A Truly Frivolous Lawsuit

Alabama lawyer Austin Burdick's February 23, 2016 suit filed in a federal district court in Alabama, representing himself pro se, against the five U.S. Supreme Court justices who were in the majority of Obergefell v. Hodges ruling in June of 2015 (which held that same sex marriage bans are unconstitutional) is the epitome of a frivolous lawsuit.

The suit alleges that the justices violated the United States Constitution by incorrectly holding that same sex marriage bans are unconstitutional, and seeks damages in excess of $6 million and additional punitive damages for (1) violations of the 5th Amendment under Bivens, a legal theory that allows individuals to sue government employees who violate their civil rights personally for money damages in certain circumstances, (2) breach of contract or oath, (3) breach of fiduciary duty, and (4) declaratory relief.

What is wrong with it?

Let me list some of the more obvious problems.

1. Judges have absolute immunity from liability for their judicial decision-making.  This is an ancient doctrine, with very few exceptions, that squarely applies in these circumstances.

Ironically, this part of the Complaint is probably the only one that is not sanctionable for violating Rule 11 of the Federal Rules of Civil Procedure related to frivolous lawsuits, because the Complaint acknowledges that absolute judicial immunity bars the suit and makes a (presumably) good faith argument for a change in the law (at paragraphs 27-32).

2. The interpretation of the United States Constitution articulated by a U.S. Supreme Court majority is, by definition, the correct interpretation of the U.S. Constitution that binds all federal district court judges.  So, his allegation that the U.S. Supreme Court majority's ruling violated the United States Constitution is wrong as a matter of law.

3. Put another way, the U.S. District Courts do not have subject matter jurisdiction to review decisions of the U.S. Supreme Court.

4. Austin Burdick has no standing to sue, which is a matter of subject matter jurisdiction, because he cannot show any tangible injury from the fact that same sex couples are allowed to marry.  Similarly, the oath made by the Justices was to the United States of America, not to him personally, as are any fiduciary duties that they owe.

5. Alabama does not have personal jurisdiction over any of the Justices all of whom work exclusively in the District of Columbia and live in its geographic vicinity and were not even ruling on a case involving Alabama parties when they made their Obergefell v. Hodges ruling. Therefore, this is the wrong place in which to sue these Justices on any question.

The lawsuit as a whole is frivolous, not just because he is wrong, but also because he does not address in his Complaint the other problems with his suit, which are obvious and do not have any remotely plausible legal basis, when he has not articulated any good faith basis for arguing that they should be changed.

So, he should really be sanctioned for violating Rule 11 as well as having his suit dismissed with prejudice, and realistically, because his actions are so fundamentally at odds with the conduct of any legitimate attorney, he should forfeit his membership in the federal court bar (if he has one) and perhaps be sanctioned by the state court bar reciprocally as well (something that may not happen in practice with Chief Justice Moore, who is guilty of similar sins, presiding over the Alabama Supreme Court).

The federal judge assigned to his case would be well within his rights to raise these issues sua sponte, without waiting for a lawyer on behalf of the U.S. Supreme Court Justices in question to make these arguments.

Note that the people are not entirely without a remedy when they disagree with a majority of the U.S. Supreme Court regarding an interpretation of the United States Constitution or some other law.

* The United States Constitution can be amended.

* Justices of the United States Supreme Court may be impeached in a proceeding initiated by a majority of the United States House of Representatives, and leading to a conviction by two-thirds of the United States Senate.

* New judges can be appointed by the President and confirmed by the U.S. Senate in the future, and the new panel of U.S. Supreme Court judges that results can overturn prior U.S. Supreme Court precedents.

But, none of the legitimate means by which concern can be raised about a U.S. Supreme Court Justice's decision making can be appropriately raised in a civil action for money damages brought against a U.S. Supreme Court Justice by a random attorney in a random state effected by a ruling which national precedential effect who has no personal interest in the controversy.

Your Religious Beliefs Are Predictive Of Your Partisan Leanings

Data above, which was collected by the Pew Foundation, recounts the partisan political preferences of Americans by religious denomination (Hat Tip to Fully Myelinated). The overall pattern is predictable, although there is some overlap at the edges.

From most Republican to most Democratic the major categories are:

1.  Mormons
2.  Historically white Evangelical Christian (and conservative liturgical Christian denominations).
3.  Mainline Christian Denominations.
4.  Roman Catholics (Catholics, the largest denomination, are a close match to the U.S. as a whole).
5.  Orthodox Christians.
6.  Non-Christians.
7.  Historically black Christian denominations.

Many of the conservative liturgical Christian denominations split from their mainline counterparts around the time of the U.S. Civil War over the social issues of that day such as slavery and women's righta.

The exceptions are as follows:

* Seventh-Day Adventists, an Evangelical denomination, are as left leaning as Orthodox Christians on average.

* Jehovah's Witnesses , an Evangelical denomination, rates as slightly more left leaning than Orthodox Christians.  But, this is largely a function of the fact that 75% of the conservative Christian denomination does not claim a partisan political denomination and generally does not participate in electoral politics.

Notably, both Seventh-Day Adventists and Jehovah's Witnesses reject much of the liturgical and non-scriptural core of Christianity in favor of Jewish and secular alternatives respectively.  This may be a factor that causes members of these denominations to have a political identity closer to non-Christians.

Also, both Seventh-Day Adventists and Jehovah's Witnesses, while they are historically white Christina denominations, are currently among the most racially diverse Christian denomination in the United States and have become much more diverse than they were in the recent past.  Seventh-Day Adventists are 59% non-white (and exemplified by Seventh-Day Adventist Presidential candidate Ben Carson).  Jehovah's Witnesses are 64% non-white.

* The United Methodist Church, a mainline Christian denomination, is well into the Evangelical range.  This mostly reflects its strength in historically conservative rural and small town America, particularly in the South, Midwest and on the Great Plains.

* Two mainline Christian denominations (Episcopalians and the United Church of Christ) are more Democratic leaning than the Roman Catholic Church.

One subtle point is that both Episcopalians and Anglicans are part of the global Anglican communion.  Episcopalians are part of the American branch of that denomination.  Anglicans are members of one of the minority of U.S. congregations of the African branch of that denomination that have deliberately changed their affiliation from the Episcopalian branch of the denomination because they opposed the socially liberal doctrines and polices that it has adopted.  If Episcopalians and Anglicans were pooled and counted as a single denomination, the combined denomination would probably be slightly more Republican leaning than the Roman Catholic Church, just like most other mainline Christian denominations.  The departure of the Anglican congregations in recent years has artificially moved the Episcopal denomination to the left.

The United Church of Christ and the Unitarian Church, prior to its merger with the Universalist Church in the 1960s to form the current denomination which is a post-Christian one, are the main successor denominations to the established Congregational Churches of New England, many of which were doctrinally Unitarian.  The United Church of Christ is trinitarian, but carries over the liberal leanings of the former Congregational Church.  (Ironically, the Mormon church also has historical roots mostly in New England.)

* The Unitarian Universalist church which is basically post-Christian although a minority of the members of the denomination identify as Unitarian Christians, is more left leaning than one of the three historically black Christian denominations.

Nevada GOP Caucus Redux And The Prospects For The Race To Come

What Happened in Nevada?

Not only did Trump win Nevada's contest for delegates in his quest for the GOP Presidential nomination, he got more voters than number two Rubio, and number three Cruz, combined.

Carson's fourth place share continued to shrink despite the fact that he had early support among conservatives in Western States.  Someday, he may realize that his Presidential campaign is pyrrhic and drop out, but if there is anything that Carson excels at, it is his ability to ignore reality.  So, I wouldn't count on him formally dropping out anytime soon, even though he has never placed better than 4th place in any of the first four states and his share of the votes that he has received continues to dwindle.  He's probably still in until he runs out of money.

Kaisch made a dismal fifth place showing, receiving no boost at all from his second place finish in New Hampshire or the removal of relatively modern GOP candidates like Jeb Bush and Chris Christie from the running.  Kaisch is no more than a spoiler at this point, although he may try to hang on for another week or two in the vain hope that he can pick up ground in the Midwest and Northeast.

There is no really doubt that Kaisch's campaign will last no longer than two more weeks.  And, it could very well end sooner, because Kaisch is one of the less delusional figures in the GOP field. Until now, he did have a second place finish in New Hampshire and the prospect of pickup up establishment candidate voters as others dropped out of the race to encourage him.  But, the Nevada caucus has shown clearly this isn't going to happen.  Kaisch also polls no better than 4th place in any of the Super Tuesday states.  His campaign is doomed and he is just a spoiler at this point.

Rubio has been helped by the thinning of the GOP field, leaving him as the clear choice as the candidate for the GOP establishment (since Carson and Kaisch have no hope, Cruz's history as a Senator has rubbed almost everyone he's encountered the wrong way, and Trump and Carson are also both far outside the GOP establishment).  But, Rubio's gains as the field has thinned have been surprisingly small.

Everyone else in the GOP field apparently gave up after New Hampshire without even bothering to announce that fact.

What Next?

