Powder v Crack Revisited

Those familiar with the debate over harsh sentences for crack cocaine use can skip this post. This is a recap for newbies via the American Prospect:

Now over 20 years old, the sentencing guidelines set forth in the Anti-Drug Abuse Act of 1986 mandate a minimum incarceration of five years for possession of five grams of crack cocaine -- the same penalty that is triggered for the sale of 500 grams of powder cocaine, or 100-times the minimum quantity for crack. . . .

While drug use rates are similar among all racial groups, African American drug offenders have a 20 percent greater chance of being sentenced to prison than white offenders, according to Commission statistics. In 2005, more than 80 percent of crack cocaine defendants were black. . . .

[A] sampling of those incarcerated under the guidelines in 2000 showed roughly 66 percent were low-level street dealers, while only half-of-one percent qualified as "high-level" suppliers. . . .

The Bureau of Justice Statistics found that between 1994 and 2003, the average time African American drug offenders served in prison increased by 77 percent, compared to an increase of 28 percent for white drug offenders. . . .

This year, as it has four times in the past two decades, the Commission recommended that lawmakers repeal the crack sentencing mandate. . . .

Currently there are six bills making their way through Congress aimed at addressing the disparity . . . H.R. 79 . . . would apply the same five-year minimum to powder cocaine . . . Biden's Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, which would repeal the mandatory minimum for simple possession of crack and focus federal attention away from street-level dealers and onto so-called "cocaine kingpins." . . . the bipartisan Fairness in Drug Sentencing Act of 2007 . . . would only reduce the crack/powder disparity to a ratio of 20-to-1, not eliminate it altogether.

Of course, crack penalties aren't the only problematic mandatory minimum sentences in the federal criminal code, just the most clearly problematic.

Bankruptcy and Juvenile Restitution

The 10th Circuit Court of Appeals, in a case of first impression, has ruled that restitution orders arising from juvenile delinquency proceedings are dischargable in bankruptcy under Chapter 13.

Starting in 1990, criminal restitution orders were made non-dischargable in Chapter 13, but the Court held that a juvenile delinquency determination was a status, rather than a crime, and that the ban on discharge of criminal restitution therefore, did not apply.

The Motherhood Divide In Denver

Denver is a highly segregated city. The divide between its mostly well off Anglo and Asian populations, and its relatively less well off Hispanic, black and Native American populations can be stark.

The divide is particularly notable when looking at the characteristics of mothers who give birth in Denver by ethnicity. Consider the following statistics (all of which are percentage of births to mothers in the ethnicity stated in 2005 from Health Statistics Section, Colorado Department of Public Health and Environment):

Mother Age 10-17*
Anglo: 0.9%
Asian: less than 0.5%
Hispanic: 7.8%
Black: 6.4%
Native American: 11.1%

Mother Age 18-19
Anglo: 2.2%
Asian: 1.3%
Hispanic: 10.1%
Black: 10.7%
Native American: 9.9%

Mother Age 30+
Anglo: 62.7%
Asian: 57.3%
Hispanic: 25.3%
Black: 27.4%
Native American: 29.6%

Mother Not Married
Anglo: 17.1%
Asian: 12.6%
Hispanic: 42.2%
Black: 60.6%
Native American: 66.7%

Mother Not A High School Graduate
Anglo: 6.3%
Asian: 11.6%
Hispanic: 60.3%
Black: 24.8%
Native American: 34.6%

No First Trimester Prenatal Care
Anglo: 11.5%
Asian: 17.2%
Hispanic: 36.6%
Black: 26.9%
Native American: 42.3%

Smoked During Pregnancy
Anglo: 5.9%
Asian: 4.1%
Hispanic: 5.3%
Black: 9.1%
Native American: 12.3%

*Births to mothers age 10-17 who were Denver residents without regard to ethnicity were divided as follows: Mother age 10-12: 1, Mother age 13-14: 27, Mother Age 15-17: 473.

Total number of live births to Denver resident mothers in 2005 by category: Anglo 3707, Hispanic 5035, Black 1028, Asian 372, Native American 81.

The numbers tell the tale of two very different patterns of motherhood in Denver. I don't have the cross-tabs, but it is safe to guess that there is a great deal of overlap between teen mothers, unmarried mothers, mothers who haven't graduated from high school, mothers who lack prenatal care, and mothers who smoked during pregnancy.

The divide is not absolute. It is fair to guess that one in seven or eight Anglo or Asian mothers fit the "at risk" profile, with at least one of the risk favors identified above, while perhaps 40% of mothers who are Hispanic, black or Native American are in no way "at risk" by the measures shown above.

In this post, I called it the Motherhood Divide, because more than marriage divides the "at risk" mothers from those whose prospects seem secure, but more often it is called the Marriage Gap.

While these seems like the same old bad news, it is worth remembering that this phenomena is not as old as one might think, according to this analysis from Reason magazine discussing hte national trend:

69. That is the percentage of black children born out of wedlock in 1999. The good news is that the illegitimacy ratio for blacks stopped rising in the 1990s; the bad news is that it stabilized at more than triple the illegitimacy ratio of 1960. Today, about two-thirds of all black families are headed by a single parent (usually the mother), and a majority of all black children live in fatherless households. . . .

Until the 1950s, blacks were more, rather than less, likely than whites to be married. . . .

In 1960, about 2 percent of white children were born out of wedlock; in 1999, the comparable figure was 27 percent--and the figure for whites, unlike the one for blacks, continues to grow. . . . the great engine of single-parenthood is no longer divorce, as it was in the 1960s and 1970s; it is the rising share of births to people who never marry to begin with. . . .

America's families and children may be splitting into two increasingly divergent and self-perpetuating streams--two social classes, in other words--with marriage as the dividing line. Some children would grow up in a culture where marriage is taken for granted and parents worry about sport utility vehicles and quality day care, others in a culture where marriage is a pipe dream and deadbeat dads and impoverished kids are the norm.

The Reason article speculates at length about the consequences these trends may have in the future. I've limited the quotation to the status quo and recent history, and have skipped the sticky issue of cohabitation v. single parenting v. marriage in this post.

Denver is also, like many central cities, atypical of the state or nation at large. Many middle class minorities and many working class whites don't live in central Denver. They are prone to live in the suburbs. But, Denver's divide is still worth noting.

Traditional Marriage Between A Man and A Woman

Traditional marriage between a man and a woman isn't always such a great thing:

By ALISA TANG, Associated Press Writer
Mon Jul 9, 4:19 PM ET

JALALABAD, Afghanistan - Unable to scrounge together the $165 he needed to repay a loan to buy sheep, Nazir Ahmad made good on his debt by selling his 16-year-old daughter to marry the lender's son.

"He gave me nine sheep," Ahmad said, describing his family's woes since taking the loan. "Because of nine sheep, I gave away my daughter." . . .

[G]irls are traded like currency in Afghanistan and forced marriages are common. Antiquated tribal laws authorize the practice known as "bad" in the Afghan language Dari — and girls are used to settle disputes ranging from debts to murder.

Such exchanges bypass the hefty bride price of a traditional betrothal, which can cost upward of $1,000. Roughly two out of five Afghan marriages are forced. . . .

Millions of girls now attend school and women fill jobs in government and media.

There are also signs of change for the better inside the largest tribe in eastern Afghanistan — the deeply conservative Shinwaris.

Shinwari elders from several districts signed a resolution this year outlawing several practices that harm girls and women. These included a ban on using girls to settle so-called blood feuds — when a man commits murder, he must hand over his daughter or sister as a bride for a man in the victim's family. The marriage ostensibly "mixes blood to end the bloodshed." Otherwise, revenge killings often continue between the families for generations. . . .

[The Women and Children Legal Research Foundation] investigated about 500 cases of girls given in marriage to settle blood feuds and found only four or five that ended happily. Much more often, the girl suffered for a crime committed by a male relative. . . . A girl is often beaten and sometimes killed because when the family looks at her, they see the killer. "Because they lost someone, they take it out on her" . . .

Several years ago in nearby Momand Dara district, a taxi driver hit a boy with his car, killing him. The boy's family demanded a girl as compensation, so the driver purchased an 11-year-old named Fawzia from an acquaintance for $5,000 and gave her to the dead boy's relatives . . . Three years ago, Fawzia was shot to death . . . .

