Why Do Justice Stay On The Bench?

Empirical evidence collected and analyzed by political scientists demonstrates that judicial pensions are the most important factor in a Justice’s decision to retire, far more important than the party of the President or which political party has control of the Senate.

-- U.S. Supreme Court scholar David Stras, writing at SCOTUS Blog.

He suggests that the best way to reduce judicial tenure short of a constitutional amendment, would be to restructure judicial pensions, creating a better "Golden Parachute" for judges.

Implications Of An Evolving Iraq War

Very early in the Iraq War, most conventional warfare threats to U.S. military forces were eliminated. Even before "Mission Accomplished" the Iraqi military such as it was, and the disorganized early insurgency lacked tanks, armored personnel carriers, military aircraft, self-propelled artillery, and fixed anti-aircraft artillery. Infantry weapons from personnel with non-military vehicles were the only weapons that remained.

Once these threats were eliminated, one of the main threats to American soldiers was the RPG, the rocket propelled grenade, and other infantry based anti-armor and anti-aircraft weapons of disbanded Iraqi Army units.

This made side armor for American military vehicles in Iraq very important. And, only the heaviest American military vehicles can withstand a solid anti-armor weapon hit. It also made flying in Iraq treacherous and forced U.S. military aircraft to high altitudes.

These threats now appear to be all but gone. For many months, U.S. military casualties have overwhelmingly been caused by road side bombs and rifle fire. Perhaps the odd mortar round is launched. It has been a very long time since I have heard of a U.S. aircraft being shot down by enemy fire, or of a U.S. military vehicle being hit by an anti-armor weapon.

This means that going forward, U.S. military procurement should focus on providing troops in Iraq with vehicles with V-shaped underbodies, designed to resist roadside bombs, which may be only armored otherwise enough to stop rifle rounds and shrapenel, rather than more heavily armored Bradley Infantry Fighting Vehicles and tanks, which devote a great deal of armor (and hence weight, fuel efficency and cost) to opposing tank rounds and anti-armor weapons that the Iraqi insurgents no longer seem to have in great numbers.

Unlike the Hezbollah fighters involved in the Israeli-Lebanon war earlier this year, which involved advanced military weapons that clearly pointed to sponsorship from an anti-Israeli government, the Iraqi insurgents are using a decreasing number of imported manufactured weapons. Instead, they are relying to an increasing extent on home grown weapons to take on the Americans. Moreover, the weapons they are using that they don't make, are increasingly the kinds of weapons available to non-military personnel. This implies either that U.S. weapons smuggling interdiction efforts are working, or that outside governments suspected of involvement, like Syria and Iran, are not shipping weapons to insurgents.

This also adds further credibility to the argument that the insurgency, because it is grassroots based, must be solved with a political solution acceptable to the various and divided people of Iraq. But, it casts doubt on the argument that this conflict is largely the product of outside agitators, and on the regional approach proposed by the Baker Commission.

Marine Space Planes

Both Popular Science and Popular Mechanics feature an article by a Defense Tech writer about a U.S. Marine Corps plan to build a space plane that could deliver thirteen Marines anywhere in the world in two hours. Oh, and they still need to land somewhere (at least a field airstrip or open flat space) and haven't figured out how to make the space plane take a return trip either. [Correction: The Popular Mechanics article is about long range hypersonic missiles that just look like space planes, another non-existent problem with U.S. forces which are good at hitting fixed targets half the world away, but not so hot at fighting counterinsurgencies. Both articles are written by Defense Tech writers.]

Marines Aren't Jedi Knights

This would be great if the U.S. Marine Corps consisted of a few dozen Jedi Knights or X-Men, who are unreproduceable, have superhuman fighting ability, and gear payloads that can fit in a single piece of carry on luggage. But, it doesn't.

We have no soldiers so elite that we can't position equally able Marine squads at a dozen or so spots around the globe to reduce the transportation demands, if we want a rapid reaction small unit capability. And, the military effectiveness of the U.S. military comes from pairing moderately above average people to exceptional equipment and training, and that exceptional equipment is hard to fit on a C-130 cargo plane, let alone a carry on bag.

Expensive Solutions Looking For Problems

The space plane program, and other similar very expensive methods of delivering a small number of special forces behind enemy lines such as a very expensive submarine based approach, all suffer from the same difficulty. They solve a problem the United State military had licked in 1941, with a solution called paratroopers, which still works. We can deliver small units of lightly armed special forces troops anywhere in the world, on short notice, and this is particularly easy if a return flight doesn't have to be arranged, so parachutes and airdrops can be used.

We have miraculous technologies like ships with helicopters or tilt wing aircraft on them that can be positioned near any likely hot spots well in advance of the conflict, and the vast majority of hot spots are within two hours by Osprey (a hybrid plane-helicopter that the Marines just purchased) from international waters. If speed were really an issue, AV-8B Harrier pilots (soon to be replaced by F-35B pilots) are cross trained as riflemen anyway and a squadron of them could fly in individual fighter aircraft and dismount upon arrival, deploying from aircraft carriers or Marine amphibious assault ships, at fairly high altitudes, in comparable times to U.S. based space planes, with no new R&D costs and no retrieval problems. This would also provide the arriving Marines with far more serious firepower than a space plane.

The Air Force can act with similar speed to reach inland targets from U.S. air bases abroad, which no hot spot is more than about 4,000 miles from and most are much closer to. Also, every U.S. embassy in the world has Marine guards who can simply get in a Humvee and drive to the crisis point, and if need be, the special operations soldiers can go undercover, take commercial planes to the nearest functional airport, and use $100 bills to purchase ground transporation to the hotspot. Weapons can be airdroped, by stealth bomber if necessary.

If we simply need to blow up fixed targets, we have fighters on air craft carriers and at U.S. air bases abroad that can do the job at several times the speed of sound, stealth bombers, and the F-22, in addition to long range ballistic missles that could be fitted with conventional warheads, and ship and submarine based cruise missiles that are all well equipped for the job.

Also, military disasters rarely happen on only two hours notice. If the CIA and mass media and state department are doing their jobs, we know days in advance when trouble is brewing.

The Real Problem

The real deployment problem the U.S. military faces is not prompt one way transporation of single squads of lightly armed elite troops. It is prompt deployment of military units which are large enough, and heavily armed enough, to be a formidable opponent to second and third world conventional military forces in a particular theater of battle.

(For reference purposes, a squad sized light infantry unit can be deployed in a Black Hawk sized helicopter of which there are many hundreds, if not thousands, a small platoon can be deployed by the largest transport helicopters, which are more scarce, and a C-130, which we also have hundreds of, can deploy a small company of Marines.)

Getting an armored or mechanized infantry division (is there any difference any more, both are large units with tanks, heavy artillery and Bradley fighting vehicles, in addition to some helicopters) or even an air assault division (i.e. a large unit with an emphasis on attack helicopters) to a distant battlefield can take months. It is done by a combination of freight rail, cargo ship, convoy (which has a long logistics tail to supply fuel and provisions), and transport plane (the largest of which requires a conventional runway, the smallest of which have relatively short ranges, and the intermediate of which are scarce).

Real Solutions

The real power projection developments in military procurement are less glamorous, but do have genuine military value. They main elements are:

(1) Buy more tranport planes.

a. Much of what we have is too light.

We have lots of C-130s and transport helicopters. They just can't carry lots of equipment that is needed for medium and heavy weight troops. Bradleys, tanks, and conventional self-propelled artillery are too heavy. The Marine's Osprey and all but the largest transport helicopters can't even carry a Humvee.

b. We have too few C-17s.

C-17s are long range, medium sized transport planes can land on field airstrips and carry a single tank or a couple of Bradleys. They do what we need them to do. We simply don't have enough of them to transport a substantial force quickly. The C-130 is too small to carry heavy equipment and has a comparatively short range. The C-5 needs a real airport.

c. Is there a gap between the C-130 and the C-17?

Also, many observers think that the U.S. military needs new cargo planes between a C-17 and C-130 in size, that can carry anything smaller than a heavy main battle tank, as a next generation replacement for the C-130. The question is whether a smaller per unit cost than a C-17 is worth it, given the R&D expense involved in creating an entirely new class of aircraft. The alternative would be to simply buy more C-17s, which carry more cargo and require no new R&D expenses or production delays.

d. Fixed wing alternatives to transport helicopters.

And, many observers also think that sub-C-130 fixed wing cargo aircraft, to carry payload comparable to those of heavy transport helicopters in situations where field airstrips are available, because fixed wing cargo aircraft have longer ranges, use less fuel per mile, are faster, are cheaper and are more reliable for transporting comparable payloads than transport helicopters. Reasonably priced off the shelf alternatives are available.

e. Seaplanes.

Finally, I am among at least a handful of observers who think that the U.S. military, and the U.S. Marine Corps in particular, would benefit from a modest fleet of sea planes. The Marine Expeditionary Vehicle (or whatever they're calling it this week, it has had many names over its development) can self-deploy from a ship 30 miles out at sea without a landing craft at speeds comparable to existing landing craft, and has capabilities comparable to an Army Stryker (common in Iraq). Why not eliminate the middle man of the deploying ship in small conflicts, and instead simply have the MEVs deployed and retrieved via seaplane from over the horizon? A couple dozen such planes, which could be based on C-130 or C-17 designs, would not be a major technological challenge. Similar planes exist in the Russian air force and were used in World War II. These seaplanes could also be used for deployments of heavier than special forces units to inland lakes.