Assuming that Carson and Kaisch are no longer relevant and will soon see the number of people voting for them dwindle accordingly even if they stay in the race (with Carson's lost votes probably spread fairly evenly among the candidates and Kaisch's lost votes going disproportionately to Rubio and secondarily to Trump) we are left with three superficially viable candidates in the GOP Presidential nomination race: Trump, Rubio and Cruz.

If Trump can command the 45% of the vote he got in Nevada in the March 1 round of Super Tuesday contests and beyond, the only way that either Rubio or Cruz can win the nomination is for one of them to drop out, or for them to deny Trump an outright majority and to secure the nomination in a brokered convention as one of them bows out and the super-delegates (just 7% of the total on the Republican side) throw their support to the other.

But, neither Rubio nor Cruz seem inclined to drop out any time soon when they have been neck and neck in the polling and actual voting for many weeks.  Cruz has actually won one of the four GOP contests so far (Iowa) and leads Rubio in national polls and Super Tuesday polls with a shot at winning a couple of states, so he is hardly inclined to quit.  Rubio is more likely to prevail in the event of a brokered convention and is seeing his support increase as other establishment candidates drop out, even though he has yet to win a state and isn't projected to do so on Super Tuesday either, so why should he quit?  Then again, Rubio may be less self-centered than Cruz and inclined to drop out in order to thwart Trump knowing that neither he nor Cruz have a real shot if one of them doesn't drop out.

Indeed, because many of the GOP primary and caucus races effectively give more than proportionate delegates to candidates who finish first. Trump got more than twice as many votes as either Rubio or Cruz in Nevada, won by comfortable margin in South Carolina, won in New Hampshire, and wasn't even that far behind in second place in Iowa.  There is every reason to think that Trump has the potential to win a majority of the GOP delegates by the time that the Republican National Convention comes around this summer, even if he doesn't win a majority of the votes cast, by finishing in first place in every single GOP contest for the foreseeable future until either Cruz or Rubio drop out of the race, which might never happen unless one or the other of them gains a decisive advantage over the other somehow.

In order for either Rubio or Cruz to win a plurality of delegates, one of them needs to start polling better than Trump on a regular basis, which at the moment seems to be an almost unattainable goal.

And, even for either Rubio and Cruz to deny Trump a majority so that they can make their cases to a brokered Republican National Convention, they need to collectively push Trump down to something more like the 33% of the vote that Trump won in South Carolina, and not the 45% that Trump won in Nevada which is probably enough of a margin to win Trump a majority of the delegates due to winner takes all or at least gets more delegates rules in various states.

We'll see if the goal of holding Trump's delegate count to a plurality is a realistic one on Super Tuesday, six days from now.

If Trump is winning 45% or more of the vote on average on Super Tuesday, he's almost guaranteed to become the Republican nominee for President unless either Rubio or Cruz drop out immediately (which is unlikely, even if Trump does sweep in that fashion).

If Trump is only winning 33% of the vote or so, on average (which is what he is getting on average in recent national polls according to Real Clear Politics), and in particular, if Trump doesn't win every single one of the Super Tuesday states (which seems like a long shot but isn't impossible), there is some hope that Rubio or Cruz (realistically, Rubio) might prevail in an eventual brokers Republican convention.

Super Tuesday state polling shows Trump leading in every state except Texas (even post-Jeb's departure) and Arkansas (pre-Jeb's departure), where Cruz leads, and Colorado according to a November 2015, where Carson leads and Rubio is in second place (except that Colorado won't actually be holding a Presidential nominee vote at its caucus!).  Trump's average support is in the 30s but could improve as he picks up some of the support of minor candidates who have lost support or grown to be less viable than they seemed to be previously.

Looking Ahead To The General Election

Notably, in recent head to head polling match-ups, Trump is the least electable, with Clinton leading him by 2.8 percentage points on average.  Cruz is in between, leading Clinton by 0.8 percentage points on average.  And, Rubio is the strongest, leading Clinton by 4.7 percentage points, on average. A lot of this seems to boil down to likability.  Even many Clinton supporters don't love her and support her mostly for pragmatic reasons.

I think that the Cruz and Rubio support relative to Clinton will decline over time as people realize how conservative Cruz and Rubio are when not set off against the foil of fellow GOP Presidential candidates.  But, while it is unsurprising that Rubio is a stronger general election candidate than Cruz, it is surprising that Trump who might seem to have a more bipartisan appeal, fares worst vis-a-vis Clinton.

Defying conventional wisdom, Bernie Sanders actually does much better than Clinton in general election head to head polling.  He leads Trump and Rubio by six percentage points each, and Cruz by 4.7 percentage points.  Ordinary voters respond to passion and that is one department where Sanders is far superior to Clinton by any reasonable assessment.  But, Sanders has a challenging road ahead of him to win the Democratic party's nomination, as many outsiders have already written him off despite the fact that the actual voting on the Democratic side of the race has been nearly even, mostly because super-delegates support Clinton over Sanders 25-1 and play a much bigger role in choosing the nominee than they do on the Republican side of the process.

The Sanders edge in head to head polling extends to many head to head polls in particular states.

Bullets

Limited Range Bullets To Reduce Collateral Damage

The Problem

A .50 caliber (12.7mm) bullet, commonly used in heavy machine guns and sniper rifles, travels more than two miles after it is fired if it doesn't hit something else first.

In a sniper rifle, designed to accurately hit targets following careful and thoughtful aiming at long range, this is a feature.

In a machine gun, which is usually fired at ranges of less than a mile, often in bursts of fire and rarely with much introspection, this is a bug because bullets that don't hit their intended target (which is a lot of them) hit an unintended target and often cause undesirable collateral damages to people or property.

Similarly, handguns are generally used against adversaries at 30 to 50 yards.  Even an expert aiming carefully would consider hitting a small target at a range of 100 to 200 yards (one or two full football fields) with a handgun to be an accomplishment.  But, a handgun round typically travels from 200 to 900 yards if it doesn't hit something else first.

A stray bullet can go through motor vehicles or walls before stopping, although this impact reduces the distance that it will travel depending on the mechanical properties of whatever is hit.

The long range that a bullet travels is even a problem for target shooters, because people at firing ranges practice at the long end of the range where their weapons are accurate in the heat of a firefight, but if a bullet misses the target it could go far beyond the target range, requiring shooting ranges to hold open a lot of empty space past the shooting range for safety's sake or to build an imposing bullet proof wall that could cause a stray bullet to ricochet back at someone shooting at the range.

So, with the pretty much singular exception of a sniper rifle, the fact that bullets travel much further than the intended target is a flaw for most people using a firearm for its primary purpose of injuring or killing other people or animals.

The Solution

But, the most obvious way to reduce the range of a bullet, by slowing the speed at which it leaves the firearm, is also not desirable.  A slower bullet is less accurate at any given range (in the hands of an ordinary firearm user) and delivers less kinetic energy so it is less likely to stop the person or animal that the person using it is trying to hit.

Employees at the U.S. Army Armament Research, Development and Engineering Center, however, have identified this problem and patented a bullet design that could solve it (which they call "Limited Range Projectiles"). Basically, a fuse in the bullet that is triggered when the bullet is fired causes the bullet to self-destruct comparatively harmlessly before it hits anything else, once it reaches its designated range, unless it hits something else first.

For example, a police department could issue its officers bullets for their sidearms that self-destruct after 100 yards, thus reducing the likelihood that stray police bullets cause collateral damage, without impairing the effectiveness of the bullet against its intended target at anything less than 100 yards away from the officer firing it.

Engineers are also working on "smart bullets" that can be individually programed to explode at a given distance or to track of target during its flight.  But, limited range bullets require no such deliberation and are suitable to use as a standard round for most firearms in most applications, because the longer ranges travelled by ordinary bullets are almost always a flaw in firearms used in ordinary ways.  One can even imagine gun control lobbies at least favoring legislation to encourage or subsidize such rounds to reduce the risk of accidental injury to members of the public.

How Are Sniper Rifles Used In Modern Warfare?

Of course, there are circumstances when it makes sense, particularly in the military and for SWAT teams, to use sniper rifles to fire at people at long range.  Usually, these rifles use rounds between 7.62mm and 12.7mm, with an 8.6mm (.338 caliber) Lapua Magnum round, which was introduced in the 1990s and has been favored by professionals making that decision afresh since about 2003.

The 8.62mm round has an effective range of about 1,500 meters, compared to about 1,000 meters for a typical 7.62mm sniper round, while the rifle, the ammunition and its gear weigh only slightly more than a conventional 7.62mm sniper rifle.  The 12.7mm round has an effective range of about 2,000 meters but has combined weight of the 12.7mm rounds and associated rifle and gear is twice as heavy at the 8.62mm round and its rifle and kit used to fire them, which can be cumbersome for the sniper. Of course, the ranges are relative and depend to some extent on the skill of the sniper using them.

While I am no hawk on defense and I am usually loathe to applaud any kind of killing, there are some uses of this technique that are undeniably righteous.  Consider the following example:

In this case it was a situation in Syria where a British SAS commando used an Israeli 8.6mm sniper rifle to kill an ISIL (Islamic State in Iraq and the Levant) instructor. The ISIL teacher was about to show his students how to behead prisoners by using a live victim. The British sniper was 1,200 meters away and managed to hit the ISIL instructor in the head at that range. The head shot caused the skull to sort of explode, which apparently made an impression on the ISIL recruits because the SAS sniper was using a new Israeli designed rifle equipped with a suppressor. This is not a silencer but it does greatly reduce the flash and sound of the rifle. For long range shots this means those on the receiving end have a very difficult time telling where the shooter is and that often causes panic.