The story of Malia and the nine sheep illustrates the suffering of girls forced into such marriages.

Malia listened as her father described how he was held hostage by his lender, Khaliq Mohammad, because he could not come up with the money to pay for the sheep, which Ahmad had sold to free a relative seized because of another of Ahmad's debts.

Ahmad was released only when he agreed to give Malia's hand in marriage to the lender's 18-year-old son. Asked how she felt about it, Malia shook her head and remained silent. Her face then crumpled in anguish and she wiped away tears.

Marriage based on the mutual consent of both the man and the woman marrying based on the wishes and choice of the members of the couple isn't all that old.

Arranged marriages weren't terribly uncommon 150 years ago among European immigrants to the United States, and were common more recently than that in much of Asia, although outright trading of women like chattle as described above has not been common in Europe for a longer time, and probably never really took hold on a widespread basis in the United States (widespread literacy for women also came sooner to the U.S. than in Europe or Asia). In some places, like Afghanistan, arranged marriage remains common.

Afghanistan's model is the real traditional marriage, and I see few reasons to stick up for that institution.

Lead Poisoning and Crime

One man's studies suggests that lead poisoning rates are closely linked to violent crime rates twenty years later. More analysis of the study by Rick Nevin is found here, and an abstract of the May 2000 article is found here.

He attributed the big 1990s drop in violent crime to the end of leaded gasoline, and previous crime surges to increased use of lead. He argues that lead is the lead exposure is a leading cause of violent crime.

The link isn't obvious, but a route of causation is plausible, and the data are rather strong. The alternative, of course, is that lead exposure could be a proxy for other variables that are actually causes, like poverty.

The news is basically good, because lead exposure reductions have been one of the great success stories of recent environmental history. The primary exposure rate at this point is through old lead pipes in older cities (Washington DC among them).

Against CAFE Standards

The Corporate Average Fuel Economy (CAFE) regulations are the primary governmental means used in the United States designed to encourage fuel efficiency. I’m all for fuel efficient vehicles, but I don’t like the CAFE standards.

What is it?

The Corporate Average Fuel Economy (CAFE) . . . is the sales-weighted average fuel economy, expressed in miles per gallon (mpg), of a manufacturer's fleet of current model year passenger cars or light trucks with a gross vehicle weight rating (GVWR) of 8,500 pounds (3,856 kg) or less, manufactured for sale in the United States. This system will change with the introduction of "Footprint" regulations for light trucks binding in 2011. Light trucks that exceed 8,500 lbs gross vehicle weight rating (GVWR) do not have to comply with CAFE standards; SUVs and passenger vans are exempt up to 10,000 lbs. In 1999, over half a million vehicles exceeded the GVWR and the CAFE standard did not apply to them. In 2011, the standard will change to include many larger vehicles. . . . If the average fuel economy of a manufacturer's annual fleet of car and/or truck production falls below the defined standard, the manufacturer must pay a penalty, currently $5.50 per 0.1 mpg under the standard, multiplied by the manufacturer's total production for the U.S. domestic market, a fine which not all car makers avoid. . . . .

For the purposes of CAFE, a manufacturer's car output is divided into a domestic fleet (vehicles with more than 75% U.S., Canadian or (after the passage of NAFTA) Mexican content) and a foreign fleet (everything else). Each of these fleets must separately meet the requirements. . . .The two fleet rule for light trucks was removed in 1996.

Fuel economy calculation for alternative fuel vehicles multiplies the actual fuel used by a "Fuel Content" Factor of 0.15 as an incentive to develop alternative fuel vehicles. Dual-fuel vehicles, such as E85 capable models, are taken as the average of this alternative fuel rating and its gasoline rate. Thus a 15 mpg dual-fuel E85 capable vehicle would be rated as 40 mpg for CAFE purposes, in spite of the fact that less than 1% of the fuel used in E85 capable vehicles is actually E85.

Manufacturers are also allowed to earn CAFE "credits" in any year they exceed CAFE requirements, which they may use to offset deficiencies in other years. CAFE credits can be applied to the three years previous or three years subsequent to the year in which they are earned. The reason for this requirement is so that manufacturers are not penalized for occasionally (due to market conditions, for example) failing the targets, but only for persistent failure to meet them. . . .

Cars and light trucks are considered separately for CAFE and are held to different standards. As of early 2004, the average for cars must exceed 27.5 mpg and the light truck average must exceed 20.7 mpg. Trucks under 8500 lb must average 22.5 mpg in 2008, 23.1 mpg in 2009, and 23.5 mpg in 2010. After this, new rules set varying targets based on truck size "footprint". . . . As of model year 2002, BMW, DaimlerChrysler (import fleet only), Ferrari, Lotus and Porsche failed the automobile CAFE requirement, while BMW and Volkswagen failed to meet the light truck requirement. . . .

Under the new final light truck CAFE standard 2008-2011, fuel economy standards are restructured so that they are based on a measure of vehicle size called "footprint," the product of multiplying a vehicle's wheelbase by its track width. A target level of fuel economy is established for each increment in footprint using a continuous mathematical formula. Smaller footprint light trucks have higher fuel economy targets and larger trucks lower targets. Manufacturers who make more large trucks are allowed to meet a lower overall CAFE target, manufacturers who make more small trucks must meet a higher standard. Unlike previous CAFE standards there is no requirement for a manufacturer or the industry as a whole to meet any particular overall actual MPG target.

The principal problem with CAFE standards, other than the new footprint standards, is the fleet orientation. Simply put, fuel efficiency should be an individual vehicle based regulation, and not based upon the mix of vehicles that a company happens to sell. For example, while General Motors can meet CAFE standards by lumping fuel guzzling Cadillac sales, with sales of compact cars in its Chevy line, were it to spin off Cadillac, the separate luxury car company would struggle to meet the standards.

The Case For A Predicted Lifetime Fuel Consumption Excise Tax

One possible alternative would be an upfront tax on anticipated fuel useage. First, the EPA fuel ratings would be modified to make them more accurate (something already scheduled to happen in 2008). Second, a predicted fuel consumption over some approximation of the lifetime of the vehicle, say 100,000 miles, would be calculated. Third, a tax rate, perhaps $1 per gallon, would be applied to this lifetime consumption. Fourth, a flat, per vehicle purchase tax rate would be applied to against this tax.

For example, suppose that you had a 25 mpg vehicle. The predicted fuel consumption (prominently displayed along with a predicted lifetime fuel purchase cost based upon current prices – more if the vehicle needed premium fuel) would be 4,000 gallons. The basic tax would be $4,000. A credit might be based on say 33.3 mpg, or 3,000 gallons over the life of the car. So, maybe the credit would be $3,000 and the car purchaser would pay a $1,000 tax on the car.

Now, suppose that you buy a 50 mpg hybrid vehicle. The predicted fuel consumption would be 2,000 gallons. The basic tax would be $2,000. But, after applying a $3,000 credit, maybe you would receive a $1,000 fuel efficiency tax refund with the purchase.

Why?

1. It puts the incentives and information in place at the time when the economic decision is made, when the vehicle is purchased, unlike a gas tax which comes up at a time when vehicle owners have only a limited ability to change their gasoline use – fuel consumption is very inelastic due to the demands of work and home and shopping locations.

2. The tax is collected at a time when the buyer can’t afford it, when a new car is purchased. Unlike gas tax increases, it doesn’t burden people based on economic decisions made before the tax was enacted, which simply burden the poor.

3. It simultaneously encourages buyers to purchase smaller vehicles and to purchase more fuel efficient vehicles. To the extent that lower income people tend to purchase smaller, more fuel efficient cars anyway, because they are cheaper, the tax will be less regressive than gas taxes. Likewise, taxes will tend to be high on fuel inefficient big SUVs and luxury cars, which tend to be purchased by the affluent.

4. The tax is indifferent to fleet mix. If you want to sell exclusively luxury cars, exclusively small cars, or a mix of both, the law doesn’t car.

5. The tax recognizes that secondary market sales of vehicles have only a modest impact on the environment. Once a new vehicle has been sold, somebody is going to drive it until it breaks down and has to be scrapped. An individual’s trade up to a more fuel efficient new vehicle is only good for the environment at the macro-level only if the vehicle is not resold to someone else. The problem of removing fuel inefficient vehicles from the national fleet of vehicles before they are mechanically exhausted is a problem that will have to be solved separately.

