Constructive Solutions

Here are some selected legislative ideas to address public policy issues (UPDATED January 22, 2022):

Immigration

* Reduce barriers to naturalization by, for example, reducing or eliminating naturalization and exam fees, waiving citizenship and English language proficiency tests for certain candidates (e.g., graduates of U.S. high schools or colleges, graduates of foreign high schools or colleges with English as the primary language of instruction, people who have served in the U.S. military and their spouses, interpreters and former interpreters for the U.S. military or U.S. government, spouses of U.S. citizens with U.S. citizen children, adults over age sixty-five, and developmentally disabled persons), allowing accommodations for disabled test takers, and by making tests easier and more available;

* reduce or eliminate the fees for obtaining a passport or replacement passport;

* establish a path to citizenship  legislation for DACA program beneficiaries;

* clear up legal immigration backlogs, at least for close family and especially for the Philippines which has very low rates of undocumented immigration and a huge backlog; 

* replace criminal penalties with civil penalties for the lowest level immigration crimes (e.g. illegal entry);

* establish a class of licensed independent paraprofessionals authorized to act in lieu of lawyers in immigration cases;

* establish a right to counsel for all minors and all indigent persons in immigration cases;

* complete scrap and rebuilt from scratch the immigration court system which is notorious for arbitrary and capricious decision making that varies wildly from judge to judge;

* establish a statute of limitations (e.g. ten years) on deportability after illegal entry into the U.S., or upon overstaying a visa;

* establish a "immigration detainee's bill of rights" together with provisions allowing those rights to be enforced in private litigation and by a government immigrant advocate who is independent of the Department of Homeland Security;

Election Law and Access To Identification

* use federal/state/local/private funds to get photo IDs for people such as kids leaving high school, newlyweds who have changed their names, people leaving prison and/or jail, welfare beneficiaries, homeless people, senior citizens, and people with lost or stolen IDs. Also register them to vote.

* prepay mail in ballot postage (or make it free per federal law);

* fix the electoral vote counting law;

* lower state voting ages to sixteen years;

State and Local Elected Offices

* replace elected coroners with a state medical examiner's office;

* make county surveyors, county assessors, county treasurers, and state treasurers senior civil service positions rather than elected offices;

Health Care

* offer healthcare copay/deductible guaranteed loans/grants for people with health insurance;

* prohibit submission of provider charges directly to patients who have health insurance (require them to be sent to insurer instead with patient responsible only for amounts determined between health insurance and provider to be reasonable and only to extent to patient's share under health insurance);

* provide public funding for health care for people injured in crimes;

* provide public funding for health care for people injured in non-work related accidents (possibly piecemeal legislation, e.g., for people hurt outside a motor vehicle by uninsured motorists or in hit and runs);

* establish a large private endowment to finance reproductive health care that government programs and/or health insurance won't pay for;

* establish more new medical schools so that they country can produce more doctors each year (the number of medical school slots has remained almost constant for many decades despite a growing population);

Landlord-Tenant and Property Maintenance

* provide public funding for non-negligent moving to storage of the property of evicted people and homeless people;

* make renter's insurance mandatory for residential renters, with the landlord having a duty to insure that this requirement is complied with;

* establish some sort of sensible cap on lost future rent damages in residential leases terminated early (e.g. X months, or Y% of the amount claimed for Z months after the first X months);

* establish a right of a tenant to hire licensed (if applicable), bonded, and insured professionals to repair certain serious defects in property conditions at landlord expense if landlord fails to act within a statutorily set period of time after receiving legal notices from tenant;

* replace failure to maintain property ordinance violation fines with laws authorizing local governments to maintain properties at owner's expense;

Criminal Justice and Civil Rights

Criminal law 

* establish statutory exclusionary rule for confessions or testimony obtained using deception from governmental officials (possibly not as broad as 5th Amendment exclusionary rule in terms of fruit of the poisonous tree, for example);

* ban consideration of acquitted or uncharged conduct in sentencing (give this policy change retroactive effect);

* criminalize guards having sex with incarcerated people under their supervision;

* criminalize law enforcement officers having sex with people while on the job in the absence of a pre-existing relationship and an absence of exercise of law enforcement authority;

* make payments at a statutory rate in lieu of public defender representation for criminal defendants who have private criminal defense attorney and are acquitted;

* create a right to compensation without proof of fault or actual innocence for people whose incarceration pursuant to a conviction for a crime is vacated for reasons other than a pardon, and are released;

* create a right to compensation without proof of fault or actual innocence for people whose pre-trial arrest or incarceration is found to have not been supported by probable cause;

* end cash bond for pre-trial release in most cases;

* remove marijuana (and chemically or biologically related drugs) from the list of Controlled Substances under the federal Controlled Substances Act and retroactively pardon everyone convicted of mere possession under the Act for marijuana offenses;

* establish grants for private innocence project type non-profits;

* eliminate the authority of municipal governments to impose a sentence of incarceration for an ordinance violation;

* prohibit an appellate court from remanding a case reversed for an abuse of discretion by the judge in a criminal case to the same judge;

Civil law

* impose vicarious liability on governments for civil rights violations by their employees without independent proof of fault (if they don't promptly throw the violator under the bus by firing the employee promptly after a lawsuit or complaint is filed, and by establishing as a defense that the employee was acting contrary to the employer's policies);

* eliminate qualified immunity for governments that are vicariously liable for civil rights violations even if employees benefit from qualified immunity for their personal liability for civil rights violations;

* establish civil liability for violations of constitutional rights that arise from negligence, reckless, or willful and wanton conduct;

* give courts in civil rights action the authority to ban defendants found liable for violating civil rights from serving in law enforcement and/or possessing firearms;

* eliminate the immunity, absolute or qualified, from civil liability of any judge, prosecutor, or other elected official who has been convicted of a crime or ethical violation for conduct related to that crime or ethical violation with the statute of limitations on this claim deemed to arise only when the person bringing suit receives notice that the official was convicted of the related crime or ethical violation;

* end civil forfeiture, not incident to a judgment in a civil action against the owner as a named defendant or a criminal conviction of the owner, of assets that are not inherently contraband, and do not allow law enforcement agency budgets to economically benefit from civil forfeiture proceeds;

Enforcement

* create a state agency to investigate and prosecute law enforcement and prosecuting attorney violations of the law, civil rights violations, and ethical violations appointed by public defenders and/or civil rights lawyers;

Income Taxation

* treat tips as self-employment income, rather than wage and salary income, for income tax and withholding tax purposes;

Bankruptcy

* treat every claim acknowledged by a debtor in a bankruptcy in the debtor's schedules as one for which a proof of claim has been filed;

* require any entity majority owned or controlled by a bankruptcy petitioner to be included in the bankruptcy petitioner's bankruptcy;

* establish a new bankruptcy chapter for probate estates that limits relief to the automatic stay;

E-filing mechanics

* fully automate services of process upon the debtor, all parties that have filed claims in the case, and all creditors listed by the debtor in the e-filing system;

* allow creditors to file a proof of claim in a bankruptcy with an online form;

Limitations on claim discharges

* make it easier to prove that fraud/willful misconduct debts are non-dischargeable in bankruptcy without retrying underlying facts of a debt, and allow extensions of time to object to their discharge for excusable neglect or lack of notice;

