Law and the Multiverse

If you want the skinny on how everyday law intersects with the world of superheros and supernaturals (in the vein of Carrie Vaughn's recent ready for big screen book "After the Golden Age"), then the Law and the Multiverse blog is for you.

Are ghosts pollutants?  Do you need a permit to put arc nuclear power generators in New York City?  The blog asks, and answers, these tough questions, and of course, reveals a lot about how lawyers think in the process.

Given that this is Zombie Awareness Month, today's post on Death, Taxes and Zombies might be a good place to start.  It begins thusly:

The U.S. stands on the brink of financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively. The time to prepare is now, before panic sets in, and it is too late. This post begins this critical task by considering whether someone who becomes a zombie should be considered dead for estate tax purposes.

Later on, it gets right to the heart (and brains, brain, brains) of the matter:

the question isn’t whether zombies can be considered alive, but rather whether, if someone’s zombie is alive, the original person can still be considered dead. This hints at the far larger questions of how the law should treat resurrection generally and whether different types of resurrection should be treated differently. For instance, some, like Lazarus, return intact. Others may return as flesh-eating monsters. Shockingly, the tax code is silent on this issue, a silence that is even more surprising when one considers that most of our legislators purport to be devout Christians, for whom resurrection is a core belief.

Zombies may be a fairly easy case from a death tax perspective - although if we decide that zombification triggers taxation, we may also have to conclude that people who are substantially zombies in economic substance might also have to be taxed as if they were dead, even if they are not yet formally zombies.

While a zombie apocalypse may turn many property owners into zombies, few of them will have any death tax liability dead or alive, given that the life time reunified transfer tax exemption is currently $5,000,000 per person, per lifetime, and a zombie apoclypse would probably depress the fair market value of all sorts of assets from real estate to the stock market, without causing legislators to rush to adjust the cutoffs during the emergency (although hyperinflation during a zombie apocalypse could counteract a decline in inflation adjusted prices).

On the other hand, the issue is much more salient in the case of vampires, who appear to be much more affluent on average, at least according to many popular literary accounts.  Vampires are particularly attractive as a tax source because many accounts relate that they repeatedly fake their own deaths to prevent their existence from being discovered, giving rise to multiple rounds of death taxation in a single undead lifetime.

Trust and estates scholars, furthermore, are already relatively well equipped intellectual to handle these issues.  The legal standing of "the dead hand" was hotly debated in trusts and estates scholarship even before the advent of Addams Family television series popularized the concept, and laws students who bemoan irrelevance are already taught zombie control doctrines like the Rule Against Perpetuities, although a few reckless states like Nevada and Alaska have moved to disarm themselves unilaterally from legal tools to fight the zombie menance.

As a recent post by Seth at Enik Rising revealed, however, election law scholars and political scientists are not nearly so prepared and are just starting to consider the ramifications of the undead for the political process.

SCOTUS Watching

Above the law has a nice post that captures what the reality of SCOTUS watching at the U.S. Supreme Court in person is like on a day when all of the opinions rendered are low profile cases. 

One of the cases decided, Taniguchi v. Kan Pacific Saipan, Ltd. has previously been blogged about in this space as the lowest dollar SCOTUS case in recent memory.  The U.S. Supreme Court in a 6-3 decision came down against what had previously been the rule in all but one U.S. Court of Appeals Circuit.  Justice Alito writes the hack job of statutory intepretation majority ruling in the case, consistent with his characteristically crabbed approach to reading and interpeting statutes.

Wear A Gray Ribbon

It is the official way to recognize Zombie Awareness Month, which is May.

Which Came First, Marriage or Divorce?

In Maryland, the state supreme court has recognized the authority of its courts to grant divorces to same sex married couples from other states several months before the law adopted by its state legislature to allow same sex marriages to be entered into within the state takes effect.

The Three Main Kinds Of Female Sex Offenders

There are salient differences between men and women when it comes to sex offenses. For starters, men are far more likely to commit sexual assault than women are, accounting for 96 percent of the total. They are also rearrested much more frequently. 

The women who perpetrate this misconduct not surprisingly have serious problems. Like the men, they have poor coping skills and trouble showing empathy. This report by the Center for Sex Offender Management breaks female sex offenders into three types, based on clinical observations. The first group were coerced by men into abusing children, even their own. The second were themselves victims of incest or other sexual abuse — this kind of history is far more likely for women sex offenders than for men, and the women in this category also tend to victimize young children in their own families. The third type, [is] labeled “teacher/lover,” . . . They were “often struggling with peer relationships, seemed to regress and perceive themselves as having romantic or sexually mentoring ‘relationships’ with under-aged adolescent victims of their sexual preference, and, therefore, did not consider their acts to be criminal in nature.”

From Slate.

Many types of sex offenders (e.g. serial rapists of strangers) at whom the most serious sex offense penalties are targeted are virtually never carried out by women in real life, even though they are somewhat stock components of erotic literature. 

It is also notably that female sex offenders in all three categories are overwhelmingly alleged to have victimized minors with whom there is some sort of pre-existing relationship (except in fairly rare cases where they enable a male sex offender).  Female sex offenders rarely pose a risk to either adults, or to children who are strangers to them.

The biggest issue in the third category is the issue of subjective victimization, and a related issue related to statutory rape.  Simply put, our culture sees an adolescent woman who has sex with an older man in a position of trust to be more of a victim than an adolescent man who has sex with an older woman in a position of trust.  Regardless of the theoretical equivalency of the acts in a gender neutral world, using the criminal justice process in a way that makes someone who hadn't previously felt victimized feel victimized and to punish someone harshly for a crime where the victim may not have felt like they were victimized is problematic.

The Statutory Rape Problem And Problems With Treating All Minors Equally

The reality is that sexual conduct is not gender neutral and that gender neutral rules should on that subject should be suspect.  Likewise, apparently sexual conduct by prepubescent children has different sources, meanings and consequence than sexual conduct involving post-puberty minors. 

The related statutory rape issue is that when it is undisputed that a minor below the age of consent(but post-puberty) has had sex with an sufficiently old adult (or an adult in a position of trust), the law conclusively presumes that the adult has committed the crime.  While this conclusive presumption criminalizes some acts that would meet any standard of consent apart from the statutory presumption, it is exceedingly rarely the case that a minor girl will have sex with a much older man without his consent.  In contrast, a case where an adolescent boy has sex with a much older woman without her consent is a far more plausible possibility, and in those cases, where a rape victim is conclusively presumed to have raped the true offender with far less proof than is necessary to prove an absence of consent on the part of the women to the boy's advances, the potential for injustice is much more troubling.

Part of this problem arises from the fact that statutory rape laws routinely apply to post-pubescent young people.  The claims that a prepubescent boy's aggressive acts towards an older woman are distinctively sexual and deserving of more severe treatment relative to an assault or restraint of another person generally is doubtful, and a ten year old boy is almost as implausible as a rapist of an adult woman as a fifteen year old post-pubescent girl is as a rapist of a middle aged man.

Some of this is simple biology.  The law, rightly, treats sexually contact is a less severe matter than sexual intercourse.  And, biologically, it is much more straightforward for a man to have sexual intercourse with a non-consenting female than it is for a woman to have sexual intercourse with a non-consenting man.  In theory both possibilities are possible, but the former happens much more often in real life than the latter.  This is the basic reason why 96% of sex offenders are men  and why our intuition about a minor girl raping a middle aged man is so different from our intuition about a minor boy raping an older woman.

The stated purpose of statutory rape laws - to address instances where the victim is genuinely incapable of consent - makes perfect sense in the case of prepubescent boys and girls, and exceptions and limitations to rules prohibiting sex with prepubescent boys and girls aren't necessary to advance justice. 

But, many minors under the age of eighteen who have experienced puberty are quite capable of engaging in consensual sexual relationships and someone who is aroused sexually by a sixteen year old is not a deviant pedophile. The harm that statutory rape laws, child pornography laws, and child prosecution laws are addressing in these cases are less culpable because they involve the exertion of undue influence to procure consent from someone who has weak judgment but who is in fact capable of having consensual sexual relationships at least in the absence of someone employing undue influence, and real justice, as a result, requires considerably more nuance.

Likewise, the argument that someone who patronizes a prepubescent boy or girl as a prostitute or utilized a prepubescent boy or girl in making true child pornography holds water because someone with those sexual interests may very well be a real pedophile threat, and the case that the minor is being abuses is absolutely clear.  A John who has sex with a ten year old prostitute is probably a menace.  A John who has sex with a seventeen year old prostitute probably isn't meaningfully more culpable than a John who has sex with a twenty year old prostitute, and quite possibly a John having sex with a seventeen year old prostitute could do so legally but for the money exchanged.  Colorado, however, and Colorado is hardly unique in doing so, punishes anyone involved in prostitution or pornography involving a sexually mature late teenager (perhaps even one who is married to someone or once was married to somone) with the same severe punishments that make sense in the case of prostitution or pornography involving ten years old victims.