6. The tax is closely linked to the impact that the tax seeks to influence. It is closely linked to fuel consumption.

7. The tax subtly favors conservation. Those who conserve simply by driving less will still pay less in the long run, because they will pay the tax on fewer vehicles over time. If you drive 5,000 miles a year, you may buy 1 vehicle every twenty years, rather than 1 vehicle every ten years, and so you will pay the tax once instead of twice. Likewise, a business that is given a choice between an eight passenger vehicle with less fuel efficiency and a four passenger vehicle with more fuel efficiency will have an incentive to choose the larger vehicle only if the business really needs the eight passenger capacity.

8. The tax encourages economically sensible fuel efficiency innovation in a non-arbitrary way. If a technology that costs less than $1 per gallon of lifetime fuel savings, there is an economic incentive to include it, and the cheaper the technology, the stronger the incentive is to use it. If the technology costs more than $1 per gallon of lifetime fuel savings, it is subsidized, but not strongly encouraged, and the subsidy is weaker as the cost/benefit ratio falls. Rather than amend CAFE standards on a regular basis as new technologies make fuel efficiency technologies feasible, falling technology prices encourage their use.

13%

Dick Cheney, the Vice President and source of all things evil in the administration has a 13% approval rating, while I saw somewhere today that President Bush is at 29%. Even the right hates Cheney: "Just 31 percent of Republicans and 26 percent of conservatives say they have a favorable opinion of Mr. Cheney." Some democracy we've got here. I wouldn't want to copy it, if I were an outsider. There needs to be some sort of more decisive way of securing a midterm correction than the status quo.

Why does this horrible and unpopular person have power? Because the President is too weak to ignore him. Why is the President so weak? One commentator at Obsidian Wings thinks its because the campaign media narrative focuses to much on personality and too little on policy competence.

Mr. Trademark Abuse

Leo Stoller is the poster child for trademark abuse. Most recently, he received a rebuke in the 7th Circuit Court of Appeals, in a decision so lacking in traditional judicial opinion style that it is tolerable only because Stoller's conduct is so egregious and needs to be stopped.

The bigger problem, of course, is how he managed to get so many frivilous trademark applications past the patent and trademark office. These need to be cancelled not piecemeal, but en masse, and accompanying by criminal prosecutions for filing false trademark applications.

Notice: The title of this post "Mr. Trademark Abuse", should in no way be confused with the firm "Mr. Trademark® Inc." which has no relation to Mr. Stoller, according to its representative Joe Strahl VP. Of course, if you had a brain, you would have realized that simply from the context of the post, but I'm putting it here for anyone too thick headed to understand that point on July 16, 2007 in response to a cease and desist e-mail I received today when I opened my work e-mail this morning. (A further response is here.)

Who Litigates Cases?

The Colorado Bar Association has about 14,000 members. There are more than 20,000 attorneys licensed to practice law in Colorado.

Every criminal cases is prosecuted by an attorney in the U.S. Attorneys Office for Colorado (about 49 attorneys), the Colorado Attorney General's Office (about 41 attorneys), or one of the 21 District Attorney's offices in the state (about 450 attorneys), so in all there are about 540 attorneys who prosecute criminal cases in the state. These numbers are derived from the Colorado legal directory, which provides a nearly complete list of prosecuting attorneys in the state, excluding only lower ranking deupty district attorneys in the 19th and 20th Judicial Districts for which I have made estimates based on the staffing in districts of similar population.

There are about 228 attorneys in the Colorado public defenders office (both trial and appellate combined), and about 17 federal public defenders in Colorado (a public defenders jurisdiction that also includes Wyoming) (federal numbers from the Colorado legal directory). Thus, there are 245 public defenders in the state. Nationally, public defenders handle about 75%-80% of criminal cases, and there is no reason to think that Colorado is atypical in this regard.

There were 1,916 criminal jury trials in Colorado in 2006, making up about 85% of jury trials in the state each year. There were another 809 criminal bench trials in Colorado that year (excluding infraction final hearings), which constitute about a third of all non-jury trials in the state (other than small claims hearings) each year. This includes both state and federal cases, but excludes muncipal ordinance cases which are generally prosecuted by county attorneys in municipal court, and overwhelmingly consist of traffic cases.

There were also about 1,568 civil trials to the court in Colorado (excluding 3,485 small claims hearings generally conducted without attorneys), and 372 civil jury trials in Colorado, in 2006 (federal and state combined).

Thus, about two-thirds of the jury trials in the state, and about a quarter of bench trials are handled entirely by just 785 attorneys, which make up less than 4% of the licensed attorneys in the state, and another 20% or so of jury trials (about 380) and 8% of bench trials (about 160) in the state are handled by a public prosecutor who is among that 4%, and a private criminal defense attorney. A large share of all criminal cases are handled by attorneys who special in criminal defense, and they tend to have trials more frequently than civil litigators, often several a year.

It is a fair guess that the vast majority of criminal cases in Colorado, probably 80% of jury trials and 30% of bench trials, at least, are handled by roughly 1,000-1,400 criminal lawyers who make up about 5-7% or less (the 20,000 number above is probably an underestimate) of the lawyers licensed to practice in Colorado.

This leaves only about 1,900 trials a year for the other 19,000 lawyers in Colorado, which means that the average non-criminal lawyer in Colorado handles just one trial every ten years or so, an average of just 4 or so trials per career per lawyer. The average non-criminal lawyer in Colorado handles less than one civil jury trial in an entire career.

In fact, some lawyers have relatively active civil trial practices (a busy civil trial lawyer with a personal injury practice does a couple of jury trials a year), while others don't do any litigation -- instead handling contract drafting and negotiation, real estate deals, corporate paperwork, estate planning, and other transactional practice specialties. Also, most lawyers that participate in civil litigation are specialized -- some handle mostly large volume, small dollar amount collection and eviction cases, some bring personal injury and consumer suits, some defend suits for insurance companies or corporations, some handle family law cases, and some handle all or a portion of a government entity's litigation.

In the two-thirds of civil trials in county court, the vast majority are handled by large volume, small dollar amount collections and evictions lawyers, often with pro se defendants. The vast majority of these cases are probably litigated by fewer than 200 attorneys (at 6 trials a year). This leaves only about 600 trials a year for upwards of 18,000 Colorado lawyers.

Ironically, so called "trial lawyers," a term usally applied to attorneys who bring personal injury suits, consumer protections suits and civil rights suits, make up a relatively small share of the total share of trial litigators in the state.

CSAR-X Lessons Not Learned?

The winner of the contest to be the Air Force's next search and rescue helicopter was won by the a version of the HH-47 Chinook helicopter. But, moderate Democratic Senator Mary Landrieu isn't impressed with the choice for what seems on the surface, at least, like a very good reason:

In their desire to rescue as many citizens as possible off the rooftops in and around New Orleans, rescuers unknowingly put citizens at greater risk by simply using the CH-47 Chinook helicopters. Due to the downwash created by the Chinook’s twin rotors, these helicopters had to be removed from conducting rescue missions. Instead the CH-47 Chinooks were reassigned to conduct missions such as transporting survivors, food, medical support and sandbags to repair levees. In this capacity, the CH-47 Chinook performed well, but the downwash made them dangerous in direct rescue missions[.]

Meanwhile, moderate (on some issues anyway) Republican Senator John McCain had this to say about the choice:

It is my understanding that the HH-47 was awarded the contract largely on the basis of its advantage over the US101 and S92 in range and payload. That is to utterly miss the point of combat rescue. First, unrefueled range is a non-issue in the age of helicopter air-to-air refueling.

Second, above and beyond the ability to carry a basic crew, defensive armament, limited armor protection, and a reasonable number of survivors—which all three contenders can do—payload is not a critical issue for a CSAR helicopter and never has been. The HH-47's advantage in payload is a direct reflection of its size, and size is a liability not an advantage.

The Chinook also isn't very agile as a result of its size. Here is what I said about the Chinook at dkospedia:

The CH-47 Chinook, introduced in 1961, is the Army's tandem rotor heavy lift helicopter. It carries up to 44 troops (an Army platoon) or about 19,000 pounds of cargo. It has a speed of 136 miles per hour and a range of about 300 miles.

The current helicopter used for the purpose, the HH-60, has an 11 passenger capacity.

