Fifteen days into a government shutdown, Republicans still can't agree among themselves what to do with a default on the national debt just days away, although they are leaning towards a complete concession on the issue.
In recent history, only a 21 day shutdown at the end of 1995 and beginning of 1996 was longer. The Republican caucus in the House has grown dramatically more conservative in the interim (and even since 2011), while the Democratic caucus has changed very little ideologically in the same time period.
15 October 2013
School Administrators Still Stupid
Once again a school administrator has used a "zero tolerance" policy as an excuse for doing something stupid, in this case seriously punishing a volleyball team captain (loss of position and five forfeited games) for the "offense" of going sober to a party to drive a drunk friend home when the police arrived (even though the cops would vouch for her sobriety and didn't charge her with anything). The most recent case involves a teen at North Andover High near Boston.
11 October 2013
Public Says Shutdown Is GOP's Fault
A Wall Street Journal/NBC poll released Thursday night — and no doubt reflecting what both White House and Republican pollsters already knew — showed the public approval rating for Republicans at 24 percent, an all-time low in the history of the survey. Seventy percent of respondents said the congressional GOP was putting politics before the good of the country, and, worst for the GOP, the numbers for Obamacare have actually risen during the shutdown.Via Politico.
09 October 2013
Wolf Children
This epic cinematic achievement follows Hana, a woman who falls in love with a Wolf Man and gives birth to two half human, half wolf children. After the tragic death of her beloved, Hana seeks refuge in rural town where she attempts to build a life for herself and her children.From here (with trailer).
This version is dubbed in English.
For some reason, I find the premise of and trailer for this full length anime movie by Mamoru Hosoda is in preview stage right now to be absolutely fascinating.
Sometimes A Statute Of Limitations Is A Bad Idea
An Ohio man who has been legally dead since 1994 will remain so in the eyes of the law after losing his complaint to overturn his death filing, according to authorities.From here.
Donald Miller, 61, testified Monday that he disappeared in 1986 after losing his job, leaving behind a wife, two children and thousands of dollars of unpaid child support, according to James Hammer, the attorney for Miller's ex-wife, Robin Miller. He was declared legally dead eight years later.
Donald Miller said he returned to Ohio "around 2005" with no knowledge of his legal death, and that he had hoped to re-establish his Social Security number.
A legal statute in Ohio prevents changes to death rulings once three years have passed, Hammer told CNN, and Judge Allan Davis ruled accordingly in Hancock County Probate Court. . . .
Hammer recounts that at the time of Donald Miller's legal death in 1994, he owed Robin Miller around $25,000 in child support, a matter which could have been complicated had the judge ruled in Donald Miller's favor on Monday. Following the 1994 ruling, Hammer said, Robin Miller began receiving Social Security death benefits to support her two children.
"There could have been the possibility that my client would have to pay back what she received from Social Security," Hammer said.
"We certainly did not want to open that door, so we're satisfied with the outcome."
Despite her relief at the court's ruling, Hammer says his client has no ill will toward her ex-husband.
Donald Miller's attorney was not immediately available for comment Wednesday. He still has 30 days to appeal the court's ruling, according Judge Davis.
As far as I can see, this ruling creates far more problems than it solves. If someone kills Donald Miller, can he be guilty of murder, given that Donald Miller is already legally dead? Is it constitutional to deny someone legal life, when they are actually alive, in a proceeding in which that person received no notice pertaining to their personal status. Shouldn't Social Security have a say in the proceedings as an interested party (surely it is not bound by the determination if it was not a party)?
Simply put, the decision reaches an absurd conclusion, and it is hard to imagine any case in which a person declared to be legally dead is definitively found to actually be alive where this conclusion would not be absurd.
08 October 2013
Radical v. Constitutional
There are lots of radical changes that could be made in the law and politics that would not involve any constitutional change, and likewise, there are many constitutional changes that are trivial in terms of their impact.
Ireland recently narrowly defeated a referendum to abolish the upper house in its legislature. Institutionally, it was a big change. But, in terms of practical impact on the average Irishman, it was a low salience matter that was almost irrelevant.
In the United States, a moderate legislative tweak to the Posse Comitatus Act (18 U.S.C. Section 1385), could profoundly change the very nature of American political life by giving the (highly politically popular) active duty military a greater role in law enforcement, via a mere act of Congress. Few bills are better examples of the "unwritten constitution" component of the American constitutional order in a broad sense.
Some principles of law that are time honored and the focus of immense law school study and litigation consideration, like the parole evidence rule of contract law, turn out to have negligible impact on the day to day functioning of the legal system in places like Israel that have abolished it.
This isn't to say that the content of the U.S. Constitution, substantive laws or national policies don't matter. You need only look at the often vast differences between life on opposite sides of international borders such as the U.S.-Mexico border, or the Germany-France border to see that this is the case. But, the pressure points of policies that matter aren't at all obvious and are frequently not very accurately know by even academic experts who often lean heavily on conventional wisdom and institutional myth and logical reasoning, rather than empirical reality in making their assessments. Practitioners, lobbyists, middle managers in bureaucracies that implement these policies, and small business people who deal with these laws personally on a day to day basis tend to be much better informed about what would really matter and what would not.
There are also tipping points. Take election law. A lot of election law and process details have only incremental impact, any of which can determine the outcome of a close election. And, the basis constitutional election structure mostly influences how many political parties will have elected representatives and the likelihood that coalition government will be necessary. But, pretty much any system that makes it easier and more reliable for an opposition to organize an election campaign to oust the current regime than engaging in an armed insurgency or carrying out a coup in cases that aren't close is enough to meet the basic requirements of democratic government.
If one is to really have a good practical ability to shape policy, figuring out where the pressure points are and which are most malleable is the name of the game.
Ireland recently narrowly defeated a referendum to abolish the upper house in its legislature. Institutionally, it was a big change. But, in terms of practical impact on the average Irishman, it was a low salience matter that was almost irrelevant.
In the United States, a moderate legislative tweak to the Posse Comitatus Act (18 U.S.C. Section 1385), could profoundly change the very nature of American political life by giving the (highly politically popular) active duty military a greater role in law enforcement, via a mere act of Congress. Few bills are better examples of the "unwritten constitution" component of the American constitutional order in a broad sense.
Some principles of law that are time honored and the focus of immense law school study and litigation consideration, like the parole evidence rule of contract law, turn out to have negligible impact on the day to day functioning of the legal system in places like Israel that have abolished it.
This isn't to say that the content of the U.S. Constitution, substantive laws or national policies don't matter. You need only look at the often vast differences between life on opposite sides of international borders such as the U.S.-Mexico border, or the Germany-France border to see that this is the case. But, the pressure points of policies that matter aren't at all obvious and are frequently not very accurately know by even academic experts who often lean heavily on conventional wisdom and institutional myth and logical reasoning, rather than empirical reality in making their assessments. Practitioners, lobbyists, middle managers in bureaucracies that implement these policies, and small business people who deal with these laws personally on a day to day basis tend to be much better informed about what would really matter and what would not.
There are also tipping points. Take election law. A lot of election law and process details have only incremental impact, any of which can determine the outcome of a close election. And, the basis constitutional election structure mostly influences how many political parties will have elected representatives and the likelihood that coalition government will be necessary. But, pretty much any system that makes it easier and more reliable for an opposition to organize an election campaign to oust the current regime than engaging in an armed insurgency or carrying out a coup in cases that aren't close is enough to meet the basic requirements of democratic government.
If one is to really have a good practical ability to shape policy, figuring out where the pressure points are and which are most malleable is the name of the game.
Government Still Held Hostage By Republican Congressmen
We are in the eighth day of a government shutdown in the United States. This is because Republicans in Congress are resorting to this extreme tactic in an effort to stop the Affordable Care Act which would virtually eliminate the ranks of the uninsured with no access to health care in the United States. This is anathema to the Republicans, even though Mitt Romney, their most recent Presidential candidate, enacted almost the same legislation for his own state at the state level first.
Republican Congressmen Lamborn and Coffman from Colorado have essentially acknowledge that the effort is a failure and want to back down from this artificially created crisis. In less than two weeks, the same Republicans want to force the United States to default on the national debt.
The rest of the world thinks this is insane, which isn't that different from how the American public sees the matter.
If Republicans keep up this stance, federal government employees and contractors impacted by the shutdown and businesses indirectly impacted by it, will be unable to pay their bills, lose their cars, see their homes go into foreclosure, miss credit card payments and thus harm their credit, all of which will harm the economy. A default on the national debt would almost surely trigger a global financial crisis and would cost the American public hundreds of billions of dollars a year in interest payments.
If Republicans think that any of these tactics will help them get re-elected in 2014, they are sadly mistaken. This may be a rare off year in which the President's party gains ground in Congress rather than losing it.
Republican Congressmen Lamborn and Coffman from Colorado have essentially acknowledge that the effort is a failure and want to back down from this artificially created crisis. In less than two weeks, the same Republicans want to force the United States to default on the national debt.