The problem isn't limited to criminal law either.  Treating sexually mature teen aged girls as children in matters of reproductive health is also problematic, in a way that it isn't for ten year old girls, for example.  It invites improper meddling and imposes barriers to obtaining reproductive health services that are especially beneficial to teen aged girls and harder for them to overcome embarassment to utilize even in the absence of legal impediments to access because sexual activity by teenagers is viewed as inherently immoral by many adults even though most teens are sexually active before they are eighteen years old.

Republicans Have Screwed Up Congress

"Congress is more dysfunctional than it has been since the Civil War, and they know who to blame."

One of the two major parties, the Republican Party, has become an insurgent outlier — ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition

Thomas Mann (senior fellow at the Brookings Institution), and Norm Ornstein (resident scholar at the American Enterprise Institution), It’s Even Worse Than It Looks, How the American Constitutional System Collided with the New Politics of Extremism (2012) via Brad DeLong.

Seth On Vampire Politicians

Is the vampire a Democrat or Republican? Why?

Republicans describe Democrats as sucking the life out of capitalism. Democrats describe Republicans as sucking the life from the working class. So either could probably be said to have some vampire-like qualities. However, given that vampires tend to be older, paler, and wealthier than most mortals, I would tend to think that he's a Republican.

Would you vote Cullen/Dracula 2012?

I haven't seen or read any of the "Twilight" series, so I couldn't adequately comment on Cullen's candidacy. Also, the issue of immortality makes the vice presidency somehow less important than it already is. . . . If we're talking about Gary Oldman's Dracula, there's a lot I like about him, but I'd really need to see his birth certificate before I could consider voting for him.

From a transcript of an interview with political science professor Seth at Enik Rising.

The interview is presumably inspired by the impending June 22 opening of the movie "Abraham Lincoln, Vampire Killer.", whose title pretty much says it all (and also argues for the case that 19th century vampires would have been Democrats, even if 21st century vampires might now predominate in the GOP instead).

Special Session of Colorado General Assembly Ends

The 2012 special session of the Colorado General Assembly ended today after passing bills on three of the subjects it was convened to consider.  Bills on the other items before the state legislature, including civil unions, were killed.

[T]he civil unions proposal failed in a Republican House committee, and many of the additional bills Hickenlooper asked lawmakers to consider perished, too.

The Senate rejected a proposal to set a blood marijuana limit for drivers. A bill to create "benefit corporations" died in the House. The Legislature passed just three bills—one on water projects, one on unemployment insurance and one on machinery regulation.

From here.

Women Like Sexy Men. Who Knew?

Previous research has shown in the week near ovulation women become attracted to sexy, rebellious and handsome men like George Clooney or James Bond. But until now it was unclear why women would ever think it's wise to pursue long-term relationships with these kinds of men.

Kristina Durante, assistant professor of marketing at The University of Texas at San Antonio College of Business quoted here.

Clearly, somebody doesn't get out much. And a marketing professor no less. Isn't "sex sells" the lesson that they teach you on day one of Marketing 101?

Note to university reacher P.R. officers:

In the age of press release journalism, when you can choose any quote you want from a faculty member, do not choose quotes that make your faculty member sound like a prepubescent imbecile who has never experienced the human condition.

Ms. Durante's study actually answered a legitimate question.

Do women who fall for sexy unreliable guys make a conscious trade off between the genetic fitness of a mate and his reliability as a father, or do they deceive themselves into thinking that they aren't making a tradeoff because the man they are attracted to would treat them differently than other women?

The answer turns out to be that "ovulating women thought that the sexy cad -- but not the reliable dad -- would contribute more to childcare, but only if she were his partner." But, you wouldn't know that this was what the study was really about from her lede quotation.

Did Europe Just Postpone Trouble?

When the financial crisis, triggered by the collapse of a housing bubble in several important U.S. real estate market, hit in late 2007, the U.S. economy suffered, while European economies initially took a much more gentle hit.

At the time, it looked like those economies were going to avoid the economic pain of the financial crisis almost entirely, because a better regulatory system prevented European banks from making many of the mistake that were pivotal in the U.S. financial crisis.

Four and a half years later, the situation is less clear.  The threat of sovereign debt defaults, or default by financial institutions that when push came to shove were backed by sovereigns, even if they had no legal obligation to do so, have brought down Iceland, Ireland, Greece and Portugal, and have Italy and Spain on the brink, and the United Kingdom is in a downturn worse than the Great Depression was for it.  These countries are experiencing cuts to public services and unemployment at least as bad and often worse than the worst since the Great Depression hit that the United States experienced peaking a couple of years ago, form which the U.S. has still not fully recovered.

The situation has gotten so bad in Europe that it threatens to rebound back onto U.S. shores and trigger a double dip recession.

Japan is also greatly overextended in sovereign debt, and will not at a crisis point now, could easily slip out of control.  The pain there is not as visible mostly because it has endured its "lost decade' followed by another long slump, so the status quo against which current conditions are being evaluated isn't nearly as rosy as it was for the U.S. or Europe.

The root causes of the European sovereign debt crisis are even more obscure than those of the American financial crisis.  But, the only really obvious candiate is that they are delayed reaction to the U.S. finanical crisis.

If that analysis is right, then the benefits of financial regulation generally look a lot more suspect.

542 Genes Collectively Predict Schizophrenia

A new, wide-ranging effort has uncovered a set of DNA signatures that are shared by people with the disease consistently enough that the set can be used to reliably predict whether someone has the disease. . . . By analyzing a battery of 542 genetic variants, researchers could predict who had schizophrenia in a group of European Americans and African Americans. The confirmation of the result in people of varying ancestry suggests that the set of genes truly does detect the core features of the disorder, scientists report online May 15 in Molecular Psychiatry.

From here, citing M. Ayalew et al. Convergent functional genomics of schizophrenia: from comprehensive understanding to genetic risk prediction. Molecular Psychiatry. doi: 10.1038/mp.2012.37.

This battery of genetic variants was compiled based on meta-analysis of a nearly comprehensive set of human and animal studies already in existence.

The list is surely not complete, and it probably has some false positives, since anytime you add that many degrees of freedom to a model, you will pick up some chance associations between otherwise unclassified cases.  The study also doesn't squarely address models that assign a significant share of genetic causation in schizophrenia to non-specific accumulated volumes of mutations in relevant parts of the genome and to first generation mutations.

Applications

But, simply providing an order of magnitude estimate of how many genes go into this polygenetic trait has value, and this kind of objective genetic predictor of psychosis could be particular useful in contexts such as insanity defenses where the biases of the psychiatric experts and the defendant cloud the usefulness of more subjective measurements.  This tool also opens the door to genotype based cluster analysis to subtype cases, which could be used to refine non-genetic diagnostic criteria and to personalize the process of prescribing medicines to treat schizophrenia which otherwise have a very large trial and error component.

Also, while biomarker tests are starting to emerge to confirm a schizophrenia diagnosis shortly before clinically definitive symptoms appear, a genotype test could be administered much earlier in individuals with a family history of psychosis - alleviating fears about the future for children in high risk families, while allowing for early treatment for children at high risk.  An ability to know whether or not you are likely to develop a psychosis in your late teens or early twenties would have a practical value to  

Another opportunity that genotyping on this model presents is the opportunity to identify individuals who have a schizophrenia genotype but are non-symptomatic, with an eye towards determining which, if any, environmental factors are part of a gene x environment interaction that gives rise to the syndrome (i.e. cluster of similar symptoms) that we called schizophrenia.

Finally, there is an emerging consensus that a significant share of the hereditary risk associated with developing schizophrenia is really a shared genetic risk of developing schizophrenia and/or bipolar disorder.  One suspects, therefore, that the battery of genes necessary to develop a genotype test for bipolar may have a similar number of genes and that the genese in the two genotype diagnostic batteries may significantly overlap.  For example, there might be about 270 schizophrenia specific genes, about 270 schizophrenia and bipolar genes, and 260 bipolar genes, for a total of perhaps 800 genes for psychosis generally. 

Examining the functional differences between the shared risk factors and the condition specific risk factors might help researchers to better understand the neuroscientific basis of both conditions and how the brain works more generally even in normal as opposed to abnormal psychology.  It is entirely likely that we will discover entire new systems that are out of whack in these conditions that we previously hadn't been aware existed in the brain.  And, every new system within the larger organ of the brain that we discover provides a new potential target for new classes of drugs.  This has recently happened in the efforts to find genotypes for anxiety disorders.