A few other examples from the same source illustrate how military forces have used sniper rifles at the limits of their range in recent years:

Between 2009 and 2015 the distance record for sniper kills was held by a .338 rifle. In 2015 that record was broken by two Australian snipers in Afghanistan using M82A1 12.7mm (.50 caliber) rifles. In a coordinated shot at a Taliban leader 2,800 meters away the two snipers fired simultaneously and six seconds later the Taliban chieftain fell dead. It will never be known which of the two shots got him. The victim would not have heard the shot, the rifles were so far away and the bullet was travelling faster than the speed of sound. About two seconds later anyone with the dead Taliban man would have heard the two shots, but faintly as the shooters were nearly three kilometers (two miles) away. 

The previous record shot was made in November 2009 by a British sniper (corporal Craig Harrison) who killed two Taliban in Afghanistan, at a range of 2,620 meters (8,596 feet). He did this with a L115A3 rifle firing the 8.6mm Lapua Magnum round. Before that the record was held by a Canadian soldier, corporal Rob Furlong, who dropped an al Qaeda gunman at 2,573 meters (7,972 feet) in 2002, also in Afghanistan with a 12.7mm rifle.

As a point of reference for residents of my native Denver, these distances are roughly the entire length of the 16th Street Mall which goes all of the way from one end of downtown to the other. As a purely technical accomplishment, this is stunning.  And, sometimes, even often in our own military and the militaries of our allies, this technology is used appropriately.

Sometimes life in the military really is every bit as dramatic as the movies.

Trying To Understand Jason Dalton

The Question

I'm still trying to get my head around the Jason Brian Dalton murder spree in Kalamazoo, Michigan. He shot eight people, killing six, Saturday afternoon, following a crazed drive with an Uber passenger around 4:30 p.m.

What makes a seemingly ordinary person suddenly lose it like that?

What We Know

There Were Remarkably Few Warning Signs Until The Afternoon That The Incident Began

Apart from six tickets for speeding and two for driving without insurance/registration about fifteen to twenty years earlier, and erratic wild driving about an hour and a half before he lost it, there seems to have been absolutely no sign of what he would do.  Indeed, he ran 14 Uber runs basically without incident in the midst of his killing spree.

He had no criminal record, was married 21 years and had two kids (age 10 and 15) at age 45 without incident, was an insurance adjuster, had run 100 prior Uber runs with bad reviews but with no real serious incidents over the previous month, and came across as half-empathetic at a gun store with a friend that same weekend (how many spree shooters have in tact marriages and friends immediately prior to flipping out).  We doesn't seem to have been drunk at the time and went to an ordinary bar afterwards for a drink where he surrendered peacefully.  Authorities believe that he wasn't under the influence of drugs or alcohol.  He didn't have a history of mental illness as far as authorities can tell.  He didn't have amnesia - remembering his killings.  His moonlighting for Uber suggests that he was suffering from some financial stress, but there were no social media manifestos or recollections of anti-social behavior from neighbors.  Yes, he apparently owned a pistol (probably legally) and some long guns.  Perhaps his love of car repair could indicate a faint autistic syndrome but that's not a great fit to a long marriage, job as an insurance adjuster for many years and accounts of empathetic behavior in a gun store earlier that weekend.

Dalton played football, was on the track team and was on the wrestling team in high school where he grew up in Indiana.

Dalton was apparently a car nut, something that figured into his work life as well:

Gary Pardo Jr., whose parents live across the street from Dalton in Kalamazoo Township, described him as a family man who seemed fixated on cars and often worked on them. 

"He would go a month without mowing his lawn but was very meticulous with his cars," Pardo said, explaining that Dalton, at times, owned a Chevrolet Camaro and two Hummer SUVs. 

Progressive Insurance confirmed that he once worked for the company before leaving in 2011. Dalton was an insurance adjuster who did auto-body estimates and once taught an auto-body repair class at an area community college, said James Block, who has lived next door to him for 17 years. 

"He loved to do things outside with his kids" like taking them for rides on his lawn tractor, Block said.

His family is distancing themselves from him and his horrible acts in a statement released by attorneys whom they hired.  Law enforcement and neighbors had initially feared for their lives, but Dalton's family was not harmed, although they may have left the family home for their own safety once they were altered by the sheriff.

Neighbors did say the Dalton had been acting paranoid before the shootings. James Block, a neighbor of Dalton’s noted the suspect increasingly referencing his gun in recent days while maintaining general even handedness.

It may have been Dalton's wedding anniversary, although the reports on this point seem to be inconsistent.  He has no known connection to terrorist or extremist groups according to law enforcement sources.

Was This A Three-Phase Crime?

It kind of seems like there were two phases - one manic, racing, wild and maybe angry with an incredibly reckless 4:30 p.m. drive and then his first shooting at about 5:42 p.m. at a townhouse of a woman, Tiana Carruthers (who is expected to survive), multiple times in front of her children in an apartment complex parking lot, and then another tired, cold, and withdrawn four hours later after giving multiple Uber riders, closer to 10 p.m. when he carried out other murders, took another ride or two, and then quit and had a drink at a downtown pub eventually surrendering and confessing a couple hours after that, with a long break of dissociated "normal" during which he ran a dozen Uber rides, in between with him lashing out the second time in part because he knew the situation was hopeless after his first attempted killing that he may have believed resulted in a death in front of witnesses who could identify him eventually.

None of the shootings seem to be connected to the Uber fares.

The wild ride didn't begin at the start of the ride.  It was apparently triggered by a phone call, followed about an hour later by the townhouse shooting which might have been in reaction to that phone call somehow.

Matt Mellen told CNN he rode in Dalton's car just before the shootings started. "We got about a mile from my house, and he received a telephone call," Mellen told CNN. . . . Dalton told the caller he had a passenger in the car and would call the person back, according to Mellen. 

"Once he hung up with that phone call is when he started driving erratically," Mellen said, recounting side-swiping a car, running a stop sign and red lights. 

"I was pleading with him to stop the vehicle so he could let me out. He was surprisingly calm the whole time." 

Mellen said he was able to jump out of the car and call 911.

According to Mellen: "He said Dalton introduced himself as "Me-Me" and had a dog in the backseat."

One could imagine an affair about to be revealed or some other threatened revelation that Dalton believed would imminently destroy his life spurring the crazy driving and subsequent first shooting. If it turns out that Dalton was not a stranger to this woman, that will explain a lot.  My intuition is that once the relationship between Tiana Carruthers and Jason Brian Dalton (if any) is known, sequence of events will become a lot more clear.

A news report provides some hints, suggesting that the woman may have perhaps have been targeted out of frustration, when the true target was "Mazy". He may have been a stranger to her, but he was not a stranger to the apartment complex.  It may be relevant that Carruthers and many other residents of the complex were African-American, while Dalton was white.

The first victim of the Uber gunman threw herself in front of children when the gunman opened fire and gave police crucial information to track him down. 

Tiana Carruthers was outside her Kalamazoo, Michigan, apartment with several youngsters on a playground at around 5:00pm on Saturday when the suspect, who's been named as Jason Dalton, pulled up in his Chevrolet. 

Sensing trouble, the mother put herself between the attacker and the children, and was shot multiple times as a result, but survived and was able to give the police vital evidence that helped them catch the suspected killer. 

Joi Coleman, 12, and sister Megan were two of the children she saved. Joi was holding Carruthers' hand when Dalton started firing. 

Her actions meant the pair were able to get inside one of the houses and call 911.
Travis Gettys and Devin Fletter, who live next door to Coleman's, told WWMT they saw Dalton earlier in the day talking to children in the neighborhood just an hour before the shooting [ed. i.e. at about 4:45 p.m., shortly after the "wild ride" and phone call with Mellen].

One person said he asked where 'Mazy' was, leading some to believe he was looking for someone specific. 

When police arrived at her family's home after the shooting, they found 10 shell casings on the floor around Carruthers. 

According to MLive, Carruthers was able to give deputies a description of the man who shot her at the scene.

Another report noted suggests that Dalton was not known to Carruthers personally:

At the scene, Carruthers was able to give deputies a description of the man who shot her, describing him as an older, heavy-set white male with brown and graying hair. 

Sparrow testified that Carruthers told deputies her attacker left in a silver sport-utility vehicle. Other witnesses told deputies the vehicle was either a Chevrolet Equinox or Traverse. 

Sparrow said that deputies later learned that the vehicle, after leaving Meadows Townhomes was involved in a crash after it sideswiped another vehicle at the intersection of Gull Road and East G Avenue. 

When she was shown a police lineup after the shooting, Sparrow said Carruthers identified Dalton as the man who shot her.

So, Dalton was still in a rage when he left the complex, presumably because he hadn't found "Mazy" and had just shot someone multiple times for some reason related to his search for her, perhaps in a case of mistaken identity.  What happened next?