The rest of the world thinks this is insane, which isn't that different from how the American public sees the matter.
If Republicans keep up this stance, federal government employees and contractors impacted by the shutdown and businesses indirectly impacted by it, will be unable to pay their bills, lose their cars, see their homes go into foreclosure, miss credit card payments and thus harm their credit, all of which will harm the economy. A default on the national debt would almost surely trigger a global financial crisis and would cost the American public hundreds of billions of dollars a year in interest payments.
If Republicans think that any of these tactics will help them get re-elected in 2014, they are sadly mistaken. This may be a rare off year in which the President's party gains ground in Congress rather than losing it.
03 October 2013
Death Penalty Concentrated In A Few Counties
"Only 2% of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976. Likewise, only 2% of the counties are responsible for the majority of today's death row population," the report says.
There is little correlation between the counties that condemn the most prisoners to die and those that execute the most. That may reflect the differences between the judges who hear inmates' appeals: In California, the U.S. 9th Circuit Court of Appeals, based in San Francisco, and the often liberal state appellate judges; in Texas, the U.S. 5th Circuit Court of Appeals, based in New Orleans, and conservative state appellate jurists. Prisoners can challenge their convictions and sentences with multiple appeals through state and federal courts.
Since 1976, Texas has executed 502 convicts, while California has put 13 to death. The report lists 62 counties that are responsible for the most executions, none of which are in California. . .
At the start of 2013, the counties that had sent the most inmates to death row across the nation were Los Angeles, [CA] 228; Harris (Houston), Texas, 101; Philadelphia, [PA] 88; Maricopa, Ariz., 81; Riverside, [CA] 76; Clark, Nev., 61; Orange, [CA] 61; Duval, Fla., 60; Alameda, [CA] 42; San Diego, [CA] 40; San Bernardino, [CA] 37; and Sacramento, [CA] 35.
Nine of the top counties for executions were in Texas or Oklahoma. Harris was first with 115, followed by Dallas County, Texas, with 50.
From here.
Why are death row inmates from so few counties?
A lot of this is an artifact of several key facts.
1. Population is distributed very unevenly between countries with most people living in a small number of high population counties, and the vast number of counties having very small populations. Half of the U.S. population lives in 146 counties out of more than 3000 in the United States (about 5%).
2. Many states don't have a death penalty at the state level (or have it only for extremely rare crimes like treason) including many states with high population metropolitan areas like the states that include New York and Boston and Chicago and most of their suburbs.
3. Murders are concentrated disproportionately to population in central cities of metropolitan areas so suburban counties in any given metropolitan area have far fewer death eligible cases.
4. Many central cities where many death eligible murders are committed have liberal jury pools with less conservative locally appointed or elected district attorneys that are disinclined to impose the death penalty.
For example, Denver has few death penalty cases despite having many cases eligible for it for this reason, while suburban Denver's Arapahoe County with more conservative jury pools and DAs has had more death penalty cases despite having few death eligible murders.
The high rates of death penalty imposition in many Western U.S. counties (just three are not in California, Arizona or Nevada) flows to a great extent from the fact that the West has many large countries that encompass both central cities that are home to many murders and suburbs that provide less liberal jury pools.
5. Public defenders in capital cases receive adequate funding in most Northern and Western states that have the death penalty, so fewer death penalty prosecutions result in death penalty verdicts in those states than in Southern states that have the death penalty where public defenders are routinely underfunded or just plain incompetent. This plays out at the trial and appellate levels combined. In non-Southern states, public defenders can often establish colorable grounds for reversible error on appeal even when they lose, giving appellate counsel something to work with later on.
The Appellate Process Drive's Execution Rates and Influences Death Row Sizes
The article is largely correct in attributing the high execution rates of nine of the top counties were individuals convicted there were sentenced to death to appellate court procedures and personnel, at both the state and federal appellate court levels. Senatorial privileges with respect to federal appellate court appointments afforded to impacted Senators is a major factor in explaining the disparity in death penalty case treatment between federal circuits.
Death row inmates are concentrated in states that rarely carry out executions swiftly, and thus they are not emptied as rapidly as they are in states like Texas in which appellate delays from sentence to execution are shorter. Also, a number of states where death penalties were imposed subsequently had Governors commute all death sentences to life in prison, further concentrating death row inmates in states where this has not happened. This is a quite plausible possible end game in California's death row conundrum.
The Federal Government Shutdown Strikes In Bankruptcy Court
Yesterday, in my e-filing inbox, in connection with cases where I represent a party in a bankruptcy,* was an "Order On United States Trustee's Motion for Omnibus Order and Extending Certain Deadlines in Light of Lapse of Appropriations" (United States Bankruptcy Court for the District of Colorado, October 2, 2013, Administrative Order of the Chief Judge 2013-3).
I am advised in the order (in the pertinent part, citations omitted) that:
One suspects that if the shutdown continues long enough that the seven day post-shutdown grace period will have to be extended even further. If there is a three week shutdown as there was just after I started practicing law, it will take the U.S. Trustee more than a week to catch up with a three week backlog in addition to handling all the new deadlines that continue to come due.
From a practical perspective, the order means that new bankruptcies can be started and that a few kinds of urgent matters can be addressed, but that bankruptcy cases can't be closed for a period that is indefinite. This isn't a huge deal in a no asset Chapter 7 bankruptcy. But, in cases where a Chapter 11 bankruptcy reorganization is on the verge of approval pending U.S. Trustee action, the economic harm to the nation could be material.
To be clear, I believe that this order, in fact, is an elegant, appropriate, and clearly correct solution to this institution-wide issue (since the U.S. Trustee is a party to nearly every bankruptcy case currently pending), even though the precedent and statutory and procedural rule guidance for this is thin.
Still, there is just a little part of me that wishes that I could file a Motion staying all of my deadlines in all of my cases simultaneously at times when my clients weren't paying their bills and I had to dip into my personal funds to make payroll and cover overhead. (Private parties have received no extension of their deadlines, by the way (not that they should), except to the extent that they are calculated from prior U.S. Trustee deadlines.)
This is particularly true because, while the U.S. Trustee's office is paid out of appropriations, the office also receives substantial payments that support the office from user's fees collected as a priority administrative expense claim in bankruptcy cases (behind only family support payments in priority), especially in Chapter 11 cases, even though this payments often come only after most of the work is done and the bankruptcy estates in question generate some cash, which can be hard on cash flow. All of this is mitigated, somewhat, however, because, as the Order explains:
While in theory, almost everything the U.S. Trustee's office does is to protect property for the benefit of unsecured creditors, in a government shutdown, unlike, in Authorization for Use of Military Force resolution drone strikes, words like "emergency" are given an ordinary rather than an expensive reading. (Incidentally, while active duty military personnel are at their posts, many civilian DOD and intelligence agency employees, about 70% in intelligence agencies, are actually furloughed like everyone else.)
Also, it is worth noting that while in this case the U.S. Trustee (a litigant) was defunded, but the Court is still in business, that the federal courts will run out of money in a week or so and will themselves have to restrict themselves to emergency operations only at that point (it isn't clear to me how this works in light of constitutional mandates to pay judges, although not judicial staff and overhead, and in light of the problems involved when the executive and legislative branches claim the power to shut down another branch of government in a separation of powers context).
This also illustrates that even though the federal courts may be open for civil litigants for another week or so, that in criminal cases, where one of the litigants ("The People") is always represented by the Justice Department, that the entire criminal docket comes to a standstill. Add civil cases involving federal government parties which are a substantial part of the federal docket (e.g. civil deportation cases, civil tax fraud cases, securities fraud cases, FDIC enforcement actions, etc.) and much of the federal docket will come to a halt much sooner than the point at which the federal government runs out of money.
I have not yet heard how pending or imminent jury trials with federal government parties are being treated.
Federal government shutdowns call attention to the residual desirability to delegating as much responsibility for essential government functions as possible to state and local governments, or to self-funded independent agencies respectively. For example, if the national parks were part of a government sponsored non-profit that was supported with a combination of user's fees that it could retain and an endowment of Treasury bonds that provided a default baseline of funding, rather than mostly through annual appropriations (a bit like the corporation for public broadcasting), a government shutdown wouldn't stop these low cost, high visibility government activities from screeching to a stop every time one party in control of one house of Congress wanted to force the President to give in to its demands.
* I generally don't represent parties filing voluntary bankruptcy petitions, but do represent parties impacted by someone else's bankruptcy, something almost every business client of any consequence will be on the receiving end sooner or later. I'm usually an attorney of record in at least one or two bankruptcies at any given time for one client or another, even if the representation is often low key.