Seaplanes would also be well suited to search and rescue (SAR) duty.

(2) High speed, relatively small cargo ships.

A few experiments along these lines have proven successful. A catamaran or trimaran hull design is used, and cargo loads, while as little as 10% of a full sized cargo ship, are still considerably larger than the largest cargo plane in U.S. service, the aging C-5. This can trim weeks of deployment times for large, heavy units, and allow swift intratheater shifts of forces in coastal areas.

They are similar in concept to the littoral combat ship, the newest class of ship in the Navy, and a much needed antidote to a blue sea, billion dollar plus per ship orientation in the U.S. Navy,

(3) C-130 sized version of heavier weapons.

One way to capitalize on the large number of C-130s available in the military is to make weapons systems they can actually carry.

These include the HIMARS reduced sized multiple rocket launcher, the Stryker (most versions of which are light weight, more deployable alternatives to the Bradley fighting vehicle), and the Stryker Mobile Gun System (a light weight, wheeled infantry support tank).

None of these C-130 sized systems are a match in armor or lethality to their heavy weight counterparts like the M1 Abrams tank, and the M2 Bradley and its variants, but getting these 30 ton plus systems to the field is much harder, because only the C-17 can airlift them close to the battlefield, each trip can't take many, and we don't have many C-17s. But, each is a considerable improvement over the only other option for quick deployments, which was paratroopers (aka speed bumps), who were basically limited to unarmored, more lightly armed, Humvee based systems.

Also, most military forces in the world don't have huge, top of the line, conventional armored military forces like the Soviet military that the U.S. military's heaviest systems were designed to fight. Most possible surprise deployments of U.S. forces are to places like Somolia or Rwanda or Sudan or Colombia, where opposition forces make the Iraqi Army and Serbian Army whom the U.S. has engaged in the past with little opposition once ground forces were committed, look impressive by comparison.

In the few cases where opponents do have those forces another option comes into play.

(4) Pre-positioned caches of heavy military equipment close to potential hot spots.

It takes months to deploy heavy forces only if you have to move them thousands of miles. If you know that you are going to want them, for example, in Poland or Turkey or South Korea, in contrast, months of transport time in peacetime is no big deal, and the equipment will be there waiting for you when you need it.

Similarly, if we were considering getting involved, for example, in a counterinsurgency operation in an evolving conflict in Liberia or Angola or Argentina, far from U.S. bases, it might be easier to simply have a couple of large, old fashioned, roll on, roll off, cargo ships fully loaded with heavy military equipment quietly move into position a couple of days off shore from a planned deployment point (i.e. about 600 miles away), months in advance in the open sea. This would require the U.S. to have excess quantities of some heavy equipment, but we already have excesses of some types of equipment (alas, not the kinds getting heavy use in Iraq), and could buy excess supplies for a price very competitive with the cost of buying more expensive transport planes or high speed transport ships. The U.S. already does this to be prepared for a conflict in Taiwan.

The Wrong Problem?

This isn't to say that the space plane concept is entirely without merit, but it misapprehends which passengers are most likely to be needed on very short notice, from the continental U.S., to anyplace in the world. Jar heads dashing off to assassinate terrorists aren't on that list, even really well trained special operations jar heads.

The sort of person who might need that kind of rapid deployment would be a specialist neurosurgeon needed for time critical brain surgery in a field hospital, or an F-22 avionics design engineer to address an unanticipated problem with enemy jamming technology, or a linguist who speaks an obscure language needed for an interrogation where a time bomb is ticking or a hostage situation is deteriorating.

These kinds of people with specialized skills are in jobs that would more often be carried out in the field from a relatively secure forward operating base with a partially improved or fully improved landing strip, in situations where a slow turnaround via piggy back on a C-17 might be a viable retrieval method for the vehicle. The people deployed might return by more conventional means, like transport planes or VIP planes. And, 13 passengers is probably more than is necessary for these kinds of missions. Half or a third of that number of passengers might be sufficient in most cases where a team with special skills is needed.

And, a small fleet of space planes (perhaps just three or four) designed to go one way and be ferried back via C-17, to land on secure, partially improved airstrips, and to carry just 4-6 passengers needed for their specialized skills, might cost less to design and build than the more ambitious plan envisioned by the Marine Corps.

Winter

Today is the first day of winter.

Snowed In

A blizzard warning is in place until noon.

Every church, school and major employer in Denver is closed (including non-essential employees of state and federal governments). Denver schools last day of the term would have been today, it turned out to have been Tuesday of this week.

The state's appellate courts, all Denver metro area courts, and virtually all courts in Eastern Colorado counties are closed. Specifically (including some courts that closed yesterday and haven't yet announced their plans today):

Adams, Arapahoe, Baca , Bent, Boulder, Cheyenne Wells, Clear Creek, Crowley, Denver, Douglas, Elbert, El Paso, Gilpin, Jefferson, Kiowa, Kit Carson, Larimer, Lincoln, Logan, Morgan, Phillips, Prowers, Pueblo, Sedgwick, Teller, Washington, Weld, Yuma

The U.S. District Court is closed until at least 10:00 a.m. today, as is the 10th Circuit Court of Appeals.

The post offices are closed and not delivering mail today. The buses aren't running (although light rail is running a reduced schedule). Denver International Airport is closed and may not be up and running until Friday. With days of passengers backed up, my own family's flight on Saturday is likely to be impacted.

I-25 is closed outside the Denver metropolitan area. I-70 is closed from the airport road to Kansas. I-76 is closed. Loveland Pass is closed. Almost every state and U.S. highway on the Front Range or Eastern Plains is closed, including U.S. highways 6, 36 and 85.

But, it isn't clear that U.S. 36 from Denver to Boulder, or Westbound I-70 are closed, although both were previously closed due to accidents as was Westbound U.S. 6 in metro Denver.

The National Guard has been called out to rescue stranded motorists and patrol closed roads. The Red Cross has shelters open for stranded travelers. If you need to know, go to 9 News, which consistently is the best for breaking local news stories like this one. It has deemed this event the "Holiday Blizzard."

All city of Denver operations not related to public safety, emergency shelters and snow removal are shut down. The Mayor is appealing for donations of sleds so kids without them can sled in parks and suggesting that people walk to local merchants rather than drive, if the need something.

Side streets, like the one I live on, are virtually impassable. No effort is made to clear them until major roadways are cleared. I won't even bother trying to dig out this time until the snow is over, as I learned my lesson in the last blizzard. Fortunately, the buried natural gas and water lines are working fine, as are our phone, electrical and DSL connections. As it happened, we had just stocked up at CostCo and with the week's groceries last weekend. So for us, it is time to work from home and have fun and games for the kids.

A blizzard is an odd emergency. For the vast majority of people, the optimal response is to do nothing.

Temporal Justice

Some countries include in their Bill of Rights, a provision that states that if someone is convicted of a crime, and the sentence for that crime is later reduced by the legislature, that people currently serving a sentence under the old regime are entitled to have their sentences revised to the maximum sentence allowed under the new law.

Neither the United States Constitution, nor the Georgia Constitution has such a provision. But, it should. It is a matter of simple justice. The Georgia case that is making that point now involves a boy sentenced to mandatory minimum of ten years in prison without parole for receiving consentual oral sex from a fifteen year old girl when he was seventeen years old. Georgia now punishes that crime with a maximum of a year in jail as a misdemeanor. In many states, it wouldn't be a crime at all.

The 8th Amendment and the equal protection clause of the 14th Amendment are more than sufficient to provide a remedy in cases like these, using legal reason much less imaginative than that used to apply most of the federal bill of rights to the states (a well established doctrine known as "partial incorporation"), to create the "dormant commerce clause" doctrine to invalidate many state regulations of interstate commece, to make proof beyond a reasonable doubt or the presumption of innocence constitutional rights, or to imply protections for privacy or a right to travel, by viewing them in light of other protections of the bill of rights.

This punishment is surely unusual, and by its extremity, is cruel. There is even a credible argument in this case, as in cases involving juvenile executions, that the punishment is so extreme relative to other state laws, federal law, international norms, and existing Georgia law, that it violates the cruel and unusual clause of the 8th Amendment to the United States Constitution.

There is also a not entirely frivilous argument in this case that, as applied, the previous statute was enforced in such a racially discriminatory manner that it violated equal protection clause of the 14th Amendment in a manner that even the broad protections of prosecutorial discretion are insufficient to shield.

But, while current law does not support the argument that people currently incarcerated have an equal protection interest in being punished no more harshly than they would have been had they been convicted today, I believe that this would be a healthy doctrine to establish which is faithful to the inherently vague concept of equal protection and would not do any grave injustice.

There is some precedent for this as well. While the high court has never articulated it in these terms, major U.S. Supreme Court decisions invalidating whole classes of persons who would otherwise be eligible for the death penalty have been applied retroactively. Every death row in the country was emptied when the death penalty was invalided in the 1970s, even for those who had exhausted their direct appeals. The same thing was done when the death penalty was recently abolished for crimes committed while the offender was a juvenile or mentally retarded.

Why should people currently serving sentences no longer subject to such a severe punishment be entitled to benefit if a change in the law is made by a court, but not if a change in the law is made by a legislature?