Same Sex Marriage Support Varies By Region

Popular support for same sex marriage has increased dramatically since 2004 (in large part because a few early adopter states permitted same sex marriage, and the sky has not fallen there and the existence of actually married same sex couples has humanized the concept).  From the link below:

My estimate is 16 percentage points. Nate Silver estimates perhaps two or three percentage points a year and, according to a leaked memo, Republican pollster Jan van Lohuizen finds support rising one point a year until 2009 and 5 points a year since.   

 But, support varies dramatically from state to state.

Opposition to SSM varies widely by state. Seong Soo Oh and I [Gregory P. Lewis] concluded that support was 30 points higher in Massachusetts than in Mississippi in 2006. Jeffrey Lax and Justin Phillips found a 40 point split between Massachusetts and Utah in 2009. My most current estimates find nearly a 50 point division between Massachusetts and Mississippi.

As of 2011, Colorado was third in the nation in the percentage of the voters supporting same sex marriage (behind Rhode Island, which also does not have same sex marriage, and Massachusetts, which does have it).  In part, this is due to the "present company excluded" norm of interpersonal etiquette.  Denver has sent at least three openly gay legislators to the Colorado General Assembly in recent years: Jennifer Veiga, Mark Ferrandino and Pat Steadman (I've been represented at one point or another by all three), and we have an openly gay member of Congress, Jared Polis (CO-2 which includes Boulder, Colorado).  It has hard for legislators to vote in favor of discrimination against the colleagues and that trickles down to the entire political elite in the state.  Major political and civic contributions from affluent gay Coloradans like Tim Gill, have also had an impact.

Despite the defeat of the Civil Unions bill this year in Colorado, every Democrat in the Colorado General Assembly, at least five state house Republicans, and several state senate Republicans supported the bill.  The percentage of legislators willing to vote for the bill is within the margin of error of the percentage of voters who support it.  Its defeat this session was a product of the imperfections of parliamentary procedure in translating the will of individual legislators into enacted legislation.

Interestingly, and supporting the trend of same sex marriage support as a regional issue, as much as a partisan issue, there is majority support for same sex marriage in the Republican stronghold of Alaska.  In general, same sex marriage opposition seems to track Evangelical Christianity (including Mormons) more than partisanship.

Child Psychopathy

The New York Times, in a vivid and lengthy article spells out the case for callous-unemotional type discipline problem kids (i.e. kids with "conduct disorder") being kids on a path to adult psychopathy, absent interventions that haven't been really worked out yet.

The case for adult psychopathy almost universally having roots no later than in early childhood is compelling. But, it isn't yet clear if childhood diagnosis is reliable. Many kids who are terrible discipline problems as children grow out of it, but ordinary "hot blooded" anti-social activity and the kind of impulsivity associated with ADHD are different in kind than than distinct subtype who are callous and unemotional (really just codewords for behaviors assocaited with psychopathy as adults). Multiple researchers in the field are making the case (for example, in the study discussed in this February 23, 2011 blog post) that this subtype of much more predictive of adult psychopathy than ordinary anti-social behavior which has multiple causes and behavior syndromes encompassed within the broader definition. They are also starting to understand its neurological basis.

A particularly pertinent question the finds pose is whether it really makes sense to keep juvenile delinquency records confidential. A huge percentage of adult offenders who go on to become recidivist serious offenders are continuing a pattern of conduct that began when they were children. Not disclosing juvenile records and not considering those records in setting permissible sentencing ranges exposes large numbers of offenders who offend for the first time as adults and are likely to reform themselves to the same risk of a very long and harsh punishment as offenders whose juvenile records make them high risk candidates for serious reoffending. And, the confidentiality of the process, in addition to making it very difficult to determine if the process is proceeding fairly, also prevents private individuals from effectively limiting their exposure to risk for young adults who do not yet have adult criminal records but pose a highly elevated risk to the people whom they are around.

Do We Want Him As President?

Mitt Romney was a privileged asshole who viciously bullied his classmate John Lauber because of claims that Lauber was gay, when Romney was a seventeen year old prep school student.

Now that Romney is the presumptive Presidential nominee, he's publicly apologized for his actions.

Do we really want someone with that moral character in charge of a nuclear arsenal and maintaining discipline in the military now? I simply do not believe that Romney has changed, or that his life experiences have prepared him for the profound moral responsibilities to all Americans that a President must take on.

Denver City Council To Criminalize Homelessness

The Denver City Council supported a measure, called a "camping ban," a euphemism for the criminalization of the fact that someone is homeless and living on the streets (i.e. a vagrant) by a 9-4 margin in a preliminary vote a couple of weeks ago. I am deeply disgusted (but not tremendously surprised) to learn today (the efforts of the Denver Post to prominently make clear who is and isn't supporting the measure on the non-partisan city council has not been impressive) that my city council representative, Chris Nevitt, backed the measure.

The ordinance marks a stark departure from the more positive and constructive approach to dealing with the homeless that Mr. Hickenlooper had advanced when he was the Mayor of Denver.

The measure is expected to receive final approval this evening.

I have no idea why Mayor Hancock and more than two-thirds of the current city council think that this approach is wise. Yes, vagrants have never been known to wield much political power, and they are an annoyance to much more powerful business interests. But, how does this in any way address the underlying problem or make it possible for the people criminalized here to comply with the law? It is abundantly clear that the City of Denver simply does not have anywhere near the resources it needs to provide every vagrant on its streets with a place to stay right now, using the city jail to serve that purpose is an absurdly expensive and wasteful way to bridge that gap, and the Council has shown no signs of eliminating the need that has put so many people out on the street as it is today. The measure smells like something out of "The Little Prince" or fable, "The Emperor Has No Clothes," where a narcisstic leader imagines that by decreeing that unpleasant things are forbidden that they will magically stop happening.

UPDATE: As expected, Denver's City Council has criminalized homelessness in the city by the same 9-4 margin as in its original vote. Maybe its time to haul out the recall rules and see what we need to do to throw the bums out. If signed tomorrow by the Mayor, as expected, the ordinance will take effect on May 30, 2012.

The Greater Chinese Legal Tradition

Teemu Ruskola has a decent overview at SSRN (in a pre-print of a chapter of a new comparative law text) of the Chinese, Korean, Japanese and Northern Vietnamese pre-Western legal traditions, all of which are derivative of China's legal system to some extent  I recall studying basically the same concepts and materials, with slightly less historical detail, fewer Latin terms of comparative law, and less geographic specificity when I was in junior high school, and that perspective has been largely confirmed by what I have learned since then.

Key concepts include a Confucian hiearchical foundation to international tributary relationships, domestic political philosophy and personal relationships, supplemented by legalistic harsh penalties for violations of moral codes. In general, there were only weak distinctions between judicial and legal spheres, and more general administrative and governmental duties. Law per se, we not starkly distinguished from ruling a territory or a group of people, in general. Relationships were primary over rationally formulated rules applicable to all which had more of a customary or non-state character within families and guild. A lack of a clear line between conduct that is discouraged and conduct that is "illegal" in many cases, also supports are more gradual approach to escalating community/state intervention as individuals grow gradually more distant from ideals of moral conduct.  The focus was on obligations that arose out of enduring and unequal relationships rather than on the rights of individual persons who were equal in legal dignity to each other.

The situation in China was somewhat akin to the very early days following the Norman Conquest in England when general purpose feudal lords presided in a general capacity to resolve disputes between their subjects on the basis of reason and local custom.  And where, these aristocrats ruling from their place within a feudal hierarchy held places recently assigned to them by merit because their fiefs were awarded to them based upon their military service (or necessity for pacifying the locals) during the recent conquest, even though that ideal would be short lived and was soon replaced by a more specialized and bureaucratized legal order in which the hereditary principle would become pre-eminent.

Regional variation within this intellectual sphere hinged mostly on issues of centralization and meritocracy.

Korea was the most centralized of these East Asian states, followed by China which had a strongly centralized core with declining levels of control as one reached the fringes of its influence (and in practice, it recognized greater regional diversity that its ideological basis supposed), with Shogun Japan and Vietnam exaulting their feudal and decentralized system of small states as more reflective of the early Chinese environment in which Confucianism arose. The distinctions are somewhat analogous to those between Hamiltonian and Jeffersonian political ideologies in American history.

China was the most meritocratic of the four states, followed perhaps by the Vietnamese, while Korea retained a significant degree of aristocratic privilege apart from examination determined merit, and Japan also retained significant decrees of aristrocratic caste concepts.

