real in our neighborhood.
While there are large houses in the neighborhood, there are also many small ones like our own. Armoires are a popular furniture item because the houses weren't build with enough closet space. Dispensing with unnecessary junk isn't just a virtue, it is a necessity in places with limited square footage. The houses don't have parlors that no one uses, or other waste spaces. Each street is a string of jewels, for the most part lovingly maintained inside, with little well tended gardens to greet everyone else on the street.
The result is a timeless, healthy neighborhood that strikes a healthy balance between downtown living and suburban living. Colorado is still thriving, and I decade later I'm glad to live here.
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