A law professor's blog dealing with land use planning has taken notice of Denver's pending Granny Flats proposal. The Wash Park Profile's July issue also discusses it (a June preview from the publisher was cautiously optimistic).
Alley housing is common in Boulder, but has been banned from much of Denver for 50 years.
06 July 2007
Wardriving Story Followup
The story of a Florida man arrested for poaching wireless internet service was updated slightly.
Richard Dinon called the cops, but he's no hero. Benjamin Smith III got arrested, but he's no martyr.
Dinon and Smith crossed paths in April, when Smith was parked outside Dinon's St. Petersburg home for several hours using his notebook computer.
Dinon approached Smith's SUV twice, Smith twice closed the computer. But he didn't leave, so Dinon called the police. Smith was arrested, accused of unauthorized access to a computer network, a third-degree felony.
The allegation? Smith was using Dinon's Wi-Fi (wireless fidelity) network. The problem? Dinon intentionally had left the network unsecured. . . .
Smith was charged under Chapter 815.06 of the Florida statutes available at www.leg.state.fl.us/) Among other things, the computer crimes law talks about someone accessing a computer network without authorization.
Since Dinon left his network open, and Wi-Fi is a short-range radio signal, any computer with a wireless network card could access it. Was authorization implied because it was an unprotected signal? The lawyers and courts will have to decide that one.
The state law also addresses what someone does if they gain unauthorized access, including damaging data or "devising or executing any scheme or artifice to defraud or obtain property ...."
We don't know what Smith was doing with his computer, but we do know he has a criminal record going back to 1984 for a variety of drug offenses. That doesn't mean he's guilty here. But he also doesn't appear to be the best poster child for Wi-Fi freedom.
The federal Computer Fraud and Abuse Act is also vague, according to an excellent Cnet story on the topic (news.com, do a keyword search for "mooching").
05 July 2007
Pipe Dream: Shrinking the Federal Courts
Why Shrink The Federal Courts?
Liberals still have a love affair with the federal courts, as they were pivotal in bringing about societal change, over the objections of Southern segregationists and law and order conservatives, during the Civil Rights era. It is time to break up.
The simple fact of the matter is the judicial ideology matters. No judge leaves his or her political worldview at the door when he or she steps onto the bench. And, despite a significant number of holdovers from more liberal administrations, the federal judiciary is now dominanted by one of the most deliberately conservative judiciaries in the nation, short of the Texas Court of Criminal Appeals.
Democrats have regained control of Congress, although progressives still don't have a strong enough hold on the U.S. Senate to reliably prevent conservatives from being appointed to the federal bench. Democrats have a real chance of tightening their hold in Congress and getting a Democratic President elected in 2008. But, because federal judges hold their offices for life, restoring balance to the federal judiciary will take far longer.
What should liberals do about it? They should dramatically reduce the importance of the federal court system where possible. How? It is really quite simple.
Shrinking the Federal Civil Docket
A dramatic reduction in the federal civil docket that still protects the important federal values for which liberals have long valued the federal courts could be accomplished in a single piece of legislation only a few pages long.
1. Repeal 28 U.S.C. Section 1331 (ordinary federal question jurisdiction).
2. Repeal 28 U.S.C. Section 1332 (ordinary diversity jurisdiction).
This would still allow many kinds of civil cases that have a separate jurisdictional basis to be brought in federal court. They include (with reference to the appropriate section of Title 28):
Cases involving governmental or quasi-governmental parties, or sovereignty derived rights:
actions against foreign states (1330)
Surface Transporation Board orders (1336)
postal matters (1339)
federal tax cases (1340)
civil rights and election cases (1343)
election disputes (1344)
United States plaintiff (1345)
United States defendant (1346)
United States party real estate cases (1347)
diplomatic cases (1351)
Indian rights (1353)
land grants from different states (1354)
federal fines and penalties (1355)
federal seizures other than admiralty (1356)
suits against persons collecting U.S. taxes and enforcing voting rights (1357)
eminent domain (1358)
federal mandamus (1361)
Indian tribe parties (1362)
federal juror's rights (1363)
direct actions against insurers of diplomats (1364)
Senate actions (1365)
unfair intentional trade counterclaims (1368)
Cases where often no state or no one state would have jurisdiction over the entire case:
admiralty cases (1333)
bankruptcy cases (1334)
interpleader (1335)
certain commerce and anti-trust cases (1337)
intellectual property cases (1338)
alien tort claims (1350)
federal bonds (1352)
national bank liquidations and receiverships (1348)
large interstate class actions (1369)
But, this change would still dramatically reduce the scope of federal civil litigation involving exclusive private parties, while preserving jurisdiction in cases where federalism interests or interests in national uniformity are important.