* relax the standard for discharging student loan debt in bankruptcy by eliminating its non-dischargeability ten years after repayment begins, and in case where no degree has been is earned when repayment begins, where no professional licenses is obtained in a preprofessional program when repayment begins, in cases of wrongful educational institution or student loan lender practices, in cases of disability, and in other cases of unreasonable hardship;

Claim priority

* eliminate the priority in bankruptcy for tax debts other than withholding tax debts and tax liens;

* subordinate awards of punitive damages, debts for non-compensatory fines and penalties, statutory damages unrelated to actual compensatory damages, late fees, and the portion of interest on debts that exceeds non-default interest, to general creditors in bankruptcy,

* give priority in bankruptcy cases over other general creditor debt (mostly long term financing debt) to trade creditors whose debts would otherwise be general creditor debt;

* treat independent contractor payments for personal services as wages for purposes of bankruptcy priority;

Insider preferences and compensation

* claw back payments made to or authorized within one year prior to bankruptcy to equity owners;

* claw back payments made to or authorized within one year prior to bankruptcy to managers and executives in excess of (1) fair market value for the services rendered, (2) the compensation rate payable immediately prior to one year prior to bankruptcy, or when hired if first hired after that date (excluding any discretionary bonus payments), or (3) $50,000 per month (whichever of the three is smaller, but not less than minimum wage).

* limit payments to managers, executives during a bankruptcy to (1) fair market value for the services rendered, (2) the compensation rate payable immediately prior to one year prior to bankruptcy, or when hired if first hired after that date (excluding any discretionary bonus payments), or (3) $50,000 per month (whichever of the three is smaller, but not less than minimum wage).

* limit payments to legal counsel during bankruptcies pursuant to administratively set limits on total fees, contingency fee rates, and hourly rates;

* automatically cancel all equity interests of an entity that voluntarily files for bankruptcy with the authorization required to do so under state law (with a strict deadline for equity interest owners to assert that a bankruptcy was ultra vires to prevent this cancellation), and in any other case, as soon as it is established that the debts of the bankrupt exceed the assets of the bankrupt; 

Exemptions of assets from creditors claims and debtor income

* require individual debtors in bankruptcies to contribute to the bankruptcy estate an amount equal to the maximum wage garnishment allowed under state law for three years (or the equivalent in the case of a self-employed debtor) absent extraordinary circumstances set forth in the statute, in lieu of the current means-testing rule;

* place a uniform national dollar cap on the homestead exemption available in bankruptcy (e.g. $100,000 indexed) notwithstanding higher exemptions available under state law (but without increasing exemptions allowed under state law);

* allow tenancy-by-entirety protections from creditors only in joint bankruptcies of the owners;

* place a uniform national dollar cap on the exemption for retirement assets in bankruptcy (e.g. $500,000 indexed);

* place a uniform national dollar cap on the priority for alimony and child support in bankruptcy (e.g. $500,000 indexed);

Arbitration, Class Actions, And Jury Trial Waivers

* ban arbitration for child custody and establishment of child support matters;

* ban binding pre-dispute arbitration for intentional tort litigation;

* ban binding pre-dispute arbitration clauses for consumers, non-institutional investors, and non-unionized employees;

* allow arbitration awards in circumstances where arbitration is allowed to be reviewed for disregard of applicable law or failure to follow the arbitration rules agreed to by the parties;

* prohibit arbitration procedures from changing the substantive rights of the parties under non-arbitration law;

* require an occupational license to serve as an arbitrator and make that license subject to revocation for misconduct by an arbitrator;

* require public disclosure of arbitration awards in circumstances where arbitration is allowed;

* clarify statutorily that contract formation in cases where an arbitration agreement is present is for a court to decide and clarify that arbitration agreements must be in writings signed by the person against whom they are to be enforced unless select expressly specified exceptions to that requirement apply;

* ban class action waivers;

* ban jury trial waivers in connection with torts arising from personal physical injuries, and intentional torts other than business torts;

Private Law

* pass an anti-pre-emption statute (common in uniform and model laws) that  allows the law of ERISA plans and federal government provided benefit plans (e.g. federal government employee life insurance and retirement benefits) to be supplemented by common law and equity (and non-ERISA specific state law more generally) from the state where the plan administered or where the federal government employee is domiciled;

* establish a national index of marriages, civil unions, publicly filed domestic partnerships, marriage dissolutions, legal separations, and similar proceedings;

Debt collection

* subject assignees and purchasers of debts and business creditors of consumer debtors (subject to a de minimus exception) to the same obligations as debt collectors under the Fair Debt Collection Practices Act;

* establish strict liability sanctions for creditors, debt collectors, and attorneys seeking to enforce debts barred by a statute of limitations, a bankruptcy discharge, or res judicata (i.e. "zombie debt") in either a lawsuit or bankruptcy;

* prohibit making death an event of default under a contract in circumstances to be set forth in a statute, where prejudice to the other party under the contract is avoided;

Unlawful business practices

* make it a deceptive trade practice for a business to continue to use a contract, contact term, or procedure of a business has found to be void as contrary to public policy or illegal in a lawsuit in litigation with the business or in litigation in which an officer or director of the business participated with another business;

* make it an ethical violation for an attorney to draft a contract containing a term that the attorney knows is contrary to public policy or illegal under a binding precedent or statute, or to request such a term in a transactional negotiation;

Copyright

* in copyright infringement actions, eliminate statutory damages and limit awards to compensatory damages for lost profits of the copyright owner and/or disgorgement of amounts by which the infringer was unjustly enriched, together with costs, attorney fees, and interest;

* in copyright infringement actions, limit attorney fee and expert witness awards as part of court costs (combined) to not more than one-half of the damages awarded or $500, whichever is greater;

* impose a statutory civil fine upon anyone filing a wrongful takedown notice under the DCMA;

* establish mandatory copyright licensing for orphan works, translations of works that have not been translated in a timely fashion, and certain other transformative or independently innovative derivative works;

Worker's Compensation

* require worker's compensation death benefits to be at least comparable to the death benefits commonly awarded in wrongful death tort cases even in cases where a worker does not have a surviving spouse or surviving dependent children;

Debt Collection And Civil Procedure

Attorney fee and cost awards

* establish a statewide hourly rate for attorney services and paralegal services that counts are reasonable and/or fixed amounts for particular tasks, for use in fee shifting cases (at least in sanctions cases), in lieu of actual litigation of reasonableness on a case by case basis;

* in actions for money damages in which the prevailing party is entitled to attorney fees, limit the reasonable attorney fee and expert witness awards as part of court costs (combined) to not more than one-half of the damages awarded (or sought in the case of a prevailing defendant), or $500 (indexed), whichever is greater, even if the attorney fees and expert witness fees incurred were otherwise reasonable;

* allow a legal malpractice plaintiff to recover the plaintiff's attorney fees in the legal malpractice action as an element of damages;

Service of process and notice

* replace service of process by publication of a legal notice in a newspaper of record for several weeks, with service by process by notice in one of several public notice registries available in person at the courthouse and for free online (at no charge to the litigant) the entries in which have an index number that can be used to also serve the notice via text message, email, voice mail, postcard, and posted notices;

* establish a system in which an "interested person" such as a judgment creditor, a spouse, a former spouse with outstanding obligations owed to them, a secured creditor, or a creditor under a written contract, can automatically receive notice of the death of a person, the change of name of a person, probate proceedings concerning a person, bankruptcy proceedings concerning a person, lawsuits against a person, and personal property lien filings against a person;