In truth, this right wouldn't impact that many cases, most of the time.

Few people in prison at any given moment in time are there for crimes for which they were convicted more than five or six years ago. Those who had already completed their sentences would be unaffected. And, many people currently serving time would receive only partial benefit from a change in the law because they had already served more than the new maximum sentence for the crime for which they were convicted. For example, if the maximum sentence for burglary was reduced from ten years in prison to five years in prison, a prisoner who had already served eight years in prison would have his sentence reduced by only two years.

Many people serving long sentences in prison are doing so concurrently for multiple crimes. All of which would have to have sentences change for a change in the law to have any impact. If someone was sentenced to fifteen years for kidnapping and a concurrent fifteen year sentence for armed robbery, as a result of the same incident, and the maximum sentence for armed robbery was reduced to ten years, the actual sentenced served wouldn't change.

Also, only a minority of those serving sentences in prison at any one time are serving the maximum allowable sentence for that crime, so they would be impacted only if the maximum sentence for the crime was reduced below the lesser sentence actually imposed. If the sentencing range for burglarly used to be four to twelve years and was reduced to two to eight years, a burglar sentenced to seven years in prison for his crime would receive no relief.

The substantive criminal law is also sufficiently stable that dramatic reductions in the sentence that would be permissable for a particular change are rare. Very few offenses go from being punishable by up to ten years without parole as a serious felony, to being punishable by up to a year in jail for a misdemeanor, in a single legislative act. When it does, it is usually because the legislature recognizes that the old sentences were a grave injustice in the impacted class of cases.

Also, in some cases, the relief would have been provided anyway. People in this situation while a small percentage of the total population of prison inmates, are prime candidates for executive clemency. Most never get that clemency, but a fair share of those who do are facing this sort of injustice, or some similar injustice.

Law exists to encourge people to do the right thing, not to prevent people from doing the right thing. An expansion of the 14th Amendment to allow such a reform, would be eminently reasonable.

How many tax patents are there?

There are 633 tax patents in the United States. While this isn't even one per section of the Internal Revenue Code, and I suspect that they predominantly involve tax shelters in obscure areas of corporate taxation and estate taxation, it is still disturbing.

Diabetes Cured In Mice

New research has shown the diabetes has a much larger nervous system component than previously believed and even more amazingly, that addressing this component of the disease can cure mice that already have the disease.

[S]cientists at a Toronto hospital say they have proof the body’s nervous system helps trigger diabetes, opening the door to a potential near-cure of the disease that affects millions . . . .

Diabetic mice became healthy virtually overnight after researchers injected a substance to counteract the effect of malfunctioning pain neurons in the pancreas.

Who knew that the pancreas even had pain neurons? I had always thought that one of the reasons that pancreatic and liver cancers were so deadly was that you don't have many nerve receptors in that part of your body.

This story has to top the list of out of the blue, totally unexpected good news all year. I follow this stuffy pretty closely and had never even known that there was a nervous system component to diabetes. Neither did anyone else until 1999.

UPDATE: Reading the source story of NewMexiKen's story is even more amazing.

The researchers caution they have yet to confirm their findings in people, but say they expect results from human studies within a year or so. Any treatment that may emerge to help at least some patients would likely be years away from hitting the market. . . .

[T]here are far more similarities than previously thought between Type 1 and Type 2 diabetes, and that nerves likely play a role in other chronic inflammatory conditions, such as asthma and Crohn's disease. . . .

Dr. [Hans Michael] Dosch had concluded in a 1999 paper that there were surprising similarities between diabetes and multiple sclerosis, a central nervous system disease. His interest was also piqued by the presence around the insulin-producing islets of an "enormous" number of nerves, pain neurons primarily used to signal the brain that tissue has been damaged.

Suspecting a link between the nerves and diabetes, he and Dr. [Michael] Salter used an old experimental trick -- injecting capsaicin, the active ingredient in hot chili peppers, to kill the pancreatic sensory nerves in mice that had an equivalent of Type 1 diabetes. . . .

The islet inflammation cleared up and the diabetes was gone. Some have remained in that state for as long as four months, with just one injection.

One shot, four months of cure, and the raw material is glorified hot chili juice. Human trials are only about a year away. Surgically, it may be easier to provide the treatment in humans than in mice, as the small size of mouse organs might it quite a tricky procedure. Major ailments like asthma and Crohn's disease might have cures around the corner as well.

And, this is on top of stunning news last week that ending hormone treatments for menopause reduced breast cancer incidence by 7% in a single year, far more than anyone would have dreamed of expecting.

The impact on health care budgets alone could be immense. Diabetes is one of the most expensive diseases to treat right now. Even a very expensive single shot, or infrequent injection procedure could save immense sums of money, and even more a couple decades later when the patents expire.

Confirmation and news of publication of the results in the scientific journal Cell can be found here and here. Abstract here.

Law Clerks and the U.S. Supreme Court Docket

Suppose that your appeal in the U.S. Court of Appeals or a state supreme court is concluded, and you still aren't happy. What do you do? You file a petition for certiorari in the United States Supreme Court.

This happens quite often. In the most recent year for which statistics are available, 2004, the U.S. Supreme Court processed 1,727 cases in which the person appealing paid a filing fee, and 5,815 case which were filed In Forma Pauperis, because they were indigent. In Forma Pauperis cases are usually mostly prisoner's petitions, seeking relief in criminal or civil rights cases, a health dose of frivilous crank filings, and a handful of other civil cases brought by indigent non-prisoners. Paid cases are generally either brought by government agencies, or by individuals or businesses or advocacy groups.

In the period from 2000 to 2004, the court has held oral arguments on between 84 and 91 cases a year. In the 2000 to 2003 period, it also decided summarily and without oral argument between 52 and 127 cases, in 2004, an extraordinary 826 cases were decided without oral argument, the vast majority of which were campaign finance reform act cases impact by a decision on the consistutionality of the act in another case decided after oral arguments.

Paid cases are far more likely to be granted. A few older figures, which remain representative of practices now, illustrate this fact:

According to the last Harvard Law Review round-up, over 7000 petitions for certiorari were filed during the 1994 Term of Court: 2151 in paid (i.e. , non-indigent) cases and 4,979 in in forma pauperis (IFP) cases. The Court granted review in 83 paid cases (3.9%) and 10 IFP cases (0.5%). It disposed of another 66 cases by summary affirmance or reversal or (most commonly) by simply vacating the judgment below and remanding for further proceedings in light of some intervening Supreme Court decision (a resolution referred to as a "GVR" — Grant, Vacate, and Remand). The tenure of Chief Justice Rehnquist has seen a sharp decline in the number of cases the Court hears on the merits. Only 90 cases were argued in the 1995 Term, compared to 167 in the 1987 Term and 116 in the 1992 Term.

If we assume that paid cases are overwhelmingly non-frivilous (in part, because it costs about $75,000 to prepare a paid petition for certiorari), and that non-frivilous IFP cases are granted at the same rate as paid cases (not true, but a starting point for an estimate), then perhaps 5% of IFP cases are really non-frivilous (an underestimate, but the true number of non-frivilous IFP cases is still probably not more than 10%-15%).

So, after you file you petition, what happens? The answer, according to the leading law review article on the topic, by David R. Stras, is that one copy of your petition is assigned more or less at random from a pool of clerks for the eight Justices other than Justice Stevens, and another copy goes to the clerks for Justice Stevens, who divy up the petitions and review them.

Clerks in the pool write a memo on each of their assigned petitions which is circulated to each of the eight Justices in the pool. Justice Stevens clerks advise him separately. Each Justice in collaboration with the clerks assigned to him or her then evaluates the memos, sometimes investigating potentially interesting cases further.

Then, the Justices all meet to vote on which cases to grant review (accounts from insiders suggest that there is less debate and more voting that one might expect) in each case, with four votes required to grant certiorari in a case. Some Justices, like Kennedy and Scalia, are known to be quite stingy about voting for review, while other Justices are more likely to vote for review. One factor, although not the only one, in the tendency towards a smaller U.S. Supreme Court docket, has been departure of some of the Justices more inclined to grant review.

The vast majority of the time, 92% of the time in 1992, the last year for which complete information is available, the clerk reviewing a petition recommends that it be denied and that is what the U.S. Supreme Court does.

This level of agreement is less remarkable than it seems, however, because roughly two-thirds of the petitions filed (using an 85% frivilous rate for IFPs) are easy cases of "frivilous" in forma pauperis petitions (where frivilous is defined for this purpose not with its formal legal definition but simply meaning below the standard of merit of the overwhelming majority of paid cases), typically in pool memos of one page or less.

In between two-thirds and three-quarters of cases where pool memo recommend that the Court grant review, it does grant review.

In about 0.8% to 1.3% of cases where a petition is filed (about 45-75 cases a year), the justices either grant review where the pools has recommended denying review, or deny review where the pool has recommended granting review. The number of grant recommendations that are denied and the number of deny recommendations that are granted are roughly equal in number, with the balance of cases beyond those recommend for review drawn from the 5%-7% of cases a year where some other action (such as a recommendation to seek comment from the solicitor general) is proposed.

The Court consistently grants review in about 25%-31% more casees than the pool recommends. Hence, the pool is consistently more stingy than the court itself (this is true both in the case of paid and IFP cases).