Somewhat disappointingly, Ruskola does not discuss how this deeper legal tradition has managed to meld and subvert what are superficially Western communist, common law, and civil law legal and political regimes in a manner distinctly molded by this shared deeper legal tradition. South Korea, Vietnam and Japan all have statutes modeled primarily on European civil codes, with some Anglo-American glosses in the criminal justice area and a few other legal subjects in Japan and South Korea, and a Chinese communist gloss in Vietnam. But, the way that those systems work in practice is dramatically different from either the European civilian or American models. And, the form of communism practiced in China and Vietnam is likewise only barely recognizable as having shared roots with the political and legal system of the pre-Cold War Soviet block of Eastern Europe.

The Chinese political legacy was in many ways a more natural fit the the political theory that self-described communists tried to implement in Russia and Eastern Europe where it originated. Singapore and Hong Kong, both of which share both traditional Chinese and English common law roots, produced dramatically different results in their respective city states: Singapore produced a totalitarian dictatorship friendly to organized business; while Hong Kong produced a non-democratic yet libertarian leaning free for all of lassiez-faire economics with rulers who were content not to be fully in control of their domain.  None of these systems wholeheartedly embrace the sort of singleminded zealous advocacy in legal disputes that is so characteristic of the American legal and political culture.

Discrimination Down In Elite Professions

In 1960, 94 percent of doctors were white men, as were 96 percent of lawyers and 86 percent of managers. By 2008, these numbers had fallen to 63, 61, and 57 percent, respectively.

From here.

The trend is expected by anyone familiar with 20th century American history. The economic conclusions that follow from it discussed in the related academic paper has all of the limits of economic models generally, although it is hard to discount the conclusion that this had some economic benefit to the U.S. economy. But, the raw numbers are pretty much indisputable and worth noting in a blog post for easy reference.

Also, of course, it is worth noting the percentage of people who are white men who are twenty-five to seventy years old (whch is about 35%-40%). This overall demographic percentage is still much smaller than the percentage of white men who make up those professions today.

Part of this is a matter of old demographics working their way through people's careers.

Law school graduation rates, for example, weren't gender neutral until around the early 1980s and many people who graduated from law school earlier on are still practicing lawyers. The percentage of older lawyers who are women is smaller than the percentage of younger women who are lawyers. Boundaries of gender at the higher educational level have also equalized more completely than boundaries of race, for the most part. Much of the gender imbalance of the makeup of these professions today arises from career patterns after the members of the professions complete their higher educations.

Racial imbalances in participation in these professions, in contrast, is mostly attributable to pre-higher education participation disparities.

In Greece, most cops really are fascists

More than half of all police officers in Greece voted for pro-Nazi party Chrysi Avgi’ (Golden Dawn) in the elections of May 6. This is the disconcerting result of an analysis carried out by the authoritative newspaper To Vima (TheTribune) in several constituencies in Athens, where 5,000 police officers in service in the Greek capital also cast their ballot.

From here. In Germany, the number of people killed by police gunfire, however, is far less than the U.S. (six in the most recent year, compared to more than a hundred in the United States which has roughly three and a half times as many people as Germany).

Encore

The Colorado General Assembly is back for its first day of the 2012 special session called by Governor Hickenlooper after the Republican state house majority went into recess for the last few hours of May 8, 2012 (the last day before the end of the regular session and deadline for passage of bills on second reading), in order to kill a civil unions bill that had cleared three committees and had the votes to pass on the floor of the house, and took dozens of other bills down with it.

The special session will consider civil unions and several other topics related to bills that died as a result of that procedural move.  The other six issues before the Colorado General Assembly in the special session, in addition to civil unions are:

• Funding $55 million in water projects.
• Penalties for driving under the influence of alcohol or drugs.
• Stabilizing unemployment-insurance rates.
• Creating "benefit corporations" in Colorado.
• Registering "special mobile machinery fleets."
• Asking voters to amend the state constitution by repealing provisions deemed obsolete, including a measure that barred local governments from prohibiting discrimination against gays [this was held unconstitutional in the U.S. Supreme Court case Romer v. Evans].

Bills relating to a variety of interim study committees and related to the management of public schools were not revived for special session consideration.

All of the bills were heading for passage at the end of the session.  Bills without a prayer don't clear one of the two houses of the bicameral state legislature and all of the committees that they come before in the other house and don't head to the full house for a vote on a day when they can still be considered for passage.  And, Governors don't bring legislation that they would like to veto up for reconsideration in a special session.

The trouble is that the process does start over in the special session.  There is a clean slate and the special session, while restricted to the seven topics on the agenda, otherwise employs the same process used in a regular session of the general assembly. 

The leadership of the state house, knowing precisely which 37 legislators were ready to vote for civil unions a week earlier, could tinker with the process in some way that sends a civil unions bill to a "kill committee" preventing it from making it to the House floor where it would pass.  But, rejiggering  committee assignments or changing the committees that a bill must clear to pass, would make the state house Republican leadership look even dirtier than it already does going into an election. [UPDATE 5-14-12: Republicans have indeed done just that and may kill the civil unions bill in a committee it was not required to clear in the general session as soon as this afternoon (see also here)].

The special session also postpones the point in the political season when Republican are able to talk about their own agenda, instead of one that the Governor have given them to address, less than five months from the point in time at which votes will start to be cast in Colorado by mail and at early voting centers in a Presidential election year where increased voter turnout already puts Republicans at a disadvantage.  And, it only takes a little shift in public opinion for the state house to move from being controlled by Republicans 33-32, to being controlled by Democrats who manage to also hold onto the state senate where Democrats already have a safe majority and only half of the seats are up for reconsideration in November.  There are no indications that Republicans gained any real advantage in state legislative redistricting based on the 2010 census that takes effect this year.  Indeed, judging by the fact that the Republicans tried to have the map that was adopted overturned in Court, it is fair to say that redistricting gave Democrats a slight edge at the state level.

Put all of that, and the fact that public opinion is slowly but surely shifting in favor of civil unions in Colorado, and any win that Republicans manage to secure on civil unions in the special session, if they can manage it at all, has a good chance of being reversed in 2013.

UPDATE May 14, 2012:

So far, according to the Colorado General Assembly website, the following eleven bills have been introduced in the Special Session which began today:

*HB12S-1001 Water Conservation Bd Construction Fund Projects BAUMGARDNER--(NONE)
*HB12S-1002 Unempl Ins Revenue Bonds LISTON & ...--JAHN
*HB12S-1003 Special Mobile Machinery Registration Fees BRADFORD--(NONE)
*HB12S-1004 Medical Marijuana Fund Transfer MCCANN--(NONE)
*HB12S-1005 Penalties For DUIs Involving Drugs WALLER & ...--KING S.
*HB12S-1006 Authorization Of Civil Unions FERRANDINO--STEADMAN
*HB12S-1007 Benefit Corporations LEVY--ROBERTS
*SB12S-001 Registration Fees Special Mobile Machinery CADMAN--(NONE)
*SB12S-002 Water Conservation Bd Construction Fund Projects SCHWARTZ--SONNENBERG
*SB12S-003 Benefit Corporations BACON--MASSEY
*SCR12S-001 Repeal Unconstitutional Provisions State Const STEADMAN--FERRANDINO

Strategically, the notable issue is that the Civil Unions bill has been introduced first in the State House, rather than the State Senate, preventing any impediments to passage put in the way of the bill to be brought up at the last minute as they were in the regular session. Three of the subjects for consideration (water projects, mobile machinery, and benefit corporatioons) were introduced in parallel versions in both houses of the Colorado general assembly. Unemployment, Civil Unions and the two marijuana bills have no house counterpart. The constitutional amendment proposal was introduced in the state senate and lacks a house counterpart.

UPDATE TWO May 14, 2012: The House State, Veterans and Military Affairs Committee has killed civil unions by a party line 5-4 vote, despite the fact that it is supported by a majority of members in that chamber. Republican Rep. Don Coram, whose son is gay even betrayed his son to vote the party line against the bill.

Does NC Prop 1 Violate The First Amendment?

North Carolina Proposition One


On Tuesday (May 8, 2012), North Carolina voters approved Proposition One, a state constitutional amendment, effective January 1, 2013 with about 60% of the vote.  It says: "Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."


Proposition One is discussed in a law review article styled paper by Eichner, et al., four University of North Carolina law professors, but the paper addresses its potential unintended implications in other areas of private law (family law, domestic violence laws, estate planning, powers of attorney, domestic partner benefits for employees), rather than its constitutionality.