* establish a system in which a person can automatically receive notice of new real estate record filings concerning a particular parcel of real property, and lawsuits relating to possession of a particular parcel of real property;

* allow substituted service of process of new lawsuits (i.e. service of process under Federal Rule of Civil Procedure 4 or the equivalent) to be made upon "gatekeepers" such as doormen or entry area receptionists, when access to a residence or business is restricted;

E-Filing related practices

* provide e-filing access to pro se parties;

* eliminate the requirement of a certificate of service for parties that e-file court documents since the e-filing system would handle this function automatically with third-party verifiability;

* create a publicly available database of contact information for attorneys and eliminate the requirement that attorneys with disclosed registration numbers in legal filings include their contact information on each document they file;

* give parties in cases with pro se litigants access to contract information about those litigants and eliminate the requirement that attorneys with disclosed registration numbers in legal filings include their contact information on each document they file;

Enforcement of money judgments

* give judgment liens in real property statewide scope where the judgment creditor can provide sufficient data about the judgment debtor to prevent similar name confusion;

* allow judgment creditors to gain access to the tax records (including information returns filed such as W-2s, K-1s and 1099s), and credit records, of judgment debtors, as a matter of course, at any time when judgment creditors would have a right to obtain information from judgment debtors directly about their assets and in bankruptcy cases;

* allow judgment creditors to execute upon ownership interests of judgment debtors in entities by giving notice of a judgment to the registered agent of the entity without regard to the form of the entity or whether its shares are certificated or not, or any buy-sell agreement of the company;

* establish detailed procedures and exhaustion of remedies requirements that must be followed in contempt of court proceedings alleging a willful failure to pay money or property in connection with a judgment or court order including a child support or alimony order;

Statutes of limitations

* make filing a lawsuit within the statute of limitations an element of every cause of action, that is part of the prima facie case which must be established in the complaint to state a claim, and upon which the burden of proof is on the person bringing the claim;

Procedures related to unlawful business practices

* give notice (in a publicly accessible document)  to the state attorney-general in the state where a lawsuit is filed, and also the state where an entity defendant is organized or an individual defendant is domiciled, of any lawsuit or counterclaim filed by a consumer or employee against a business or employer (so that someone can see patterns and practices of allegations whether or not the cases are settled), including product liability tort claims;

* give notice (in a publicly accessible document) to the state attorney-general in the state where a lawsuit is filed, and also the state where an entity defendant is organized or an individual defendant is domiciled of all court judgments in which a contract, contract term, or procedure of a business is found to be void as contrary to public policy or illegal;

* require a business to affirmatively disclosed that a contract, contact term, or procedure of a business has found to be void as contrary to public policy or illegal in a prior lawsuit, in litigation with the business related to that contract, contract term, or procedure.

Ethical obligations of attorneys in litigation

* require an attorney filing a civil action, or representing a party in a civil action, to disclose any assertion of law made that the lawyer knows is contrary to a controlling precedent (subject to an ongoing duty to supplement during the pendency of the litigation) even if the assertion of law does not violation Rule 11 (permitting good faith arguments to change the law) and subjecting the attorney to sanctions if the attorney's client does not prevail on the merits on that legal argument if it is not disclosed or withdrawn promptly after being identified;

* establish an ethical duty of an attorney at any stage of a proceeding (even an appeal) not to argue inferences regarding facts that are known to be factually untrue (even if the untrue facts are not themselves presented as evidence) before a tribunal in a civil matter without disclosing this reality to the tribunal;

Federal subject-matter jurisdiction

* eliminate ordinary diversity jurisdiction in cases in which both plaintiff and defendant have a U.S. domiciled party;

* eliminate general federal question jurisdiction in cases involving only non-government associated parties;

Federal personal jurisdiction

* restore the rule that general personal jurisdiction may be asserted over any entity that has any office for the conduct of business or a registered agent in a state;

* allow federal district courts where the plaintiff resides to assert personal jurisdiction over a defendant or third-party witness or garnishee who is not subject to the personal jurisdiction of any one U.S. state, or the District of Columbia, or any one U.S. territory, but does have sufficient contacts with the United States as a whole to be subject to its personal jurisdiction if the United States had been a single U.S. state;

Jury trials

* eliminate by statute, the right to a jury trial in state court in civil actions to enforce a written contract or lease signed by the party to be charged, or to sue in the alternative in such as case, for promissory estoppel or unjust enrichment;

* establish a right to a jury trial in state court with respect to counterclaims in civil actions in which there is no right to a jury trial on the claims in the complaint (i.e. repeal the "well-pleaded complaint rule" for jury trials);

Appeals

* prohibit an appellate court from remanding a case reversed for an abuse of discretion by the judge in a civil case to the same judge;

Pre-litigation discovery

* Allow a special proceeding called a pre-litigation inquiry, under a new rule of procedure in both state and in federal court, to be brought to allow prospective plaintiffs to engage in pre-litigation discovery regarding facts in the exclusive control of a prospective defendants, at the expense of the plaintiff, upon a showing that all elements of a cause of action except those requiring evidence in the exclusive control of a prospective defendant have been established, that is limited to facts in the exclusive control of a prospective defendant that are necessary to state a claim for relief (in response to new, more strict, pleading standards in Twombly, Iqbal, Warne, and related cases); 

Quality Of Life Laws

* nationalize can and bottle deposit laws;

* make public sidewalks public property for purposes of snow removal and maintenance;

Spam-like activity

* do anything that works to crack down on extended warranty solicitations, such as requiring a license number that must be disclosed in any solicitation in any medium to sell an extended warranty;

* do anything that works to reduce junk calling, including criminalizing caller ID spoofing and requiring phone companies to enact systems that prevents or makes it much more difficult to engage in caller ID spoofing;

* require all unsolicited telephone communications made, text messages, and emails to be recorded with records maintained for three years;

* establish "know your customer" laws related to firms that facilitate payments to people who are conducting fraudulent schemes resulting in payments from many people (ten or more that are in the aggregate in excess of $10,000) that can be triggered by complaints from people who have made payments or authorities as well as from business negligence, and require any company that engages in robocalling, mass faxing, mass texting, and mass email marketing (even if legal) to disclose that fact to their financial and payment systems providers;

* require a federal license (which is available as a matter of right to individuals who can do so legally, that can be revoked civilly for misconduct) to engage in robocalling, robo-faxing, mass texting, mass email marketing, and mass mailing through the U.S.P.S.

Sentences Based Upon Acquitted Conduct Still Deeply Troubling

Federal courts are allowed to base their sentencing determinations in criminal cases, in part, on conduct for which a jury has acquitted a defendant (as long as the maximum sentence does not exceed the maximum sentence authorized by the crimes upon which the defendant was convicted). This is because: 

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997).

This happens something on the order of dozens of times a year. A recent example is a case out of the 7th Circuit upholding a sentence based upon a jury verdict finding a defendant guilty of robbery but innocent of murder, in which a judge imposes a sentence based upon its own contrary determination that the defendant committed murder to 228 months in prison (about twice the sentence that would otherwise have been imposed). In that case, the 7th Circuit notes that:

Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations. See, e.g., Jones v. United States, 574 U.S. 948, 949–50 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of cert.) (noting that it violates the Sixth Amendment when the conduct used to increase a defendant’s penalty is found by a judge rather than by a jury beyond a reasonable doubt, and highlighting that this is particularly so when the facts leading to a substantively unreasonable sentence are ones for which a jury has acquitted the defendant); Watts, 519 U.S. at 170 (Kennedy, J., dissenting) (allowing district judges “to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal.”); United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of the r’hrg en banc) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”). Many other circuit court judges have supported this position in dissenting and concurring opinions. 