There several categories of cases which are particularly likely to receive U.S. Supreme Court review: cases brought on behalf of the federal government by the Solicitor General, whose opinion is often requested by the in cases where it is waivering on whether or not to grant review, death penalty cases, and cases where U.S. Court of Appeals or state supreme court has declared a law to be unconstitutional which is a case of first impression, and cases involving splits of authority between different states or federal circuits on questions of federal law.

Cases that are not brought by the solicitor general, are IFP cases, do not involve the death penalty, do not involve a determination below that a law is unconstitutional, and do not involve a circuit split, in contrast, are likely to have review denied.

Something on the order of 60% of cases reviewed by the U.S. Supreme Court from the U.S. Court of Appeals involve circuit splits. A majority of the cases from the U.S. Court of Appeals recommended by the pool for review, that the Justices ultimately chooses to hear, involve circuit splits. In contrast, almost two-thirds of the cases that the Justices choose to hear from U.S. Courts of Appeal that the pool recommended by denied, did not involve circuit splits.

This does not, by any means, imply that the U.S. Supreme Court reviews all splits of authority between circuits on questions of federal law. About 400 new circuit splits arise every year. About 200 circuit split cases appealed to the U.S. Supreme Court are denied review every year, while about 30-40 receive review.

The best studies done to date estimate that considering both the ideology of Justices and the ideology of the clerks who write the pool memos, that about two-thirds of the decision making attributable to ideology is due to the ideology of the Justices, while a third is attributable to the ideology of the clerks (who are generally believed to have far lass influence on the outcome of cases once the Justices agree to hear them). This is a pretty impressive level of influence considering that the Justices have generally had long and remarkable careers as lawyers, secured the nomination of a President and survived review by the U.S. Senate, while clerks are vetted only by the Justice making the hiring decision.

Who are these people?

A typical U.S. Supreme Court clerk is among the top handful of students in grades in his or her law school class, has had a leadership role of a law review, attended either an elite law school or one with which the Justice has some special affinity (and even more spectacular qualifications), has had a previous clerkship or a year or two, usually in a U.S. Court of Appeals, although perhaps in a state supreme court, and has a personal affinity and comfort level with the hiring Justice.

These qualifications mean that they are typically in their mid- to late twenties, as non-traditional students are ill represented in this group. They are comparable in age and experience to Captains in the Army's Judge Advocate-General Corps.

Thus, U.S. Supreme Court Clerks are generally among the very, very smartest law graduates in their cohort by all conventional measures, but rarely have any legal experience at all outside an appellate court and a couple of summer clerkships. An IQ of under 150 would be unusually low for someone in this select group. But, most have never participated in litigation outside of a law school clinic and never drafted a document for a client, outside some legal research, document review or third chair gopher duty at a trial while on a summer clerkship. They have never struggled personally with the ethical dilemnas that lawyers in practice commonly face or had sole responsiblity for a client. They have never personally made a presentation to a judge or jury in a trial. And, they have never had to try to collect a fee.

Most will follow their U.S. Supreme Court clerkship with a professorship at an elite law school, a job as an associate in a large law firm representing primarily publicly held companies and very wealthy individuals (often in an appellate practice department or a part of the firm that deals with some obscure and highly academic area of law pertinent only to large corporations in regulated industries), or in elite positions in the U.S. Justice Department or a state solictor general's office.

Relatively few of these individuals will ever handle a divorce, a routine car accident, a non-capital state criminal case, or a residential eviction.

While this summary is, necessarily brief (the law review article runs to 58 pages and covers only a subset of the issues addressed in this post), it does provide a pretty solid empirical explanation of what is going on.

Love Thy Neighbor

I very rarely endorse charitable gifts to churches. But, while I've broken with Christianity, I haven't ceased to believe that everyone has a moral obligation to love their neighbor. And, there are times, such as this one, when a church is in a better position to help and be trusted to do the right thing, than anyone else. This is such a time.

Hundreds of families in Greeley have lost a breadwinner who worked at the SWIFT plant that was raided by immigration officials on Tuesday. They need help, government is not a suitable way to provide that help in this case, and no institution is better situated to provide it than the local Catholic church.

How you can support these families?

Please make a donation payable to: “Our Lady of Peace Catholic Church” with “fund for families affected by ICE” in the memo-line.

Mail your donation to: Our Lady of Peace; Att: Rev. Bernard Schmitz; 1311 Third Street Greeley, CO 80631.

Thank you for loving your neighbor.

Juries in Divorces In Colorado?

Apparently, a prominent legal secondary source says that juries are allowed for parts of divorce actions in Colorado. See Family Law Profs blog citing 56 A.L.R.4th 955.

This is news to me. It must be relying on superceded old law.

Colorado's Dissolution of Marriage Act provides that "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. Recent case law is in agreement: "All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury." In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003).

One can image a case where the existence of a marriage was an issue in a non-divorce case and this was resolved by a jury (e.g. a criminal trial for statutory rape), but that is an entirely different idea.

Footnote On Non-Divorce Claims In Divorces

The Lewis case, indeed, goes even further. It states that non-divorce related disputes can't be included in a divorce case precisely because it would create a right to a jury trial:

The joinder of marriage dissolution actions with claims sounding in tort or, for instance, contract would require our trial courts to address many extraneous issues, including trial by jury, and the difference between the "amicable settlement of disputes that have arisen between parties to a marriage," and the adversarial nature of other types of civil cases. Moreover, such would create tension between the acceptance of contingent fees in tort claims and our strong and longstanding public policy against contingent fees in domestic cases. We conclude that sound policy considerations preclude either permissive or compulsory joinder of interspousal tort claims, or non-related contract claims, with dissolution of marriage proceedings.

Id. at 206.

The reasoning in the Lewis case quoted above is a bit off, however, although its conclusion that there is never a right to a jury trial in divorce cases in Colorado remains solid. Also, Lewis does not impact appear the rule that says that co-ownership of property that is the subject of a divorce that involve third parties (a kind of lawsuit which in some circumstances might include a right to a jury trial ordinarily) can be resolved in a divorce.

Colorado takes the position that the right to a jury trial is addressed on a lawsuit by lawsuit basis, rather than individually on a claim by claim basis. If the principal relief sought in the complaint is one for which there is no jury trial right, then there is no right to a jury in the case, even if other claims asserted in the case could normally be tried before juries or the defendant has a counterclaim that would normally be tried before a jury.

This comes up, for example, in mechanic's lien cases, where lawsuits to enforce lien rights don't have a jury trial right associated with them, even though breach of contract suits do. In Colorado, the mechanic's lien enforcement is viewed as predominanting over the contract suit, so there is no right to a jury trial in a mechanic's lien case, even on the contract claims asserted in the lawsuit.

Thus, Colorado has a race to the courthouse rule on jury trial rights, since counterclaims must ordinarily be brought in the same suit in which one is sued, or they will be considered waived. (The general rule that counterclaims be filed in any pending current lawsuit between to parties, or never when parties are in a lawsuit against each other does not apply to divorce actions in Colorado. Simmons v. Simmons, 773 P.2d 602, 605 (Colo. App. 1988).)

So, even if a tort of contract case were allowed to be joined to a divorce case, it isn't at all obvious that they would include a jury trial right in that context, because the divorce would still be the prinicipal relief sought in the case.

Is The Child Yours?

A new study shows that about 1.7% of fathers who have no reason to doubt that their children are biologically related to them, do not in fact have a biological tie to their child. Previously, a 10% figure was often quoted. But, apparently, the study that produced the 10% figure included many parents who had good reason to know that they might not be biologically related to their children.

It is also worth noting that in Colorado and many other states, paternity is more than biology. Biological parents can have their rights terminated by operation of law through the passage of time (sometimes paternity cannot be legally adjudicated after a child becomes an adult), by a presumption of paternity that becomes conclusive in someone else, or by courts for neglect or absence. Adoption can establish a paternity relationship between a parent and a child in the absence of a biological tie. And, paternity is presumed if the father is married to the mother.

Controversially, but correctly IMHO, the marital presumption becomes conclusive after a certain number of years (often five), even if it can be definitively established that there is no biological relationship between the parent and the child. Also, standing to seek custody, which is the most important right flowing from paternity, can arise simply from an extended period of time in a parental relationship with a child.

Also controversially, and often incorrectly IMHO, standing to seek custody can often arise simply from having "possession" of a child, a provision which is not nearly narrowly tailored enough to do justice to all the circumstances it can encompass.

The PKPA works.

My very first appellate case, while I was still in law school, was legal research and brief writing concerning a high profile child custody/paternity dispute in which two states had reached opposite conclusions. Then, as now, the Parental Kidnapping Prevention Act (PKPA), a federal law that spells out which state has jurisdiction over the matter, controlled which court had the authority to resolve child custody disputes.

A recent case involving litigants who sought relief from the courts of Vermont and Virginia respectively illustrated that the PKPA still works. The trial judges in each state reached the merits of the custody dispute and reached opposite conclusions on the issues in the case. But, the PKPA's clear rules on which state is gets to make that decision allowed appellate courts in both Vermont and Virginia to resolve the dispute and reach the same conclusion for essentially the same reasons:

1. Vermont's courts had jurisdiction because Vermont was the child's home state under the Act. Why? The child had been removed from Vermont by a litigant in the Vermont case to Virginia less than six months before the Vermont litigation was begun, after the child had lived in Vermont for a prolonged period of time, and despite the fact that the other party stayed in Vermont.