Since the CSAR-X is an Air Force program, the job basically often involves rescues in cases of downed aircraft, not stranded Army units.

While the Air Force may have made the right choice, the arguments made on a bipartisan basis against its choice sound very thoughtful and appropriate to me, so the Air Force certainly has some explaining to do beyond what it has offered so far.

The long Padilla trial

The trial of Jose Padilla, highlighted today in the New York Times, which provides more context than most coverage, has been going on a long time, nine weeks so far, with the prosecution still trying to make its case and weeks to go.

While many high profile trials do last a long time, this is not typical. Two-thirds of federal criminal jury trials in Colorado last three days or less. Only about two out of 37 federal criminal jury trials in Colorado, in the most recent year for which numbers are available, last over four weeks. Nationwide, only 2% of federal criminal jury trials last more than four weeks.

This doesn't mean that Padilla can expect an acquittal, but it does indicate just how tenuous the government's case is here. The more you have to say to prove your case, the less likely it is that it is a solid one.

The Founder Effect

One of the basic principles of population genetics is the founder effect. Basically, if an isolated population has its roots in a small number of founding members, later generations will look a lot like the founding members genetically. So, if the people who broke away from another group to found the new population were atypical of the people they left in some random way, those anomolies will persist in the founding group's descendants.

The classic isolated population is the population of an island. Also, small populations are also more prone to random variations than large populations. So, we expect small isolated groups of people, like the 17,000 people of the island nations of Palau to have quirky population genetics.

There is strong evidence that this is the case when it comes to schitzophrenia incidence in Palau.

Genetic transmission plays a major role in the pathogenesis of schizophrenia. Family, twin, and adoption studies have consistently shown that risks in relatives are many times greater than the general population risk of 1%. McGue, Gottesman, and Rao (1983; Am J Hum Genet 35:1161-1178) calculated risk estimates of 12.8% for offspring and 3.5% for nieces/nephews of schizophrenia patients based on a large data set of Western European families. The present study evaluated corresponding risk levels in Palau, an isolated population in Micronesia where the prevalence of narrowly (broadly) defined schizophrenia is 1.99% (2.67%) and cases cluster in extended pedigrees, 20 of which contain 80% of affected individuals. . . . Risks to 1st- and 2nd-degree offspring were approximately double the rates found in the smaller Western European families: 23.4% in the offspring of an affected parent, 6.4% in offspring with one affected aunt/uncle, and 15.0% in offspring with two or more affected aunts/uncles. Recurrence rates in offspring of an affected parent were 1.6 times higher in males (27.9%) than in females (17.7%). The high risk levels we found in Palauan offspring reflect the elevated population prevalence, strong familial aggregation, and multi-lineal transmission pattern of schizophrenia in Palau.

If the effective founding group of Palau was just 50-100 people, just one or two founders with schitzophrenia could account for this high incidence of schitzophrenia now. Similar results have been seen in the case of achromatopsia incidence on the Micronesian atoll of Pingelap.

Hat Tip to Science News.

Income Taxes On Multinationals

This article makes a solid argument that the current U.S. tax system for multinational companies is broken. Right now, income is apportioned by country, foreign income in a country can be offset by taxes paid locally in that country, and income taxation from foreign subsidiaries can be deferred utnil repatriated. The result is low tax collections from foreign income that is perpetually deferred, and an incentive to create an appearance that income comes from sources abroad.

The alternative proposal suggested would be to have multinational enterprises report worldwide income on a consolidated basis, and then, allocated income internationally in proportion to the ultimate sales the company makes in each country.

Judicial Vacancies

Some Republicans are upset that the White House has nominated only 25 people to fill the 47 vacancies now on the federal judiciary.

From here.

There are about 800 Article III judges, so about 6% of judgeships are vacant, and about 3% of judgeships are both vacant and have no nominee. Bush has already nominated and confirmed 224 judges to district courts, 54 judges to the courts of appeal, and 2 U.S. Supreme Court Justices.

Keep Out = Consent Search

A 2006 ruling of the U.S. Supreme Court says that if you are present at your home and object to a search, that your fellow resident can't overide your lack of consent. The 10th Circuit yesterday, held that if you are barricading yourself in your home to avoid arrest, that this doesn't count as an objection to a search. So, your fellow resident can consent to a search after you are gone.

So, note to all you idiots out there who are barricading yourself in your homes to avoid arrest: You also need to put a sign out saying, please don't search my home, if you don't want to police to search your home when the barge in and arrest you.

I'm not sure that the U.S. Supreme Court's initial ruling is either sensible or obvious. But, given that rule, it is hard to make since of the 10th Circuit's unanimous ruling on that point yesterday.

Lawyers and judges behaving badly.

There is a law professors blog devoted almost entirely to chronicling cases where judges and lawyers are accused of being unethical or incompetent. Some of my readers have shown an interest in such things (comments are generally restricted to law professors only).

Civil Appeals

New empirical research on appeals in civil cases is interesting:

Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. . . . Using data from 46 large counties consisting of 8,038 trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials.

A subsidiary finding of the study is also interesting. Only about 12% of trials verdicts were appealed in civil cases, and only 57% of those appeals produced an appellate court opinion (presumably the other 43% of cases appealed either settled or had appeals abandoned, intentionally or due to attorney mistakes). Thus, the trial court verdict was the last word from the judicial system in about 93% of cases. More than two-third of the appellate court decisions in the 7% of cases where there were completed appeals affirmed the trial court ruling, so only about 2% of trial court verdicts are reversed on appeal. While judges verdicts are appealed more often than jury vedicts, when all is said and done the reversal rate for jury verdicts due to appeals (2.2%), is very similar to that of verdicts by judges (2.1%).

Appeal rates and appellate reversals are lowest in motor vehicle cases where only about 0.5% of trial court verdicts are reversed on appeal. Appellate reversals are highest in employment cases and professional malpractice (other than medical malpractice) cases where about 9% of all trial verdicts are reversed on appeal.

Verdicts against defendants are reversed at least half the time in cases where appeals are completed in intentional tort cases (including libel), non-medical professional malpractice cases, employment cases, lease cases, and contract cases that involve neither a vendor nor a purchaser. Product liability cases are the only kind of cases where plaintiffs do better on appeal than defendants, and even there the difference is not statistically significant.

Plaintiffs win about 55% of cases that go to trial, but this varies greatly by case type from 73% of contested mortgage foreclosure cases (where the bank is the plaintiff) to 27% of medical malpractice cases (where the injured party is the plaintiff). Defendants and plaintiffs appeal adverse decisions and prosecute those appeals to conclusion at similar rates; 6.6% for defendants and 7.1% for plaintiffs.

The gap in reversal rates on appeal is not sufficient to overcome the general win rate edge that plaintiffs have at trial.

Denver Granny Flats Proposal Noticed

A law professor's blog dealing with land use planning has taken notice of Denver's pending Granny Flats proposal. The Wash Park Profile's July issue also discusses it (a June preview from the publisher was cautiously optimistic).

Alley housing is common in Boulder, but has been banned from much of Denver for 50 years.

Pants Suit Still Ticking

Tax Profs Blog has a link.

Wardriving Story Followup

The story of a Florida man arrested for poaching wireless internet service was updated slightly.

Richard Dinon called the cops, but he's no hero. Benjamin Smith III got arrested, but he's no martyr.

Dinon and Smith crossed paths in April, when Smith was parked outside Dinon's St. Petersburg home for several hours using his notebook computer.

Dinon approached Smith's SUV twice, Smith twice closed the computer. But he didn't leave, so Dinon called the police. Smith was arrested, accused of unauthorized access to a computer network, a third-degree felony.

The allegation? Smith was using Dinon's Wi-Fi (wireless fidelity) network. The problem? Dinon intentionally had left the network unsecured. . . .

Smith was charged under Chapter 815.06 of the Florida statutes available at www.leg.state.fl.us/) Among other things, the computer crimes law talks about someone accessing a computer network without authorization.

Since Dinon left his network open, and Wi-Fi is a short-range radio signal, any computer with a wireless network card could access it. Was authorization implied because it was an unprotected signal? The lawyers and courts will have to decide that one.

The state law also addresses what someone does if they gain unauthorized access, including damaging data or "devising or executing any scheme or artifice to defraud or obtain property ...."