This is still contrary to everything that the U.S. Constitution and a just criminal justice system stand for. But neither Congress nor the U.S. Supreme Court have taken action to prevent this obvious and routine injustice. It is one symptom, among many, of the deeply broken state of the U.S. criminal justice system and of the deep flaws in our political system that allow such abominations to persist.

There Are Few Chinese Children

Even according to exaggerated figures, China’s total fertility rate in 2021 was only 1.1-1.2, far below the 1.8 forecast by Chinese State Council in 2016, the 1.6-1.7 forecast by the Chinese Academy of Social Sciences in 2019, the 1.7 forecast by UN in 2019.

Link here.

Why Is Society Unraveling?

David Brooks catalogs the myriad things going on in our society recently, which he implicitly attributes to general malaise without considering specific causes.

I'm not as prone to drop them in one bucket. I recap his parade of horribles and make efforts below to explain them, one by one, taking the path of the fox rather than the hedgehog, as is my tendency.

But, before I do that, the executive summary comes down to two big trends:

1. COVID-19 pandemic driven causes, in logical, but not always easy to foresee, ways. In many cases, this is intersecting with conservative anti-science sentiment, driven by the second factor, causing American society to react poorly to this pandemic.

2. The long run divide in our economy as white blue collar men have seen their economic prospects stagnate and grow insecure, while educated elites have prospered and their political power in addition to their economic power has dwindled, weakening families and radicalizing the American right wing. This decline, in turn, is driven by a combination of automation, offshoring of less skilled labor, low skilled immigration (mostly from Latin America) that has brought in more intelligent people with similar skills but a better work ethic competing for the same jobs, and improved employment options for women in the workforce who have also been more receptive to getting the educations that the economy needs.

Breaking this down by individual items, here's what is going on, with quoted material in block quotes and my comments in italics.

In 2020, the number of miles Americans drove fell 13 percent because of the pandemic, but the number of traffic deaths rose 7 percent. . . . in the first half of 2021, according to the National Highway Traffic Safety Administration, motor vehicle deaths were up 18.4 percent even over 2020. Contributing factors, according to the agency, included driving under the influence, speeding and failure to wear a seatbelt.

Possibly due to COVID driven declining traffic enforcement and generally increased alcohol abuse.

the number of altercations on airplanes has exploded,

New COVID rules facing pushback by conservatives who oppose them because they don't believe in science. 

the murder rate is surging in cities, 

More gun purchases driven by fear on anarchy, reduced incarceration, more drug trade driven gang conflict, more idle people, police cowed by BLM protests and pushback on bad tactics, pandemic driven economic and general stresses and chaos. 

drug overdoses are increasing, Americans are drinking more, 

Substance abuse is driven by stress and trauma (and being able to get away with it during non-employment and home employment). 

nurses say patients are getting more abusive . . .

Hospitals are being overloaded by people (enough on its own), who don't believe in the diseases they're dying from due to COVID and related conservative driven misinformation (which makes them behave badly).

Schools have seen an increase in both minor incidents, like students talking in class, and more serious issues, such as fights and gun possession. In Dallas, disruptive classroom incidents have tripled this year compared with prepandemic levels . . . 

School situations have grown chaotic with shifting modes of unfamiliar instruction from instructors not trained to do that and lots of stress at home due to COVID.

drug deaths had risen almost continuously for more than 20 years, but “overdoses shot up especially during the pandemic.” For much of this time the overdose crisis has been heavily concentrated among whites, but in 2020, the essay observed, “the Black rate exceeded the white rate for the first time.” . . . 

A twenty year trend fueled by legal opioid producers. Deaths of despair driven by a bimodal economy and pandemic driven lack of hope. About half of homeless deaths are now due to opioid overdoses. The deaths are also, in part, driven by increased illicit distribution of fentanyl, an ultra-potent opioid variant, hitting the market, possibly driven by interdiction efforts or scarce supply due to Afghanistan control driven supply shocks, that surged since it has more potency per weight, but is hence easier to screw up. 

Hate Crime Reports in U.S. Surge to the Highest Level in 12 Years, F.B.I. Says.” The F.B.I. found that between 2019 and 2020 the number of attacks targeting Black people, for example, rose to 2,871 from 1,972. . . . 

Republican power driven by a bimodal economy that has left poorly educated white men behind who fear their loss of power.

In January 2021, more than two million firearms were bought, The Washington Post reported, “an 80 percent year-over-year spike and the third-highest one-month total on record.” . . . 

Gun ownership always spikes when Democrats get elected, more conspiracy thinking on the right, and high profile murder rate growth in big cities along with BLM driven street protests contribute too.

the share of Americans who give to charity is steadily declining. In 2000, 66.2 percent of households made a charitable donation. But by 2018 only 49.6 percent did. The share who gave to religious causes dropped as worship service attendance did. But the share of households who gave to secular causes also hit a new low, 42 percent, in 2018. . . . 

The elimination of tax breaks both during life (more people qualify for the standard deduction  which is larger due to elimination of personal exemptions) and at death (due to rising gift and estate tax thresholds) for charitable giving, and declining church attendance (both as a long term trend and COVID specific) may both play a major part. 

This is not even to mention the parts of the deteriorating climate that are hard to quantify — the rise in polarization, hatred, anger and fear. . . .

Republican power driven by a bimodal economy that has left poorly educated white men behind who are resorting to new tactics and driving push-back.

“U.S. Church Membership Falls Below Majority for First Time.”

This is a long running trend driven by a more scientific and affluent and economically secure world, accentuated by COVID impairing church attendance. 

In 2019, the Pew Research Center had a report, “U.S. Has World’s Highest Rate of Children Living in Single Parent Households.”

This is a long term trend continuing since the 1970s driven by the growing economic stagnation and insecurity of blue collar men and a lack of a social safety net sensitive to that trend. It is also, in part, a function of affluence that makes it possible to have an economically viable single parent household. 

M.S. Caused By Epstein-Barr Virus

Until this paper, the cause of M.S. was very much an open question.

Now researchers have found strong evidence that it’s an infection, specifically the Epstein-Barr virus, best known for causing mononucleosis. In a large cohort of military service members followed over many years, infection with Epstein-Barr increased the likelihood of developing multiple sclerosis, or MS, by more than 32-fold, a team of scientists led by Harvard University’s Neuroepidemiology Research Group reported in the journal Science on Thursday. “Our data strongly suggest Epstein-Barr virus is the leading cause of multiple sclerosis[.]”

From here.

Great gains have been made in treating M.S., an autoimmune disease, in recent decades. The viral cause suggests that somebody, it may be a disease that people can be vaccinated against to prevent:

EBV is a virus, so our immune systems can be trained to prevent it from infecting us. Currently there is no vaccine against EBV; efforts to develop one have historically been hindered by technical hurdles and lack of investment because the virus isn’t initially life-threatening. But studies like this suggest we should be pushing harder on developing a vaccine against EBV, said Wilson. Besides MS, the virus has also been linked to a variety of cancers and other autoimmune diseases such as lupus.