There was a four hour time period between the first shooting at Meadows Townhomes and the second shooting at Seelye Kia, we are told police are trying to find out what he was doing during that time period, and revealed he made phone calls to several people.

Presumably, all of those people will be interviewed as witnesses in the case.

Witnesses at the first scene think that asking for "Mazy" may have been a ploy, so Carruthers may have been the intended target after all:

"He was here to kill, like to shoot somebody.” 

That’s how Travis Gettys described the man suspected of shooting and wounding a woman at Richland Township townhomes complex . . .

At the Meadows Townhomes, tire tracks from the car taking off were still visible Sunday and spray paint marked where 10 bullet casings were found. Seven bullet holes could be seen in siding at the front of a near-by apartment.

Neighbors told 24 Hour News 8 that kids were out playing just before 6 p.m. Saturday when the shooter circled around the block before he opened fire. . . . .

Neighbors say the woman recently moved in to the Meadows and was outside with her kids when the shooter, believed to be 45-year-old Jason Dolton, asked if she was a woman with a different name. People who spoke to 24 Hour News 8 said they think it was a ploy to get her to come close to his car. 

“She was talking about her kids, talking about, ‘He asked if I was so-and-so,'” said George’s mother, Tammy. 

Witnesses say the victim’s three children were outside with her. Thankfully, they ran away and avoided being shot. 

James George and his friends, who were playing video games, also avoided injury when four of the bullets came flying through the wall of his home.

Authorities claim that the first shooting was random, despite the fragmentary evidence that seems to point to a contrary conclusion, such as the fact that Dalton came to the complex twice an hour apart and asked for a named individual before shooting, and that he seemed to have a purpose to kill from the outset.

Given the large time gap between the collision after the shooting at the apartment complex and the next time his whereabouts are known, Dalton may have spent part of that time hiding out, cooling down, or perhaps committing another murder, of "Mazy" that has not yet been discovered because there were not witnesses.  Honestly, it wouldn't change the result of the criminal prosecution in any case (except possibly to provide evidence against the argument that he could claim an insanity defense).

According to a neighbor:

Block said Dalton was home ‘between the shootings’ Saturday because his niece saw Dalton pull out of his driveway about 7 p.m. The first shooting occurred about an hour earlier.

Seven of the people shot and all of the people killed died in two incidents, about 15 minutes apart, at 10:15 p.m. and 10:30 p.m., long after Dalton had been taking people on rides for many hours following the initial non-fatal shooting at an apartment complex which took place an hour and a half after his insanely reckless Uber fare drive that his passenger warned others about to no avail.

Perhaps the call that set off the first wild ride had him deranged and unbalanced, leading him to make the first killing (which might have been less random and more impulse driven), and then he sunk into guilt after hours of experiencing no consequences for the prior shooting and wild ride - causing him to become a classic "amok" killer knowing that his ultimate capture and punishment for the first shooting was just a matter of time (a scenario that wouldn't require any drugs or neurological condition at any stage).

Maybe the later two shooting incidents were not strictly random, but settled up otherwise minor scores that had exploded out of proportion for him because he was sure he had no future in the outside world after the first shooting which he believed had been deadly.  Maybe as a automobile nerd, he killed the two Smiths because they were at a business that he believed had done him wrong in the past. Dalton seemed to have "hunted" them (as a girlfriend who was undetected watched).  Maybe he lashed out at Cracker Barrel customers because he really, really hated that restaurant and wanted to include that as a final statement to the world.  Maybe he went to the bar after that because he ran out of grudges and slights to settle and was so stunned that he'd gotten away with everything he'd done without consequences that he thought he might wake up with a hangover and find out that none of it had really happened and it was all just a bad dream.

Probably the only way that this could have been prevented in the real world would have been for police, with a decent identification from the wild ride victim who promptly called 9-1-1, to have made a prompt arrest based upon reckless driving charges.  It isn't clear why police didn't make more of an effort to arrest Dalton at this point given how insane his driving had been reported to be by Mellen (who seems to have done everything possible to avert the tragedy under the circumstances).

If the multi-stage nature of the crime can shed insight into motive, then only the first stage becomes truly incomprehensible, and some shimmer of light can be shed on how even that could happen.

Was This Pre-Meditated?

Yet, there are traces of pre-meditation.  He bought the jacket in which he concealed his pistol on a trip to a gun shop with a friend not long before the spree occurred (at about 3 p.m.), which suggests that the idea was already churning in his head at this point.  Perhaps he suspects that he was about to be betrayed and armed himself as a result in order to carry out just the kind of shooting that he did at the townhouse, and then, having extra bullets and a gun on hand, was equipped to carry out random shootings in despair afterwards.

But, maybe he bought the jacket and carried the pistol for the same self-protection reason that anyone who deals with a lot of drunk people late at night might due so, and not because he planned to go on a shooting spree.  Then, when he had a completely unanticipated psychological break, those ingredients just happened to be already in place.

The jacket may have made it feasible for him to carry the pistol with him, and then, because the pistol was present when he lost it in what otherwise would have been mere grist for the local newspaper or television police reports, became much more deadly.

Theories That Can And Cannot Be Ruled Out

Psychiatric and Neurological Conditions

Psychopathy starts to manifest in preschool and almost never emerges suddenly in middle age. Schizophrenia and bipolar usually hit you in your late teens or twenties (probably because the pruning of neurons that gives most of us more efficient but less plastic brains occurs then). ADHD manifests by elementary school and doesn't lead to the kind of cold affect he had during at least the second phase of the spree, and most "impulsive" criminals "age out" by age 45, but ADHD treatment could have afforded him access to amphetamines or something similar which in a massive OD might be consistent with the facts and with his prior spat of speeding violations at a much younger age. Traumatic brain injury (TBI) or PTSD might fit that profile, but there is nothing in his recent history to suggest he'd suffered either (or that he had any history of mental illness) - although I wouldn't rule out recent TBI (e.g. bonking himself on the head against a car or car part or tool while working on cars in his garage by himself), which often goes undetected and can happen at any time in ways that would be invisible to outsiders.  It was too sudden to be any common form of dementia. It might be consistent with a recent TIA (i.e. a mini-stroke), or a brain tumor, that selectively severed some key aspect of mental functioning in middle age (I have a relative who suffered a serious farming accident leading to some sort of stroke who had a dramatic personality change afterwards, so I can sort of see that).

Possible Substance Abuse Causes

He lacked several of the symptoms of PCP usage, and isn't consistent with heroin or marijuana use either. Prolonged sleep deprivation made possible with amphetamines or meth or cocaine that he OD'd on late that afternoon might fit the timeline of crazy to relatively normal to depressed fairly well, and incidents of "losing it" in that fact pattern are not unprecedented.  Or, maybe he could be flipping out on some other drug with which the public isn't very familiar.  But, if there was a drug, something like alcohol or barbiturates or narcotics that impair motor function don't seem like a good fit given the amount of driving and accurate shooting he did during the spree with only one ride that seemed to be really wild very early on.  On the other hand, addictions to many kinds of drugs can lead to paranoia which for a person in possession of a gun can lead to over-reactions that in turn might trigger despair and further kills later on in the spree.

More Analysis

The rapid up and down points more to some kind of PTSD or psycho-active drug, than to TBI or a TIA or a brain tumor.

On the other hand, the traces of pre-meditation suggest that the idea was already churning in his head at this point, which is inconsistent with a one time effect from drug use, although paranoia or psychosis triggered by sustained drug use might fit that profile and something like TBI or a TIA or a brain tumor is also a better fit to pre-mediation.  But, if the signs of pre-mediation were not actually pre-mediated and were instead just ordinary self-defense preparations of an otherwise sane person, that simply happened to be in place when a psychotic break occurred (which was itself perhaps caused by a one time drug OD of some type), the gun and jacket to conceal it may have simply made it a much more potent (and tragic) incident.

Overall, at first glance, this is one of the most inexplicable mass murders that I can recall.

It is really hard to make sense of it if there is no brain impairment of recent origin, or drug side effect, to explain it. This is not a classic case of going amok from the start that involves an intent to commit suicide while taking as many people as possible with you without interruption in your spree.

There is no sense from the people who interacted with him on his later Uber runs that day that he was angry so much as he was tired.

Are The Theories Sufficient To Provide A Legal Defense?

Obviously, in the drug free, neurological defect free crime of passion followed by crime of suicidal despair scenario, there is no legal defense.

It is quite likely that the substance use or neurological cause of Jason Dalton's spree, if it was one of the more plausible theories suggested above, would not be a meaningful legal defense to criminal liability in the form of life in prison without possibility of parole for Jason Dalton (which would include pretty much any sentence with a minimum parole eligibility after 35-40 years).  If he ever makes it out of prison, it will likely be based upon compassionate release as he is on the verge of dying.

Even if one of these neurological or substance based causes existed, it isn't obvious that they would exonerate him from first degree murder, because they might destroy only his willingness to conform his behavior to right and wrong and not his knowledge of right and wrong - which seems to have existed at some level based upon his denial that he was the shooter to his last fare of the night whom he left unscathed for whatever reason.