We don't know what Smith was doing with his computer, but we do know he has a criminal record going back to 1984 for a variety of drug offenses. That doesn't mean he's guilty here. But he also doesn't appear to be the best poster child for Wi-Fi freedom.

The federal Computer Fraud and Abuse Act is also vague, according to an excellent Cnet story on the topic (news.com, do a keyword search for "mooching").

Pipe Dream: Shrinking the Federal Courts

Why Shrink The Federal Courts?

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

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

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

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

Shrinking the Federal Civil Docket

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

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

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

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

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

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

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

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

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

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

Shrinking The Federal Criminal Docket

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

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

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

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

Legality

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

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

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

Administrative Impact

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

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

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

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

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

Conclusion

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

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

Above Average

A newsletter from Shuster & Company, PC, a certified public accountant, informs me today that the average cumulative debt of a law school graduate is $80,754 (citing FinAid.org). I was, alas, above average in this regard. And, being above average isn't always a good thing. I can't say that it wasn't worth it, however.

Washington Park Race Riot

The West Washington Park Neighborhood Association's newsletter this time around bravely mentioned the summer of 1932 race riot in Washington Park. There will eventually be a link at the Association's site here. It was a matter of public record and published history, but not widely known (also little known is the fact that the neighborhood was briefly separately incorporated and did so largely to use zoning laws to shut down saloons on South Broadway). But, neighborhod associations often want to only focus on the bright side of the past.

The newsletter story (based on a book length history of Denver) notes that Japanese Americans were banned from the beach at Smith Lake in 1913, and that African Americans just weren't welcome.

Whites (allegedly communists, and judging by their names, some Hispanic) and blacks from North Denver staged a swim in during the summer of 1932. White beach users violently attacked them, and a park director by the name of Lowry was active in asking them to leave. I suspect that this is the same Lowry after whom the Denver neighborhood is named. This resulted in 17 arrests (7 whites, 10 blacks) with no sign of violence on the part of the protesters.

They were about 25 years too early to catch the wave of the Civil Rights movement, but deserve our gratitude none the less. Today, particularly on holidays like the 4th of July, Washington Park reflects Denver's diversity, although the beach is gone, replaced later by an indoor swimming pool.

2300 posts

This is my 2300th post (by the archive's count). In addition, I've posted stories on a regular basis at Colorado Confidential where I've been on the staff since its inception, and I've posted Diaries at Daily Kos. There have also been a few posts at Wash Park Poet. There have been a few cross-posts, but overall, I'm sure that there have been, at least, 2400 original blog posts at all places I write combined in the past two years. The second anniversary was actually July 3.

I slowed down my contributions to both this blog and Colorado Confidential in 2007, but both are alive and well and remain active projects for now.

I'm not sure precisely what focus will emerge and shift over time. At Colorado Confidential, I've pretty much narrowed down to a legal affairs beat. This blog is also narrower, although still eclectic. Many good stories I simply haven't gotten around to doing properly, like the emerging issue of Granny Flat zoning (a good idea). Other shifts reflect changing interests. Tomorrow is a new year for this blog and we'll see where it takes us.

Padilla Weirdness

The jury in Jose Padilla's criminal case is starting to act like the jury in Grisham's Runaway Jury.

Party in the Park

Washington Park is a place to be in Denver on the 4th of July. We didn’t do everything, omitting the ACLU’s Liberty Run, for example, but we did plenty.

The Washington Park East and Washington Park West neighborhood associations (along with a couple of other civic groups and area businesses) sponsored a brass quintet in the boathouse, a children’s bike parade and free ice cream and toys. Quintessential small town stuff not unlike what Oxford, Ohio, where I grew up, did this year, but in a big city.

The Denver Municipal Band’s performance in the park was also a treat. The band itself, which dates from 1891, is older than all but a couple of the pieces it performed, and was formed close in time to the time that Washington Park was laid out. I left the performance with two big impressions.

First, I was struck by Semper Fidelis, Sousa’s contributions to the Marines. It is so jolly. Here is a piece composed for people in the business of getting on ships and fighting foreign wars, but it makes it out as if life in the Marines was like a day at the circus.

The second striking point, not surprisingly military, because most brass band music has military connections (even Glen Miller’s “In the Mood” was an anthem played at military bases all through World War II), was when the band played its “Armed Forces Salute”, during which audience members who are veterans stood when the anthem for their service was played. Many stood, but the vast majority were in my father’s generation, where military service was nearly universal, not mine, where it is the exception, especially for the middle class.

We concluded the day by watching the Denver Country Club’s fire works, the second round we’d seen this year after those in Glendale, Colorado. Both rivaled the only game in town when I was growing up. Of course, then, the skies opened and we were soaked. In any other state, that would be a day ruining conclusion. Here, in arid Colorado, rain is almost as much of a spectacle as the fireworks.

Pick's Disease

Until today, when I learned that I lost a cousin to Pick's disease, I didn't know that it existed, even though it has been known to medical science for 115 years. What is it?

Pick's Disease is a progressively degenerative neurological disease similar to Alzheimer's Disease for which there is no known prevention, or cure. Pick's Disease affects the frontal and temporal lobes first, with earliest symptoms showing up as changes in personality and a decline in function at home as well as work. Pick's Disease is frequently first diagnosed as stress or depression and then as Alzheimer's disease. The treatment of Pick's disease is the same as for various stages of other dementias such as Alzheimer's. This accounts for so little information being available related specifically to the treatment of Pick's Disease. . . .

In contrast to Alzheimer's disease, in which early memory loss predominates, the first symptoms of Pick's disease are often personality change, and a decline in function at work and home. Personality change may take the form of apathy and indifference toward customary interests, or of disregard for social decorum and for the feelings of others. Poor social judgement, inappropriate sexual advances, or a coarse and jocular demeanor may be seen. Function declines because the patient simply does very little, or displays confusion and poor judgement. Patients may not be highly forgetful. Often times the patient performs well when directed to do something, but cannot undertake the very same thing independently. What is lost is the ability to initiate, organize, and follow through on even very simple plans and familiar activities.

As the illness advances, difficulties with language become common. Patients become unusually quiet, and when they do speak it may be slowly, in brief sentences. They may labor to make the sounds of words and their speech may sound distorted. Some become extremely apathetic -- they may sit for hours doing nothing at all unless prompted to do so by another, while others become extraordinarily restless, and may pace unceasingly. Some patients are hypersexual, and some, like a small child, may place anything they pick up in their mouths. Gluttonous eating occurs in some cases. Attention span is poor; patients seem to be distracted instantly by anything that they hear or see. Later in the disease, patients usually become mute. Restlessness gives way to profound apathy and the patient may not respond at all to the surrounding world. Eventually, they enter a terminal vegetative state.

Pick's disease usually begins after age 40 and is less common after age 60. It is a disease that invariably worsens. The average course is about 5 years, but it ranges from 2-15 years. It is rare, accounting for between 1% and 5% of dementia.

Like a most rare diseases and most diseases involving mental health, the causes of the disease are not well known, even though the mechanism is understood.

Taxation Without Representation

When we declared independence one of the big issues was "imposing Taxes on us without our Consent", yet we are no better to the residents of the District of Columbia now. (Puerto Rico has a deal that largely frees it of federal taxation).

We also tax the young, non-citizens, and others with no say in their taxation.

More Bad News For Motown

June car sales numbers are in. The news is strong growth for Toyota (more than 10%), Honda (more than 11%) and Nissan (more than 22%), while declines for General Motors (more than 21%), Ford (more than 8%), and Chrysler (a little more than 1%). Even in core American car sales areas like pickup trucks, Toyota is surging, while American cars are in trouble. The American automobile industry is in a tailspin and management at the Big 3 seems powerless to do anything about it.

Don't blame disloyal consumers. For all the discounting that American automobile companies are doing their products are still inferior. End of story. Full stop. Build better cars and market share will rush back. But, they can't seem to do it.

Independence Day

The 4th of July has arrived once again. It is the premier patriotic holiday. Our flag is flying, as concerned as we are that the nation is headed in the wrong direction.

Tomorrow is the second anniversary of this blog. After two years, I will have made almost 2300 posts, many of them, not so short.

Have a good BBQ and a beer, enjoy the fireworks, relax, and appreciate how lucky we are to be in a country that mostly works and has for a long time.