“Understanding the detailed mechanism of how EBV triggers MS is more of an academic question,” said Wilson. “For a public vaccination campaign, we just have to show that it reduces cases of MS, even if we don’t understand exactly how it’s happening.”

There are precedents for such a campaign. In 2006, regulators approved a vaccine to prevent spread of four strains of human papillomavirus, or HPV, which raise risks of developing cervical cancers that kill thousands of women in the U.S. each year. Although Americans were slow to get immunized, uptake in the U.K. was sky-high. A recent analysis found the vaccines have already nearly eliminated cervical cancer in young women there.

“If EBV is causing MS then this could shift the focus of research into trying to find a cure for MS as well as motivate vaccine development,” said Bjornevik.

Colorado Recognizes Right To Counsel In Remedial Contempt Cases Brought By The Government

There are not many circumstances in the United States where you have a right to have legal counsel appointed for you at government expense if you are indigent. But, last week, the Colorado Court of Appeals established a new class of cases where this right applies in the first clear Colorado case to do so, in the case of In re A.C.B., 2022CA3 (January 6, 2022) (this right had previously existed in Colorado from 1978-2011, when a new U.S. Supreme Court case muddied the waters).

The main class of cases where there is a right to counsel, first established in the U.S. Supreme Court case of Gideon v. Wainwright, 372 U.S. 335, 344 (1963), established this right for criminal defendants which was subsequently clarified to extent to any criminal proceeding in which incarceration was a possibility, Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), and to direct appeals from convictions in those cases (but not collateral attacks on convictions).

Another case extended the right to indigent defendants in termination of parental rights cases. 

There are three kinds of contempt of court proceedings that can result in incarceration.

One is called direct contempt, in which a judge summarily fines or incarcerates you for disrespectful content in the presence of the judge in court, without a separate proceeding or hearing (in theory this can be criminal or civil, depending upon whether subsequent compliance by the person held in contempt can cause that person to be relieved of further sanctions).

The second is called indirect criminal contempt a.k.a. indirect punitive contempt, in which you have allegedly willfully violated a court order outside the presence of the judge, and the court sentences you to a fine or incarceration to punish you for violating the court order (rather than to compel you to comply with it going forward) in a quasi-criminal proceeding often handled by the lawyer for the party benefitting from the court order rather than a government prosecuting attorney. It has long been clear that there is a right to counsel identical to that of criminal cases in these proceedings.

A third is called indirect remedial contempt, which is "civil" rather than "criminal" even though you can be fined (typically on a "per day" basis) or incarcerated until you comply with a court order which you have breached outside the presence of the court, if you are able to comply with the court order at any time, and are simply willfully refusing to do so. This too is a proceeding often handled by the lawyer for the party benefitting from the court order rather than a government prosecuting attorney.

In People v. Lucero, 196 Colo. 276, 284, 584 P.2d 1208, 1214 (1978), the Colorado Supreme Court, in a "direct contempt of court" case, held that 

“that the right to counsel must be extended to all contempt proceedings, whether labeled civil or criminal, which result in the imprisonment of the witness.” Id. at 284, 584 P.2d at 1214 (“Labeling the contempt civil and conditioning the incarceration on a continued refusal to testify does not alter the burden of imprisonment.”). 

This holding was stronger than the protection afforded under the U.S. Constitution as interpreted by the U.S. Supreme Court and some other states. 

The U.S. Supreme Court refused to extend Gideon and Argersinger to establish a per se rule for appointment of counsel in all civil proceedings where the possibility of imprisonment exists in Gagnon v. Scarpelli, 411 U.S. 778, 781, 788 (1973). Similarly, the Ohio Supreme Court, in the case of In re Calhoun, 350 N.E.2d 665, 666 (Ohio 1976) held that the Sixth Amendment right to counsel as set forth in Argersinger is inapplicable to civil contempt because that right is limited to criminal proceedings.

The Colorado Supreme Court most recently affirmed its broader Lucero holding in the case of In re Bauer, 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor).

But, the Court of Appeals in last week's case notes (at ¶ 33) that "a fairly recent United States Supreme Court case, Turner v. Rogers, 564 U.S. 431 (2011), changed the legal landscape." 

There, the U.S. Supreme Court held in a case brought by a pro se ex-wife against her pro se and allegedly indigent ex-husband for child support seeking to enforce that with remedial contempt of court sanctions including incarceration, that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year)” if other procedural safeguards that it suggests are present, at least, in a case like that one where a pro se creditor is bringing the case.

The Colorado Court of Appeals held last week that, at least when the party seeking the contempt sanction is a government entity, that there is right to counsel if you are indigent (at least in the absence of alternative procedural mechanisms designed to mitigate the harm potentially caused by asymmetry of counsel, which Colorado has not chosen to adopt despite the U.S. Supreme Court's suggestion that courts do so in Turner v. Rogers). 

Indirect remedial contempt sanctions are the most common, by far, form of contempt of court proceedings in civil cases, and are used for a variety of purposes

But, one of the most common circumstances, and one of the most likely to involved an indigent defendant, is where a court determines that a child support debtor has willfully refused to pay child support despite having access to assets or self-employment income that makes it possible for the defendant to pay child support, or for otherwise not cooperating as legally required in this debt collection process by disclosing assets to the child support creditor.

The historical remedy of "body execution" (i.e. "debtor's prison") has been abolished and is unconstitutional (even in cases involving unpaid criminal fines, a clearly established legal point that the ACLU and Southern Poverty Law Center have devoted substantial resources to enforcing in low level courts across the country).

But, unlike those cases, the incarceration imposed in indirect remedial contempt of court cases involving unpaid debts (usually child support or alimony) is, in theory, at least, not simply for failing to pay a debt, but for failing to pay a court ordered debt when one has knowledge of the court order and an actual present ability to pay that debt, in the court's determination after an evidentiary hearing.

Lots of indigent debtors, however, don't really understand this distinction and also lack the sophistication to have any idea how they would go about proving their inability to pay the debt in an evidentiary hearing in a court. 

So, empirically, in many of these cases, the defendant has a legitimate defense that could prevent the child support debtor from being incarcerated but fails to prove it, in part, due to lack of legal counsel to help them prove their valid defense to incarceration for remedial contempt of court.

The case decided last week involved a child support debt assigned to the Pueblo County government's child support services offices for collection, presumably because the child received welfare benefits, and was prosecuted by a Pueblo County government attorney.

The Court makes only a narrow holding at ¶ 3, that:

We conclude that when, as here, a contempt proceeding is initiated by a governmental entity and where a jail sentence is an available remedial sanction, an alleged contemnor who is indigent has the right to court-appointed counsel. 

We further conclude that the trial court violated Broyhill’s due process rights when it refused to inquire into his indigency status to determine whether he qualified for court-appointed counsel. 

As a result, we reverse the judgment and sentence and remand the case for the trial court to determine if Broyhill is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.

So, this case doesn't resolve the question of whether there is a right to court appointed counsel in indirect remedial contempt of court cases where a private party's lawyer, or a private party pro se, such as an ex-spouse, brings the proceeding, rather than a government attorney, even though the stakes in the proceeding would be the same for the party who faces remedial contempt of court sanctions. 

Federal law, under Turner v. Rogers, resolves this question only with a case by case balancing test. But Colorado could, as it did in Lucero in 1978, choose to provide greater protections than the U.S. Constitution does pursuant to the Colorado Constitution, or an interpretation of what Colorado Rule of Civil Procedure 107, which governs contempt of court proceedings in Colorado's trial courts of general jurisdiction, requires.