Some reading broader than just a ban on same sex marriage must be intended, because same sex marriage was banned in North Carolina before this measure was adopted. The primary purpose appears to be to ban "civil unions" which are marriages between people of the same sex in all but name, affording essentially the same legal rights and responsibilities, and perhaps also to ban "domestic partnerships" between same sex couples that afford some, but not all, of the legal rights and responsibilities of marriage. But, the wording is anything but clear on precisely what effect it has because the phrase "domestic legal union" is not well defined in either plain English usage or legal practice and precedent. It is certainly susceptible to broader or narrower legal meanings.


If one reads broadly the term "domestic legal union," in the Proposition, which the North Carolina law school professors note "has never been used before in North Carolina, or interpreted in North Carolina courts," a meaning of "legally recognized allocation of rights and responsibilities in household affairs," it prohibits giving validity or recognition to a great many intrahousehold and intrafamily legal arrangements beyond the civil unions and domestic partnerships for homosexual couples that the measure was really primarily targeted at prohibiting.


Is This An Unconstitutional Limit On The Freedom Of Association and Privacy Rights?


One of the most interesting questions that this very broad language raises is whether it violates the First Amendment right to freedom of association, which applies in North Carolina and every other state via incorporation through the Fourteenth Amendment to the United States Constitution.


The First Amendment, which was adopted in 1791 (two years after the original U.S. Constitution that is now in force), says: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."


The establishment and free exercise clauses and the freedoms of speech and of the press get most of the attention.  But, "the right of the people peaceably to assemble," often called the freedom of association, is part of the First Amendment as well and like the other rights set forth in the Bill of Rights, has been interpreted broadly over the last two centuries (and particularly in the late 20th century and early 21st century).


Read broadly, Proposition One prohibits, or at least legally burdens, many ways people may peaceably assemble with each other without a very particularized state interest holding that these arrangements are contrary to public policy.  Even if there is no constitutional right to recognize "marriage" per se, between anyone other than one man and one woman, this broader prohibition might abroad First Amendment rights to freedom of association.


The constitutionality of this kind of limitation is informed by privacy/freedom of association cases like Lawrence which held that it was unconstitutional to criminalize consensual sodomy between adults conducted in private, and Griswold, which held that access to contraceptives cannot be limited to married couples.  The line of cases that invalidated the notion that the legal rights of a child may not hinge on legitimacy, except in the most narrow of circumstances, and the case of Loving v. Virginia holding that miscegenation laws are unconstitutional, are also relevant.


Other Federal Constitutional Theories That Could Invalidate Proposition One


Equal Protection


Of course, freedom of association is not the only federal constitutional theory upon which this state constitutional amendment can be challenged.  Equal protection considerations under the Fourteenth Amendment to the United States Constitution, such as those articulated in Romer v. Evans and reiterated in the recent holding of the United States Court of Appeals for the 9th Circuit, provide that citizens initiatives may not be used to make a specific class of people strangers to the law who are not entitled even to seek legislative relief for themselves on an equal basis with other people.

The wording of Proposition One may escape equal protection considerations on the theory that it disadvantages far more domestic arrangements than gay marriage and gay marriage lite, making gays uniquely strangers to the law as the Romer v. Evans proposition in Colorado did.  But, the more that Proposition One does not abridge equal protection considerations, the more it runs up against freedom of association, privacy, full faith and credit and impairment of obligations of contracts concerns. 


Full Faith and Credit


There are also questions about the extent to which this broader language constitutes a violation of the Full Faith and Credit clause of the original 1789 constitution (Article IV, Section 1), that requires states to recognize the legal acts of other states, beyond the limited exemption that DOMA, the Defense of Marriage Act, authorizes to allow states to ignore full fledged same sex marriages from other states.  This is an exception whose constitutional validity is itself the subject of challenge, although with less of an anticipated chance of success than the challenge to its provisions related to federal non-recognition of same sex marriages that are valid under state law, because Article IV, Section 1 provides that "congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."  This clause provides a fig leaf of express delegation of authority to Congress to enact the full faith and credit provisions of DOMA.

Laws Impairing Contracts

And, with respect to arrangements already in place when Proposition One takes effect, there is a fair question as to whether this measure constitutes a law that is invalid because it is a law "impairing  the obligations of contracts," something prohibited by the original 1789 Constitution in Article II, Section 10.

Federalism and Private Law

Buried in the debate over Proposition One is a reality of modern American federalism.  In practice, it is quite difficult to delegate the regulation of private law, governing the non-governmental interactions of non-governmental actors, to state and local governments.  We learned that the first time as a nation from almost ninety years of trying to manage existing in a federal union where different states could adopt differing rules on the private law issue of the permissibility of slavery and indentured servitude.

We are continuing to face those issues in areas like private sector and state and local union-management relations, medical marijuana, and gay rights.  In practice, federal constitutional and statutory law in a system where Congress has near plenary power backed by the Supremacy of federal law, and interstate and international transactions and migrations of private parties, mean that it is quite challenging for states to adopt different private law rules on matters of great practical importance for long periods of  time without creating a pitched internal legal mess that is rarely sustainable.  If all else fails, and Congress clearly lacks the authority to regulate some matter within the scope of state law authority, it can and has in the past, simply bribed them to adopt uniform rules, something it has a track record of doing with success.  In American politics, state and local government greed usually trumps state sovereignty.

Countries like Germany and Canada addressed this issue by placing much more authority over private law matters in the central government than the U.S. Constitution does (at least on its face) and leaving state and local governments with authority mostly to provide public services and administer central government blessed private laws.


But, while the American system of federalism doesn't require uniformity (and on some issues it manages to tolerate differences that the European Union finds to be essential to the functioning of its union of multiple sovereigns), it is not a system of federalism capable of accommodating extremely different legal and governmental arrangements in different constituent states. 


Even the modest challenges involved in Louisiana having a legal system rooted in French civil law, while the rest of the nation has a legal system rooted in English common law, have largely been overcome simply by forcing Louisiana to operate a hybrid system in which many core common law legal principles that are foreign to the French civil law system apply anyway, for reasons more bureaucratic than substantive.


American innovation is a bit like innovation within a franchise system or big business.  A little local color can be tolerated, but wholesale deviation from the master plan, a plan that in practice goes far beyond what is stated in the U.S. Constitution, simply does not work very well.  And, when the master plan is shifted on a national level, in pretty short order, the rest of the nation usually shifts with it in almost every state where the issues involved have any salience.

U.S. Navy To Get Anti-Small Boat Laser Guns

The details are available at the Defense Tech blog.  The laser melts down or ignites fuel in the opposing boat's engines.  Unlike Star Wars, however, the laser beam has to stay on target quite a while to do the job.

GOP House Leadership Kills Colo Civil Unions Bill

Republican leaders in Colorado's State House have killed SB2, the Civil Unions bill in Colorado's General Assembly, as well as thirty other bills including a bill funding $20 million in water projects, by calling a recess of the state house two hours before the midnight deadline for passage of the bill that was coming up for a debate on the House floor where it had the support of 37 of the 65 state legislators in the chamber which Republicans control by a single seat.  The bill passed the State Senate and passed three different committee votes in the State House.  The Governor had commited to signing the bill if it was passed in the House, and the State Senate had been on call ready to consider the bill if it was passed with house amendments tonight.

The Denver Post has urged Governor Hickenlooper to call a special session to consider civil unions, but he has avoided saying if he will do so or not while there was still a possibility that the bill could be passed today.

Few Roman Emperors Collected Their Pensions

A detailed summary of the manner in which the emperors of the Roman Empire died makes clear a fundamental flaw in the Roman political system, at least insofar as the emperors were considered.  (Hat Tip to Enik Rising).

Neutered SB 163 Clears House Committee

SB 163, which would initially have reduced the penalties for a number of drug crimes in Colorado that are now minor felonies to misdemeanor status and downgraded moderately serious felony drug crimes to minor felony sentence, passed in the House Judiciary Committee yesterday without amendment from the Senate version, clearing its path to the House floor for consideration on the merits in a second reading today.

Alas, it managed this feat only because it was gutted in the State Senate, where it was introduced. In place of reforms to Colorado's criminal sentences, the bill now merely creates a commission to spend seven months studying and recommending reforms of Colorado's drug sentencing laws, without actually changing any sentences on the books now.  Commissions are a common consolation prize for bills with good ideas that too ambitious or bold to make legislators who aren't intimately familiar with the issues involved comfortable adopting them immediately.

Five Countries Dominate Immigration Courts

About 80% of new United States immigration court cases (which are Article I courts with only indirect appellate resort to the ordinary judicial branch courts) are to Mexico, El Salvador, Honduras, Guatemala, and China. 