Purging The Junk

Life gets busy. Stuff collects. And, in a neighborhood where real estate is worth $300 a square foot, simply letting junk eat up your floor space isn't an ideal proposition either. So, from time to time, one has to purge the junk. In the past couple of weeks, faced with an accumulation so great we needed the help of a family friend to pierce through it, we've dug out and done it.

The collected donation bags are enough to fill our car. Our contribution to the dumpster has been comparable. Out go the infant bath toys and less popular infant level books that our elementary school children no longer play with (my eldest is now reading Charlotte's Web). Out go the clothes that no longer fit -- like my 13 year old tuxedo, which I'd have to lose a fifth of my body weight to wear again. Winter clothes have been banished to storage for the season. Books we rarely read have been reassigned to my study from bedrooms and living rooms. I finally admitted to myself that I was never going to use the dated 100 volume legal encyclopedia neatly arranged on shelves on my garage and rid myself of them. The children conceded some of their broken outdoor toys. A broken DVD player became fodder for young inventors at camp. We finally decided that our entry rug was no longer capable of being cleaned adequately. The many years of maintenance receipts that once filled my glove compartment have been relocated to a file in a file cabinet in my study. The emerging jungle of weeds in the backyard has been eradicated once again,

We've not only thrown out junk, but also looked at the patterns in our lives that have caused it to accumulate. As children get older, we need to be conscious of what no longer matters to them, as well as what they need now. We haven't set aside enough time for slightly bigger household projects. We don't have a regular process to evaluate which of our kitchen implements, clothes, books, toys and other possessions we still need. We don't have places for everything. We don't have agreed legitimate locations to do certain activities. We don't even have a settled place to charge our cell phones. We aren't always aware of what we already have in storage when we buy new things.

The process is not over. Is it ever? The more substantial infant items, a crib, strollers, a high chair, need to be sold. It will probably take me several more serious rounds of effort before I can muster the gumption to dispose of the better share of my dozens of bankers boxes and file drawers full of marginal files that I probably no longer need to keep -- my more interesting law school class notes, out of date financial records, and boxes of newspaper clippings that would have made good blog posts had the medium been invented then. Even some of my collected books can probably be culled for the collective good of a library sale. I loved reading the full set of Kate Elliot's seven volume fantasy series in hard back (and needed to the books to refer back to while I was reading it); but I honestly can't claim that I will ever read that saga again.

But, if you meaningfully participate in the process of removing the unnecessary things from your life, it is cleansing. There is more room and less clutter at home and in the car. A random grab into a dresser drawer is now more likely to produce something appropriate to wear that actually fits. Rearranged furniture has provided us with fresh perspectives, and a reassignment of the children's places to sit at the dining room table has made a dent in dinner time fighting.

More deeply, junk purging has focused our attention on how we parent. Must we concede the entire house to the children as a fragile free zone, or can we meaningfully expect them to refrain from engaging in activities that are prone to breaking things now? Is the cost of imposing the rule worth the benefits of forcing the children to put away one project before they start another? Can we expect our children to be good at cleaning up until we establish a place for them to put each item? How are we going to establish better routines to get homework done next year, when there is more of it, than we did last year? Where can we keep library books, so that we won't lose them? If we want them to keep food out of their bedrooms, do we need to make appropriate snacks easier for them to get at in the kitchen themselves, or harder?

Spring is a lousy time for spring cleaning. Everyone is busy. Parties abound. Uncertain weather makes it hard to put clothes in storage. It is too nice outside to waste the day indoors straightening up and cleaning. And, school projects which will soon come to an end have to remain front and center.

In modern Colorado, the time for spring cleaning is the summer. The winter clothes are definitely out of season. Parties grow infrequent as vacationers make them hard to schedule. The children have time on their hands, and even the pace at the office seems to slow. Last year's school things can be put away. On the hot, languid days, nothing is a rush, so there is time to contemplate arrangements that will work. Casual summer clothing is perfect for cleaning in. And, the swamp cooler keeps indoors a more attractive place than outdoors. The start of the year is an arbitrary thing which different cultures have assigned to different times. Once, in the West, it began in the spring. Now, we follow commercial culture and start after the Christmas rush in January. But, for my druthers, the Jewish calendar, which starts the year in the early autumn, almost in tune with the academic calendar, has it right.

Tax Collection Due Process Illusory

In theory, there has been a right to "Collection Due Process" when the IRS collects taxes since 2000. In reality, out of 15,000,000 collections and about 3,000 contested cases, only 16 taxpayers have prevailed. The analysis also makes a deeper point:

Some commentators contend there can be no proper “rule of law” without adversarial process. This study proves the opposite claim: adversarial process, used in the wrong place and the wrong time, becomes a rule of deception rather than a rule of law.

Murphy Reversed On Rehearing

A panel of judges in the U.S. Court of Appeals for the D.C. Circuit unanimously reversed their prior holding in the Murphy case that a provision of the United States Tax Code was unconstitutional. If they had not done so, the door would have been open to all sorts of cranky tax protester arguments.

Eighteen months

There are about eighteen months until the winners of the 2008 election take office.

Safe Bets On Who Will Win in 2008?

We don't know who they will be, but we can say with considerable certainty that they will be neither George W. Bush, nor Dick Cheney. We can also say that it is almost certain that the President will be either the Democratic party nominee, or the Republican party nominee.

We can say with almost as much certainty that winner will be someone who has either announced that they are a candidate at this point in time, or has been seriously discussed as a candidate in the press, as it is about six months before the primary/caucus process starts. The next President is highly likely to be one of fewer than twenty people currently seriously in the running, and the short list contains fewer than a dozen people. A serious third party spoiler candidate could still enter the running at this point, but it is too late in my opinion for a viable third party candidate to emerge and win the race.

It is too early, however, in my opinion, to rule out second tier candidates. Presidential candidate prospects often change dramatically between the December 31, before an election, and March 1 of an election year. Those two months can change everything and have done so in the past. But, by March 1, 2008, the number of viable Presidential candidates will have probably dwindled to 1-3 per major political party, and 2-6 overall. By the time that the parties hold their national conventions (the Democrats will be holding theirs in Denver this time around), it is very likely that the nominee in each party will be a foregone conclusion, and extremely unlikely that more than one party would need to have a brokered convention.

We can also say, with considerable certainty, that at least 90% of incumbent House of Representatives candidates will be back (probably a far higher percentage), and that there are going to be no more than a few dozen open seats in the 435 member House of Representatives. Likewise, we can say, with certainty, that two-thirds of U.S. Senators will not be facing re-election, and that probably less than half of the of those races will be open or displace an incumbent Senator (probably a far lower percentage). It is possible right now to identify the 50 or so federal legislative races that will matter in 2008 with a high degree of accuracy, although handicapping those races is a harder task.

Finally, we can safely guess that over the next 18 months, fewer than 10% of the outstanding District Court and Court of Appeals judgeships will be filled with new judge (simply because vacancies are rare), that on the U.S. Supreme Court that it is highly unlikely that there will be more than one or two vacancies, and that both the U.S. Supreme Court and the federal courts generally, are unlikely to move meaningfully to the left on the political spectrum in the next eighteen months.

Political party control of the Presidency and Vice Presidency, of the U.S. House of Representatives, and of the U.S. Senate are still up for grabs, although only the Democratic party and the Republican party need apply in each case. Furthermore, neither major political party has any realistic chance of securing a veto proof majority, and even a filibuster proof majority in the U.S. Senate would be a serious stretch for either party.

A win at the Presidential level tends to have coattails for the winner in House and Senate elections. Right now, national polls are as favorable to Democrats as they have been for a long time, and nothing on the horizon suggests that a dramatic redemption of the President in the public eye is in the offing before November 2008. But, eighteen months from now, it is hard to tell how much the President's phenomenally low popularity will taint other members of his party, or if it will have any impact at all. All politics is local.

Right now, it looks like it is more likely than not that the Democrats will hold the Presidency, the Senate and the House at the federal level after the 2008 elections. But, it is hard to make a prediction much more definitive, until we get closer to the fateful day.

For example, while we can safely predict that Mark Udall's successor in Congressional District 2 will be one of a handful of Democratic party candidates who have announced, and while we can safely guess that Mark Udall will be the Democratic Party nominee for U.S. Senate in 2008, the Republican nominee for the nationally important U.S. Senate race in Colorado in 2008 is still anybody's guess, although there are some front runners, and it is hard to handicap a general election race for U.S. Senate in Colorado until we know who the candidates will be.