2. The litigation was commenced first in Vermont. New litigation was commenced in Virginia only after the Vermont case was pending.

Given the facts above, the outcome under the PKPA is clear.

This case was newsworthy mostly because it involved custody of a child born to a mother who was part of a Vermont civil union at the time. But, the fact that courts from states on opposite ends of the gay marriage debate can reach a consensus, as a result of the PKPA, shows the wisdom of the law. It is also a fine illustration of the fact that the vast majority of legal disputes are questions resolved by judges are not resolved on a purely political basis.

The PKPA allows the child custody system at the state level to work in a society in which people frequent interstate moves by clearly allocating authority, without embroiling Congress and the federal courts in the merits of child custody laws by adopting a uniform child custody law.

This allows child custody laws to evolve at the state level. It also prevents child custody litigation from becoming hopelessly complicated with multiple lawsuits pending at the same time. Multi-lawsuit cases were much more common before the PKPA was passed, and often had no easy resolution sort of resort to the U.S. Supreme Court. In the Vermont-Virginia case discussed above, multiple lawsuits were pending until an appeal in the Virginia case shut down the Virginia litigation. But, no law can entirely prevent miscues at the trial court level when any of the facts are the least bit unusual.

Not only does the PKPA have clear rules, it is truly exceptional for providing clear rules without being arbitrary or irrelevant to the lives of the people in the litigation. There are lots of other rules the PKPA could have chosen that would have been clear, but arbitrary and irrelevant to the parties. For example, the PKPA could have declared that the court of the state where the child was born had jurisdiction. This would have been a clear rule, but would have required people to litigate in states with which they had no current connection at great expense.

In contrast, the PKPA has jurisdiction rules that cause child custody cases to be heard in a state which the child typically has a strong connnection to, without being vague about how to measure that connection. It also has sensible exceptions to the general rule, for example, for cases involving absue and neglect.

Lots of other clear rules, like the rule that a corporation's the state of incorporation is the appropriate place to file certain loan collateral papers and that people may commence lawsuits about corporate governance there against the corporation, even if the corporation does no meaningful business in that state, are far more arbitrary.

In short then, the PKPA is an excellent example of the federal government using its power to make federalism work, instead of undermining it.

Giving Thanks

I'm feeling thankful today. What are a few things I am I thankful for?

For Markos Moulitsas Zúniga, founder of Daily Kos, a peer who has contributed greatly to making this a better world (below is a photo of him and his family):



For the fact that my children at Steele Elementary School in Denver have had teachers I can trust, every single time.

For that fact that our nation chose better leaders in 2006 than it did in 2008.

Denver Bits and Pieces

* The Highland Bridge over I-25 will be dedicated Saturday, well behind schedule. It will still not have handrails complete, but at least it will be useable, reuniting downtown and Highland after a decade and a half of separation. Still, I'm looking forward to attending the festivities.

* The new FasTracks West line won't have a stop at Colorado Mills/Denver West. There is dispute over whether this is another case of mall owner recalcitrance or whether this is RTD's doing. At least one owner in the area says he's currently interested in a stop at the mall (which since it is a failing mall is a prime candidate for a Belmar style transit oriented redevelopment). Even though it is planned for 2013, a stop there has pretty much definitvely been ruled out because the stop wasn't included in the environmental impact statement. Bastards! Do we really need a repeat of the County Line stop fiasco? They need to amend the environmental impact statement to make this work, even if local government or the owners have to chip in money to do it. Maybe Governor Ritter or Speaker Andrew Romanoff can knock some heads together to get this rail line back on track.

* Looks like we will have a city vacancy election in Denver on January 30, 2006 for Rodriguez's post, now that she is being appointed to a national commission on improving how elections are conducted, in addition to the ordinary city elections in May. Districts 7 and 8 will have contested city council races with some good candidates already declared in each race. There may be a vote on the future of the election commission at the January election as well, so that the voters know what they are voting for in the May election. Decisions on what will be on the ballot in January will start to be made as soon as today.

* Square State notes that the pastor of Grace Churh (a megachurch that is the only place you can get to from the County Line stop on RTD light rail on foot), is following in Haggard's footsteps and resigning because he is a gay man whose spent his life preaching gay hate. Maybe gay guys make better pastors or something? Also, I wonder if the increasing acceptance of homosexuality is causing people like that to admit to who they are in a way that the wouldn't have in earlier eras.

* The building boom is over. I just heard that MDC aka Richmond Homes, a major new home builder has laid off something like 25% of its employees.

Mourning James Kim, Oberlin College '93

My wife and I had pretty much convinced ourselves that James Kim, the San Francisco man who died of hypothermia in Southern Oregon, while trying to hike to find help for his wife and two young children, wasn't the James Kim we went to college with.

After all, Kim is a dime a dozen name in California, and James was a popular name for boys in 1971. But, his age wasn't reassuring, and lots of Korean Americans in our circle of friends and family had moved to the West Coast when they got out of college. Today, I took a moment to investigate. Wikipedia was the bearer of bad news. The James Kim who died was the man we'd known as a classmate.

Kim made a career out of bringing technology to the world through his job at CNET. But, this time technology failed. It's easy to forget just how close a world beyond the urban safety net is, when you live in it every day. Before our children were born, my wife and I once nearly got our car stuck in the snow on a dirt road in Colorado's mountains, on the 4th of July. Out there, in the wilderness, the unexpected can happen, things can go wrong, you have to make decisions with imperfect information, and your choices can be a matter of life and death. Nobody is lucky enough to always make the right call when faced with imperfect information.

Our hearts are with his family at this horrible moment.

George W. Bush Executioner

The large number of people executed in Texas while George W. Bush was Governor of that state is well known. Less well known is the fact that all three federal executions after 1963 have taken place while he was in office.

There are currently 9 men on the military's death row (the last military execution was in 1961) and 45 men and 1 woman (Angela Johnson) on the federal civilian death row. Of those on federal civilian death row, 24 were sentenced to death while George W. Bush was President. Four of the men on civilian death row are currently having their sentences reconsidered by the courts. Three more, who were scheduled to be executed in May of 2006 are having the method by which they are executed considered by the courts.

Everyone on federal death row is there for some form of aggravated murder. Statutes allow the death penalty in a small number of cases even where a victim has not been killed, but the death penalty has been carried out in such a case since 1963. The possible non-homicide grounds for the federal civilian death penalty are:
* Espionage
* Treason
* Trafficking in large quantities of drugs
* Attempting, authorizing or advising the killing of any officer, juror,or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs.

A small number of states, in theory, permit the death penalty for reasons other than aggravated murder (treating perjury causing execution as a form of murder). They are:

* Treason (Arkansas, California, Colorado, Georgia, Louisiana)
* Train Wrecking (California)
* Aggravated Kidnapping (Idaho, Kentucky)
* Aircraft Hijacking (Georgia)
* Capital Drug Trafficking (Florida)
* Capital Sexual Battery (Florida)
* Aggravated Rape of Victim Under Age 12 (Louisiana)

Friday Technology/Media Rant

Christmas music is everywhere! It is driving me batty.

Why do ordinary non-computer geeks like me have to figure out the mysteries of virus protection? I should have gotten a Mac. Maybe next time I will.

What genius decided that laptop power cords should have two wires that must be connected, instead of one?

Radio always used to be an easy to understand medium. You could get AM, FM and if you were really inspired, shortwave that mostly consided of the BBC and odd channels that sounded like morse code. Now, there is HD Radio and there are two kinds of satellite radio. All are far more expensive than regular radios even though you know that they cost no more to build and will fall to $20 in a year or two.

Two of the options require a monthly subscription fee too. And, your satellite radio plan might be useless soon, because there are always rumors of one or the other going bankrupt or merging.

But, to be honest, at least satellite radio, which sells vast numbers of channel choices and the ability to listen to the same thing anywhere in the nation on long trips through radio wastelands in flyover territory make a certain amount of sense. It is like satellite TV or cable for the radio dial. But, what is the deal with HD radio?

And, who ever decided that CD quality sound was so great? I can't ever remember having thought to myself -- gee, my FM radio would be so much better if it had CD quality sound. I've certainly thought to myself, gee, wouldn't it be great if I had more radio choices, because stations that my wife or I like seem to have a high propensity to change formats and station IDs without a moment's notice. But, if they could just banish some of those waste of space oldies and country channels to the AM dial where they belong, that wouldn't be a problem.

Besides, how can HD radio stations make it on advertising alone, when they have to be at least somewhat more expensive to run, and there isn't enough of a market in Denver for the music I'd like to keep stations trying anything different on the air as it is with old style cheap radio technology? Is it really that expensive to run a dance music or reggatone station? Why is it so much more economic to run modified versions of stations that already exist on frequencies that only 1% or less of the listening audience is capable of hearing? Are the broadcasters getting kickbacks from the radio sales or something? (Not that this is such a horrible thing, it is a standard part of the radio business model in the UK, New Zealand and Japan, to name a few).