There are about 260,000 civil suits filed each year in federal district courts (exclusive of bankruptcy cases). About 44,000 are U.S. party cases, about 49,000 are civil rights and prisoner's petition cases, about 2,000 are admiralty cases and about 12,000 are intellectual property cases. So, these 107,000 or so cases would remain in federal court, as would a small portion of the remaining private party cases. But, something on the order of 150,000 cases involving private parties would end up in state court instead -- this would be a 57% reduction in federal civil litigation, although it would be an even greater reduction in practice, because many diversity cases are more time consuming than a good share of the cases like U.S. government collection cases and prisoner's petitions, which would remain in federal court.
A large share of the civil cases no longer in federal court would involve employment litigation, interstate contract disputes, and personal injury suits involving diversity of citizenship. This means that many federal laws involving employment law or consumer protection would end up in state court where often less conservative state court judges would interpret the laws, and where smaller, often urban, jury pools would provide juries in many cases. Opportunities for forum shopping would also decline.
Meanwhile, federal judges would still remain, via civil rights suits and prisoner's petitions, as a source of recourse for unconstitutional acts by local government officials and state criminal justice systems.
Shrinking The Federal Criminal Docket
Crafting legislation on the criminal side of the docket would be more involved, but the basic premise would be to remove from the books, or bar enforcement of in areas where state courts can assert jurisdiction, crimes involving non-federal parties that are duplicative of state laws, like most federal drug crimes implicating events occuring in a single state.
About 66,000 federal criminal cases are commenced each year. About 16,000 of them involve drug offenses which could in a large share of cases be tried under state law instead. About 11,000 involve frauds, thefts and robberies (the robberies are principally bank robberies) that likewise could be prosecuted under state laws. And, about 8,000 are for firearms offenses that could be prosecuted under state laws.
Some cases would have to remain in federal jurisdiction. About 16,000 cases involve immigration offenses that cannot, for federalism reasons, exist under state law. Several thousand more are brought in federal court because the arise on federal property or in Indian territory where state courts don't have jurisdiction (including about 3,000 traffic offenses). But, a reduction in federal criminal caseloads by 25%-50% by reducing the number of prosecution made where state courts could handle the cases, often to take advantage of federal law mandatory minimum sentences, is significant.
Indeed, pending legislation, a President could simply make it Department of Justice policy not to bring such cases. This would make problems with the federal criminal justice system like harsh sentencing guidelines, mandatory minimum sentences, and often conservative interpretations of federal criminal laws put in place by conservative federal judges, irrelevant. It would also give state district attorneys more power in the plea bargaining process, because their dispensations could not be undercut by federal U.S. attorneys.
Legality
Article III of the United States constitution allows many cases to be heard in federal courts, but does not require that this be done, at least so long as cases and controversies can be litigated elsewhere.
These changes would also be possible without a constitutionally amendment. For most of the nation's history, some federal question and diversity cases, usually those asserting smaller claims, could only be brought in state court. The precedents that allowed this then, would continue to make simple legislation sufficient to accomplish this end.
Also, Presidents have always prosecuted federal laws selectively. Indeed, a tamer version of the policy of not using federal criminal laws when state criminal laws will do, already exists.
Administrative Impact
The administrative burden on state courts would be relatively modest, as so small a share of all civil litigation is handled in the federal courts. For example, in Colorado, probably on the order of 5% or less of civil litigation, measured by judicial resources devoted to the cases, is decided in federal court. This would be on the order of have two years of ordinary caseload growth in a single year.
Also, it isn't as if federal judges would be left sitting on their hands. Right now the federal courts over overburdened. A major reduction in caseloads would take that pressure off, freeing judges to pay more attention to the cases that they have left, but would still leave federal judges with meaningful caseloads. Indeed, a reduced workload would be a cheap alternative to the prospect of a pay increase for judges, something that several successive Chief Justices of the U.S. Supreme Court have said is necessary. A U.S. District Judge's pay (the pay can't be reduced under the U.S. Constitution) would be a pretty sweet deal for a three-quarters time job, and a less demanding case load makes sense of a judiciary with a large share of judges who are often older and have already had long, high pressure careers in private or governmental service as attorneys.