Similarly, voluntary substance use is almost never a valid legal excuse, and even if drug use downgraded his offense from first degree murder to a lesser included form of homicide by depriving him of premeditation and perhaps merely classified him as reckless or as acting in the heat of passion, the number of people killed would produce a de facto life without parole sentence in any case from consecutive sentences to the lesser included multiple homicides in this case, given his age.

Since Jason Dalton surrendered peacefully to police when they came to arrest him, since he lives in Michigan which does not have the death penalty, and since he does not appear to be denying that he committed these acts (for which there are multiple witnesses and lots of other solid evidence to support his confession such as the fact that at least two of the shootings were apparently captured on video), it isn't impossible that we may someday know why he did this, unlike so many similar incidents in which the shooter either dies in connection with the spree, or maintains a strict silence afterwards to preserve his legal capacity to appeal.

A detailed confession and/or toxicology report may provide answers.

When his only possible defense is that his mind was broken or temporarily impaired, he has every incentive to cooperate in explaining himself, and his counsel has every incentive to try to find a neurological explanation (if there is one).

Should Any Of The Theories Provide A Legal Defense?

If Jason Dalton was suffering from some recent undiagnosed neurological condition that impaired his capacity to control himself, or made the once in a lifetime mistake of ODing on some sort of stimulant while he was harmed and in a car driving perhaps while sleep deprived as well, not realizing how badly that could mess him up, he looks a lot less culpable than he would otherwise (and certainly not a good candidate for some theory to try to apply the federal death penalty to his case).

But, once we've learned what he can do with no warning, should the public ever give him any opportunity to screw up again?  This is certainly not a paradigmatic example of the insanity defense, and allowing Dalton a defense might leave too much gray area to allow a more culpable mass killer to go free, or for a jury to mischaracterize the circumstances that made him do what he did.

Deterrence Remains Irrelevant

One way that this mass killing is typical is that deterrence is irrelevant to this class of crimes including even this particularly inexplicable one.

The clearance rate in this mass killing, as in almost all mass killings except those incident to gang crimes, is basically 100%.  The killer always either dies trying or is captured and doesn't deny committing the acts.  The killer generally expects to be caught or killed at some point in the process of carrying out the crime.  The threat of prosecution resulting in a certain conviction and never leaving a correctional institution except through death is credible and always carried out when the killer survives the incident.  So, the usual logic of criminal justice is inapplicable to these cases.  The only meaningful way to deal with mass shooting that don't involve gang crimes is to prevent them (or at least, to minimize the harm that they cause by swiftly interrupting an active shooter).

Implications For Gun Control

Of course, we care about the reason so we can prevent similar incidents in the future and preserve public safety.

According to a neighbor, Dalton bought a handgun a few years ago to deal with prowlers, and he did fire it a couple of times.  One report said that Dalton had 11 rifles at his home which were not used in the spree killing. Another said he had many handguns and long guns, apparently all legally. One wonders if anyone who has that many firearms isn't a risk.

Uber prohibits both drivers and passengers from carrying firearms, on pain of being banned from the service.

But, the only gun control measure that might have been effective would have been an extreme ban on handgun possession or ownership by anyone not in law enforcement or a security profession.  Almost any other imagine concealed carry regime would have allowed Jason Dalton to carry a concealed pistol.

When Everyone Is A Criminal, The Law Is Broken

In Ferguson, Missouri, a Justice Department report found that over seventy-five percent of the population had outstanding warrants.

From here.

Bush Out; Advantage Rubio

Our next Republican Presidential nominee will either be Donald Trump or a Cuban-American Senator. This leaves us with three Republican candidates still in the running. We have also averted the unpleasant possibility of another Bush v. Clinton campaign.

Jeb Bush has suspended has campaign for the GOP Presidential nomination in the wake of his poor finish in the South Carolina (fourth place or fifth place, neck and neck with Kaisch).

Meanwhile, Rubio edged out Cruz for second place in the race.  Jeb Bush voters, in all likelihood, will vote for Rubio more often than they will for Cruz in future caucuses and primaries.

Kaisch's fifth place finish also suggests that his departure from the race is imminent.  Kaisch might hope to pick up Jeb Bush's supporters in order to become viable, so he might not drop out until he makes it to the primary in his home state of Ohio, but it is fairly obvious that he can't win the GOP nomination at this point.  He is far, far behind Cruz and Rubio (by a 3-1 margin in each case).  And, his supporters are also more likely to favor Rubio than Cruz.

Carson finished sixth in South Carolina, was also outvoted 3-1 by both Rubio and Cruz, and has yet to break even third place in any race.  There is no reason to think that Nevada will be different.  He's done. But, his supporters do not seem likely to lean strongly towards any of the remaining three viable candidates at this point.

Also, in the race for super-delegates and GOP establishment support, neither Trump nor Cruz have many friends.  Rubio is an easy choice for them in a three way race that Rubio has a real chance of winning.  This may or may not be enough to allow Marco Rubio to defeat Donald Trump.  But, it does give Rubio a decided edge over Ted Cruz.

Trump is the clear front runner.  But, if Rubio could consolidate more of the "not Trump" vote which made up two-thirds of the vote in South Carolina, he has a shot at the GOP nomination.  Trump won all but two counties in South Carolina, but the other two were won by Rubio.  There was not a single county in all of South Carolina where Cruz bested Trump and the demographics of their supporters is quite similar.

Meanwhile, as expected, Hillary Clinton won a narrow victory over Bernie Sander in Nevada and is now headed to South Carolina's Democratic primary on Tuesday where she is favored to win by a double digit percentage margin similar to the margin of Sanders' win in New Hampshire.

Focusing On Kingpins Is A Bad Way To Fight Organized Crime

It is an article of faith in many law enforcement circles that the secret to fighting organized crime is to take down the kingpins who run organized crime organizations.  Unfortunately, this widely adopted strategy, in practice, is one of the worst.  Consider the case of Mexico:

At least 18,650 people were murdered in Mexico in 2015. That is a 7.6 percent increase over 2014. The murder rate for 2015 was 16 per 100,000. The high point during the Calderon Administration (2006-12) was 20 per 100,000. Guerrero state remains the most violent. Its murder rate is 57 per 100,000. 

When Calderon was in charge he pursued a “kingpin strategy” which concentrated on cartel leaders and sought to arrest them or kill them while attempting to arrest them. The current president (Pina) initially criticized the kingpin strategy. However, once in office, Pena has followed a very similar path. By 2015 security forces had killed or captured several senior leaders in the Knights Templar, Sinaloa, Los Zetas and Gulf cartels. At that point it was believed that there were only two major cartels left. 

For many this was astonishing good news. Here is the bad news: several hundred “cartel factions” or splinter cartel cells are still engaged in violent organized criminal activities. This new claim contrasts sharply with another recent government assessment which said nine major cartels and around 45 smaller organized criminal gangs were operating in the country.

By comparison, in 2014, the U.S. murder rate was 4.5 per 100,000 and Louisiana was the state with the highest murder rate, 10.3 per 100,000.  The murder rate in Colorado (which has the most liberal marijuana laws in the nation), where I live, was 2.8 per 100,000.

Empirically, it is clear that taking down kingpins with a militarized approach to drug dealing organizations increases the violence of organized crime, which is the most important reason that we care about organized crime.  Columbia's drug war efforts took a similar approach to Mexico many years earlier, with similar results.  Indeed, Columbia lost effective control of much of its interior territory for something like a decade as a result and has only regained control with what amounts to diplomatic efforts in the last couple of years.

Kingpins come into being to organize economic crimes (vice, loan sharking, smuggling, tax evasion, and "protection rackets" are some of the most common) that are already rampant, in order to make it more profitable, usually by reducing violence between smaller criminal gangs and by mitigating law enforcement interest in the crimes with economic incentives, and reducing political will to fight the economic crimes by reducing its impacts on the neighborhoods where the economic crimes takes place.

By comparison, U.S. efforts to reduce methamphetamine production through regulatory oversight of legal pharmacies by closely monitoring purchases of Sudafed, an over the counter drug that was once widely used to synthesize meth, has been very effective. Maintenance drug based approaches to substance abuse have been much more successful at treating drug addiction and preventing recidivism among people convicted of drug crimes, while the mainstays of incarceration and Alcoholics Anonymous are not effective.

Public health agency driven limited legalization and/or harm reduction approaches to drugs in Portugal, the Netherlands and Switzerland have likewise been effective.

The most effective single measure ever to reduce tax fraud in the United States, at the recommendation of the late Milton Friedman, was information reporting of business transactions which is usually done these days via IRS Form 1099, a preventative administrative measure, rather than a law enforcement or military approach.

CEO Pay Still Rotten

The pay of the CEO of the publicly held oil company, Schlumberger, illustrates how in the world of executive compensation, pay for performance is a heads I win, tails I lose, proposition.  Notably, the stock markets were not impressed with the company's lack of accountability.

CEO Paal Kibsgaard received total compensation worth $18.3 million in 2015, the company reported, down only slightly from $18.5 million the year before. . . . The company cut 25,000 jobs during the year, or 20% of its workforce. Revenue was down 27%, and profit plunged 41%. Schlumberger (SLB) shares tumbled 18%.

The weak results and layoffs are the result of the plunge in the price of oil.