Anyone want to take bets on how long it will take before there is a subscription only alternative to the Internet which is spam, virus, malware and spyware free, makes it easy to keep your kids from finding genuine smut, screens e-commerce participants for fraud, and doesn't allow people to do business from shell corporations set up in the Cayman Islands or Panama City? Hell, most people have to pay a few hundred dollars a year for a high speed internet connection anyway. Would you pay $15 a month more for a premium system like that? Believe it or not, this is what CompuServ and AOL and places like that made their money trying to sell before everyone went back to basics and communicated directly with the internet via Internet Explorer and a bare bones DSL connection. Will it take one year? Three? Is there anything fundamentally hopeless about the concept? Big businesses and government agencies already have intranets that serve this role.

They say about 90% of e-mail is spam. Regular mail has a high junk to good stuff ratio, of course. But, we're used to it, and at least regular junk mail doesn't have quite so high a proportion of out and out fraud. Honestly, I don't see why it is so hard to bust fraudulent come ons. Yes, there is the first amendment and all, but you know that 90% of spammers and at least a third of regular junk mail offerings violate some sort of law. There aren't actually that many of those operations out there. Supposedly, the vast majority of spam is run by just half a dozen operations.

The federal government maintains an official list of all subprime mortgage lenders in the country, for example, and there are only a couple hundred of them. I have to think that it would be cost effective to have a couple hundred regulators busting their butts all year long, every day, to prevent the crap they get into in advance rather than picking up their pieces after the fact (good riddance to the subprime lender with 50 employees in Denver which went under this week).

One of my favorite ideas for consumer protection reform would be to simply eliminate preferrential rates for bulk mailings. If they had to pay 39 cents a pop for every ad, the junk mail would become a lot more scarce. Likewise, I would totally be willing to pay a little bit, at least 1 cent per e-mail, maybe even a nickle or a dime each, in order to control junk e-mail. I doubt that I send 1000 e-mails a year. So, maybe it would cost me $100.

Even better, you could have a friends and family list, who would exchange free e-mail, and people would pay only to send to non-pre-approved addresses. Thus, most of the time, you'd only have to pay once to communicate to someone you didn't know. I probably communicate with no more than one or two new addressees a week. So, it would cost me, at ten cents a pop, $5 a year. But, a spammer that wanted to send a million pieces of spam would have to pay $100,000 for the privilege. This could fund staff to investigate spammers, and would simply by virtue of cost alone, dramatically cut down on the most fraudulent and flaky material. I know I wouldn't constantly get ads for investment opportunities, fake Rolex watches, Viagra, male enhancements and Nigerian businessman scams if those kinds of costs were in place.

By the way, does anyone still connect on dial up connections anymore? I didn't think so, but then I turned on the TV in a vain attempt to see the shuttle take off that the kids wanted to see, and lo and behold, there was a 30 second ad selling dial up connections at cut rate prices. Worse yet, you know who will buy them? Grandma and Grandpa in communities that have free WiFi service citywide (something that the Western suburbs of Denver are working on as we speak). The 16th Street Mall and Cherry Creek North already have this, but they have a notable shortage of vulnerable, computer illiteral grandparents.

And, why do we still not have customized newspapers? Why can't I subscribe to a version of the Denver Post that has advertisements only for things that I actually want and no sports pages or classified ads?

You Can Go To College In Colorado

The affirmative action debate, and the debate over rising college education costs, sometimes distracts people from a fundamental fact.

In Colorado, and in almost every state, you can get into college somewhere if you meet some basic minimal requirements and complete an application. If you have graduated from high school or have a GED, you can get into college even if you had a below average score on your ACTs or SATs. In Colorado, everyone has to take the ACT anyway.

The schools with the most open admissions policies are also often the least expensive to attend, and are more likely to be close enough for you to attend while living where you already do, than selective colleges. Tax credits and financial aid can almost always bridge that financial gap if you are eligible for admission to, but can't afford to attend, these schools.

The least selective public four year college in Colorado is Metropolitan State College of Denver. Assuming you apply on time, the admissions standards are as follows:

* If you have earned your GED, you are guaranteed admission to Metropolitan State College

* If you have graduated from high school and are twenty years of age or older, you are guaranteed admission to Metropolitan State College.

* If you have graduated from high school and are nineteen years of age or younger, you are guaranteed admission to Metropolitan State College if you have:

a CCHE index score of 85 or greater, an ACT English subscore of 18 or above and a reading subscore of 17 or above (or an SAT verbal score of 440 or above)

In Colorado 63% of high school graduates get at an ACT English subscore of 18 or above. By ethnicity 75% of white high school students, 63% of Asian high school students, 42% of Native American high school students, 38% of African American high school students, and 36% of Hispanic high school students, meet this automatic admission standard.

If you have a CCHE index score of 76 or greater, you may be considered for admission on an individual basis.

An example of a combination of grades and test scores that will produce a CCHE index score of 85 is a 2.5 high school GPA (half Bs and half Cs) and a combined ACT score of 20.

An example of a combination of grades and test scores that will produce a CCHE index score of 76 is a 2.0 high school GPA, e.g. mostly Cs with an equal number of Bs and Ds (or class rank in the top 80% of your graduating class), and a combined ACT composite score of 18 (a little lower on English/reading, a little higher in other areas). An ACT composite score of 18 is roughly the 33rd percentile, i.e. about two-thirds of people who take the ACT do better. An ACT composite score of 18 is equivalent to an SAT I combined score of about 860.

If you were in the top half of your high school graduating class, you are guaranteed admission to Metropolitan State College of Denver with an ACT composite score of 16 (the 18th percentile), and will be considered if your ACT composite score was at least 11. About 99% of people who take the ACT get a composite score of at least 12.

Even if you don't get into Metropolitan State College of Denver, you may be eligible for admission to a community college. The Community College of Denver's application, for example, doesn't even ask for test scores or your high school grades.

In state tuition and fees for a full time (32 credit hour a year) course load for a resident of Colorado at the Community College of Denver are about $3,000 a year. At Metropolitan State College of Denver it is $3333 a year, plus a mandatory $680 a semester health insurance fee if you don't have coverage elsewhere. In either case, a significant chunk of the cost can be paid for with a federal tax credit for the first two years. On top of that you need to pay for housing and food while you are in school.

People who go to college, even those who don't ultimately earn four year degrees, do significantly better financially than those who never go to college.

If you can't get into Metropolitan State College of Denver, quite frankly, you aren't ready, right now, to be a full time college student at a four year institution.

If you haven't graduated from high school you need to do that, or earn a GED first.

If you've under twenty years old, and graduated from high school with such low grades, class rank and test scores that you aren't eligible for admission to Metropolitan State College of Denver, you'd be better off working, figuring out what you want to do in life, and taking part time classes at community college to bring your academic ability up to the level needed for college level work first.

Robert Gates Confirmed

Robert Gates has been confirmed 95-2 as United States Secretary of Defense.

While I'm deeply skeptical of the man, given his involvement fostering many of the people whom the United States is now fighting in a war on terrorism, its hard to feel bad about the passing of the Rumsfield era. Gates has said that he knows that the Iraq War is not going well and that it is his top priority. This beats the head in the sand, business as usual approach taken by Rumsfield.

Pacific Not So Placid

First, about three weeks ago, Tonga errupted with massive pro-Democratic riots against the ruling monarchy.

Yesterday, there was a coup in Fiji, the fourth in 19 years, which takes place against a struggle for power between native Fijians and an economically important and large South Asian community. The coup was led by a self-proclaimed advocate for the rights of South Asian Fijians, as the native Fijian leadership (which has constitutional control over the Presidency and the equivalent of the Fijian House of Lords) was over reaching in his view.

Both are tiny island nations in the Pacific Ocean.

About Lawyers

About two-thirds of the most successful Plaintiff's trial lawyers went to non-"Top 25" law schools, while about two-thirds of the most successful corporate lawyers went to "Top 25" schools. This is hardly surprising to anyone familiar with the profession.

Plaintiff's trial lawyers of the type described generally work in small firms that serve the general public. They aren't screened by a corporate hiring committee. Ratings of trial lawyers are generally based on results, which are partially due to marketing to find good cases, partially due to luck, and partially due to solid legal skills.

Corporate lawyers generally work in large firms that serve large corporations. The hiring committee of a corporate law firm uses the best available data to judge incoming associates, which generally consists of law school prestige, law school grades and law review articles. Ratings are generally a function of the kind of clients who hire them and thus, can afford to pay the highest hourly rates. Developing clients can often benefit from the connections that one can develop in elite schools (more undergraduate than law school, to be honest).

The linked TaxProfBlog post speculates that different skills than LSATs and grades are involved in trial work. This is true. But, it is only part of the explanation. Corporate law practice isn't much like law school either. It also ponders the status of tax lawyers. In my experience, tax law and corporate law practice frequently overlap or are even the same thing.

For what it's worth, I suspect that commercial litigators would probably split the difference, but look overall more like corporate lawyers. Criminal defense lawyers and prosecutors probably tend to be more plebian.

I went to a "Top 25" school, and have done both Plaintiff's personal injury work and corporate work while a lawyer in Colorado, although I can't claim to be among the 25 most successful lawyers of either type in the United States. The tenth anniversary of my admission to practice in Colorado is tomorrow. I was admitted to the bar in New York State for about a year and a half before then.

The Partial Right To Counsel

Colorado courts do not tolerate the level of incompetence of a public defender that Texas courts do. But, they also place very high hurdles to such challenges. These hurdles are probably an important source of wrongful convictions.

Failure to gather the right evidence is frequently a make or break issue in the effectiveness of counsel, but this alone, even over a client's objections, is not enough to overturn a conviction.