The average non-senior federal judge is probably about 58-60 years old, not necessarily elderly, but not necessarily interesting in working crushing 70 hours weeks either.
Also, even after reaching age 65-70, when many federal judges "retire" (possible after 15 years of service at age 65 or 10 yers of service at age 70), they often remain "senior judges" on a part time basis for decades. This contingent work force could be trimmed back if the case load for active judges got too low without offending the constitution.
Conclusion
The combined effect would be greatly decreased influence for the conservative federal courts, which would often benefit employees and consumers. This change would do so without scaling back the substantive protections of federal laws to benefit these individuals, which would be enforced primarily in state courts. It would also do so without expressly results driven jurisdiction rules that have characterized many conservative jurisdiction stripping legislatie efforts; these changes would be facially neutral. The conservative U.S. Supreme Court could intervene somewhat by granting certiorari from state supreme courts in federal law cases, but there is a real limit on its capacity to handle the volume of cases that come up, as it decides only a few dozen cases a year.
The end result would be good for progressive values, and would likely secure support also from many conservatives who have an ideological commitment to a weaker federal government separate and apart from the policy implications of that stance.
Liberals still have a love affair with the federal courts, as they were pivotal in bringing about societal change, over the objections of Southern segregationists and law and order conservatives, during the Civil Rights era. It is time to break up.
The simple fact of the matter is the judicial ideology matters. No judge leaves his or her political worldview at the door when he or she steps onto the bench. And, despite a significant number of holdovers from more liberal administrations, the federal judiciary is now dominanted by one of the most deliberately conservative judiciaries in the nation, short of the Texas Court of Criminal Appeals.
Democrats have regained control of Congress, although progressives still don't have a strong enough hold on the U.S. Senate to reliably prevent conservatives from being appointed to the federal bench. Democrats have a real chance of tightening their hold in Congress and getting a Democratic President elected in 2008. But, because federal judges hold their offices for life, restoring balance to the federal judiciary will take far longer.
What should liberals do about it? They should dramatically reduce the importance of the federal court system where possible. How? It is really quite simple.
Shrinking the Federal Civil Docket
A dramatic reduction in the federal civil docket that still protects the important federal values for which liberals have long valued the federal courts could be accomplished in a single piece of legislation only a few pages long.
1. Repeal 28 U.S.C. Section 1331 (ordinary federal question jurisdiction).
2. Repeal 28 U.S.C. Section 1332 (ordinary diversity jurisdiction).
This would still allow many kinds of civil cases that have a separate jurisdictional basis to be brought in federal court. They include (with reference to the appropriate section of Title 28):
Cases involving governmental or quasi-governmental parties, or sovereignty derived rights:
actions against foreign states (1330)
Surface Transporation Board orders (1336)
postal matters (1339)
federal tax cases (1340)
civil rights and election cases (1343)
election disputes (1344)
United States plaintiff (1345)
United States defendant (1346)
United States party real estate cases (1347)
diplomatic cases (1351)
Indian rights (1353)
land grants from different states (1354)
federal fines and penalties (1355)
federal seizures other than admiralty (1356)
suits against persons collecting U.S. taxes and enforcing voting rights (1357)
eminent domain (1358)
federal mandamus (1361)
Indian tribe parties (1362)
federal juror's rights (1363)
direct actions against insurers of diplomats (1364)
Senate actions (1365)
unfair intentional trade counterclaims (1368)
Cases where often no state or no one state would have jurisdiction over the entire case:
admiralty cases (1333)
bankruptcy cases (1334)
interpleader (1335)
certain commerce and anti-trust cases (1337)
intellectual property cases (1338)
alien tort claims (1350)
federal bonds (1352)
national bank liquidations and receiverships (1348)
large interstate class actions (1369)
But, this change would still dramatically reduce the scope of federal civil litigation involving exclusive private parties, while preserving jurisdiction in cases where federalism interests or interests in national uniformity are important.
There are about 260,000 civil suits filed each year in federal district courts (exclusive of bankruptcy cases). About 44,000 are U.S. party cases, about 49,000 are civil rights and prisoner's petition cases, about 2,000 are admiralty cases and about 12,000 are intellectual property cases. So, these 107,000 or so cases would remain in federal court, as would a small portion of the remaining private party cases. But, something on the order of 150,000 cases involving private parties would end up in state court instead -- this would be a 57% reduction in federal civil litigation, although it would be an even greater reduction in practice, because many diversity cases are more time consuming than a good share of the cases like U.S. government collection cases and prisoner's petitions, which would remain in federal court.