I am advised in the order (in the pertinent part, citations omitted) that:
At the end of the day on September 30, 3013, appropriations to the Department of Justice lapsed. The UST [United States Trustee] is a Justice Department Official. The UST and his staff are compensated for the performance of their duties from appropriations. . . . The entry of an omnibus order will alleviate the use of Court resources that would otherwise occur were the UST to file a separate motion in each pertinent bankruptcy case and adversary matter and separate orders were to enter on each motion. . . . the deadline of the UST to respond to the applications or motions on the list of matters identified below shall be extended in all bankruptcy cases pending or filed during the cessation of ordinary operations during the lapse in appropriations until seven (7) calendar days after UST's staff attorneys are permitted to resume their usual litigation functions.The order then provides a list of sixteen kinds of U.S. Trustee filings in Chapter 7 and 11 cases (which is quite comprehensive although not all kinds of U.S. Trustee filing deadlines are included).
One suspects that if the shutdown continues long enough that the seven day post-shutdown grace period will have to be extended even further. If there is a three week shutdown as there was just after I started practicing law, it will take the U.S. Trustee more than a week to catch up with a three week backlog in addition to handling all the new deadlines that continue to come due.
From a practical perspective, the order means that new bankruptcies can be started and that a few kinds of urgent matters can be addressed, but that bankruptcy cases can't be closed for a period that is indefinite. This isn't a huge deal in a no asset Chapter 7 bankruptcy. But, in cases where a Chapter 11 bankruptcy reorganization is on the verge of approval pending U.S. Trustee action, the economic harm to the nation could be material.
To be clear, I believe that this order, in fact, is an elegant, appropriate, and clearly correct solution to this institution-wide issue (since the U.S. Trustee is a party to nearly every bankruptcy case currently pending), even though the precedent and statutory and procedural rule guidance for this is thin.
Still, there is just a little part of me that wishes that I could file a Motion staying all of my deadlines in all of my cases simultaneously at times when my clients weren't paying their bills and I had to dip into my personal funds to make payroll and cover overhead. (Private parties have received no extension of their deadlines, by the way (not that they should), except to the extent that they are calculated from prior U.S. Trustee deadlines.)
This is particularly true because, while the U.S. Trustee's office is paid out of appropriations, the office also receives substantial payments that support the office from user's fees collected as a priority administrative expense claim in bankruptcy cases (behind only family support payments in priority), especially in Chapter 11 cases, even though this payments often come only after most of the work is done and the bankruptcy estates in question generate some cash, which can be hard on cash flow. All of this is mitigated, somewhat, however, because, as the Order explains:
Absent an appropriation, Department of Justice attorneys and staff, including the UST's staff, are prohibited from working, even on a voluntary basis, "except for emergencies involving the safety of human life or the protection of property."There is a big difference between merely not getting paid, and not being allowed to work even voluntarily (although the latter does come up in private practice when a client orders you to take no further action so as not to cause the client to incur additional fees, but a court has not granted you permission to withdraw from the representation).
While in theory, almost everything the U.S. Trustee's office does is to protect property for the benefit of unsecured creditors, in a government shutdown, unlike, in Authorization for Use of Military Force resolution drone strikes, words like "emergency" are given an ordinary rather than an expensive reading. (Incidentally, while active duty military personnel are at their posts, many civilian DOD and intelligence agency employees, about 70% in intelligence agencies, are actually furloughed like everyone else.)
Also, it is worth noting that while in this case the U.S. Trustee (a litigant) was defunded, but the Court is still in business, that the federal courts will run out of money in a week or so and will themselves have to restrict themselves to emergency operations only at that point (it isn't clear to me how this works in light of constitutional mandates to pay judges, although not judicial staff and overhead, and in light of the problems involved when the executive and legislative branches claim the power to shut down another branch of government in a separation of powers context).
This also illustrates that even though the federal courts may be open for civil litigants for another week or so, that in criminal cases, where one of the litigants ("The People") is always represented by the Justice Department, that the entire criminal docket comes to a standstill. Add civil cases involving federal government parties which are a substantial part of the federal docket (e.g. civil deportation cases, civil tax fraud cases, securities fraud cases, FDIC enforcement actions, etc.) and much of the federal docket will come to a halt much sooner than the point at which the federal government runs out of money.
I have not yet heard how pending or imminent jury trials with federal government parties are being treated.
Federal government shutdowns call attention to the residual desirability to delegating as much responsibility for essential government functions as possible to state and local governments, or to self-funded independent agencies respectively. For example, if the national parks were part of a government sponsored non-profit that was supported with a combination of user's fees that it could retain and an endowment of Treasury bonds that provided a default baseline of funding, rather than mostly through annual appropriations (a bit like the corporation for public broadcasting), a government shutdown wouldn't stop these low cost, high visibility government activities from screeching to a stop every time one party in control of one house of Congress wanted to force the President to give in to its demands.
* I generally don't represent parties filing voluntary bankruptcy petitions, but do represent parties impacted by someone else's bankruptcy, something almost every business client of any consequence will be on the receiving end sooner or later. I'm usually an attorney of record in at least one or two bankruptcies at any given time for one client or another, even if the representation is often low key.
02 October 2013
Government Shutdowns and Federalism
One of the most important feature of federalism, in retrospect, is that it makes the government more robust in the face of events like the current federal government shutdown due to Congressional gridlock.
A great many functions of government are carried out and funded by state and local governments that are not subject to the shutdown. My children's public schools are open. Police are out enforcing the laws at the traffic corner. It is business as usual for firefighters. Municipal water and sewer systems are still operating. The buses and light rail are running. The construction of new light rail lines continues unabated. State courts which handle the bulk of the civil and criminal dockets are open force business, and the business transactions managed by the Colorado Secretary of State are not impeded.
While the postal service is part of the federal government, because it is a largely user's fee funded independent agency, the mail is still being delivered. Similarly, the Federal Reserve System, which is quasi-private is still running.
This isn't to say that there isn't an effect. I have a client's federal tax audit on hold. The federal courts in which I have appearances entered in several cases believe that they will run out of money in about ten days. The 8th graders at Hamilton Middle School are likely to have their class trip to Washington D.C. set for two weeks from now, spoiled. Federal parks and museums are closed. Medicare claims processing will grind to a near halt. New passports are not being issued. Many federal government workers with "essential" functions aren't paid and are working on faith that they will be paid retroactively when the deadlock is over.
Funded or not, the military and federal prisons can't practicably shut down on a dime because the Congress won't appropriate funds to pay for them.
Ultimately, House Republicans may have managed to snatch defeat from the jaws of victory in the 2014 election as a result of their little stunt. They've gone to the barricades to protect the right of Americans to be sick and too broke to receive healthcare at the same time, and surely must know that they are on the wrong side of history on this one. But, self-delusion is powerful magic indeed.
A great many functions of government are carried out and funded by state and local governments that are not subject to the shutdown. My children's public schools are open. Police are out enforcing the laws at the traffic corner. It is business as usual for firefighters. Municipal water and sewer systems are still operating. The buses and light rail are running. The construction of new light rail lines continues unabated. State courts which handle the bulk of the civil and criminal dockets are open force business, and the business transactions managed by the Colorado Secretary of State are not impeded.
While the postal service is part of the federal government, because it is a largely user's fee funded independent agency, the mail is still being delivered. Similarly, the Federal Reserve System, which is quasi-private is still running.
This isn't to say that there isn't an effect. I have a client's federal tax audit on hold. The federal courts in which I have appearances entered in several cases believe that they will run out of money in about ten days. The 8th graders at Hamilton Middle School are likely to have their class trip to Washington D.C. set for two weeks from now, spoiled. Federal parks and museums are closed. Medicare claims processing will grind to a near halt. New passports are not being issued. Many federal government workers with "essential" functions aren't paid and are working on faith that they will be paid retroactively when the deadlock is over.
Funded or not, the military and federal prisons can't practicably shut down on a dime because the Congress won't appropriate funds to pay for them.
Ultimately, House Republicans may have managed to snatch defeat from the jaws of victory in the 2014 election as a result of their little stunt. They've gone to the barricades to protect the right of Americans to be sick and too broke to receive healthcare at the same time, and surely must know that they are on the wrong side of history on this one. But, self-delusion is powerful magic indeed.
24 September 2013
Contact Drafting Matters
Definitions in a contract can clarify the meaning of a term, but sometimes the way that a term is drafted in a contract does not comport with the common meaning of the term. And, when you are an insurance company and someone is trying to obtain insurance coverage from you, your atypical definition is binding upon you.
23 September 2013
Impressions From A Jury Trial
I spent the last week representing someone in a jury trial. A few impressions from that experience:
* Overall, the process is very similar to the way jury trials were conducted in Abraham Lincoln's day, with the singular recent innovation that juries can now pose questions to witnesses. He could have walked into the court with only minimal additional legal knowledge and done just fine. Even the legal theories I relied on in the case are mostly that old (a few civil procedure nuances related to notice pleading changed a bit in the 1930s as did a fair amount of terminology).
* The fact that the rules of evidence carefully limit what facts a jury may consider is a long standing issue of debate in legal theory. Less discussion have been given to the pros and cons of "TMI" (too much information) in jury instructions. Generally, courts and lawyers in jury trials focus on establishing something close to a minimum decision set of legal rules for juries with very little context for the rules that they are to apply to this particular case. It is not at all obvious, however, that this philosophy has the same utility as the philosophy about allowing only relevant evidence that meets other gatekeeper tests to be considered. At what point does excess, accurate legal knowledge every actually create a risk of harmful error?