Most of the time, the adversary system does not break down. But, occassionally, it does falls apart, and the defendant takes the fall. The analysis of the Colorado Court of Appeals in this recent case, shows the very high standards that must be met, which by dumb luck, the defendants letters to the court complaining have given him some chance of winning, because it seems likely that his public defender did absolutely nothing but meet with him once about a possible plea deal.

This is particularly a concern in a case such as this one, where the charges of which the defendant was convicted carry decades of prison time.

Legal Tricks That Don't Work

Sometimes legal manuevers are too clever by half. The Colorado Court of Apppeals case of the People v. Jimmy J. Vasquez is such a case.

Generally, testimony can't be introduced at a trial unless the witness is subject to cross-examination, due to a part of the constitution known as the confrontation clause and a rule of evidence known as the hearsay rule. Evidence that would ordinarily be barred by this rule was admitted in his case, and because of that, he wanted his conviction thrown out. And, everyone agrees that the evidence that could have been excluded was central to his conviction. On its face, then, this sounds like a perfectly normal and well founded appeal.

But, every rule has its limits.

When your own argument admits that the reason that a witness is unavailable to testify is that you killed her, the confrontation clause is no longer effective to exclude evidence, nor is the hearsay rule, even when you can show that your motive in killing the witness was not to subvert the legal process, because the legal case in question wasn't pending against you at the time.

Court of Appeals Judge Taubman showed incredible restraint in writing an opinion that informed the defendant of this rather obvious shortcoming in his appellate theory without the slightest bit of snark.

Corporate Board Election Facts

David Milstead, writing for the Rocky Mountain News, hits the nail on the head in his article discussing how elections for the directors of a publicly held corporation work, the single biggest flaw in American corporate governance.

In the United States, "a public company is any company with 300 or more shareholders as defined in the US 1933 Securities Act that elects to become a reporting company. Under the US 1934 Act, any company with 500 or more public shareholders or a company with some public shareholders and assets of $5 million dollars must become a reporting company."

The boards of these companies are effectively self-perpetuating in the absence of a takeover bid, where the purchaser secured 50% or nearly 50% of the outstanding stock of the company to secure control of it.

Each year, when a company conducts its election, the board nominates a slate of candidates. There's one person for every open seat - no more, no less.

Shareholders typically get two choices: "for" and "withhold," as in withholding a vote from the director. In most elections, no matter how many shareholders vote to "withhold," the directors will have at least one "for" vote and will get re-elected automatically. . . .

Robert McCormick, the vice president of proxy research and operations at advisory service Glass Lewis & Co., says that 0.12 percent of directors up for election in 2005 failed to get a majority. That was down from 0.18 percent in 2004.

Colorado directors were even more successful this year, with none of the 505 up for re-election failing to get a majority, according to a Rocky Mountain News analysis.

The News reviewed the most recent voting results for 98 of the 111 Colorado-headquartered public companies it tracks. Some energy partnerships, closed-end funds and newly public companies didn't have to conduct a director vote.

Only 13 director nominees had more than 20 percent of votes withheld, meaning they failed to get 80 percent of the vote. Another 22 had between 10 percent and 20 percent, meaning they fell short of 90 percent.

In all, 423, or 84 percent, had fewer than 5 percent of their votes withheld, meaning they got 95 percent or more of the votes cast. . . .

The recommendations of proxy-advisory services such as Institutional Shareholder Services, known as ISS, and Glass Lewis played a large role in the "withhold" vote for Colorado's least-popular directors. Every member of the list had a negative recommendation from one or both of the two advisers.

ISS and Lewis typically base their recommendations on general corporate governance issues, like a failure to have a sufficient role for independent directors, or a decision to have a board of directors with less than five members, or not putting an auditor choice to a vote, or inappropriate poison pills.

In Colorado, the director who received the least support, Richard P. Beck at Advanced Energy Industries, had about 34% of the vote for him withheld. The company took no action as a result. Five more directors at New Frontier Media, facing a takeover bid from a hedge fund which owns 15% of the stock, had 27% to 27.7% of the vote withheld. The company took no action. No action was taken at four other publicly held companies in Colorado where six other directors had between 20.1 and 27.4 percent of the shareholder vote withheld, largely based on recommendations from ISS or Lewis or both.

The only Colorado company to materially respond to withheld directors votes was Vail Resorts, where John J. Hannan had 23% of the vote withheld in his bid to be a director. His lack of independence was faulted, as was his absence from more than 25% of director's meetings. He kept corporate support, but improved his attendance and the board added two new independent directors.

Bottom line: Shareholder action helped secure corporate change in just one of 505 director's races in Colorado corporations. Board of director's elections are meaningless.

Western European Biodiversity

If you want to see what the future ecology of the world might look like, look to Western Europe (excluding Greece), the place where human impact has been greatest.

Reptiles

Among reptiles there are 5 species of turtles, 13 species of lizards and 11 species of snakes.

Only one of these, the European viper, is potentially dangerous to humans, and none of the snakes or lizards exceed about 4 feet in length. Of the turtles 4 are small (up to about a foot in length and 15 pounds), while the green turtles, a type of sea going turtle that sometimes wanders to European shores, are up to 5 feet across and 440 pounds.

There are no crocodiles or alligators in Europe, no tuataras, and no amphisbaenians (the other main types of reptiles in the world, the last consisting of certain worm-like reptiles). There are 300 species of turtles, 2 species of tuataras, 23 species of crocodile related species, and 7,600 species of lizards, snakes and amphisbaenids in the world. Thus, about 1 in 300 reptile species are found in Europe.

Amphibians

There are 26 amphibian species (11 salamanders and 15 frogs and toads). There are 5,296 species of frogs and toads, 555 species of salamanders, and 171 species of caecilian (limbless amphibians) in the world. Thus, about 1 in 200 amphibian species are found in Europe.

One species of salamander, the fire salamander, has mildly poisonous secretions.

Mammals

Among mammals (all of which are placental, there are no montremes or marsupilas in Europe) the number of species is:
Primates (excluding humans): 1 (the Barbary Ape on found only on Gibralter - introduced)
Terestrial Carnivores: 22 (2 bears, 5 canines, 12 from the weasel family, 3 mongoose/genet -- all introduced, 1 racoon - introduced, and 3 from the cat family)
Odd Toed Ungulates: 2 (both equines)
Even Toed Ungulates: 18 (1 wild boar, 8 cattle, 11 deer)
Rodents: 48 (6 squirrels, 2 beavers, 1 porcupine - introduced, 1 coypu - introduced, 3 dormice, 1 hamster - introduced, 3 lemmings, 21 voles, 3 rats - introduced, 1 gerbil - introduced, 6 mice)
Rabbits/Hares: 3
Insectivores: 22 (3 hedgehogs, 4 moles, 15 shrews)
Bats: 33
Seals and Walruses: 8 (7 seals, 1 walrus)
Cetaceans (e.g. whales, dolphins): 29

The only mammals capable of hurting humans in a fight in Europe are the wolf, found only in Spain and Italy, the polar bear, found only in Iceland and Scandinavia, the brown bear and the lynx.

Among the major types of mammals not found in the wild in Western Europe are armadillos, sloths, true anteaters, manatees, elphants, hydraxes, aardvarks, elphant shrews, golden moles, scaly anteaters, flying lemurs, tree shews, pikas, civets, hyenas, red pandas, linsangs, skunks, tapirs, rhinoceroses, hippos, peccaries, camels and llamas, and megabats (aka Old World fruit bats).

Thus there are 195 species of mammals in Europe out of a total for the world of more than 4,000. Thus, about 1 in 20 mammal species are found in Europe. About 27 of those species were introduced and are not native to Europe.

Bird

There are 700 species of birds in Europe. It has no flightless birdds.

Regional Variation

In some areas the numbers are even smaller, such a Britain.

In Britain there are only 68 mammal species, 15 of which were introduced. The mammals consist of 7 species of insectivores (1 hedgehog, 1 mole and 5 shrews), 20 species of bat, 9 species of terestrial carnivores, 5 species of seal, 1 species of Walrus, 3 rabbit/hare species, 6 species of deer, 1 species of wild pig, 2 species of squirrel, 2 species of dormouse, 4 species of mouse, 2 species of rat, 6 species of vole, and 1 species of beaver. The red-necked wallaby was introduced to Britain but is probably extinct in Britain now in the wild. Britain has no primates other than humans or no predators large enough to threaten humans.

Britain has 3 species of snakes, 3 species of lizards, 5 kinds of turtles that have been seen on its shores, 3 kinds of newts (a type of salamander), 2 kinds of toads, and 2 kinds of frogs. There have been 572 species of birds seen in Britain.

Southern Europe has a bit more biodiversity, in part because it is warmer.

Recent Losses

In the last ice age (the Pleistocene era), Europe lost, at least, 1 species of cave bear, 2 species of cave lion, a type of saber tooth cat, 6 species of elphants, 5 species of hippos, 2 species of rhinoceroses, 1 species of primates (neanderthals), and 1 species of giant rat.

Since then the animals that have gone extinct in Western Europe include 2 species of lizards, 3 bird species, 2 species of wild cats, 1 whale species, 2 species of pikas, 2 equine species, 3 species of giant shrew, 2 species of dormouse, the forerunner of modern cows, the cave goat, 1 species of true mice, 2 species of ibex, and 1 species of wild dog.