As of 2010, when there were an estimated 10,790,000 undocumented immigrants in the United States according to the Department of Homeland Security, the most common countries of origin were Mexico (6,640,000), El Salvador (620,000), Guatemala (520,000), and Honduras (330,000). These four countries account for a little more than 75% of the total.  But, China was only the tenth most common country of origins with 130,000.  (In between were the Philippines, India, Ecuador, Brazil and Korea.) All of the countries outside the top ten combined accounted for another 1,550,000. So, the current statistics suggest that undocumented Chinese immigrants are particularly likely to end up in immigration court relative to their numbers.

About 34% of undocumented immigrants in the United States have lived in the U.S. for at least two decades, about 61% of undocumented immigrants have been living in the United States for at least a decade, and 91% have lived in the United States for at least five years.

Net undocumented immigration from Mexico is currently zero and has been zero or a net outflow for several years.

Should The U.S. Really Be Litigating This?

What is the worst kind of lawyer to have defend you in a federal murder trial?  Well, the worst would be representing yourself.  But, the next worst thing is being represented by a lawyer who isn't really a lawyer, paying $70,000 for the privilege, and being convicted after a trial in which your fake lawyer acted erratically at trial.

Gwen Bergman had that privilege in May of 2008.  The fraud was revealed in June of 2008, after she was convicted and the fake lawyer was sent to prison for nine years as a result.  Cases of people pretending to be attorneys when they really aren't attorneys are sufficiently uncommon, that neither clients nor opposing counsel systemically check to make sure that the credentials are real.  However it happened, this case fell through the cracks.  She's served seven years in prison and is currently on supervised release as a result of the defective trial.

Bergman isn't requesting an acquittal.  She's requesting a new trial on the ground that she didn't receive effective assistance of counsel, a Sixth Amendment right of every criminal defendant, because her lawyer turns out not to have been a lawyer.

The office of the United States Attorney in Denver that prosecuted the case is arguing that it doesn't matter that her lawyer wasn't a lawyer, because he was competent enough to give her a constitutionally fair trial.  They also argue that the fact that a licensed lawyer was hired at the last minute to act in basically a paralegal capacity but had some participation at trial purges the case of the taint of having an unlicensed lawyer in the first chair position.

But, honestly, while there are close cases and there are few "per se" rules when it comes to effective assistance of counsel, murder cases where the defendant's lawyer is not really a lawyer should not be close cases.  Criminal prosecutors, unlike other kinds of lawyers, have a special obligation.  Their mission statement is supposed to be to put the right people in prison for crimes that they commit while maintaining the integrity of the criminal justice system, not simply to maximize their conviction rates and not simply to secure maximal sentences.  Sometimes, events conspire to prevent a fair trial from happening even in the absence of any apparent prosecutorial misconduct and this is such a case.  There is nothing inherently wrong about a prosecutor conceding that a rare, clearly case deserves a "do over" in the interests of justice.  Indeed, the fact that it took this long to get to a hearing on the merits shows just how deeply flawed our system of collateral review of convictions can be.

SB 2 (Civil Unions) Still In Play UPDATED

After an editorial from the Denver Post yesterday, urging Governor Hickenlooper to call a special session on civil unions (essentially same sex marriage in all but name), if the House doesn't finish considering Senate Bill 2 (SB2), the Civil Unions bill in Colorado, by the end of the legislative session tomorrow, the state house is moving forward to consider the bill.

The House Appropriations Committee is considering the bill at 1:30 p.m. this afternoon.

If it passes that committee this afternoon (which will take at least one Republican vote on the committee, with five Republicans of the 33 in the House having said that they plan to vote for the bill, in addition to all thirty-two Democrats), the next step is a second reading on the floor of the House (a Committee of the Whole hearing where amendments may be proposed, any of which would kill the bill, since there is no time for a conference committee) where it must pass today in order to face a third reading final up or down vote by tomorrow, the last day of the legislative session. (The second and third readings are required by legislative rules to happen a day apart.) The state house's Republican leadership would prefer to kill the bill and controls the calendar, so it could simply refuse to schedule the bill for a second reading today even if it passes the House Appropriations Committee, but the House leadership is limited by decorum, common practice, and P.R. considerations in the extent to which they can use their scheduling power to kill a bill that is widely known to have majority support and has passed all of the relevant comittees.

On the merits, the appropriation from the bill of a little more than $10,000 is covered by filing fees in connection with obtaining civil unions and commencing court actions in connection with them.  The bill is effectively revenue neutral, and in any case, a pittance compared to the entire state budget.

The Second Reading and Third Reading, if they are placed on the House calendar, are expected to produce 37-28 votes, and presumably, advocates of the bill wouldn't be pushing as vigorously as they are right now if they thought that they didn't have the votes in the House Appropriations committee.

If the bill passes, Colorado will join a growing number of states with civil unions or gay marriage. California returned to that column in February when the United States Court of Appeals for the 9th Circuit held that Proposition 8, which ended judicially created gay marriage in the state, was unconstitutional, although an appeal to the U.S. Supreme Court is pending in that case. Washington State authorized gay marriage by legislation passed in January.

I reviewed the national legislative scene last June, when Rhode Island passed a civil unions bill, although I may have missed a development or two between then and now. By my count, if SB 2 passes, Colorado would be one of six states with civil unions (the other five would be Rhode Island, Hawaii, Illinois, New Jersey and Delaware), in addition to eight states (New York, New Hampshire, Vermont, Iowa, Massachusetts, Connecticut, Washington, California) and the District of Columbia (and two U.S. recognized Indian tribal governments: the Coquille and the Suquamish) which have gay marriage. In addition, other states (including Maine, Nevada, Oregon and Wisconsin) have domestic partnership laws which have legal effects short of the equivalent of marriage under state law (although Oregon's law apparently comes close to being a civil unions law). Maryland has passed a same sex marriage bill, but it does not take effect until January 1, 2013 and could be derailed by a citizens referrendum before that date.

North Carolina voters are on the verge of considering this month a ban a state constitutional ban on same sex marriage which is likely to pass, although there is fierce campaigning on both sides of the issue.

Internationally, Canada, Australia, New Zealand, South Africa, most of Western Europe, and most of Latin American recognizes same sex couples legally in some manner or another, although there is considerable variation and nuance in the details of what is recognized in which jurisdiction. In much of the rest of Africa and the Islamic world, homosexual acts are illegal.

UPDATE 5:09 p.m. and 5:20 p.m. from here:

Early in today's hearing, at which lawmakers also intend to take up a proposal to legalize civil unions, it appeared the [driving while on THC] bill might be caught up in a filibuster aimed at the later bill. Republican lawmakers opposed to civil unions repeatedly asked questions about earlier bills that, because of legislative rules, have no hope of becoming law. The pace then quickened, however, and it took about 20 minutes for the [driving while on THC] bill to clear the committee.

Per a Colorado Pols commenter posting a 5:04 based on the audio feed: "[SB2] Passes 7-6 with Gerou voting yes."

SB 2, having cleared all of the relevant committees, now has a little less than seven hours to make it to the floor of the House and survive a second reading. It has the votes on the floor of the house, but could still run out of time if the House leadership refuses to bring the bill up on the floor today (or if opponents of the bill manage to prevent the consideration of the bill on the floor today manage to prevent the house from finishing its second read consideration of the bill today). This will be down to the wire.

UPDATE 9:08 p.m.

North Carolina passed a ban on same sex marriage at the polls today.  It still isn't clear if SB 2, the Colorado Civil Unions bill, will pass or not today.  If it passes today on a second reading, it will very likely be passed on a final reading tomorrow and will be signed by the Governor.  If it doesn't pass today on a second reading (it has the votes, but a final second reading vote might be delayed until the day is over), then the bill will fail in this regular legislative session.

UPDATE 10:20 p.m.

According to 9 News the House went into recess at 10 p.m. with 30 bills awaiting consideration before a midnight deadline for second readings, and negotiations in progress.  Still down to the wire, still capable of coming out either way.

Traffic Deaths Continue To Fall

Traffic fatalities fell to an all time record low (1.10 per 100 million vehicle miles of travel) in 2010, for the fifth consecutive year and a on track to fall again in 2011. Traffic fatalities have fallen 24% per vehicle mile of travel since 2005. The seventeen quarter streak of decline traffic fatalities is the longest since record have been kept. The rate of fatalities per vehicle mile of travel predates the financial crisis and controls for both the cyclical economic effects that produce reduced motor vehicle use, and increases in population that drive up motor vehicle use. The declines are continuing despite a major increase in distracted driving accidents associated with rising cell phone use.