* Jury pools, in my experience, tend to be disproportionately female, especially after jurors are dismissed for cause and hardship. Assuming that this is the reality, does that make our court system fundamentally gynocentric? If it does, is that a bad thing, a good thing, or an irrelevant thing?
* Conventional wisdom holds that juries do not mechanically apply the law set forth in the jury instructions to the admitted evidence without considering other factors. Psychology tends to support a model in which people decide the case first in a gestalt way and then justify their gut instinct after the fact. Assume that this is true. Is it more good than bad, or more bad than good, and is this an important reason for the privacy of jury deliberations?
* Overall, the process is very similar to the way jury trials were conducted in Abraham Lincoln's day, with the singular recent innovation that juries can now pose questions to witnesses. He could have walked into the court with only minimal additional legal knowledge and done just fine. Even the legal theories I relied on in the case are mostly that old (a few civil procedure nuances related to notice pleading changed a bit in the 1930s as did a fair amount of terminology).
* The fact that the rules of evidence carefully limit what facts a jury may consider is a long standing issue of debate in legal theory. Less discussion have been given to the pros and cons of "TMI" (too much information) in jury instructions. Generally, courts and lawyers in jury trials focus on establishing something close to a minimum decision set of legal rules for juries with very little context for the rules that they are to apply to this particular case. It is not at all obvious, however, that this philosophy has the same utility as the philosophy about allowing only relevant evidence that meets other gatekeeper tests to be considered. At what point does excess, accurate legal knowledge every actually create a risk of harmful error?
* Jury pools, in my experience, tend to be disproportionately female, especially after jurors are dismissed for cause and hardship. Assuming that this is the reality, does that make our court system fundamentally gynocentric? If it does, is that a bad thing, a good thing, or an irrelevant thing?
* Conventional wisdom holds that juries do not mechanically apply the law set forth in the jury instructions to the admitted evidence without considering other factors. Psychology tends to support a model in which people decide the case first in a gestalt way and then justify their gut instinct after the fact. Assume that this is true. Is it more good than bad, or more bad than good, and is this an important reason for the privacy of jury deliberations?
Saturday Morning Breakfast Cereal On Economics
From here.
(FWIW, I think the utility of microeconomics is greatly understated in the chart but that macroeconomics is accurately described.)
The Most Frightening Drone Threat
The militarized drones that scare me aren't the small aircraft sized drones without pilots. They are the low budget small arms firepower class drones that fill the role of infantry that can fly.
Aircraft sized drones without pilots do essentially the same things as aircraft, but without putting a pilot in harm's way.
Small drones fill a niche that no current technology fills. Moreover, this is technology that can't be denied to foreign countries and terrorist groups that could transform how battlefields work in the future.
16 September 2013
Easy Answers
For every complex problem, there is a solution that is simple, neat and wrong.- H.L. Mencken
12 September 2013
Misleading Truth
The linked fake modern movie trailer for Monte Python and the Holy Grail (a cult classic of absurd comedy touted as a dramatic action movie) aptly illustrates how a collection of entirely true statements can be totally misleading.
Catalonia Restive
There is massive support in the Catalonia region of Spain (with about 7.5 million people) to break away as an independent state within the European Union. The region already has some autonomy.
The Northern Spanish Basque region has also long struggled for independence or at least greater autonomy than the semi-autonomous region has today; a low level insurgency has been simmering there for decades.
The sovereign debt crisis in Europe has forced the Spanish national government to impose austerity measures that have made the central government particularly unpopular in a time of great economic crisis for country.
More NSA Malfeasance Revealed
The U.S. National Security Agency released declassified records that show the spy agency broke rules in targeting specific citizen’s telephone records, and then proceeded to hide it from the courts overseeing the operation.
Director of National Intelligence James Clapper released the records Tuesday in response to a series of lawsuits filed by privacy groups. The documents cover the four years stretching from 2006 to 2009.From here.
Colorado Is All Wet
Not so long ago, a Governor remarked that all of Colorado was burning.
Today, Colorado is all wet. Literally. Metro Denver gets about 12-13" of precipitation in a typical year. Now, many communities in the area have gotten most of their annual precipitation allotment in about forty-eight hours.
Flash flood watches and warnings apply to most of the Denver-Boulder metropolitan area and Larimer and Weld counties. Schools are closed in Boulder County, Manitou Springs (near Colorado Springs) and parts of Adams County.
Park Hill was the Land of Lakes as I made my way to work this morning (although the success of recent drainage improvements in the City Park area was evident). The opposing counsel in a hearing I appeared at this morning was trapped in her home in Coal Creek by flood waters and had to appear by telephone. One of the lawyers in the case behind me was greatly delayed getting to court by detours forced by flooded roads. I merely had a drenched suit coat. My assistant, who bikes to work, is soaked.
Roads have been closed due to flooding in Aurora and Commerce City and some Aurora parks are almost entirely underwater. The Community College of Aurora is closed.
Mud slides and floods have closed roads all over Larimer County, in some cases trapping people in flooded homes while weather has been too extreme for helicopters to rescue them. The Meadow Lake Dam breached in rural Larimer County near Pinewood Springs and rescue efforts are underway there.
In Lyons, a sewage treatment plant has breached, sending turds into flooded streets, and fresh water is not available. Highway 36 was completed destroyed by floods at Longmont Dam Road and the road is closed from Lyons to Boulder. Thirty-five homes were evacuated in Fredrick and Firestone (many from a trailer park).
In Broomfield, a road collapsed, three cars were submerged and swept away by flood waters and three motorists had to be rescued from flood waters.
The University of Colorado at Boulder and Naropa University are closed due to flooding, parts of the campus were evacuated, and the courts are closed there. A wall of water in a canyon in Boulder County trapped a fire fighter in a tree this morning.
Three people are confirmed dead in flooding. One in a collapsed home in Jamestown, one carried away by flooding and found on the 200 block of Linden Drive in Boulder. And, one body was found on the streets of Colorado Springs near I-25 and South Nevada Street. The Boulder Sheriff has stated that there may be more victims. Jamestown in Boulder County and Four Mile Canyon were ordered evacuated.
Today, Colorado is all wet. Literally. Metro Denver gets about 12-13" of precipitation in a typical year. Now, many communities in the area have gotten most of their annual precipitation allotment in about forty-eight hours.
Rain measurements from the overnight Colorado storm that has caused flash floods and flooding according to the National Weather Service at 8:54 a.m. include:
Boulder — 9 to 12 inches
Firestone — 4.80 inches
Frederick — 7.19 inches
Lafayette — 3.50 inches
Loveland — 4.12 inches
Lyons — 3.5 inches
Thornton — 5.37 inches
Ward — 6.16 inches[UPDATE at 2:20 p.m. - Denver police have evacuated an area between 11th Avenue and Colfax Avenue from Verbena Street to Xanthia Street in a part of Denver between the Stapleton and Lowry neighborhoods due to flooding. The Cherry Creek trail and Platte River trail are also underwater for much of their extent within Denver. Evacuations also in Commerce City and in Longmont. Village East Elementary School in Greenwood Village was evacuated.]
Flash flood watches and warnings apply to most of the Denver-Boulder metropolitan area and Larimer and Weld counties. Schools are closed in Boulder County, Manitou Springs (near Colorado Springs) and parts of Adams County.
Park Hill was the Land of Lakes as I made my way to work this morning (although the success of recent drainage improvements in the City Park area was evident). The opposing counsel in a hearing I appeared at this morning was trapped in her home in Coal Creek by flood waters and had to appear by telephone. One of the lawyers in the case behind me was greatly delayed getting to court by detours forced by flooded roads. I merely had a drenched suit coat. My assistant, who bikes to work, is soaked.
Roads have been closed due to flooding in Aurora and Commerce City and some Aurora parks are almost entirely underwater. The Community College of Aurora is closed.
Mud slides and floods have closed roads all over Larimer County, in some cases trapping people in flooded homes while weather has been too extreme for helicopters to rescue them. The Meadow Lake Dam breached in rural Larimer County near Pinewood Springs and rescue efforts are underway there.
In Lyons, a sewage treatment plant has breached, sending turds into flooded streets, and fresh water is not available. Highway 36 was completed destroyed by floods at Longmont Dam Road and the road is closed from Lyons to Boulder. Thirty-five homes were evacuated in Fredrick and Firestone (many from a trailer park).
In Broomfield, a road collapsed, three cars were submerged and swept away by flood waters and three motorists had to be rescued from flood waters.
The University of Colorado at Boulder and Naropa University are closed due to flooding, parts of the campus were evacuated, and the courts are closed there. A wall of water in a canyon in Boulder County trapped a fire fighter in a tree this morning.