The modest drop in Kibsgaard's compensation was the result of the performance of his pension plan. His base salary and stock were up from 2014 levels. The cash he took home jumped 12% to $5.2 million.

From CNN.

Patents Are Much Harder To Get Than They Were A Dozen Years Ago

A series of recent decisions of the U.S. Supreme Court on patent law, culminating in the 2014 decision in Alice v. CLS Bank, Int'l., which prohibited software that generically applied an abstact idea that is not otherwise patentable, have made it dramatically more difficult to obtain patents, particularly the subset of patents called "business method patents" which include most software patents.

In January of 2004, only a little more than 2% of patent applications were rejected (on Section 101 grounds which governs what is patentable).  By July of 2015, that percentage is about 15%.

Before Alice in July of 2014, about 31% of business method patent applications were rejected on Section 101 grounds (already a major increase from 2007 when the U.S. Supreme Court adopted a more expensive definition of "obviousness" under Section 101 for patent law purposes in KSR International v. Teleflex, and 2010 when the U.S. Supreme Court in Bilski v. Kappos articulated a new (and functionally more restrictive) legal standard for granting software patents (although not as restrictive as the federal circuit case it reviewed which is linked), while affirming that software patents could still be obtained).  After Alice, 82% of business method patent applications were rejected.  

Indeed, there have been at least 15 different major U.S. Supreme Court cases from 2004 to the present in which the U.S. Supreme Court has reversed pro-patent holder rulings from the Federal Circuit.

And, as I have previously noted, in patent infringement cases that are litigated until a result on patent validity is reached on the merits, roughly half of all litigated patents are found to be invalid (which isn't necessarily as shocking as it seems, because patent cases in which there is no strong patent invalidity defense routinely settle before a ruling on the merits of that issue is rendered).

This may have something to do with the fact that roughly 98% of patents filed with the PTO contain mistakes.

Tax strategy patents were also abolished, by statute, effective September 16, 2011 as part of the American Invents Act, which was the most significant overhaul of U.S. patent law since 1952.  But, this law itself, outside of the area of tax strategy patents, didn't significantly change the scope of what kind of ideas could be patented.

On the whole, the rulings are a good thing, gradually and in a relatively nuanced manner, weeding out a lot of laxly granted patents (particularly in the business method category) that undermined innovation by creating legions of patent trolls whose tolls had to be paid to invent anything half innovative.  Since patents last a couple of decades, many of the patents granted under the earlier lax standards remain in force, and this dramatic change in the legal standard for patentability over the last dozen years or so also helps explain why so many patents infringement lawsuits give rise to invalidity findings at trial.

Securities Class Actions Are As Targeted Or More So Than SEC Enforcement Actions

Tort reformers who dislike class action litigation and who, in particular, are skeptical of securities law class action litigation frequently argue that we should prefer administrative agency enforcement of the securities laws, on the theory that they are driven by the merit of the suit, over private class action litigation which is allegedly brought indiscriminately following a sudden plunge in the price of a company's shares.  The empirical evidence, however, does not support this claim.

Using actions with both an SEC investigation and a class action as our baseline, we compare the targeting of SEC-only investigations with class-action-only lawsuits. Looking at measures of information asymmetry, we find that investors in the market perceive greater information asymmetry following the public announcement of the underlying violation for class-action-only lawsuits compared with SEC-only investigations. Turning to sanctions, we find that the incidence of top officer resignation is greater for class-action-only lawsuits relative to SEC-only investigations. Our findings are consistent with the private enforcement targeting disclosure violations at least as precisely as (if not more so than) SEC enforcement.

Stephen J. Choi and A.C. Pritchard, "SEC Investigations and Securities Class Actions: An Empirical Comparison", Journal of Empirical Legal Studies (March 2016).

Cure For Some Kinds Of Previously Lethal Leukemia Discovered; Aging Better Understood

In a small study, an experimental treatment that genetically modifies part of the human immune system cured all but one of eight cases of a type of leukemia (one of several kinds of blood cancer) that is usually fatal in everyone who contracts it.  Note that a treatment that appears to entirely cure someone's cancer, as opposed to merely forcing it into remission for the duration of the treatment, is particularly exceptional.

Moreover, this new approach to cancer therapy provides a template for many potential future cures of other kinds of cancers (or even other kinds of diseases).

This subtype of leukemia isn't the only circumstance in which cancer treatment has made great strides, although it is one of the most dramatic.  From 1960-1964, the five year survival rate for leukemia was 14%.  From 2004 to 2010, it was more than four times that rate, at 60.2%, and progress has continued since then.

Progress In Understanding Aging

In other impressive medicinal biochemistry news, scientists have made great progress in understanding the role of a key hormone called growth differentiation factor eleven (GDF11) first described in 2014, in the genetically determined component of aging.

This hormone's effects are truly impressive in mouse models.  "Restoration of GDF11 reverses cardiovascular aging in old mice and leads to muscle and brain rejuvenation . . . . GDF11 levels decrease over time and also showed that most of the depletion occurs by middle age."  Seven genes associated with GDF11 levels in mice were identified and much of that information can be used to identify parallel genes in humans.

As I noted recently in another post, the biochemistry of other completely independent aspects of the human aging progress are also increasingly well understood.  And, we have made progress toward identify one of the environmental causes of Alzheimer's disease (copper exposure).

Are Cat Lovers Suffering From Mind Control?

Lots of people know that the parasite toxoplasma gondi, a protozoan that reproduces only in cats but can infect any warm blooded animal and can cross the brain-blood barrier, causes infected mice to be attracted to the smell of cat urine. This, in turn and on average, causes the mice to be eaten by cats allowing the t. gondi within them to reproduce as the cat is infected.

It turns out, the chimps which are infected with t. gondi are attracted to leopard urine leading to a similar cycle.

Almost half of humans are infected. In humans, it is much more often found in cat owners than non-cat owners and is also common in people who eat unwashed fresh fruits and vegetables, undercooked lamb and pork, and unpasteurized goat milk.  It is possible that this infection may also be sexually transmitted.

Some behavioral effects of the infection in humans have been characterized:

The differences in behavior observed in infected hosts compared to non-infected individuals have been shown to be sex dependent. In humans for example, studies using the Cattell’s 16 Personality Factor questionnaire, found that infected men scored lower on Factor G (superego strength/rule consciousness) and higher on Factor L (vigilance) while the opposite pattern was observed for infected women. In 9 out of 11 studies, sex differences within personality traits were observed using Cattell’s Personality Factor questionnaire. However, human studies have not been able to show causation as they have all been observational studies. . . . 

In a human study with volunteer blood donors, reaction times and the amount of time the subject remained focused were worse for the infected group than for the control group. However, the infection status was found to only explain less than 10% of the variability in motor performance, making this a weak correlation. A few observational studies on human subjects have also found the risk of traffic accidents to be significantly greater in infected persons than non-infected controls. One of these studies concluded that this risk was 2.65 times greater for infected persons, and it is hypothesized that the patterns of decreased psychomotor performance could be responsible for the increased prevalence of traffic accidents among infected persons.

West Hunter takes this evidence and poses the intriguing question of whether t. gondi plays a role in cat domestication, causing people to faun upon cats because it makes them susceptible to cat pheromones.  In effect, t. gondi may be domesticating humans just as much as humans are domesticating the cats.  Thus, for example, the stereotypical "cat lady" might be engaging in behavior driven by a t. gondi infection and might act differently if the t. gondi infection were eliminated by one of the medicines that is effective in doing so.

The New Law Firm Mascot

From here.

Democrats Caucus In Colorado On Tuesday March 1, 2016 (a.k.a. Super Tuesday) Starting At 6:30 p.m.

Find the Democratic party location in your Colorado neighborhood here.

Only people registered to vote as Democrats by now may attend.

If you are a Republican, you can still caucus, but you will have no input on your party's Presidential nominee because your party leaders thought that allowing that would attract too many people to the caucus which was too much trouble (really)!  They were also concerned that somebody might accidentally vote for someone who dropped out of the race before the Republican National Convention at which a Presidential nominee is selected -- freeing those delegates to vote their conscience at the convention without being a party insider.

Republican caucus goers, however, do still have a say in who will have access to the ballot in the GOP U.S. Senate nomination race to some extent - and given the low level of publicity that race has attracted, the information voters can obtain at the caucus on this race in order to allow them to form an informed opinion, is worth the trouble.

If you are unaffiliated or you are not registered to vote yet (it's not to late to register to vote for the general election), you don't have a say in the partisan nomination process.

If you are registered to vote as a member of a political party that is not the Democratic Party and not the Republican Party, consult your political party's website for caucus, primary and nominating procedures (which vary).

Also, a few pet peeves.  There is no such thing as the "Democrat party."  Furthermore, you did not "graduate high school." And, this post was not "impactful" even if it had a major impact on your life.

The Horse Race Going Into South Carolina and Nevada

If the polling in advance of this Saturday's Republican primary in South Carolina and Democratic caucus in Nevada, and Tuesday's Republican primary in Nevada and the upcoming Democratic primary in South Carolina are even remotely correct:

1.  Trump will will both South Carolina and Nevada by large margins, second and third place spots will got to Ted Cruz and Marc Rubio, not necessarily in that order while Carson, Bush and Kaisch will fall far behind in 4th to 6th positions, with other candidates who haven't officially dropped out yet like Santorum and Fiorina disappearing into invisibility in the dust.