Interestingly, Pueblo County didn't file a brief in the appeal of the court's ruling, so the court sought supplemental briefing from institutions like sections of the Colorado Bar Association and the State of Colorado. The Colorado Bar Association, the ACLU, and a matrimonial lawyer's association all filed briefs on behalf of the appealing party facing the sanctions, and no one filed briefs in support of Pueblo County. The lack of an appeal from Pueblo County also means that this case won't go further to the Colorado Supreme Court.

Climate Change Is Real

The average temperature for the last six months is the hottest recorded in Colorado and the country as a whole, according to data released this week by the National Oceanic and Atmospheric Administration.

Notable Opening Day Bills In The Colorado General Assembly In The 2022 Session

Here are summaries of six notable bills from the eighty-five bills introduced on "opening day" of the 2022 legislative session of the Colorado General Assembly, that have a meaningful chance of enactment because they are not partisan bills with solely Republican sponsors.

* HB22-1038 "Right To Counsel For Youth: Concerning client-directed legal representation for youth in court proceedings for youth."

Current law requires the appointment of a guardian ad litem for children or youth in dependency and neglect cases. The bill requires that client-directed counsel for youth be appointed for children or youth 12 years of age or older to provide specialized client-directed legal representation.

The bill prohibits the waiver of a child's or youth's right to counsel in dependency and neglect proceedings. The bill also allows a child or youth to be a party in a dependency and neglect proceeding. For a child or youth 12 years of age or older with diminished capacity, a guardian ad litem shall remain in the role and separate counsel for the child or youth must be appointed.

SB22-023 "Deceptive Tactics Juvenile Custodian Interrogation: Concerning prohibiting deceptive tactics during interrogation of a juvenile."

The bill prohibits a law enforcement officer or an agent who assists, cooperates with, or otherwise facilitates a custodial interrogation with a juvenile (law enforcement official) from using deception and false facts or beliefs (deception) to obtain a statement or admission from the juvenile. Any statement or admission obtained during the course of a juvenile custodial interrogation in which a law enforcement official knowingly uses deception is presumptively inadmissible against the juvenile in an evidentiary hearing unless the prosecution proves by clear and convincing evidence that the statement or admission was made voluntarily.

The bill requires law enforcement officials to electronically record all juvenile custodial interrogations.

SB22-008 "Higher Education Support For Foster Youth: Concerning postsecondary education support for certain students who have been in out-of-home placement."

Colorado Youth Advisory Council Review Committee. The bill requires all public higher education institutions (institutions) in Colorado to waive undergraduate tuition and fees for Colorado resident students who have been in foster care or, following an adjudication as neglected or dependent, in noncertified kinship care in Colorado at any time on or after reaching the age of 13 (qualifying students). The institutions are required to designate an employee to serve as a liaison to qualifying or prospective qualifying students.

Under existing law, school districts and the state charter school institute must designate an employee to act as the child welfare education liaison. The bill requires child welfare education liaisons to provide students in out-of-home placement with information and assistance regarding the tuition waiver for qualifying students.

SB22-019 "Access To Suppressed Court Eviction Records: Concerning access to automatically suppressed court records of eviction proceedings."

Under existing law, a court record in an eviction proceeding is automatically suppressed and only available to judges; court staff; a party to the case and, if represented, the party's attorneys; authorized judicial department staff; and a person with a valid court order authorizing access to the court record. The bill permits an attorney, with permission of a party included in a suppressed court record, to access the record for the purpose of providing legal advice to, or evaluating whether to enter an appearance on behalf of, the party included in the record.

SB22-034 "Business Filing Address And Name Fraud: Concerning measures to counteract the filing of fraudulent business documents with the secretary of state."

Under current law, a business entity submits to the secretary of state for online filing documents that concern the creation, organization, and operations of the entity. By submitting a document, an individual affirms under penalty of perjury that the individual is authorized to file the document, the facts in the document are true, and the document otherwise complies with the secretary of state's filing requirements. The secretary of state files the document in an online database as a ministerial act and does not independently verify whether the document is accurate.

The bill creates a complaint process for a person whose business identity or personal identifying information has been used in the filing of these documents with the secretary of state without authority or for fraudulent activity. If a complaint is submitted with the secretary of state, the secretary may forward the complaint to the attorney general for further investigation. The attorney general may investigate the complaint and refer the complaint to an administrative law judge.

If an administrative law judge determines that an entity has been created fraudulently or without authorization, the secretary of state will:

* Mark the business record with a notice that the entity is fraudulent or unauthorized;

* Redact each address that was used without authorization from the entity's filing and from any other relevant filings; and

* Disable additional filing functionality on the entity's records. 

If an administrative law judge determines that an unauthorized filing was made for a legitimate entity, the secretary of state will:

* Mark each unauthorized filing for the entity to notify the public that the filing is unauthorized;

* Redact from the entity's filing and from the relevant filings each address and name that was used without authorization; and

* Mark the business record on the entity's filing to notify the public that the entity has been the victim of fraudulent or unauthorized acts.

If a person alleged to have committed fraud or unauthorized acts fails to respond to the complaint, the allegations are deemed conceded, and the secretary of state will take the appropriate steps listed above in the same manner as if the finding had been made by an administrative law judge.

Additionally, the bill states that fraudulent filings are unfair or deceptive trade practices under the "Colorado Consumer Protection Act" and as such are subject to enforcement by the attorney general's office.

SB22-013 "Boards And Commissions: Concerning requirements for boards and commissions."

The bill makes changes related to the requirements for various boards and commissions (boards).

Section 1 of the bill includes standard provisions that generally apply to boards for which membership is based in full or in part on representation from the congressional districts of the state. Specifically, unless a statute or constitutional provision creating a board provides otherwise:

* If a member appointed to represent a district no longer resides in the district due solely to a change in the district's boundaries following redistricting, the member may serve the remainder of their term notwithstanding the nonresidency;

* If a board increases in size due to the addition of a new congressional district in the state, the appointing authority shall appoint a new member to represent the new district as soon as practicable; and

* If a board decreases in size due to the loss of a congressional district in the state, the appointing authority shall determine which current member's term should be terminated, or, if the member will be replaced by an at-large or other member, which member should be replaced at the expiration of the member's term. The appointing authority must attempt to ensure that the remaining membership adequately represents the remaining congressional districts.

Section 2 establishes standard provisions that apply to all boards unless the statute or constitutional provision creating a board provides differently. The standard provisions include: requiring an appointing authority to fill a vacancy for the remainder of the unexpired term, allowing the designee of a state official to fulfill the official's duties on the board, defining the term "minimum majority" to mean the lowest number of members that is more than half, allowing members to participate in meetings of the board remotely, and clarifying how partial terms count towards any applicable term limit. 

Sections 33 and 40 update the statutes that establish the membership of the state board of education and the board of regents of the university of Colorado, respectively, both of which are elected boards created in the state constitution. 

For the state board of education, section 33 provides for the election of one new member to represent the eighth congressional district and one new member from the state at large at the 2022 general election. 

For the board of regents, section 40 requires the election of a member to represent the eighth congressional district in place of the election of a member representing the state at large at the 2022 general election. 