Even the absolute number of traffic deaths in 2010 (32,885), was lower than in any year since 1949 (when the nation's population and vehicle miles traveled was much lower), when there were 30,246 traffic deaths and the number of deaths per 100 million vehicle miles of travel was close to 7. The number of injuries per 100 million vehicle miles traveled has also steadily fallen (the 75 in 2010 was identical to the figure for 2009 after many years of declines). The declining fatality rate isn't simply a matter of more injured people surviving their injuries.

Causes

About 31% of all traffic fatalities were in alcohol impaired driver accidents. Alcohol impaired accident fatalities have fallen more rapidly than traffic fatalities as a whole.  In Colorado, 127 traffic fatalities (28% of the total) involved legally drunk drivers in 2010.

Nighttime accident fatalities and fatalities involving drivers under the age of twenty-one have fallen significantly in the last few years.

Seatbelts were not being worn in a little more than half of all traffic accidents where there were fatalities and it was possible to determine if a seatbelt was being worn or not. About 3,341 people died in fatal traffic accidents who would have lived had they been wearing seatbelts in 2010, and about 706 people riding motorcycles died in traffic accidents that they would have survived had they been wearing motorcycle helmets.  Child car seats saved 303 lives in 2010.

Many driver's involved in fatal accidents were driving with suspended or revoked driver's licenses: 11% of drivers with no alcohol at the time of a fatal accident, 20% with a legal level of alcohol at the time of a fatal accident and 26% of drivers who were legally drunk at the time of a fatal accident.

Infant Mortality Down In Africa

Child mortality (defined as under age five) is not only falling but is falling at an increasing rate in Africa in the 2000s, across its varied regions.  
Why has child mortality fallen?   Improvements in dealing with malaria using insecticide-treated bednets were particular important.

Among the possible causes of the decline are various targeted new public health initiatives and improved access to water and sanitation. A Oaxaca-Blinder decomposition using Demographic and Health Survey data shows that the increased ownership of insecticide-treated bednets in endemic malaria zones explains 39 percent of the decline in postneonatal mortality and 58 percent of the decline in infant mortality. Changes in other observable candidate factors do not explain substantial portions of the decline. The portion of the decline not explained may be associated with generalized trends such as the overall improvement in living standards that has taken place with economic growth.

The absolute numbers still aren't wonderful. There are nineteen to twenty child deaths per 100 live births each year in Niger and Mali. Even better performing countries like Senegal, Kenya and Madgascar have seven child deaths per 100 live births each year.

In the developed world, one infant death per 100 live births is on the high side and child deaths are much less common after a child survives infancy.

Colorado Civil Unions Bill On The Brink

Colorado's Civil Unions bill (SB 2) could go either way this legislative session, which ends on Wednesday. The bill would make it possible for same sex couples to have a union which would carry all rights and responsibilities of marriage under state law, but not the name (something that can't be done without a state constitutional amendment). It would be a major step forward for Colorado, which has a number of means by which same sex couples can secure some legal rights for each other, but not all of the rights afforded by marriage and not with the same level of simplicity.

It isn't yet clear if federal law, which is close to recognizing same sex marriages now that the Obama Administration is no longer actively defending challenges to the Defense of Marriage Act (DOMA), would treat same sex marriages and civil unions identically, or only afford federal law rights to same sex marriages.

SB 2 has cleared the State Senate and both the Judiciary and Finance committees in the State House. As of Friday, when it cleared the House Finance Committee, it still needed to make it out of the House Appropriations Committee today (the appropriations would be minimal) or perhaps early Tuesday morning, to have a second reading on the floor of the House tomorrow (the stage at which amendments are considered), so that it could have a final third reading vote on its passage on Wednesday, in order to be sent to the Governor in 2012 (who would sign the bill).

The bill is sponsored by my pre-redistricting State Senator (Pat Steadman) and my post-redistricting State Representative (Mark Ferrandino), both of whom are gay men.

The State House has as 33 Republican-32 Democrat split, and two Republicans have voted for the bill in committee. So it is likely clear that if the bill makes it to a floor of the state house for a second reading tomorrow, that it will become law.  But, either the appropriations committee, or the House leadership by declining to put the bill on the calendar for consideration on Tuesday if it passes the appropriations committee, could kill the bill. Both the House Appropriations Committee chair and the House's Republican leadership are signaling (and again today) that they may try to prevent the bill from receiving a final vote this legislative session.

Absent intervention from Governor Hickenlooper, who has a track record of changing minds in clinch situations, the odds a good that the bill will run out of time this session.

There is a good chance that Democrats will secure control of the state house again in the 2012 elections, so a defeat in this session, may portend a one year delay in passage of a civil unions bill, rather than its ultimate failure. Both of the bill's sponsors will almost certainly still be in the legislature in 2013.

Why Are Phishing Scams So Lame?

Maule points out the myriad flaws in a phishing scam he recently received in his e-mail in box. The low quality of the scam e-mail is typical. Why? One could have a much more polished scam e-mail with only a little effort, and presumably, it would catch more savvy recepients, dramatically increasing its yield. It isn't obvious that a better polished scam would be more easily traced. Someone sophisticated enough to conduct these scams should surely have the skill set to write better e-mails. Is this a case of predators deliberately choosing the dotty and the creduluous as victims in order to reduce the likelilihood that someone competent will be burned and in turn will devote serious attention to locating the perpetrators? Or are the perpetrators really just less sophisticated themselves than I give them credit for being?

How Appealing Turns Ten

The How Appealing blog turned ten years old yesterday. This blog has its seventh birthday in about two months.

Oberlin The PhD Factory

My undergraduate alma mater, Oberlin College, ranks 18th in the nation (according to the National Science Foundation) in the number of science and engineering PhDs it produces per hundred bachelor's degrees awarded nine years earlier. It also produces PhDs in the social and behavioral sciences at a high rate. Indeed, the descriptor the "Oberlin 50" is used to describe small liberal arts colleges that produce far above average numbers of PhDs.

The top twenty colleges on the list are:

1. California Institute of Technology 35.2
2. Harvey Mudd 24.9
3. M.I.T. 16.6
4. Reed 13.8
5. Swarthmore 12.9
6. Carleton 11.7
7. University of Chicago 10.8
8. Grinnell 10.5
9. Rice 10.5
10. Princeton 10.3
11. Harvard 9.9
12. Bryn Mawr 9.7
13. Haverford 9.5
14. Pomona 9.1
15. New Mexico Institute of Mining and Technology 8.7
16. Williams 8.4
17. Yale 8.4
18. Oberlin 8.2
19. Stanford 8.1
20. John Hopkins 7.7

The average overall ranges from 1.0 to 3.0 depending on the type of high educational institution involved. Liberal arts colleges overperform in the sciences, but produce much lower percentages of engineering PhDs. Were one to make an apples to apples comparison by looking at science PhDs per graduating science major, the number for the liberal arts colleges would be even better (Oberlin's rate, for example, is diluted by the fact that a sixty of its graduates are from its music conservatory and by its lack of an engineering school).

Then again, perhaps one reasons that liberal arts colleges produce so many PhDs is that an undergraduate liberal arts degree by itself doesn't have much economic value even though it is an asset when one applies to a graduate school.  More general interest and less traditional institutions have their numbers diluted by large proportions of their undergraduates who are chasing degress in fields like business and education and nursing that can be immediately translated into employment without going on to earn a PhD.

Combine selective admissions and few other options and one is going to see lots of your graduates go onto PhDs.

Are Lawyers Slackers?

At a nearby table we saw three young people with plaid shirts and floppy hair. For all we know, they may have been plotting the next generation’s Twitter, but [Edward] Conard felt sure they were merely lounging on the sidelines. “What are they doing, sitting here, having a coffee at 2:30?” he asked. “I’m sure those guys are college-educated.” Conard, who occasionally flashed a mean streak during our talks, started calling the group “art-history majors,” his derisive term for pretty much anyone who was lucky enough to be born with the talent and opportunity to join the risk-taking, innovation-hunting mechanism but who chose instead a less competitive life. In Conard’s mind, this includes, surprisingly, people like lawyers, who opt for stable professions that don’t maximize their wealth-creating potential. He said the only way to persuade these “art-history majors” to join the fiercely competitive economic mechanism is to tempt them with extraordinary payoffs.

From here.

I sincerely doubt that Conard has the psychology of entrepreneurship right.  Even if extraordinary payoffs are one way to encourage entrepreneurship, it is hardly the only or the most efficient way to do so.

Also, somebody has to prevent risk taking entrepreneurs from crossing the line over into being foolhardy and stupid, and this is what lawyers do. The risk would be much greater if it weren't for the lawyers (and investment bankers and accountants and other "staff" professionals) advising entrepreneurs.

Conard is an apologist for the status quo and former partner of Mitt Romney at Bain Capital. He argues that the super rich are indispensable to the well being of the entire society.