Three people are confirmed dead in flooding. One in a collapsed home in Jamestown, one carried away by flooding and found on the 200 block of Linden Drive in Boulder. And, one body was found on the streets of Colorado Springs near I-25 and South Nevada Street. The Boulder Sheriff has stated that there may be more victims. Jamestown in Boulder County and Four Mile Canyon were ordered evacuated.
11 September 2013
Two Democratic State Senators Recalled In Colorado
Colorado State Senate President John Morse and Colorado State Senator Angela Giron were recalled in yesterday's recall elections. Republicans tried to recall four state senators over their votes in support of gun control legislation earlier this year, but only managed to gather enough signatures to put two recalls on the ballot.
Analysis of the Recall Races
Ballot Issue State Senate 3 - Recall Giron
Morse's district has always been a close one. Colorado Springs is a conservative stronghold in the state, but Morse's central city and tourism oriented Manitou Springs district is a relatively liberal pocket within it. In 2010, he managed to win his race only on the strength of low turnout and a strong showing by a Libertarian candidate that hurt the Republican candidate more than Morse, the Democrat. In that race, Morse got 13,866 votes, Republican Owen Hill garnered 13,526 votes, and Libertarian candidate Randall secured 1,320 votes.
Democrats Narrowly Remain In Control in 2014
Democrats went into the recall election with a 20-15 majority in the State Senate. After the recall, Democrats will have a razor thin 18-17 majority in the State Senate, giving the Democrats in the Colorado General Assembly less freedom to enact a broad liberal agenda as they did earlier this year, because any one defection from their Senate caucus would defeat a bill. But, Colorado State House and the Governor's mansion are still controlled by Democrats, so the recalls will not allow Republicans to make any major gains.
State Senators serve four year terms. Morse and Giron were each elected in 2010, so the replacement candidate will serve for only one legislative session, from January to early May of 2014, before the next ordinary state senate election in November of 2014.
In 2014, the seat from which Morse was just recalled will still be competitive, although the recall with give Republican State Senator Herpin the advantage of incumbency. But, absent a truly impressive moderate performance by Republican State Senator Rivera, he will have an uphill battle getting re-elected in this Democratic leaning district in 2014.
Analysis of the Recall Races
Ballot Issue State Senate 3 - Recall Giron
100% reporting
Yes
|
56.
0%
|
(19,355)
|
|---|---|---|
No
|
43.9%
|
(15,201)
|
Surprisingly, the race in urban and resort areas in and near Colorado Spring represented by Morse was closer than the result in liberal leaning Pueblo County.
But, despite those challenges, the Morse recall prevailed by only 343 votes out of 17,845 votes cast in State Senate District 11 in an early September election with far lower turnout than the 2010 general election, a factor that generally hurts Democrats. The recall had less than 51% support. Morse will be replaced by Republican Bernie Herpin (a former Colorado Springs City Councilman). District 11 has about 10% more registered Democrats than it does registered Republicans, but independents in Colorado Springs are more conservative leaning than in many other parts of the state.
Giron's dramatic upset in favor of Republican George Rivera (Pueblo's former Deputy Police Chief) in State Senate District 3 where Democrats have a decisive voter registration edge (registered Democrats outnumber registered Republicans almost 2-1 in the district) was a much bigger surprise. She won her race in 2010 against Republican Vera Ortegon by 24,827 to 20,313. Again, turnout was lower in the recall election than in the 2010 election, but the turnout lag was smaller than in Morse's race.
The Denver Post's account attributes Giron's weakness to opposition to gun control among blue collar Democrats who predominate in her district.
It bears noting that both Morse and Giron are running in different districts than they were elected in at the 2010 general election. A new state senate district map was adopted following the 2010 census and this is the first time elections were held in either of the new districts. But, given that the map adopted following the 2010 census in Colorado was basically a Democratic proposal, this should have helped rather than hurt them.
The take home lessons for Democrats
The Democratic party, for more than its Republican counterpart, is a big tent. Many different groups of voters are united in its center-left coalition and these coalition partners don't agree with each other on every policy issue. Issues that starkly divide partners within a political party coalition are called "wedge issues" and these recall elections have clearly demonstrated that gun control is a wedge issue within the Democratic party in Colorado. White urban liberals and central city blacks like gun control. Rural and small town, blue collar, Hispanic Democrats, like those in Pueblo, don't like gun control.
Democrats, as a party, need to be sensitive to wedge issues and individual Democratic elected officials need to listen carefully to where their supporters stand on these issues. The party leadership needs to carefully balance the political costs and policy benefits of each particular piece of wedge issue legislation and step back from the brink when the policy benefits don't clearly outweigh the political costs.
Senator Morse knew his district and retained the same level of support he came into office with, despite his support for strong gun control legislation. Senator Giron didn't realize the extent to which her legislative efforts on the gun control issue were playing poorly in her district and paid a high political price for this oversight that earned her a dramatic recall election rebuke.
Some of the gun control measures passed in 2013, like the universal background check legislation, were innocuous politically and probably did provide substantial policy benefits to the state. But others, like bans on high capacity gun magazines, probably didn't provide much policy benefit and carried a high political price. A slightly more discriminating approach to proposed gun control legislation would have left Democrats in a stronger position going into the 2014 legislative session.
(Incidentally, it is also worth noting that Democrats have paid essentially no political price for enacting "good government" election law legislation that clearly favors Democrats at the expense of Republicans. What is controversial with politicians of the opposite political party may not be wedge issues for a political party's own base of voters.)
Did the system work?
Recall elections for local government officials aren't that uncommon, but state legislators are extremely rare.
Seth Masket at Mischiefs of Faction (a Colorado based political scientist) notes that:
There are more than 3,000 state legislators in the United States as a whole, about two-thirds of whom have two years terms and most of the balance of whom have four year terms. Thus, there have been more than 50,000 state legislators elected (counting re-elections separately and ignoring vacancy elections) since 1971, during which period there have been 33 recall attempts and 18 state legislators actually recalled (although this isn't a fully fair comparison as most states don't have recall provisions under their state's law and state constitutions).
Frequent general elections for legislators, the fact that many legislative seats are safe, and the fact that legislators are rarely in a position to take action that can be squarely attributed to them alone because they are part of a collective legislative process (as well as the fact that few state constitutions even allow for recall elections and that those that due place substantial barriers to getting a recall on the ballot) all discourage recalls for state legislators. Media coverage of state legislative action is also often so limited that it rarely excites political action at the grass roots.
In this case, the partisan is shifted by two seats out of thirty-five for one year out of four year terms.
Just as in Colorado, the recent recall elections for state legislators in Wisconsin in 2011, after controversial anti-union legislation was enacted by the Republican majorities there, also failed to change the balance of power. The only time a recall election of state legislators has ever tipped the partisan balance of power was in Wisconsin in 2012.
In both Colorado and Wisconsin, it seems that the petition requirements to obtain a recall election are a crude but not wildly inaccurate measure of whether there is enough support for a recall to make its success at the ballot box likely but hardly a certainty, which is just about whether that petition threshold should be set. Many efforts to recall incumbents in both states failed for lack of petition support.
Riding Groundswells Of Opinion Or Providing Sour Grapes Do Overs?
If one believes in recalls, one wants a genuine dramatic shift in constituent opinion to have an outlet, while discouraging gamesmanship in cases where slight differences in the process between the general election process and the recall election process give sore losers an edge.
In the case of State Senator Giron, there is no real doubt that this happened. She went from having comfortable majority support in 2010 to experiencing a decisive loss in 2013. The percentage shift (from a win with 54% of the vote, to a loss with 44% of the vote) was far too great to be accounted for through mere differences in technicalities of the election process and decisively reversed the result of the most recent legislative election, three years earlier. Recall elections exist to produce this result.
In the case of State Senator Morse, the result looks more like a do over by a sore loser. The percentage of all of the votes cast which were cast for Morse in 2010 and in 2013 were almost exactly the same (he won 48.4% of the vote in 2010). Public support for Morse in his district was virtually unchanged almost three years later despite the issues that drove the recall. But, because his win in 2010 was so tenuous, tiny factors related as much to the election process as to a genuine groundswell of support for a recall were enough to remove him from office.
Democracy In Action?
Still, using the electoral system to attempt to shift the partisan balance based on constituent dissatisfaction with the policies that their elected legislative representatives are adopting certainly seems like Democracy in action. And, a candidate who just barely ecks out a victory by exploiting a flaw in the electoral process in the first place, as Morse basically did in 2010 (itself an off year election) may deserve to be on his toes at all time.
If they were common, the administrative and political process burden of recall elections might be a real concern, particularly if failed recall elections became the norm. But, since recall elections are (so far) extremely rare, this burden doesn't weigh heavily against the benefits of making the option available.
Recall elections reinforce, rather than undermine the political party system, which can mute excessive special interest legislative power since political parties require large coalitions of interests to function. Unlike the initiative and referendum process, recall elections don't promote policy making by sound bite, or a take it or leave it legislative process that allows good proposals with technical shortcomings to become law.