Sections 37, 42, 52, 60, 73, 85, 86, 90, 101, and 107 amend statutes governing boards for which membership is based on the number of congressional districts in the state. For each board, the total number of members is no longer specified. Instead, each statute provides for the appointment of members from each congressional district in the state plus, as applicable, additional members as is currently provided for each board. Provisions requiring staggering of terms and limits on the number of board members who may be affiliated with a single political party are amended to refer to a "minimum majority" of the board to accommodate any future changes in board membership resulting from changes in the number of Colorado congressional districts. 

Section 133 repeals a statute that addressed the impact of redistricting on boards following the 2000 federal decennial census, and a statute that adjusted the lengths of terms of members of certain boards in 1987.

The remaining sections of the bill make changes to statutory provisions governing various boards with appointed members, including:

* Repealing deadlines for events or actions that have already occurred;

* Repealing language setting specific expiration dates or requirements for board members' terms in order to create staggering of the board members' terms, and replacing it with a general requirement that the terms of office are staggered;

* Repealing requirements for notice and hearing before a board member can be removed for cause by an appointing authority;

* Repealing, for certain boards, the requirement that a board member serve until the board member's successor is confirmed by the senate;

* Updating archaic language to conform to current drafting standards;

* Reorganizing sections to clarify requirements related to appointments, qualifications for appointees, and terms of office;

* Clarifying requirements related to the number of board members that may be affiliated with one political party; and

* Making conforming amendments.

Political Gender Gap Reaches Record High

In one of the most revealing studies in recent years, a 2016 survey of 137,456 full-time, first-year students at 184 colleges and universities in the United States, the U.C.L.A. Higher Education Research Institute found “the largest-ever gender gap in terms of political leanings: 41.1 percent of women, an all-time high, identified themselves as liberal or far left, compared to 28.9 percent of men.”

The institute has conducted freshmen surveys every year since 1966. In the early days, until 1980, men were consistently more liberal than women. In the early and mid-1980s, the share of liberals among male and female students was roughly equal, but since 1987, women have been more liberal than men in the first year of college.

. . .

The Pew Research Center provided The Times with survey data showing that among all voters, Democrats are 56 percent female and 42 percent male, while Republicans are 52 percent male and 48 percent female, for a combined gender gap of 18 points.

From the New York Times.

Lots of additional data and little bit of analysis are available in the remainder of the article.

Anti-Tank Missiles > State Of The Art Tanks

In a nutshell, the civil war in Syria and several other recent conflicts have repeatedly shown that relatively small, infantry carried anti-tank missiles can defeat state of the art tanks with the best available reactive armor and active defense systems. Also, when tanks have been defeated, the main battle guns of other tanks are usually not the means by which this happens.

In part for this reason, in part because tanks can be at a disadvantage in urban warfare and narrow mountain roads and in jungles, and in part because deploying heavy main battle tanks to battlefields is very challenging, these military systems have grown far less important.

The U.S. Marine Corps has wisely discontinued using tanks. The U.S. Army, like almost every other major military force in the world, has greatly reduced the number of tanks in their active forces in the recent decades.

Heavy slug throwing "dumb" self-propelled and towed artillery is likewise receding in importance, relative to guided missile delivering military systems. Like tanks, they are vulnerable to anti-tank missiles, are difficult to deploy because they are so heavy, and are inferior in offensive clout and accuracy to guided missiles.

Quote of the Day

 - Love of Kill (Episode 1).

Articles of Confederation 2.0

[T]he more urgent question for the Senate remains why bare majorities in radically gerrymandered state legislatures should have the power to defeat free and fair elections for Congress, while Congress has no power to defend itself against those distortions unless a supermajority in the Senate agrees.

The modern filibuster has restored the supermajority rules of our first and failed constitution, the Articles of Confederation. Like those articles, it is defended by people who believe that supermajority requirements induce compromise. But the failure of the first American republic led our Framers to reject that mistaken theory. And it is high time for the Senate to answer one obvious question: 

Why do a group of senators representing a relatively minuscule number of Americans, through Senate rules, get to undo the one clearly good idea of our Framers—that legislatures be governed by legislative majorities?

From here.

Congress has a lot on its plate. 

It needs to end the filibuster. It needs to fix the flawed Electoral College Act of 1887 and thwart conservative legal day dreams that would allow state legislators to ignore the decisions of voters in their state when it comes time to cast electoral votes. It needs to pass election law reform to clamp down on anti-Democratic Republican legislation at the state level to suppress voter turnout in Democratic party leaning constituencies and allow out of control gerrymandering. It needs to expand the Supreme Court to wrest control from a manipulated 6-3 hyper-conservative majority. It needs to give the District of Columbia statehood, and give Puerto Rico a better shot at statehood as well. 

Breaking the filibuster is the most important. But Congress may very well lack the will to fix it. Democrats, due to a couple of democrats in name only (DINOs) don't seem to have the votes to make that happen.

Medical Advances Can Reverse Cell Death

Biomedical researchers have discovered that cell deaths from infections can be halted even when they reach a point that had previously been thought to be a point of no return at which treatment was hopeless. 

Researchers report a new method for analyzing pyroptosis -- the process of cell death that is usually caused by infections and results in excess inflammation in the body -- and show that the process, long thought to be irreversible once initiated, can in fact be halted and controlled. The discovery means that scientists have a new way to study diseases that are related to malfunctioning cell death processes and infections that can be complicated by out-of-control inflammation. . . .

[S]cientists have a new way to study diseases that are related to malfunctioning cell death processes, like some cancers, and infections that can be complicated by out-of-control inflammation caused by the process. These infections include sepsis, for example, and acute respiratory distress syndrome, which is among the major complications of COVID-19 illness.

(Source).

Wildfires and Air Pollution

Confirming what we already know, a new study shows that wildfires in the Western U.S. are a major source of seriously bad air pollution, despite gains in other areas in reducing air pollution.

Large wildfires and severe heat events are happening more often at the same time, worsening air pollution across the western United States, a study has found. In 2020, more than 68% of the western U.S. -- representing about 43 million people -- were affected in one day by the resulting harmful-levels of air pollution, the highest number in 20 years. The study found that these concurrent air pollution events are increasing not only in frequency but duration and geographic extent across the region. They have become so bad that they have reversed many gains of the Clean Air Act. The conditions that create these episodes are also expected to continue to increase, along with their threats to human health.

From here citing Dmitri A. Kalashnikov, et al., "Increasing co-occurrence of fine particulate matter and ground-level ozone extremes in the western United States." 8(1) Science Advances (2022) DOI: 10.1126/sciadv.abi9386

Realistic U.S. Military Missions

There are four big themes involved in reshaping the U.S. military so it is better suited to meet our needs at a more affordable price: 

(1) clarifying the missions that are and are not realistic for it to be used to achieve, 

(2) considering what part our allies would play in carrying out any particular mission, 

(3) looking for opportunities to substitute existing systems for alternatives that can carry out the same tactical tasks better, and 

(4) considering responses to emerging technologies that present new threats.

This post is limited to the first two of these themes.

By focusing in more clearly on specific focused missions that the U.S. military might have that are not merely speculative or remote possibilities, one by one, and determining what is needed for each mission, the U.S. military can pare down spending involved in "being ready for anything."

My list of these missions, based upon historical U.S. foreign and military policy, and organized by region, is set forth below, with missions potentially calling for significant Army or Army National Guard involvement in bold, and other missions primarily reserved to Navy, Marine and Air Force units.