A large share of the civil cases no longer in federal court would involve employment litigation, interstate contract disputes, and personal injury suits involving diversity of citizenship. This means that many federal laws involving employment law or consumer protection would end up in state court where often less conservative state court judges would interpret the laws, and where smaller, often urban, jury pools would provide juries in many cases. Opportunities for forum shopping would also decline.
Meanwhile, federal judges would still remain, via civil rights suits and prisoner's petitions, as a source of recourse for unconstitutional acts by local government officials and state criminal justice systems.
Shrinking The Federal Criminal Docket
Crafting legislation on the criminal side of the docket would be more involved, but the basic premise would be to remove from the books, or bar enforcement of in areas where state courts can assert jurisdiction, crimes involving non-federal parties that are duplicative of state laws, like most federal drug crimes implicating events occuring in a single state.
About 66,000 federal criminal cases are commenced each year. About 16,000 of them involve drug offenses which could in a large share of cases be tried under state law instead. About 11,000 involve frauds, thefts and robberies (the robberies are principally bank robberies) that likewise could be prosecuted under state laws. And, about 8,000 are for firearms offenses that could be prosecuted under state laws.
Some cases would have to remain in federal jurisdiction. About 16,000 cases involve immigration offenses that cannot, for federalism reasons, exist under state law. Several thousand more are brought in federal court because the arise on federal property or in Indian territory where state courts don't have jurisdiction (including about 3,000 traffic offenses). But, a reduction in federal criminal caseloads by 25%-50% by reducing the number of prosecution made where state courts could handle the cases, often to take advantage of federal law mandatory minimum sentences, is significant.
Indeed, pending legislation, a President could simply make it Department of Justice policy not to bring such cases. This would make problems with the federal criminal justice system like harsh sentencing guidelines, mandatory minimum sentences, and often conservative interpretations of federal criminal laws put in place by conservative federal judges, irrelevant. It would also give state district attorneys more power in the plea bargaining process, because their dispensations could not be undercut by federal U.S. attorneys.
Legality
Article III of the United States constitution allows many cases to be heard in federal courts, but does not require that this be done, at least so long as cases and controversies can be litigated elsewhere.
These changes would also be possible without a constitutionally amendment. For most of the nation's history, some federal question and diversity cases, usually those asserting smaller claims, could only be brought in state court. The precedents that allowed this then, would continue to make simple legislation sufficient to accomplish this end.
Also, Presidents have always prosecuted federal laws selectively. Indeed, a tamer version of the policy of not using federal criminal laws when state criminal laws will do, already exists.
Administrative Impact
The administrative burden on state courts would be relatively modest, as so small a share of all civil litigation is handled in the federal courts. For example, in Colorado, probably on the order of 5% or less of civil litigation, measured by judicial resources devoted to the cases, is decided in federal court. This would be on the order of have two years of ordinary caseload growth in a single year.
Also, it isn't as if federal judges would be left sitting on their hands. Right now the federal courts over overburdened. A major reduction in caseloads would take that pressure off, freeing judges to pay more attention to the cases that they have left, but would still leave federal judges with meaningful caseloads. Indeed, a reduced workload would be a cheap alternative to the prospect of a pay increase for judges, something that several successive Chief Justices of the U.S. Supreme Court have said is necessary. A U.S. District Judge's pay (the pay can't be reduced under the U.S. Constitution) would be a pretty sweet deal for a three-quarters time job, and a less demanding case load makes sense of a judiciary with a large share of judges who are often older and have already had long, high pressure careers in private or governmental service as attorneys.
The average age at time of judicial appointment is 52 years for circuit court judges and 50 years for district court judges. By that age, most individuals who have been tapped for the bench have spent 20 to 25 years building their careers.
The average non-senior federal judge is probably about 58-60 years old, not necessarily elderly, but not necessarily interesting in working crushing 70 hours weeks either.
Also, even after reaching age 65-70, when many federal judges "retire" (possible after 15 years of service at age 65 or 10 yers of service at age 70), they often remain "senior judges" on a part time basis for decades. This contingent work force could be trimmed back if the case load for active judges got too low without offending the constitution.