Recall elections, so far, haven't produced swift turnabouts in policy that the public could have waited just a little longer to accomplish with less election process costs in ordinary general elections. But, they do leave open that potential during periods of time when a legislature is lagging behind fast moving political currents of the kinds seen following the collapse of the Soviet Union or in the Arab Spring. And, having this safety valve available in more critical historical moments might very well be a good thing.
Recall Elections As Political Warning Shots and Bellwethers
Also, recall elections provide information from the electoral to the political system, even though they only pertain to a small number of the total number of elected offices.
In many countries, by-elections to fill legislative vacancies are considered critical bellwether moments at which the heartbeat of the voting public can be gauged. The widespread use of sophisticated political polling has damped the need for this kind of input, but the nuances of the election results and surprises in their outcomes relative to conventional wisdom send strong messages to legislators and other elected officials between regular elections that often have a disproportionate influence on how the legislative process is conducted going forward.
In effect, a successful recall election sends a warning to everyone who wasn't the subject of the recall which can be reacted to as the elected officials and political actors involved see fit.
FOOTNOTE:
A complete list of all state legislative recalls in U.S. history via the link in Seth's post, is as follows (and is probably more accurate than my link to Wikipedia on the same subject). It appears that out of 38 attempts that 21 have resulting in recalls while 17 failed.
The take home lessons for Democrats
The Democratic party, for more than its Republican counterpart, is a big tent. Many different groups of voters are united in its center-left coalition and these coalition partners don't agree with each other on every policy issue. Issues that starkly divide partners within a political party coalition are called "wedge issues" and these recall elections have clearly demonstrated that gun control is a wedge issue within the Democratic party in Colorado. White urban liberals and central city blacks like gun control. Rural and small town, blue collar, Hispanic Democrats, like those in Pueblo, don't like gun control.
Democrats, as a party, need to be sensitive to wedge issues and individual Democratic elected officials need to listen carefully to where their supporters stand on these issues. The party leadership needs to carefully balance the political costs and policy benefits of each particular piece of wedge issue legislation and step back from the brink when the policy benefits don't clearly outweigh the political costs.
Senator Morse knew his district and retained the same level of support he came into office with, despite his support for strong gun control legislation. Senator Giron didn't realize the extent to which her legislative efforts on the gun control issue were playing poorly in her district and paid a high political price for this oversight that earned her a dramatic recall election rebuke.
Some of the gun control measures passed in 2013, like the universal background check legislation, were innocuous politically and probably did provide substantial policy benefits to the state. But others, like bans on high capacity gun magazines, probably didn't provide much policy benefit and carried a high political price. A slightly more discriminating approach to proposed gun control legislation would have left Democrats in a stronger position going into the 2014 legislative session.
(Incidentally, it is also worth noting that Democrats have paid essentially no political price for enacting "good government" election law legislation that clearly favors Democrats at the expense of Republicans. What is controversial with politicians of the opposite political party may not be wedge issues for a political party's own base of voters.)
Did the system work?
Recall elections for local government officials aren't that uncommon, but state legislators are extremely rare.
Seth Masket at Mischiefs of Faction (a Colorado based political scientist) notes that:
There have been 38 state legislative recall elections in U.S. history. 17 of them have occurred just in this decade. This is proving to be a popular tool of the minority party, especially when the majority has unified control of the state and the minority has few other ways to slow down legislation it doesn't like.Only about ten such efforts had ever been successful before yesterday, in Michigan, California and Wisconsin, respectively, all since 1983 and most in the last few years. [Ed. actually based on review of a list cited by Seth Masket there have been twenty-one successful recalls of state legislators in U.S. history, including Arizona, Idaho and Oregon as well.] Colorado has never before had a successful state legislative recall effort. As in yeterday's case in Colorado, most state legislative recall campaigns involve multiple candidates, each of whom supported the same package of legislation, so there have been even fewer distinct recall campaigns than there have been successfully recalled candidates.
There are more than 3,000 state legislators in the United States as a whole, about two-thirds of whom have two years terms and most of the balance of whom have four year terms. Thus, there have been more than 50,000 state legislators elected (counting re-elections separately and ignoring vacancy elections) since 1971, during which period there have been 33 recall attempts and 18 state legislators actually recalled (although this isn't a fully fair comparison as most states don't have recall provisions under their state's law and state constitutions).
Frequent general elections for legislators, the fact that many legislative seats are safe, and the fact that legislators are rarely in a position to take action that can be squarely attributed to them alone because they are part of a collective legislative process (as well as the fact that few state constitutions even allow for recall elections and that those that due place substantial barriers to getting a recall on the ballot) all discourage recalls for state legislators. Media coverage of state legislative action is also often so limited that it rarely excites political action at the grass roots.
In this case, the partisan is shifted by two seats out of thirty-five for one year out of four year terms.
Just as in Colorado, the recent recall elections for state legislators in Wisconsin in 2011, after controversial anti-union legislation was enacted by the Republican majorities there, also failed to change the balance of power. The only time a recall election of state legislators has ever tipped the partisan balance of power was in Wisconsin in 2012.
In both Colorado and Wisconsin, it seems that the petition requirements to obtain a recall election are a crude but not wildly inaccurate measure of whether there is enough support for a recall to make its success at the ballot box likely but hardly a certainty, which is just about whether that petition threshold should be set. Many efforts to recall incumbents in both states failed for lack of petition support.
Riding Groundswells Of Opinion Or Providing Sour Grapes Do Overs?
If one believes in recalls, one wants a genuine dramatic shift in constituent opinion to have an outlet, while discouraging gamesmanship in cases where slight differences in the process between the general election process and the recall election process give sore losers an edge.
In the case of State Senator Giron, there is no real doubt that this happened. She went from having comfortable majority support in 2010 to experiencing a decisive loss in 2013. The percentage shift (from a win with 54% of the vote, to a loss with 44% of the vote) was far too great to be accounted for through mere differences in technicalities of the election process and decisively reversed the result of the most recent legislative election, three years earlier. Recall elections exist to produce this result.
In the case of State Senator Morse, the result looks more like a do over by a sore loser. The percentage of all of the votes cast which were cast for Morse in 2010 and in 2013 were almost exactly the same (he won 48.4% of the vote in 2010). Public support for Morse in his district was virtually unchanged almost three years later despite the issues that drove the recall. But, because his win in 2010 was so tenuous, tiny factors related as much to the election process as to a genuine groundswell of support for a recall were enough to remove him from office.
Democracy In Action?
Still, using the electoral system to attempt to shift the partisan balance based on constituent dissatisfaction with the policies that their elected legislative representatives are adopting certainly seems like Democracy in action. And, a candidate who just barely ecks out a victory by exploiting a flaw in the electoral process in the first place, as Morse basically did in 2010 (itself an off year election) may deserve to be on his toes at all time.
If they were common, the administrative and political process burden of recall elections might be a real concern, particularly if failed recall elections became the norm. But, since recall elections are (so far) extremely rare, this burden doesn't weigh heavily against the benefits of making the option available.
Recall elections reinforce, rather than undermine the political party system, which can mute excessive special interest legislative power since political parties require large coalitions of interests to function. Unlike the initiative and referendum process, recall elections don't promote policy making by sound bite, or a take it or leave it legislative process that allows good proposals with technical shortcomings to become law.
Recall elections, so far, haven't produced swift turnabouts in policy that the public could have waited just a little longer to accomplish with less election process costs in ordinary general elections. But, they do leave open that potential during periods of time when a legislature is lagging behind fast moving political currents of the kinds seen following the collapse of the Soviet Union or in the Arab Spring. And, having this safety valve available in more critical historical moments might very well be a good thing.
Recall Elections As Political Warning Shots and Bellwethers
Also, recall elections provide information from the electoral to the political system, even though they only pertain to a small number of the total number of elected offices.
In many countries, by-elections to fill legislative vacancies are considered critical bellwether moments at which the heartbeat of the voting public can be gauged. The widespread use of sophisticated political polling has damped the need for this kind of input, but the nuances of the election results and surprises in their outcomes relative to conventional wisdom send strong messages to legislators and other elected officials between regular elections that often have a disproportionate influence on how the legislative process is conducted going forward.
In effect, a successful recall election sends a warning to everyone who wasn't the subject of the recall which can be reacted to as the elected officials and political actors involved see fit.
FOOTNOTE:
A complete list of all state legislative recalls in U.S. history via the link in Seth's post, is as follows (and is probably more accurate than my link to Wikipedia on the same subject). It appears that out of 38 attempts that 21 have resulting in recalls while 17 failed.
- 1913: California state senator Marshall Black was recalled.
- 1914: California state senator Edwin Grant was recalled.
- 1914: California state senator James Owens survived a recall election.
- 1932: Wisconsin state senator Otto Mueller survived a recall election.
- 1935: Oregon state representative Harry Merriam was recalled.
- 1971: Idaho state senator Fisher Ellsworth was recalled.
- 1971: Idaho state representative Aden Hyde was recalled.