The Political Scene Until 2008

Until the next election it is highly likely that George W. Bush will continue to be President, that Dick Cheney will continue to be Vice President, that Democrats will continue to hold majorities in the U.S. Senate and U.S. House of Representatives, and that those majorities will be neither veto-proof nor filibuster proof.

Barring a political tsunami driven by some remarkable political crisis, the United States Constitution will not be amended in the next eighteen months, and even if it was, any amendment would be unlikely to overwhelmingly change the political scene. Congress is too evenly divided right now for bold constitutional change.

Pre-2008 Contingencies

An assassination (to be clear, I am not advocating such a thing, only considering what is possible), of either Bush or Cheney, individually, would probably alter the political course of the nation only slightly, and this country has never lost a President and a Vice President in a single incident. Cheney is more conservative than the President, and the President almost always follows the Vice President's advice on matters of importance.

While impeachment is inching towards the realm of the possible with outrages like the commutation of the sentence of Scooter Libby and the ongoing debacle that its the war in Iraq, it would take another grade A scandal or two to make it happen, because there aren't enough Republican votes in the Senate to do so now, and the process would take months. Every month that passes reduces the practical utility of the impeachment process, because the next election is getting closer and closer. Moreover, to make a political difference, an unprecedented double impeachment of both the President and Vice President would be required. If this process was completed in the next twelve months and produced an impeachment conviction, I would be very surprised.

Of course, some people of both political parties like very much to see a watershed event that changes everything, like the 9-11 attack or the Watergate scandal. Investigations are in place to try to make that happen, and every news cycle leaves open the possibility of shocking news that impacts the general public. But, the likelihood of that kind of event happening in the next eighteen months is modest; hardly zero, but low. Who benefits in a situation like that is also often hard to predict. Even a major disaster and scandal, like the mismanagement of Hurricane Katrina that has in the end analysis cut the population of New Orleans in half or a major scandal like Abu Grahib, can have relatively modest discernable political effects.

For example, no one can safely predict the political consequences eighteen months from now, of an attack on Iran or an Iranian attack on U.S. interests. Subtle details in these events and the responses taken to them will matter, if they occur.

Tactical Options, In General

Politics is the art of the possible, and these are the boundaries of what is possible, not legally, but practically.

The question that matters is what these constraints mean as a matter of policy options and political tactics. What can be changed in the next eighteen months, and what makes sense to do or try to do in preparation for the next election?

For Democrats, this means that there are basically two kinds of bills that make sense to push (1) those with wide Democratic party support, tolerated by moderate Senate Republicans and not likely to face a Presidential veto (ideally, favored by most viable Democratic Presidential candidates and opposed by the most viable Republican Presidential candidates), and (2) those with wide Democratic party support and wide public support that Republicans in close races will suffer at the ballot box for opposing.

Also, as discussed above, Democrats can help break the next scandal, for example, by forcing a showdown over subpeonas served on the White House, but these only help if managed well in the court of public opinion.

Policy Pressure Points

Some issues are ripe for action, if it is possible, in the next eighteen months.

Iraq

We aren't going to win the Iraq War. The only question is whether we will begin to withdraw in the next eighteen months, if so why, and if not, how long it will take the next President to decide to withdraw. Any Democrat elected to be President will withdraw promptly, and so will some, but not all, of the Republican candidates. Pro-war candidates like McCain will be at a disadvantage in 2008 if we are still at war in Iraq then. Democrats will have to decide if they should force the issue, by withholding funding, or not.

War On Terrorism

If a Democrat is elected President, most of the Bush Administration war on terrorism abuses will end. Some of the Republican candidates would act likewise, others will try to continue the status quo. The possibility that the Guantanamo Bay military prison will be closed, and that NSA wiretapping will be restrained, is real. Extraordinary rendition, secret foreign CIA prisons, and prisoner abuse could also hit the spotlight and result in action to change the current approach. Outright repeal of the Military Commissions Act of 2006, however, seems a dim political prospect due to veto threats and filibusters, unless the U.S. Supreme Court strikes it down.

Immigration

Ken Salazar's compromise on immigration, which echos the President, has crashed and burned. It didn't make enough xenophobe Republicans happy, and wasn't that popular with Democrats anyway. I suspect that this marks the death of the tighter borders in exchange for more guest workers and mass legalization formula for the next year and a half.

The President is more liberal on immigration than almost any other issue, so a veto isn't a worry here as it is in so many other policy areas. I suspect that a compromise could be reached, however.

I could see a compromise offering xenophobe Republicans a similar border security compromise to the current bill. But, I think that a massive guest worker program would have to be left out, as it is hated by both liberal Democrats and xenophobe Republicans, although for different reasons. Democrats don't want to create more second class workers, Republicans think that the guests won't go home. I also think that a nearly universal program to legalize the status of existing illegal aliens is a poison pill until the next election, although some hard case situations, like illegal immigrant children who went on to graduate from U.S. high schools or very long term illegal immigrants with solid jobs and ties to the community might pass muster, if it impacted only say 5-15% of illegal aliens. But, I think that there is still considerable room to simply increase liberal immigration quotas on a longer term basis in existing categories, to increase funding of the passport and visa processing bureacracies, and to fix the asylum appeals process. I also think that there might be considerable room to allow H1-B visa holders greater flexiblity to unite their families and convert their visas to permanent resident visas.

Democrats have already forced Republicans to vote down real immigration reform, albeit a compromise. Now, the question is whether they should push a more moderate reform bill so that they can accomplish something positive, or deny Republicans a bipartisan achievement to campaign upon.

Taxes

Many of the Bush tax cuts came with expiration dates.

One of the most pressing are the estate tax, which will be abolished for a year under current law, and then come back with a vengance to have a far greater bite than it does today the next year. The obvious solution would be to lock in the 2007 or 2008 status quo permanently. This would probably still revenue score as a tax cut, but would curtail a long sought after Republican priority to abolish the estate tax.

Another is the alternative minimum tax, which will impact a huge swath of middle class taxpayers if it is not reformed, Congress has passed only a short term extension.

The political climate is not friendly to big business tax breaks, especially for oil and gas, for hedge funds and for international businesses, right now. Democrats are united in wanting to shift the tax burden from earned income to investment income. The grass roots pressure for income tax cuts is low, but will balloon if the AMT has a mass impact. Deficit hawks are seeing their clout wax.

Also, isolated, revenue neutral tax simplification efforts are still in the realm of possibility. Simplified taxation of social security benefits, and simplified earned income tax credit calculations might be particularly attractive as each is the cause of a great many audits that generate little revenue, but aggravate working and middle class voters.

President Bush is almost certain to veto any naked tax increase. But, he has shown some tolerance for accepting bills that contain a mix of revenue cutting and revenue enhancing provisions. The President might be forced to compromise in order to save at least some of his signature tax legislature from expiration.

Crime and Punishment

The Second Chance Act is surging forward with bipartisan support. Some progress on the crack-powder differential in cocaine sentences is being made now. Wider opposition to mandatory minimum sentences is securing a growing consensus, even from moderate conservatives; the President has even commuted a few. Anti-terrorism fervor is drowning out a long since discredited drug war. Many states, some conservative, have established sentencing commissions to reduce incarceration costs. Most Democrats are widely receptive to some moderation of harsh federal criminal sentences. The U.S. Supreme Court action partially invalidating the Sentencing Guidelines and the Scooter Libby pardon have opened up the debate on sentencing.

I don't believe that the political will exists for a wholesale end to the war on drugs, or an across the board liberalization of criminal sentencing. But, I do think that there is room for significant incremental movement to mitigate the most harsh sentences in the federal criminal code, particularly for non-violent offenders. It is hard to attack a reduction in mandatory minimum sentences, if the discretion to impose harsh sentences in particularly egregious cases remains.

One particularly interesting compromise proposal might be to overhaul the sentencing guidelines to formally give judges wide discretion to deviate upforwards from guideline sentences (so called "topless guidelines") in exchange for an end to statutory mandatory minimums, so that judges would be allowed to depart downwards from guideline sentences in many cases where they cannot now, but would have to justify that departure as they must now under the sentencing guidelines.