Conclusion
The combined effect would be greatly decreased influence for the conservative federal courts, which would often benefit employees and consumers. This change would do so without scaling back the substantive protections of federal laws to benefit these individuals, which would be enforced primarily in state courts. It would also do so without expressly results driven jurisdiction rules that have characterized many conservative jurisdiction stripping legislatie efforts; these changes would be facially neutral. The conservative U.S. Supreme Court could intervene somewhat by granting certiorari from state supreme courts in federal law cases, but there is a real limit on its capacity to handle the volume of cases that come up, as it decides only a few dozen cases a year.
The end result would be good for progressive values, and would likely secure support also from many conservatives who have an ideological commitment to a weaker federal government separate and apart from the policy implications of that stance.
Above Average
A newsletter from Shuster & Company, PC, a certified public accountant, informs me today that the average cumulative debt of a law school graduate is $80,754 (citing FinAid.org). I was, alas, above average in this regard. And, being above average isn't always a good thing. I can't say that it wasn't worth it, however.
Washington Park Race Riot
The West Washington Park Neighborhood Association's newsletter this time around bravely mentioned the summer of 1932 race riot in Washington Park. There will eventually be a link at the Association's site here. It was a matter of public record and published history, but not widely known (also little known is the fact that the neighborhood was briefly separately incorporated and did so largely to use zoning laws to shut down saloons on South Broadway). But, neighborhod associations often want to only focus on the bright side of the past.
The newsletter story (based on a book length history of Denver) notes that Japanese Americans were banned from the beach at Smith Lake in 1913, and that African Americans just weren't welcome.
Whites (allegedly communists, and judging by their names, some Hispanic) and blacks from North Denver staged a swim in during the summer of 1932. White beach users violently attacked them, and a park director by the name of Lowry was active in asking them to leave. I suspect that this is the same Lowry after whom the Denver neighborhood is named. This resulted in 17 arrests (7 whites, 10 blacks) with no sign of violence on the part of the protesters.
They were about 25 years too early to catch the wave of the Civil Rights movement, but deserve our gratitude none the less. Today, particularly on holidays like the 4th of July, Washington Park reflects Denver's diversity, although the beach is gone, replaced later by an indoor swimming pool.
The newsletter story (based on a book length history of Denver) notes that Japanese Americans were banned from the beach at Smith Lake in 1913, and that African Americans just weren't welcome.
Whites (allegedly communists, and judging by their names, some Hispanic) and blacks from North Denver staged a swim in during the summer of 1932. White beach users violently attacked them, and a park director by the name of Lowry was active in asking them to leave. I suspect that this is the same Lowry after whom the Denver neighborhood is named. This resulted in 17 arrests (7 whites, 10 blacks) with no sign of violence on the part of the protesters.
They were about 25 years too early to catch the wave of the Civil Rights movement, but deserve our gratitude none the less. Today, particularly on holidays like the 4th of July, Washington Park reflects Denver's diversity, although the beach is gone, replaced later by an indoor swimming pool.
04 July 2007
2300 posts
This is my 2300th post (by the archive's count). In addition, I've posted stories on a regular basis at Colorado Confidential where I've been on the staff since its inception, and I've posted Diaries at Daily Kos. There have also been a few posts at Wash Park Poet. There have been a few cross-posts, but overall, I'm sure that there have been, at least, 2400 original blog posts at all places I write combined in the past two years. The second anniversary was actually July 3.
I slowed down my contributions to both this blog and Colorado Confidential in 2007, but both are alive and well and remain active projects for now.
I'm not sure precisely what focus will emerge and shift over time. At Colorado Confidential, I've pretty much narrowed down to a legal affairs beat. This blog is also narrower, although still eclectic. Many good stories I simply haven't gotten around to doing properly, like the emerging issue of Granny Flat zoning (a good idea). Other shifts reflect changing interests. Tomorrow is a new year for this blog and we'll see where it takes us.
I slowed down my contributions to both this blog and Colorado Confidential in 2007, but both are alive and well and remain active projects for now.
I'm not sure precisely what focus will emerge and shift over time. At Colorado Confidential, I've pretty much narrowed down to a legal affairs beat. This blog is also narrower, although still eclectic. Many good stories I simply haven't gotten around to doing properly, like the emerging issue of Granny Flat zoning (a good idea). Other shifts reflect changing interests. Tomorrow is a new year for this blog and we'll see where it takes us.
Padilla Weirdness
The jury in Jose Padilla's criminal case is starting to act like the jury in Grisham's Runaway Jury.
Party in the Park
Washington Park is a place to be in Denver on the 4th of July. We didn’t do everything, omitting the ACLU’s Liberty Run, for example, but we did plenty.