- 1981: Washington state senator Peter von Reichbauer survived a recall election.
- 1983: Michigan state senator Phil Mastin was recalled.
- 1983: Michigan state senator David Serotkin was recalled. (Technically he resigned from office before the results of the recall election were certified, but the results were sufficient to recall him.)
- 1985: Oregon state representative Pat Gillis was recalled.
- 1988: Oregon state senator Bill Olson was recalled.
- 1990: Wisconsin state assembly member Jim Holperin survived a recall election.
- 1994: California state senator David Roberti survived a recall election.
- 1995: California assembly member Paul Horcher was recalled.
- 1995: California assembly member Michael Machado survived a recall election.
- 1995: California assembly member Doris Allen was recalled.
- 1996: Wisconsin state senator George Petak was recalled.
- 2003: Wisconsin state senator Gary George was recalled.
- 2008: California state senator Jeff Denham survived a recall election.
- 2008: Michigan house speaker Andy Dillon survived a recall election.
- 2011: Wisconsin state senators Robert Cowles, Alberta Darling, Dave Hansen, Sheila Harsdorf, Jim Holperin, Luther Olsen and Robert Wirch survived attempted recalls, while Senators Randy Hopper and Dan Kapanke were recalled.
- 2011: Arizona Senate President Russell Pearce was recalled on November 8.
- 2011: Michigan state representative Paul Scott was recalled on November 8.
- 2012: Wisconsin state senator Van Wanggaard was recalled. Senate Republican leader Scott Fitzgerald and senator Terry Moulton survived recall elections. Senator Pam Galloway resigned earlier in the year when sufficient signatures were gathered to trigger a recall election. Even though her name wasn't on the ballot, a recall election was still held for her seat. All four senate seats in the recall election were held by Republicans; after the recall, three remain in Republican hands and one switched to the Democrats, giving control of the Senate to the Democratic party.
- 2013: Colorado Senate President John Morse and Senator Angela were recalled on September 10.
10 September 2013
Youth and Crime
You don't have to be terribly old to commit serious crimes.
Raul Antonio Pasillas mauled several people in Mexico at the age of 17 or 18 years old.
While the charges against Pasillas are serious, Mexico doesn't have a death penalty and tends to have shorter sentences for serious crimes than those in the United States (in part, simply as a function of the inability of the state to pay for long terms).
Unlike so much of the crime in Mexico, this doesn't obvious appear to be drug cartel related, although he could have gone vicious under the encouragement of a cartel as some sort of enforcer. More likely, he simply has some sort of mental health problem and had a break down - like so many mass shooters, but with a smaller death count, since he had a machete rather than a gun. Indeed, given so the many of the people who go on murderous rages like Pasillas either commit suicide, are justifiably killed by law enforcement or someone acting in self-defense (or to defend others), or are caught and spend the rest of their lives in prison, we know very little about what someone with a profile like that would be like when returned to the general public. Is it a passing thing that is different in kind from the psychological profile of someone headed for a life of crime, in much the same way that most people who have failed suicide attempts don't go on to commit suicide later when deinstitutionalized, or are people who go on these sprees more like psychopaths?
Derick Lamar Williams-Berrien has committed three bank robberies in the less than a year that he hasn't been in prison since he turned eighteen years old.
There is every reason to believe that each of these young men had prior juvenile records - criminal conduct of this kind almost never comes out of nowhere without a long history of delinquency as a juvenile from at least late elementary school age, but we don't know for sure.
Our system of justice is oriented towards leniency towards juveniles. But, statistically, the younger you have your first serious office and the younger you are at the time you commit a crime, the greater the risk you pose of re-offending. The odds are overwhelmingly against Williams-Berrien never being convicted of another crime once he is released from prison in his late 20s. From a utilitarian recidivism prevention perspective, we'd be better off if both men were in prison until they "aged out" of the peak crime commission risk age, perhaps sometime in their late thirties.
Simply put, a huge part of the impact that incarceration has on crime is that it takes young men with a history of criminal activity at the ages where they are most likely to commit crimes out of society. Blue collar crime is a young man's game.
Also, the Williams-Berrien case illustrates the perils of taking someone who has proven himself to be incapable as functioning as a law abiding independent adult directly into society as an independent adult responsible for finding himself work and renting an apartment when his only real adult experiences are as a prison inmate.
Why do we expect and allow a 22 years old who has spent the last three years in prison for bank robbery to manage adult life with less structure and more responsibility than a typical senior in college?
The college student, unlike the newly released inmate, has probably behaved in a exemplary fashion all his life. He almost surely has above average intelligence, while the inmate was probably either a high school dropout or did poorly in school. But, the college student may still live in a dorm and eat in dining halls at his parent's expense, often doesn't have to shop for groceries, often doesn't have to find an apartment for himself that he can pay for from his own current earnings, faces few consequences for showing up hung over or late to class or doing inferior quality work, has few people relying on him for anything, and has half a dozen professors, and more RAs, tutors, counselors, student health services employees, student life employees, club officers, and other college administrators devoted to smoothing over every bump in the road that he may encounter.
Even "supervised release" is probably too dramatic a step directly from prison in a large share of all cases. Too large a share of all crimes are committed by entirely predictable perpetrators. Public policy isn't by any means a science, but criminology and other social science and engineering disciplines are particular suited to heading off predictable tragedies.
Raul Antonio Pasillas mauled several people in Mexico at the age of 17 or 18 years old.
U.S. Marshals in Colorado arrested a fugitive charged in Mexico in a machete rampage in which he allegedly attacked a friend and three family members, severing eight fingers of one victim and striking others in the head.
Mexican authorities in Chihuahua have charged Raul Antonio Pasillas, 19, with four counts of attempted murder in an attack on New Year's Day, 2012.From the Denver Post.
While the charges against Pasillas are serious, Mexico doesn't have a death penalty and tends to have shorter sentences for serious crimes than those in the United States (in part, simply as a function of the inability of the state to pay for long terms).
Unlike so much of the crime in Mexico, this doesn't obvious appear to be drug cartel related, although he could have gone vicious under the encouragement of a cartel as some sort of enforcer. More likely, he simply has some sort of mental health problem and had a break down - like so many mass shooters, but with a smaller death count, since he had a machete rather than a gun. Indeed, given so the many of the people who go on murderous rages like Pasillas either commit suicide, are justifiably killed by law enforcement or someone acting in self-defense (or to defend others), or are caught and spend the rest of their lives in prison, we know very little about what someone with a profile like that would be like when returned to the general public. Is it a passing thing that is different in kind from the psychological profile of someone headed for a life of crime, in much the same way that most people who have failed suicide attempts don't go on to commit suicide later when deinstitutionalized, or are people who go on these sprees more like psychopaths?
Derick Lamar Williams-Berrien has committed three bank robberies in the less than a year that he hasn't been in prison since he turned eighteen years old.
Derick Lamar Williams-Berrien served three years for two bank robberies, got out of prison and within two months robbed another bank and led police on a chase that ended when he was shot.
On Monday, a federal judge in Denver gave him more than five years for the latest robbery and an additional 18 months to be served consecutively for committing the crime while he was supposed to be toeing the line on supervisory release.
"When you are on supervised release for bank robbery and then come out and in two months rob another bank .... in some ways it is like spitting in the court's face. It can't be tolerated," said U.S. District Judge Raymond Moore [who] sentenced Williams-Berrien, 22, to 63 months for robbing a U.S. Bank branch near East Cornell Avenue and Peoria Street in Aurora in early May.From the Denver Post.
There is every reason to believe that each of these young men had prior juvenile records - criminal conduct of this kind almost never comes out of nowhere without a long history of delinquency as a juvenile from at least late elementary school age, but we don't know for sure.
Our system of justice is oriented towards leniency towards juveniles. But, statistically, the younger you have your first serious office and the younger you are at the time you commit a crime, the greater the risk you pose of re-offending. The odds are overwhelmingly against Williams-Berrien never being convicted of another crime once he is released from prison in his late 20s. From a utilitarian recidivism prevention perspective, we'd be better off if both men were in prison until they "aged out" of the peak crime commission risk age, perhaps sometime in their late thirties.
Simply put, a huge part of the impact that incarceration has on crime is that it takes young men with a history of criminal activity at the ages where they are most likely to commit crimes out of society. Blue collar crime is a young man's game.
Also, the Williams-Berrien case illustrates the perils of taking someone who has proven himself to be incapable as functioning as a law abiding independent adult directly into society as an independent adult responsible for finding himself work and renting an apartment when his only real adult experiences are as a prison inmate.
Why do we expect and allow a 22 years old who has spent the last three years in prison for bank robbery to manage adult life with less structure and more responsibility than a typical senior in college?
The college student, unlike the newly released inmate, has probably behaved in a exemplary fashion all his life. He almost surely has above average intelligence, while the inmate was probably either a high school dropout or did poorly in school. But, the college student may still live in a dorm and eat in dining halls at his parent's expense, often doesn't have to shop for groceries, often doesn't have to find an apartment for himself that he can pay for from his own current earnings, faces few consequences for showing up hung over or late to class or doing inferior quality work, has few people relying on him for anything, and has half a dozen professors, and more RAs, tutors, counselors, student health services employees, student life employees, club officers, and other college administrators devoted to smoothing over every bump in the road that he may encounter.