Why Give Special Attention To AIDS?

Today is World AIDS Day.

The Last Big Deadly Natural Threat

What makes a focus on this disease appropriate?

AIDS is the last big deadly natural threat that nature poses to humans in the United States.

AIDS is the only major infectious disease, in the United States at least, that routinely kills adults in their prime. The other infectious diseases that are deadly, flu and pnemonia, are less common causes of death for people 25-54, and are only a slightly more common cause of death among those age 15-24 (keep in mind that infection with HIV and death from AIDS are usually far removed in time, these represent early childhood infections for the most part).

AIDS kills thousands of Americans each year. In 2004, AIDS killed 15,798 people in the United States, all but 61 of whom were adults or adolescents. Only about 2% of those killed by AIDS were diagnosed with the disease before age 13 or after age 65. A third of those diagnosed with AIDS are in the 30s when diagnosed.

In 2000, AIDS ranked as a leading cause of death in the following age ranges is as follows:
5-14 #13
15-24 #10
25-34 #6
35-44 #5
45-54 #8
54-64 #14

Trauma (i.e. accidents, homicide and suicide) is the leading cause of death for persons age 1-44. AIDS rank among non-traumatic causes of death is as follows:
5-14 #10 (influenza and pnemonia killed 87, AIDS killed 46)
15-24 #7 (influenza and pnemonia killed 189, AIDS killed 179)
25-34 #2 (influenza and pnemonia killed 364, AIDS killed 2,437)
35-44 #3 (influenza and pnemonia killed 1,068, AIDS killed 5,919)
45-54 #6 (influenza and pnemonia killed 1,774, AIDS killed 4,142)
54-64 #12 (influenza and pnemonia killed 2,879, AIDS killed 1,239)

For African Americans, AIDS rank among non-traumatic causes of death is as follows:
5-14 #6 (influenza and pnemonia killed 11, AIDS killed 23)
15-24 #3 (influenza and pnemonia killed 44, AIDS killed 125)
25-34 #1 (influenza and pnemonia killed 93, AIDS killed 1,432)
35-44 #3 (influenza and pnemonia killed 257, AIDS killed 3,080)
45-54 #3 (influenza and pnemonia killed 425, AIDS killed 2,257)
55-64 #8 (influenza and pnemonia killed 538, AIDS killed 636)

There are other deadly communicable diseases, such as bubonic plague, West Nile Virus, pneumonia, TB and flu. But, they predominantly kill the very young, the very old, thoses will immune systems weakened by AIDS or other diseases, and people who don't seek medical treatment. For the old and those with weakened immune systems, it is more fair to calls these diseases complications of something else, be it another disease or simply old age, than a death attributable to the disease itself. Vaccines, anti-biotics, mosquito control, and good sanitation have collectively wiped out most other deadly infectious diseases, or caused them to no longer be deadly to adults in their prime.

There are other incurable deadly communicable diseases that kill adults in their prime in the world, but they are largely confined to the tropics and subtropics. Whether or not it is fair, they are off the radar screen of most of the industrialized world in Europe, Canada, the United States and Japan.

At least in the United States, we've pretty much eliminated all other external threats to non-elderly adults in the United States that aren't of our own devising.

The number of healthy adults killed each year by animals, either predators or venomous, is about a couple hundred a year.

There are only two kinds of deadly poisonous spiders in the United States (the black widow and brown recluse), neither of which is usually deadly except to small children. Scorpions also usually only kill small children. There is only one deadly lizard in the United States (the Gila Monster which is confined to the deserts of the Southwest) and there have been no recent deaths caused by it. The most deadly poisonous snaks in the United States are the copperhead (who bies is very seldom fatal), the cotton mouth water moccasin which has low mortality (under 2%), the rattlesnake (with low mortality but frequent amputations made necessary). These snakes are only found in some parts of the U.S. Poisonous snakes, spiders, and lizards killed only 10 people in 2003. Allegeric reactions to bea and wasp stings (and in a few rare cases, massive swarm attacks) killed 66 people in 2003. Other poisonous plants and animals killed 18 people.

The big predator species like mountain lions, grizzly bears and wolves, are almost all rare and endangered. Only a few people die from sharks each year. Non-poisonous animal attacks killed 122 people in 2003, 32 of which were dogs, mostly killing young children.

The only poisonous reptile in Europe is the European viper, whose bite has low mortality. The only poisonous spider of any danger to humans in Europe is the hobo spider (and its lethality is marginal at best). Big predator species are even more rare in Europe, which has fewer truly wild places than the United States. Much of Europe has none of the warm waters which are home to most potentially deadly sea animals than the United States.

Natural disasters and lightning strikes are relatively minor killers in the bigger scheme of things, averaging a couple of hundred deaths each year, and we know what to do to deal with most of them, even if we don't always do it. On occassion a major hurricane or flood kills a large number of people, as it did when Katrina struck. But, these major, deadly natural disasters are usually always proceeded with ample warning. Avalanches rarely kill those who aren't actively seeking out risky situations. While several thousands of people die each year in fires, the overwhelming majority of those fires (about 98%) are indoor fires or controlled fires with human origins, not wildfires outdoors.

There are still adults who die in the United States of exposure to the elements. In 2003, 620 died from exposure to cold in 2003, many of whom were vagrants. Many, and probably most, of the 273 people a year who die from heat in heat waves are the frail poor elderly.

While tens of thousands of adults are killed every year by trauma (homicides, suicides and accidents), the vast majority of these deaths are man v. man conflicts.

Car accidents and work related accidents involving some form of machinery, man made construction environments, or man made poisons predominant among deadly accidents. Also, quite a few of the deaths formally classified as accidents, usually slip and fall deaths, are basically deaths of old age, as the falls would have been minor events in the lives of a typically non-elderly adult. The solutions to man v. man threats are within our collective control.

There are also other diseases that kill non-elderly adults -- cancer, cardiovascular diseases, lung diseases and diabetes at the top of the pack among them. But, with the exception of cervical cancer, which is linked to the HPV virus for which there is now an effective vaccine, these are not communicable diseases. They are a product of hereditary predisposition, life choices and just dumb bad luck that we don't understand. They are threats inherent in who we are personally. Many suicides are really deaths as a result of mental illness. (Footnote: Are there any contagious, pathogen transmitted mental illnesses? Why not?).

It isn't that diseases that kill the elderly are unimportant. But, they are frequently contributing factors to an underlying malady known as old age. If cancer doesn't kill you, a geriatric fall, the flu, a heart attack, or some other failing organ likely will. Very few people live much longer than 100 years. No one has ever lived to be 130 years old. The ultimate causes of death for people over age 65 or so, are overwhelmingly those classically associated with the aging process. The warranty on a human being's component parts runs out. In a way, old age is very much like AIDS. Often it isn't the ultimate cause of death, but it makes other risks that could ordinarily be ignored, deadly.

The very young are particularly vulnerable to a wide variety of risks to their lives. But, parents on the whole do a better job of protecting their children than they do themselves. Children who survive the first year of life, through adolescence, have a lower mortality rate than any other age group, despite their heightened vulnerability to a vast array of threats and personal lack of good sense to protect themselves from all manner of injuries that adults have the good judgment not to expose themselves to. Most children who do die in the first year of life were born with the congenital defect that kills them and do so just days, weeks or months after being born. While abortions and miscarriages are common, infanticide, the ancient Roman predecessor to the abortion debate, has virtually disappeared and where it happens, usually happens now in the hours immediately following a birth by a teen single mother who was in denial during pregnancy and give birth alone.

No End In Sight

In contrast, there are a million people with AIDS in the United States. There is no cure, although anti-retroviral drugs can slow its progression. There is no effective vaccine, and devising one has proven difficult for reasons intimately connected to the nature of the disease itself. It has a long latency period, so most people who spread the disease don't know that they have it. This makes it hard to devise targetted ways of preventing those infected from spreading the disease.

There is also no precedent for wiping out a relatively widepread sexually transmitted disease. We've had a good working understanding of syphillis and ghonorhea for a century. Herpes is more recently understood, but still hardly the new kid on the block. None of these diseases on the path to erradication. Their prevalance has ebbed and flowed from year to year, but we've never come anywhere close to wiping them out. Yet, any strategy that would wipe out AIDS would, almost necessarily as a side effect, have to also virtually eliminate all sexually transmitted disease in the target populations.

Wiping out all sexually transmitted diseases in gay men, IV drug users, sex workers and African-Americans, the groups that have faced the brunt of the AIDS scourge in the United States, is a tall order. None of these groups are known for their pervasive blind obedience to governmental authority.

Given this fact, AIDS seems likely to remain the number one force of nature capable of killing non-elderly adults for the foreseeable future. This is why it deserves to be singled out for special attention. Damage control, and not elimination of this single greatest external killer, is the order of the day.

Lest I close on a gloomy note, I'll mention that there is a simple, low cost treatment that can provide resistance to the spread of AIDS and other sexually transmitted diseases. It is circumcision. When my son was born, the evidence wasn't so clear. But, now, the evidence is overwhelming that circumcision greatly reduces the risk of transmission of sexually transmitted diseases (by a factor on the order of a third to two-thirds). It isn't a vaccine, but it is cheap and easy, which matters in the case of a disease which, while my focus has been on the first world, is most severe in Third Would countries in Africa and Asia.