One reason to be skeptical of this view is that people are pretty insensitive to the amount of the payoff it will take to motivate them to extend themselves on the high end.  For a well educated, upper middle class trio in a coffee shop, working entry level professional jobs, a reward of $2,000,000 each and a reward of $20,000,000 each aren't that different in their capacity to provide motivation.  The research shows that winner take all incentives aren't as effective at producing aggregate levels of effort as more modest but more widely attainable rewards.

One of the better counterexamples is government.  The very highest levels of public service, as cabinet officers, generals, astronauts, politicians, and city managers may provide enough fame, power and prestige to make a sacrifice of earnings potential compared to a private sector job with similar responsibilities tolerable.  But, a lot of smart, talented, capable people happily and competently hold down jobs year after year without serious complaint as nearly invisible senior civil servants, managing massive government resources of people and money, and bearing great responsibility, for a tiny fraction of the pay of comparable private sector employees (the overall deal is pretty comparable to the private sector at the mid-level and tends to be more generous than the private sector at the low end).  A Colonel, or CIA agent, or senior executive service employee in a Washington D.C. agency headquarters lives a comfortable enough life but brings home a surprisingly modest paycheck.

People are also risk averse for good reason.  Failing to be rich is survivable for one's entire life.  Failing to have enough resources to provide yourself and your family with food, shelter, clothing, health care and other necessities of life, even briefly, is not.

Notably, many of the most innovative people in our society in both the public sector and the private sector - our most productive professors, our most prolific inventors in the corporate world, the people who write the all of the changes to the laws and regulations that govern our lives, the physician at some of our most prestigious and innovative medical centers like Mayo Clinic - work for comfortable upper middle class salaries, rather than being organized economically in their own lives in a way that affords them even an opportunity to make a big payoff, ceding those opportunities to large institutions in exchange for reliable moderate comfort.  People who are insecure in their own personal lives are much less prone to take risks even if there is a real chance that the gamble could produce immense payoffs.

NBA Player Status As Destiny

"[W[hile the probability of, say, an American between 6’6″ and 6’8″ being an NBA player today stands at a mere 0.07%, it’s a staggering 17% for someone 7 feet or taller."

From here.

One Week Left For Colorado General Assembly

Colorado's state legislature, the Colorado General Assembly, is officially a part-time body.  It has a one hundred and twenty day session each year, absent extraordinary circumstances that cause a "special session" to be called, typically by the Governor and only for a narrow specific purpose. 

On the last day of the legislative session, the magical power of this group of people evaporates as the state house and state senate adjourn "sine die."  This year, the make or break constitutional deadline for getting legislation from the 2012 legislation session passed in May 9, a week from today. 

To be perfectly honest, I only have a dim notion of what notable bills remain live in the final week of the session.  Some are simply last minute details of appropriation bills, which are reserved for the last month of the legislative session, but many are the hardest decisions and most controversial bills of the session which have been procrastinated over until the last minute.

I know that a Civil Unions bill that passed the Democratic controlled State Senate is at risk of being killed by the Republican leadership in the State House, even though the bill probably has the votes if it makes it to the floor. 

A bill converting many minor drug felonies into misdemeanors is also in limbo.  On the merits of what kinds of sentences are appropriate for minor drug felonies, the bill would sweep to passage pretty easily with the current set of legislators.  But, intrastate budgetary federalism has reared its ugly head.  State government pays the tens of thousands of dollars per inmate per year of incarcating felons.  County governments pay the almost as costly sum per inmate per year to incarcate people converted of misdemeanors, sometimes for sentences that are nominally as long as two years before good time is considered, and county governments also have to build the jails that house these inmates.  Downgrading minor drug felonies to misdemeanor status reduces the combined state and local incarceration budget materially.  But, while the measure would reduce the state's Department of Correction's budget quite a bit, it would greatly increase the jail budgets of every county in the state.  The backers of the bill, focused on the merits of sentencing policy, failed to foresee this budget driven opposition and have scrambled to overcome the powerful local government lobbies resisting the change.

Once the session is over for the year, a week from today at midnight (Andrew Romanoff's tradition of finishing the legislative session's a day or two early hasn't lasted), there will be a few weeks when Governor Hickenlooper can consider whether to veto straggler bills or not, activity under Denver's golden dome fades away to a hush for another eight months.  Most of this year's bills will take effect July 1, 2012, and the handful that didn't manage to be passed with "safety clauses" will take effect in August. 

After a few parties and a bit of a breather, state legislators will return to thinking about their campaigns and those of their political allies in the 2012 election season, planning bills for the next legislative session, claiming credit for the session's accomplishments, and interacting with their constituents. Many will also try to get back in the flow of their second bannana day jobs. 

In the off season, under the golden dome, this is interrupted only by the odd meeting of interim committees and study committees of the General Assembly, and the comings and goings of the highest level officials in the Governor, Lieutenant Governor, State Treasurer, Secretary of State and Attorney General's office. 

The Colorado Supreme Court (then the only appellate court in the state) used to be located there as well, but has long ago relocate.  In another year, the Attorney General and the appellate courts will have a brand new building a block away, where the Colorado History Museum and old appellate court buildng used to be, looking north at downtown Denver.  The new Colorado History Museum, just a block south of its old location, opened last weekend.  The new appellate court building and Attorney General's office town look almost complete on the outside, but looks are deceiving.  As a rule of thumb, a building is roughly 50% complete when the fascade first looks finished.  For what it's worth, the new appellate court building looks like it will be the architecture momument that a highly symbolic public building should be (and the expense was pretty much necessary, as the old one was structurally unsound).  But, I'm really quite disappointed with the decision to put the entire Department of Law in one building downtown, rather than just putting the Solicitor General's office, and a few high profile political and headquarters offices in Civic Center and leaving its more prosiac duties in a less skyline hogging, less high profile, and less symbolic office space.

Happy May Day!

May Day is related to the Celtic festival of Beltane and the Germanic festival of Walpurgis Night.

May Day falls exactly half a year from November 1, another cross-quarter day which is also associated with various northern European pagan and the year in the Northern hemisphere, and it has traditionally been an occasion for popular and often raucous celebrations.

As Europe became Christianized, the pagan holidays lost their religious character and either changed into popular secular celebrations, as with May Day, or were merged with or replaced by new Christian holidays as with Christmas, Easter, Pentecost and All Saint's Day. In the twentieth century, many neopagans began reconstructing the old traditions and celebrating May Day as a pagan religious festival again.

The earliest May Day celebrations appeared in pre-Christian times, with the festival of Flora, the Roman goddess of flowers, and the Walpurgis Night celebrations of the Germanic countries. It is also associated with the Gaelic Beltane. Many pagan celebrations were abandoned or Christianized during the process of conversion in Europe. A more secular version of May Day continues to be observed in Europe and America. In this form, May Day may be best known for its tradition of dancing the maypole dance and crowning of the Queen of the May. Various Neopagan groups celebrate reconstructed (to varying degrees) versions of these customs on May 1st.

The day was a traditional summer holiday in many pre-Christian European pagan cultures. While February 1 was the first day of Spring, May 1 was the first day of summer; hence, the summer solstice on June 25 (now June 21) was Midsummer. In the Roman Catholic tradition, May is observed as Mary's month, and in these circles May Day is usually a celebration of the Blessed Virgin Mary. In this connection, in works of art, school skits, and so forth, Mary's head will often be adorned with flowers in a May crowning. Fading in popularity since the late 20th century is the giving of "May baskets," small baskets of sweets and/or flowers, usually left anonymously on neighbours' doorsteps. . . .

Roodmas was a Christian Mass celebrated in England at midnight on May 1.  

Traditional British May Day rites and celebrations include Morris dancing, crowning a May Queen and celebrations involving a Maypole. Much of this tradition derives from the pagan Anglo-Saxon customs held during "Þrimilci-mōnaþ" (the Old English name for the month of May meaning Month of Three Milkings) along with many Celtic traditions.

From Wikipedia.

Walpurgis Night is apparently a major celebration in Sweden and Finland somewhat resembling New Year's Eve with something of the mirth of April Fool's Day thrown in as well. 

Saint Walpurga was a nun, abbess and Christian missionary from Devon, England to Germanic Europe from the 8th century, and "she is often called the first female author of both England and Germany." Unlike many Christian saints she was not a martyr. She is "the patron saint of those suffering from rabies," her relics were associated with healing oils, and she has been conflated in some iconography with symbols associated with the pagan Grain Mother goddess. The Saint's Day of May 1st was assigned to her when she was canonized in 870 CE.

Walpurgis Night is sometimes call the Witches' sabbath.