Even "supervised release" is probably too dramatic a step directly from prison in a large share of all cases. Too large a share of all crimes are committed by entirely predictable perpetrators. Public policy isn't by any means a science, but criminology and other social science and engineering disciplines are particular suited to heading off predictable tragedies.
07 September 2013
Quick Hits
It's been a while since I've posted, mostly since I'm very busy with work at the moment due to a variety of litigation and non-litigation deadlines. Here are some pin board class hits of interesting nits and bits I've seen lately:
* A rice grain sized organ in your throat called the carotid body that serves as a blood pressure and oxygen and carbon dioxide regulating sensor in the body that most people didn't know existed can be removed as an effective surgical treatment for high blood pressure.
Underlying reference: Fiona D. McBryde, Ana P. Abdala, Emma B. Hendy, Wioletta Pijacka, Paul Marvar, Davi J. A. Moraes, Paul A. Sobotka, Julian F. R. Paton. The carotid body as a putative therapeutic target for the treatment of neurogenic hypertension. Nature Communications, 2013; 4 DOI:10.1038/ncomms3395
This is a big deal since high blood pressure even when treated with drugs is a huge factor in cardiovascular disease deaths like heart attacks that are one of the top couple of causes of death in the developed world.
* Monarchy works because clear lines of succession reduce the likelihood of economically costly civil wars. Democratic elections can do the same thing by other means while improving quality relative to monarchy produced leaders. But:
Underlying reference: Navarrete et al. Fear Extinction to an Out-Group Face: The Role of Target Gender. Psychological Science, 2009; 20 (2): 155 DOI: 10.1111/j.1467-9280.2009.02273.x
* Certain kinds of alcohol abuse and bulimic eat disorder behavior appear to have a common hereditary source.
* Education in the less developed world sucks. While many developing countries get increasingly large quantities of education, this isn't producing the result seen from comparable numbers of years of schooling in the developed world.
* A rice grain sized organ in your throat called the carotid body that serves as a blood pressure and oxygen and carbon dioxide regulating sensor in the body that most people didn't know existed can be removed as an effective surgical treatment for high blood pressure.
Underlying reference: Fiona D. McBryde, Ana P. Abdala, Emma B. Hendy, Wioletta Pijacka, Paul Marvar, Davi J. A. Moraes, Paul A. Sobotka, Julian F. R. Paton. The carotid body as a putative therapeutic target for the treatment of neurogenic hypertension. Nature Communications, 2013; 4 DOI:10.1038/ncomms3395
This is a big deal since high blood pressure even when treated with drugs is a huge factor in cardiovascular disease deaths like heart attacks that are one of the top couple of causes of death in the developed world.
* Monarchy works because clear lines of succession reduce the likelihood of economically costly civil wars. Democratic elections can do the same thing by other means while improving quality relative to monarchy produced leaders. But:
The larger governance lesson is that the quality of a leader is not the only thing that matters to the growth of capital. In certain hyper-competitive environments, it may not even be the most important thing. Some organizations are so close to the edge that they cannot afford the waste of political infighting, and can actually be taken under by a botched succession, where a clear leader fails to quickly emerge.* Xenophobic or racist fears of people of other cultures are predominantly confined to foreign men. People don't have sustained fears for foreign women. The only factor that significantly predicts reduced racism and xenophobia is a person's history of relationships with members of the out group as friends, colleagues or romantic partners. The power of the "present company excluded" etiquette norm is powerful.
Underlying reference: Navarrete et al. Fear Extinction to an Out-Group Face: The Role of Target Gender. Psychological Science, 2009; 20 (2): 155 DOI: 10.1111/j.1467-9280.2009.02273.x
* Certain kinds of alcohol abuse and bulimic eat disorder behavior appear to have a common hereditary source.
Studying data gathered from nearly 6,000 adult twins in Australia, Munn-Chernoff and her colleagues found that common genetic factors underlie alcoholism and certain eating-disorder symptoms, such as binge eating and purging habits that include self-induced vomiting and the abuse of laxatives. . . . Munn-Chernoff [said] "several past studies have suggested that the particular behavior of binge eating, as well as purging and other practices that we call compensatory behaviors, may be closely associated with alcohol dependence, which is why we focused on those symptoms." . . . In all, nearly 25 percent of the men and 6 percent of women had been alcohol dependent at some point. Almost 11 percent of these same men and 13 percent of the women had experienced problems with binge eating. In addition, about 14 percent of the women had engaged in purging or abuse of laxatives or diuretics.
On a statistical scale that runs from zero (no shared genes) to 1 (all genes shared), the researchers found that the genetic correlation between binge eating and alcohol dependence was statistically significant at .26. Among women in the study, the genetic correlation between compensatory behaviors and alcohol dependence was significant at .32. . . ."It appears that some genes that influence alcohol dependence also influence binge eating in men and women, and compensatory behaviors in women."Underlying reference: Munn-Chernoff MA, Duncan AE, Grant JD, Wade TD, Agrawal A, Bucholz KK, Madden PAF, Martin NG, Heath AC. A twin study of alcohol dependence, binge eating and compensatory behaviors. Journal of Studies on Alcohol and Drugs, 2013
* Education in the less developed world sucks. While many developing countries get increasingly large quantities of education, this isn't producing the result seen from comparable numbers of years of schooling in the developed world.
Public education expenditure accounts for 5.4 percent of gross domestic product in Brazil and the United Kingdom, and 5.5 percent in Ghana and the United States. In Kenya and Uganda, education accounts for around 15 percent of government expenditure. Even some of the poorest people worldwide spend a considerable proportion of their private income on education. The poorest urban households in Pakistan, which on average spend less than $1 per person per day in total, spend more than 6 percent of that on education. In Indonesia, the proportion reaches nearly 9 percent.
Parents and governments expect a return on this investment. Parents send their children to school in expectation of improved employment opportunities, income, status, and quality of life. Ministers and parliaments hope that expanded education will lead to economic growth, improved health outcomes, and nation building. In some ways, schooling appears to meet these expectations. Micro studies often report high returns to years of schooling in developing countries—7 percent in Ghana, for example. Children with mothers who went to school are more likely both to survive childhood and to attend school themselves.
But at the same time, evidence suggests that expanded educational opportunities do not translate into improved economic performance. At the country level, the average Kenyan over the age of 15 in 2010 had more years of schooling than the average French person in 1985. Sadly, Kenya’s 2010 GDP per capita was only 7 percent of France’s GDP per capita in 1985. Kenya represents a trend: massively increased enrollments even where incomes have stagnated in recent decades. More broadly, the link between schooling and economic growth in cross-country analysis is fragile at best. . . .
In several developing countries, many of the students who were enrolled in six full years of primary education were unable to answer questions about a simple paragraph or solve simple math problems. This suggests a dismal rate of return on years of school enrollment.
In India, national survey evidence reveals that only about one-third of children in grade 5 can perform long division, and one-third cannot perform two-digit subtraction. Nearly one-half of grade 5 students cannot read a grade 2 text and one in five cannot follow a grade 1 text. Sixty percent of Indian children enrolled in grade 8 cannot use a ruler to measure a pencil. Only 27 percent of Indian children who complete primary school can read a simple passage, perform division, tell time, and handle money, although students should master each of these skills by the end of the second year of school. These statistics compare starkly with the official 81 percent youth literacy rate reported by the United Nations Education, Scientific and Cultural Organization (UNESCO).
Similar findings have emerged elsewhere. Data from both Early Grade Reading Assessments and the Southern and Eastern Africa Consortium for Monitoring Educational Quality point to serious quality gaps across the region. Uwezo surveys show that in Tanzania and Uganda, less than half of all 10- to 16-year-olds possess even basic literacy or numeracy skills. A flat learning trajectory through successive school grades is reflected in low test scores among older students.
Using several sources of recent data from India, the Center for Global Development’s Lant Pritchett examined the number of repeat questions that fourth, sixth, and eighth graders answered correctly. For language, the percentage climbs from 51 to 57 percent between fourth and eighth grades. For math, it climbs from 36 to 53 percent. This suggests that it would take 32 years of schooling for 90 percent of all students to correctly answer a language question that more than half of all fourth graders already correctly answered. India is hardly unique in its flat learning trajectories. Studies of the impact of education on learning in Bangladesh in the 1990s found that three additional years of schooling had no appreciable impact on learning achievement.
Internationally comparable mathematics tests under the Trends in International Mathematics and Science Study (TIMSS) suggest that the average eighth grader in Ghana has a test score that would place her in the bottom 0.2 percent of US students. Even in considerably richer developing countries, the learning gap is large: the average Chilean student would be in the bottom 6.4 percent of US students, based on TIMSS scores.
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