These results mirror national polls, which also show that Bush is widely hated by the Republican electorate with a large percentage of Republicans believing that he would be a terrible or poor President, while Kaisch has almost no love (or name recognition) either.

Thus, when the dust settles, Trump will have three first place finishes plus a second place finish in Iowa, and no one other than Cruz and Rubio will look like even remotely viable alternatives to Trump for the GOP nomination.  Rubio is probably done if he can't secure at least a second place victory in either Nevada or South Carolina (having already failed to have done so in Iowa and New Hampshire).

The margin of Trump's lead and its uniformity across all Republican demographics, makes it look increasingly likely that Trump will be the Republican nominee.  Indeed, Trump could have the nomination pretty much cinched as soon as late March.

I put the odds that Trump will win the Republican nomination now at about 60%, with a roughly 25% chance of a Cruz nominee, a 10% chance of a Rubio nominee, and a 5% chance of some other nominee.

2. The polls suggest that Nevada's caucuses will produce a Democratic result almost identical to Iowa, with Clinton having a razor thin lead over Sanders that could flip in an instant.  In South Carolina, Clinton's lead over Sanders is almost as great as Sanders lead over her was in New Hampshire.

There is a good chance that Clinton will need super-delegates (where she has an overwhelming lead) to win the nomination, and that the struggle between Clinton and Sanders for the nomination will continue well into April or even May.  The ordinary delegate count between the two could favor either candidate going into the convention and it may take until the late California primary to even determine which candidate will lead in the ordinary delegate count.  But, it seems unlikely that Sanders will be able to overcome the roughly 400 super-delegate endorsement lead that Clinton has secured going into the convention, so even a small ordinary delegate lead for Sanders going into the convention probably means that Clinton will be the nominee.

I put the odds that Clinton will win the Democratic nomination at this point at about 70%, with a 30% chance that Sanders will win.

The fact that the Democratic nomination race will be close will also provide the Democrats with more free publicity in the late spring and summer, closer to the election, after the Republicans have dominated media focus so far in the race.

3. The other consideration is the Michael Bloomberg has threatened to run a third-party campaign if the race comes down to Trump v. Sanders, running as a centrist.  I think that the likelihood that he actually does so in the situation is roughly 50%, and that the odds that he runs in some other partisan nomination combination is roughly 10%.

I think that Bloomberg's chance of winning in a three way Trump-Sanders-Bloomberg race is only about 20% or less.  But, he could act as a spoiler, taking votes either from Trump or from Sanders. I'm inclined to think that a Bloomberg run would hurt Trump a bit more than Sanders, but it is a very hard call and could have the opposite effect.

4. What does all of this imply for the overall probable lineups:

*  Clinton v. Trump (37.8%) - Clinton advantage
*  Clinton v. Cruz (15.75%) - Stronger Clinton advantage
*  Sanders v. Trump  (9%) - Narrow Sanders advantage
*  Sanders v. Trump v. Bloomberg (9%) - Unclear Impact
*  Sanders v. Cruz (6.75%) - Narrow Sanders advantage
*  Clinton v. Trump v. Bloomberg (4.2%) - Bloomberg draws more from Trump favoring Clinton
*  Clinton v. Other (3.15%) - Clinton advantage
*  Sanders v. Rubio (2.7%) - Best chance for GOP, narrow Rubio advantage

Possibilities with a combined likelihood of less than 5%:

*  Clinton v. Cruz v. Bloomberg (1.75%) - Bloomberg draws more from Cruz
*  Sanders v. Other (1.35%) - Sanders advantage
*  Sanders v. Cruz v. Bloomberg (0.75%) - Bloomberg draws ore from Cruz
*  Clinton v. Other v. Bloomberg (0.35%) - Unclear Impact
*  Sanders v. Rubio v. Bloomberg (0.3%) - Unclear Impact
*  Sanders v. Other v. Bloomberg (0.15%) - Unclear Impact

5.  Applying my subjective sense of the odds in each possible lineup, I conclude that:

* Clinton is the most likely person to be our next President with odds better than one in 3 of being the next President, but less than one in 2.
* Trump's odds are about one in 3 of being the next President.
* Sanders odds and Cruz's odds are each about one in 8.
* Rubio's odds are about one in 40. The odds of a Bloomberg Presidency are less than one in 40.  The odds of anyone else becoming the President are significantly smaller than one in 40.

The odds that I have given to Other Republicans and Bloomberg are probably a bit high, and the odds of Bloomberg running are probably a bit high.

Democrats are clearly more likely to win in the general election given the possible lineups and their relative likelihoods.

Consumers More Thrifty In Energy Consumption

While tweaked by surges and falls in oil and gas prices, the long term trend is for energy to be an increasingly small share of consumer spending because consumers are using less energy than they used to due to a variety of energy conservation practice and technologies.

A New Day For American Justice?

Justice Scalia's death on Sunday marks the first time since the late 1980s, when I was in high school, that there has not been a moderately conservative majority on the U.S. Supreme Court.

President Obama will nominate someone to fill this post, whom the U.S. Senate may or may not confirm, and may make a vacancy appointment to the post if he is given an opportunity to do so (although a recent U.S. Supreme Court decision in a case involving the NLRB leaves the Republican controlled Senate a clear roadmap to prevent that from happening).

The U.S. Senate has not abolished the filibuster for U.S. Supreme Court appointments (although there is now precedent to allow it to do so by majority vote) and a majority vote is required to confirm an appointment, so a Republican controlled Senate could refuse to approve an Obama nominee even in a vote on the merits of the nomination (that they might feel politically compelled to hold).  The Republican controlled U.S. Senate probably would refuse to do so if the nominee was viewed as an unabashed liberal.

But, given the reality that the next President could be Bernie Sanders or Hillary Rodham Clinton, and indeed, is more likely to be a Democrat than a Republican, and given the reality that there is a realistic chance that the Democrats will retake the U.S. Senate in the 2016 election, filibustering a moderately liberal Obama nominee to the U.S. Supreme Court might not be a wise choice for Senate Republicans worried about how much a U.S. Supreme Court appointment could shift the court's jurisprudence.

In the meantime, a U.S. Supreme Court divided 4-4 will affirm the U.S. Court of Appeals or state supreme court ruling appealed in all cases that would have resulted in a 5-4 conservative reversal, while almost all cases that would have resulted in a 5-4 liberal ruling will generally result in a 5-3 liberal ruling now, since Justice Scalia was rarely a swing vote in 5-4 decisions decided on partisan lines.  Even in cases where a conservative majority would have voted 5-4 to affirm a conservative decision below, a 4-4 ruling leaving that decision in place will prevent a ruling applicable only in one circuit or only applicable in one state from having national applicability in all courts.

And, as many observers have noted, the U.S. Court of Appeals has a liberal majority in most circuits as a result of seven years of intermediate federal appellate court appointments by President Obama. So, the U.S. Supreme Court more often reverses federal appellate court decisions in a conservative direction than a liberal direction.

The restoration of a liberal majority on the U.S. Supreme Court after more than a quarter of a century could profoundly chance the character of American jurisprudence (for the better).  And, if a Democrat wins the Presidency in November, further appointments could cement this liberal majority for a long time.

Selected Facts About Race and Juries in England and Wales

In England and Wales, there is a widely exercised right to a jury trial in serious felony prosecutions, but jury trials are almost completely absent from civil cases (eminent domain and defamation cases are two of the main exceptions) and misdemeanor cases.  England and Wales have a unified court system without a separate federal and regional set of trial courts, and criminal jury trials are restricted to the Crown Courts which have jurisdiction over felony cases and appeals from the inferior criminal courts called Magistrate's Courts (appeals of misdemeanor convictions are generally resolved in two to three months).

When there is a right to a trial by jury, it bears a strong similarity with its American offshoot, down to a great many fine particulars, but there is not a prohibition on using preemptory challenges to remove non-White jurors from a jury panel as there is in the United States.

[R]acially mixed juries are only likely to exist in courts where Black and Minority Ethnic groups (BME) make up at least 10% of the entire juror catchment area. 79% of the Crown Courts in England and Wales will not meet this criterion. . . . 

The main factor affecting disparities in jury service . . . were the high residential mobility of BME groups. . . . 

Only 20 Crown Courts in England and Wales have a BME population of 10% or more, and of these 12 are found in London, where 45% of the non-White population live. Nonetheless, catchment areas which have fewer than 10% minority members overall may have significant clusters of BME members, sometimes amounting to nearly 30% of the population of an area. . . . 

Most jury trials in England and Wales result in a verdict, and 64% of those verdicts are convictions. . . . 

[T]he term BME . . . as in much usage in the UK, refers to non-White ethnic groups and generally, though not exclusively, to people of Indian or Pakistani origin.

From Lever, "Democracy, Epistemology, and the Problem of All-White Juries" (November 19, 2015).

* The non-white population of England and Wales is extremely geographically concentrated in London and a few other major municipalities.

* Most often mixed race juries in England and Wales outside of London have just one non-white member.