Europe, North and Central Asia, Black Sea, the North Atlantic, the Baltic Sea, and the Arctic

1. Protect Finland, Estonia, Latvia, Lithuania, Poland, and Ukraine from Russian (or Russian-sponsored) aggression together with the cooperation of our NATO allies.

2. Protect maritime and air commerce from Russian interference together with the cooperation of our NATO allies.

East Asia

1. Protect Taiwan from a Chinese invasion together with Japanese and South Korean allies.

2. Protect South Korea from North Korean aggression together with Japanese allies.

3. Protect South Korea and Japan from North Korean missiles.

4. Protect maritime and air commerce in the Pacific from Chinese interference together with Japanese and South Korean allies.

Middle East, Southeast Asia,  Africa, the Indian Ocean, and the Persian Gulf

1. Protect Israel from aggression from its neighbors.

2. Protect maritime commerce from Iranian interference in the Persian Gulf area.

3. Assist pro-Western or neutral regimes in resisting Islamist insurgencies together with Western allies.

4. Protect maritime commerce from piracy.

5. Provide assistance in the event of natural and man-made disasters.

6. Evacuate U.S. nationals and allies in the event of chaotic state collapse.

The Americas, the Pacific, the Caribbean, and the South Atlantic

1. Protect U.S. territory and our allies in Oceania from North Korean missiles.

2. Intervene in the event of insurgency or anarchy in a Caribbean state.

3. Respond to domestic insurgencies, predominantly right-wing.

4. Protect maritime commerce from piracy.

5. Regulate smuggling of drugs and arms.

6. Provide assistance in the event of natural and man-made disasters.

7. Evacuate U.S. nationals and allies in the event of chaotic state collapse.

8. Protect the U.S. and Canada from Russian missiles and airborne bombing.

Does Federal Fiscal Policy Drive Migration?

 

From the New York Times.

Topping the list of net beneficiaries was, yes, Kentucky, where residents received an average of $14,000 more from Washington than they paid in taxes. To put this in perspective, Kentucky’s 2019 net inflow of federal funds — $63 billion — was roughly 30 percent of the state’s G.D.P. that year.

The states in earth tones pay more in federal taxes than they receive in federal spending. The states in blue receive more in federal spending than they pay in federal taxes. The states in gray, roughly speaking, break even.

The states that are subsidizing the rest of the United States tend to be states that are experiencing net outmigration. States that are experiencing net in migration, in contrast, are predominantly states that the federal government is subsidizing.

While it is certainly not a total explanation, it is very plausible that this simple question of net federal fiscal impact is an important driver of internal migration in the United States.

The Biggest U.S. Military Justice Overhaul In 70 Years

On December 27, 2021, President Biden signed the National Defense Authorization Act for fiscal year 2022 which contained the biggest overhaul of the U.S. military justice system in 70 years (effective December 27, 2023 assuming that the new regulations mandates by the Act are in place by then). This was driven by Congressional concern that the military has mishandled sex offenses and sex discrimination within its ranks. 

The Lawfare blog explores in detail what has changed. The big points are as follows:

The act creates a novel independent Office of the Special Trial Counsel for each service (Army, Navy, Marine Corps, Air Force and Space Force) except the Coast Guard, reporting directly to the civilian secretary of that service, not to the judge advocate general or chief of staff of that service.

This office has primary jurisdiction over all military justice matters concerning someone alleged to have committed a "covered offense" defined as:

wrongful broadcast or distribution of intimate visual images (Article 117a); murder (Article 118); manslaughter (Article 119); rape and sexual assault, including of children, and certain other types of “sexual misconduct” (Articles 120, 120b, 120c); kidnapping (Article 125); domestic violence (Article 128b); stalking (Article 130); retaliation (Article 132); and producing, processing, receiving, viewing and distributing child pornography (Article 134); as well as conspiring to, attempting or soliciting any of the above (Articles 80, 81, 82).

It creates a new sexual harassment offense: 

but only under Article 134. This means such behavior (also defined by this act) is not criminalizable conduct unless the sexual harassment is, under the case-by-case circumstances, “of a nature to bring discredit upon the armed forces” and/or is “prejudicial to good order and discipline.” Both of these elements are highly fact-dependent and, in the latter case, must have a “direct and palpable” negative effect on something clearly germane to military readiness or mission accomplishment.

Sentencing in court-martial cases is reformed more generally: 

Military judges, not panels, will now make the sentence determination for all noncapital convictions, regardless of type of offense, at special and general courts-martial.

Sentencing determinations are to be made within certain new “sentencing parameters;” a judge may depart from the parameters if he or she includes the factual basis and reason for that departure in writing in the record of trial. The sentencing parameters, as well as “sentencing criteria,” shall be prescribed by the president, based on recommendations devised by a newly established Military Sentencing Parameters and Review Board reporting to the secretary of defense. These parameters, having the same purpose as the federal sentencing guidelines, must be prescribed within two years of this section’s enactment.

"Finally, Article 133’s “conduct unbecoming an officer and a gentleman” offense is revised to strike “and a gentleman.”"

The analysis also explores at length what distinctive features of the military justice system remain unchanged to make the point that these changes are not a wholesale "civilianization" of the military justice system.

Retirement Tax Breaks Help Different People Than Widely Believed

One of the biggest tax expenditures in the Internal Revenue Code of the United States is for retirement savings. These have been sold on the claim that they help middle class people who are struggling to save enough to supplement Social Security benefits in their old age. 

But to a great extent, this is not who benefits from these tax breaks. Instead, it heavily benefits affluent people who would have saved in or out of tax preferred options. It also provides them with significant asset protection that they would not otherwise enjoy.

One obvious solution would be to set the Social Security withholding cap and the maximum income that can be considered for retirement savings programs to the same level.

Over the past twenty-five years, Congress has enacted several major reforms for employer-sponsored retirement plans and individual retirement accounts (“IRAs”), always with large bipartisan, bicameral majorities. In each case, legislators have claimed that the reforms would improve retirement security for millions of Americans, especially rank-and-file workers. But the supposed interest in helping lower-income and middle-income earners has been a stalking horse for the real objective of expanding the tax subsidies available to higher-income earners.

The legislation has repeatedly raised the statutory limits on contributions and benefits for retirement plans and IRAs, delayed the start of required distributions, and weakened statutory non-discrimination rules — all to the benefit of affluent workers and the financial-services companies that collect asset-based fees from retirement savings. 

The result has been spectacular growth in the retirement accounts of higher-income earners but modest or even negative growth in the accounts of middle-income and lower-income earners. Despite the benign but misleading rhetoric about enhancing retirement security for everyone, the real beneficiaries of the retirement-reform legislation have been higher-income earners, who would save for retirement even without tax subsidies, and the financial-services industry, whose lobbyists have driven the retirement-reform legislative agenda.

Michael Doran, The Great American Retirement Fraud (January 1, 2022).

China Progresses In Nuclear Fusion

China's efforts to build a viable nuclear fusion reactor has made significant progress, although it remains far from being economically viable.

China's "artificial sun" set a new world record on Thursday by running for 1,056 seconds at high plasma temperature, the longest duration for an experimental advanced superconducting tokamak (EAST) fusion energy reactor. . . . EAST already scored a previous record in May, running for 101 seconds at a temperature of 120 million degrees Celsius.

From here.