A bill to improve screening of gun buyers for mental health issues also seems likely to progress.

Defense Funding

As the wars in Iraq and Afghanistan require vast amounts of federal funds, Congress may be able to secure reductions in non-war related defense spending, like the missle defense program and various big ticket naval and air force spending items, to help finance those wars. Appropriations bills visibly pitting low priority programs against higher priorities are particularly attractive. For example, a bill to replace funding for one new submarine with funding for a large quantity of foreign language instruction for Army and Marine troops might play well.

Health Care

Broad federal reform of health care is going to be nearly impossible until, at least, the next election. There are some avenues open for positive change, however. Limitations on state level action could be lifted. Bans on importation of foreign drugs could be relaxed. Medicaid reimburement formula problems could be corrected. The federal mandate to provide emergency medical care could be funded. Rules to strengthen the medical billing process and transparency of prices for medical services could be adopted. ERISA pre-emption of health care bills of rights could be relaxed. Bird flu type public health infrastructure could be improved.

Stem cell research funding is the signature Democratic bill to force Republicans to take an unpopular stance.

Education

Bush would veto a wholesale repeal of the No Child Left Behind Act, but a bill to soften unrealistic targets and attach a grab bag of smaller sensible reforms might pass.

Civil Rights

A tweak of statutes dealing with employment discrimination, discrimination against the disabled, whistleblower protection, and habeas corpus procedural deadlines to address some recent stingy technical interpretations of existing laws by the U.S. Supreme Court is within the realm of the possible. Affirmative action is on the defensive and is unlikely to make progress in Congress this session.

Excessive Legal Fees

Like every lawyer in private practice, I make my living by charging clients for my services. Sometimes, I charge by the hour; sometimes I charge a flat fee or a contingent fee. Different kinds of cases have different fee structure. I'm neither the most expensive attorney in practice today, nor the cheapest. I call fees expensive only rarely, as you never have the full facts before you in a case. But, I think I've found a candidate:

A recent district court decision in Westar Energy v. Lake . . . gives a little bit of insight into just how much money is involved, and the resources the firms commit to defending their client. Douglas Lake was a senior executive at Kansas utility Westar Energy, and was indicted along with former CEO David Wittig on fraud charges. The first trial ended in a hung jury, while the second resulted in a conviction of Lake on some counts related to an alleged fraud involving the use of corporate resources for personal purposes and false reporting to the SEC. In January 2007, however, the Tenth Circuit reversed the convictions, finding insufficient evidence to support some of the charges and remanding for a third trial on others, including a conspiracy count, and Lake was released from prison. In February 2007, the government decided to go forward with a third trial.

Westar has a broad indemnification provision in its by-laws that allows for advancement of reasonable attorney's fees, and through April 2005 the company advanced $4.6 million to Lake's attorneys from Hughes Hubbard in New York and local counsel. After that point, however, Westar refused to pay any further, and Hughes Hubbard has moved to withdraw from representing Lake in the third trial because it has not been paid about $4 million in fees. In addition to his trial counsel, Lake retained Wilmer Cutler from Washington D.C. to represent him on appeal, which cost $2.2 million and involved seven or eight attorneys billing time on the matter. All told, Lake's legal fees in the criminal matter to this point have totaled over $15 million, and he has also incurred costs in defending private securities class actions and shareholder derivative suits. . . .

Given the complex nature of the case, Judge Robinson determined that Lake's hiring of New York trial counsel and DC appellate lawyers, along with local counsel, was not unreasonable. The court only required Westar to pay 50% of the claimed fees for Hughes Hubbard and Wilmer Cutler because of questions about the reasonableness of their bills, but still ordered a payment of over $3 million.

The opinion notes, for example, that two full days of more than eight hours were charged to have attorneys pack boxes.

Suppose, for shits and grins, that the lawyers retained are charging $1,000 an hour, and suppose, that out of pocket costs, which are generally the smaller part of the total bill in a case are $1,000,000. This would imply that the lawyers spent 2,200 hours on the appeal, and 12,800 hours in pre-trial preparations and two trials. In a trial context, you can burn through a lot of time knowing the witnesses and the evidence cold and gather potentially favorable evidence, but it is hard to fathom employing half a dozen lawyers to work nearly full time for a year on a criminal case. Consider also that since this is a criminal case, Mr. Lake didn't have to respond to a single significant discovery request, and was not deposed, as a result of his 5th Amendment rights. The public defender's office spends about 400 hours per death penalty case it has, although, those are, admittedly often quite simple cases, even though the stakes are high, as they often involve an incident that took place in a matter of hours on a single day.

The appeal fee, while smaller, is in many respects even harder to understand. In an appeal, the task is more more standardized -- you prepare a brief short of appeal and docketing statement (rarely more than dozen pages and from a standard form), you direct that a record of the trial proceedings be prepared (a couple of page standard form document), you read the trial court record (the bulk of which is a full transcript of the trial and sentencing hearing), you prepare a principal brief of 14,000 words (generally less than 50 pages), and you prepare a reply brief of 7,000 words. Then, you prepare for an deliver an oral argument of about an hour. End of story. This happens on a very compressed time schedule. Suffice it to say that it is possible to conduct a very solid appeal in a reasonably complex case for 220 hours, and a respectable, professional appeal in a typical case with considerably less time.

Particularly appalling in that his attorney is threatening to withdraw over non-payment of fees, when mere attorneys representing mere mortals are frequently not allowed to do this even when they have been paid a mere pittance and their clients then run out of money.

Criminal Trial Error Rates

Analysis of a special set of state court cases in 2000-01 from four jurisdictions in a study by the National Center for State Courts (Hannaford-Agor et al 2003) suggested that approximately 7% of the jury verdicts were wrongful convictions and 10% were wrongful acquittals, with corresponding rates of 10% wrongful convictions and 1% wrongful acquittals for the judges' verdicts (Spencer 2007).

Via the Legal Theory Blog.

The wrongful conviction rates in this study are pretty closely in tune with estimates from other sources (such as acquittals based on DNA evidence in murder-rape cases). Wrongful acquittal rates have been the subject of less overall examination, in part, because once there is an acquittal the bureacratic data set ends.

Also worth noting:

Virtually all of the pertinent studies since 1932 have pinpointed eyewitness misidentification as the single most pervasive factor in the conviction of the innocent.

From the article whose abstract appears here at footnote 79.

How Bad Was The Great Depression?

In 1933, "as many as half of all home loans in the country were in default." (Slip Opinion at 3).

The Myth of Shareholder Control

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

From here via the Securities Law Prof Blog.

Sometimes old news is still true.

New American Political Coalitions?

Paul Thompson at Democracy in Progress examines the changing coalitions that make up the Democratic and Republican parties these days:

Republican and Democratic voters and politicians are increasingly hard to categorize by these traditional terms. Instead of liberal vs. conservative, the most relevant divide today is between ideologues and pragmatists. . . . The Republican Party today . . . consists of the five major ideological camps — neo-conservatism, nationalism, the religious right, economic fundamentalism, and corporatism — fiercely battling it out for supremacy in a combined party. Like a failed corporate merger, they have come to realize that their ideologies are incompatible with each other . . . . Meanwhile, a pragmatic social conservative like Bill Ritter is easily accepted by Democrats. Pragmatic Republicans, like Bill Kaufman, would have much more success in the Democratic Party and would be more welcome there.

He suggests that the big influxes into the Democratic party include libertarian minded people, those who can handle complexity, pragmatists, and professionals.

Mortgage Fraud Alert

The greater Denver business with the website of www.capitalvigilfundingdept.com is probably a fraud.

Why do I think that?

1. They try to advertise using blog comment spam. Spam advertisers are frequently engaged in fraud.

2. The principal of the business is Paul RunningHorse Vigil.

3. He is improperly trying to pass off motivational speeches as charitable contributions, and inaccurately listing his business as one in the manufacturing sector. This strongly suggests that he is a tax fraud promoter.

4. His business is engaged in the business of trying to sell mortgages in Colorado, but his name does not appear in the list of registered mortgage brokers in Colorado at the appropriate Colorado government website.

5. The website reads like a scam.

6. His substantive personal web comments are creepy chain letter comments.

7. His real estate broker's license was revoked in California on November 15, 2004 for conviction of a crime (see further confirmation here).