* The predominant minority members, South Asians who are immigrants or children or grandchildren or immigrants, would not generally be considered a population that faces serious discrimination in the United States (relative, for example, to predominately below average socio-economic status African-Americans, non-Cuban Hispanics, Native Americans and Southeast Asians).  But, this is, in part, a product of U.S. immigration laws that assure that South Asian immigrants in the U.S. are predominantly affluent technocrats or businessmen.

* Still, BME individuals, in general, both South Asian and non-South Asian, tend to be more successful on a variety of socio-economic indicators (e.g. educational attainment) than whites in England and Wales. This may help to account for the findings of a small 2010 study conducted using several dozen mock juries that found that all white juries do not in practice discriminate in a statistically discernible manner against BME defendants.

* Conviction rates in British criminal jury trials are much lower than in comparable U.S. criminal jury trials according to the cited source above.  But, Wikipedia cites contrary statistics:

For 2012, the US Department of Justice reported a 93% conviction rate. . . ."In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida." The Crown Court has a conviction rate of 80%, according to the BBC.

Very few federal criminal cases go to trial (with about 95% being resolved by plea bargains instead), and very few federal grand jury indictments requested by prosecutors of people other than law enforcement officers and celebrities are rejected (far less than 1% and probably less than 0.1%).  In all, more than 99.5% of people charged with crimes by federal prosecutors are convicted of something, and the sentencing penalty for not plea bargaining is usually very severe.  Less than one in 200 people charged with a federal crime in the U.S. are acquitted of all charges.

Indictment rates in U.S. states that have grand jury requirements (they tend to be lower in the South and approach 99% in the Northeast), preliminary hearing dismissals in states where preliminary hearings are held, and plea bargaining rates all differ significantly from state to state (although plea bargains resolve 90% or more of cases in most states).  In general, it isn't obvious what is driving the wide disparities between the criminal jury trial conviction rates above (which omit the two states that do not require unanimous juries in criminal trials).

OSHA Still Irrelevant

When a Greeley man working for an oil and gas company died, the Occupational Health and Safety Administration investigated, found that the death was caused by violations of federal safety rules by two companies working at the site, and . . . . fined one company $5,000 and the other company $9,800.  The original fines of $8,400 and $14,700 were reduced without explanation.

The death was part of a series of nine deaths under similar circumstances in Colorado recent years caused by safety violations by oil and gas companies.

But, they don't really care, and why should they, if they are being economically rational and loyal to their shareholders?

Economics works and firms respond to incentives or the lack thereof.  In the case of oil and gas worker safety, there are no economic incentives for companies to protect their workers.

The OSHA fines are pitifully small relative to the seriousness of the offense and the profits generated by the enterprise, and relative to the administrative and legal costs of investigating and pursuing the case.

The OSHA fines probably aren't even large enough to make it cheaper for the companies to comply with the safety regulations than to incur the fines.  It also is not uncommon for OSHA fines to go unpaid for years.

And, since the oil and gas industry is governed by OSHA, which has a tiny budget to cover almost every workplace in the United States, rather than by the Mine Safety and Health Administration, MSHA, which has a similar sized budget to cover the tiny number of high risk mine workplaces in the United States, OSHA lacks the resources to imposed more rigorous regulations or to enforce them with a frequency that amounts to anything more than random chance in the absence of a workplace death. Yet, oil and gas operations are every bit as dangerous or more so than other kinds of natural resource exploitation jobs governed by MSHA.

The family of the man who died can't sue his employer, even though OSHA has established that it violated safety laws, because worker's compensation pre-empts the right to sue in exchange for paying for the minimal medical expenses present in the case of a death, a four or five figure death settlement, and a very modest pension to his surviving wife and minor children if he has any (if this 57 year old man is single, and has no children or has adult children, worker's compensation doesn't have to pay any death benefits other than a meager sum that will barely pay for a funeral).

The company doesn't even pay a deductible when a worker's compensation claim is made by the man's family, and while its rates could go up based upon the employer's claims history, the reality is that most of the risk of regular deaths is already figured into the worker's compensation premium which sets races based upon occupation and industry, which are high for high risks like coverage for oil and gas workers.

Like most private sector workers in Colorado, he was not part of a union, so there was no one, from his union or OSHA, to effectively advocate to provide him with a safe workplace.

So long as the worker's compensation system is in place, the solution to making oil and gas companies respect worker safety is simple:

1. Increase the amount of fines imposed by MSHA and OSHA when a death or serious injury occurs, or there is a near miss that could have caused death or serious injury by roughly a factor of 100.  The fines in a case like this one should have been on the order of $500,000 and $980,000, not $5,000 and $9,800.

2. Transfer jurisdiction over oil and gas workers from OSHA to MSHA, and increase funding for MSHA by a factor of two or three so that it has the resources to investigate the oil and gas industry in addition to its existing responsibilities.

3. Vigorously insist upon collecting the fines that are imposed even if it shuts down non-compliant businesses.

4. Put someone who is willing to aggressively enforce the laws in charge of the agency which shows signs of industry capture.

5. Acknowledge that the model of having OSHA cover every workplace with the power to impose only minimal fines, when it lacks the resources to do so, has failed.  Instead, limit OSHA enforcement powers to high risk industries and cases of actual deaths or injuries, and create a private cause of action to enforce its regulations (even in the case of violations that don't lead to injuries), which it would continue to promulgate for all industries, in all other cases, on a model similar to the EEOC, the Colorado Consumer Protection Act, or the federal and state securities laws.  Arbitration of these claims should be prohibited and class action lawsuits to enforce these regulations should be permitted.

With reforms like that, worker injuries and deaths would plummet, and yet, it is very likely that the industry would remain profitable.

Endings

Yesterday was the end of my colleague Matt Nelson's life.

A week earlier was another ending, the death of my father, whose funeral was last Friday.  At the funeral, I was reminded of the death of my relative (maternal great-uncle?) Gordon's recent passing at the age of 101.  He survived his wife Erma by 20 years.  Gordon and Erma had lived across the street from the Lutheran church that my mother attended as a child for many decades and were an extra set of grandparents for my brother and I.

Yesterday was the end of the professional football season culminating in the glorious victory of the Denver Broncos in Super Bowl 50 (Super Bowl L for those of you who think they should have stuck to Roman numerals), and likely the end of Denver quarterback Peyton Manning's storied career including the most lifetime wins as a quarter back (200), four tries at the Super Bowl (two wins, two losses), and being the oldest quarterback to lead a Super Bowl team (at 39 years old).  It was a remarkable game.  The Carolina Panthers who were favored to win after losing just one game all season ran some of the most innovative offensive plays in the NFL, featuring lots of quarterback rushing yards, lateral passing and unusual formations.  But, they did themselves no favors with an avalanche of penalties in the second half and were put down soundly by the most effective defense in the NFL (the most valuable player was a Broncos defender and one of the Broncos two touch downs was scored by a member of the defensive team following a turnover) and by the Broncos smart, measured offense.  Lady Gaga proved she could deliver a powerful straight line with the national anthem.  Coldplay's halftime performance was so poor that it will probably hurt their upcoming tour, but was rescued by outstanding performances by Bruno Mars and Beyonce who quite frankly belted not only their own lyrics but also Coldplay's better than their front man. It is the third Broncos Super Bowl in franchise history and oddly reminiscent of the Super Bowl win by John Elway who was himself the oldest Super Bowl quarterback at the time.  Congratulations Broncos! There will be a celebratory parade in downtown Denver from Union Station along 17th Street to Broadway and south to Civic Center tomorrow.

Yesterday was the last day of the East Asian Lunar Year (the lunar calendars used by Jews and Muslims also originate in Asia, even though we more often call it the Near East).  Today is the first day of the year of the Monkey, although celebrations in Taiwan have been muted due to an earthquake that flattened a high rise apartment building, killing several dozen.  About 170 people had escaped alive and another 110 were trapped there or missing as this new year dawned.  The new day will see how many of the rest will live.

Last week was the last pre-primary Republican debate. Tomorrow is the first in the nation New Hampshire primary, in which hometown hero Bernie Sanders is sure to prevail by a large margin among Democrats, and in which Republicans will attempt to cull an overcrowded field.  Hope springs eternal that some of the candidates who are far back in the pack in both Iowa and New Hampshire will decide to throw in the towel at that point, allowing support that has been spread among a variety of "establishment" candidates to coalesce among fewer individuals so that they party can decide who to support for the rest of the contests this spring.

Posting frequency will probably be light here and at sister blog Dispatches From Turtle Island, as I assimilate the endings.

Matt Nelson RIP

My fellow lawyer and colleague Matt Nelson died today after a long battle with cancer.  He died long before his time, but due to some extraordinary cancer treatment, survived almost five years longer than would have otherwise been possible, during the lion's share of which he was in remarkably good health.

He was usually one of the first into the office in the morning, worked solidly, efficiently and quietly each day, interrupted only to discuss our cases or share a bit of goodwill.  His understated and plain writing presented complex concepts simply.  He was always willing to help and always humble.  In his personal life, he thought nothing of comforting others in their times of need even as he toiled cheerfully with a long and sometimes painful medical regime.

We will miss him sorely, and our hearts go out to his family that was blessed to have the time with him that they have had.

Quote of the Day