The Washington Park East and Washington Park West neighborhood associations (along with a couple of other civic groups and area businesses) sponsored a brass quintet in the boathouse, a children’s bike parade and free ice cream and toys. Quintessential small town stuff not unlike what Oxford, Ohio, where I grew up, did this year, but in a big city.
The Denver Municipal Band’s performance in the park was also a treat. The band itself, which dates from 1891, is older than all but a couple of the pieces it performed, and was formed close in time to the time that Washington Park was laid out. I left the performance with two big impressions.
First, I was struck by Semper Fidelis, Sousa’s contributions to the Marines. It is so jolly. Here is a piece composed for people in the business of getting on ships and fighting foreign wars, but it makes it out as if life in the Marines was like a day at the circus.
The second striking point, not surprisingly military, because most brass band music has military connections (even Glen Miller’s “In the Mood” was an anthem played at military bases all through World War II), was when the band played its “Armed Forces Salute”, during which audience members who are veterans stood when the anthem for their service was played. Many stood, but the vast majority were in my father’s generation, where military service was nearly universal, not mine, where it is the exception, especially for the middle class.
We concluded the day by watching the Denver Country Club’s fire works, the second round we’d seen this year after those in Glendale, Colorado. Both rivaled the only game in town when I was growing up. Of course, then, the skies opened and we were soaked. In any other state, that would be a day ruining conclusion. Here, in arid Colorado, rain is almost as much of a spectacle as the fireworks.
The Washington Park East and Washington Park West neighborhood associations (along with a couple of other civic groups and area businesses) sponsored a brass quintet in the boathouse, a children’s bike parade and free ice cream and toys. Quintessential small town stuff not unlike what Oxford, Ohio, where I grew up, did this year, but in a big city.
The Denver Municipal Band’s performance in the park was also a treat. The band itself, which dates from 1891, is older than all but a couple of the pieces it performed, and was formed close in time to the time that Washington Park was laid out. I left the performance with two big impressions.
First, I was struck by Semper Fidelis, Sousa’s contributions to the Marines. It is so jolly. Here is a piece composed for people in the business of getting on ships and fighting foreign wars, but it makes it out as if life in the Marines was like a day at the circus.
The second striking point, not surprisingly military, because most brass band music has military connections (even Glen Miller’s “In the Mood” was an anthem played at military bases all through World War II), was when the band played its “Armed Forces Salute”, during which audience members who are veterans stood when the anthem for their service was played. Many stood, but the vast majority were in my father’s generation, where military service was nearly universal, not mine, where it is the exception, especially for the middle class.
We concluded the day by watching the Denver Country Club’s fire works, the second round we’d seen this year after those in Glendale, Colorado. Both rivaled the only game in town when I was growing up. Of course, then, the skies opened and we were soaked. In any other state, that would be a day ruining conclusion. Here, in arid Colorado, rain is almost as much of a spectacle as the fireworks.
Pick's Disease
Until today, when I learned that I lost a cousin to Pick's disease, I didn't know that it existed, even though it has been known to medical science for 115 years. What is it?
Like a most rare diseases and most diseases involving mental health, the causes of the disease are not well known, even though the mechanism is understood.
Pick's Disease is a progressively degenerative neurological disease similar to Alzheimer's Disease for which there is no known prevention, or cure. Pick's Disease affects the frontal and temporal lobes first, with earliest symptoms showing up as changes in personality and a decline in function at home as well as work. Pick's Disease is frequently first diagnosed as stress or depression and then as Alzheimer's disease. The treatment of Pick's disease is the same as for various stages of other dementias such as Alzheimer's. This accounts for so little information being available related specifically to the treatment of Pick's Disease. . . .
In contrast to Alzheimer's disease, in which early memory loss predominates, the first symptoms of Pick's disease are often personality change, and a decline in function at work and home. Personality change may take the form of apathy and indifference toward customary interests, or of disregard for social decorum and for the feelings of others. Poor social judgement, inappropriate sexual advances, or a coarse and jocular demeanor may be seen. Function declines because the patient simply does very little, or displays confusion and poor judgement. Patients may not be highly forgetful. Often times the patient performs well when directed to do something, but cannot undertake the very same thing independently. What is lost is the ability to initiate, organize, and follow through on even very simple plans and familiar activities.
As the illness advances, difficulties with language become common. Patients become unusually quiet, and when they do speak it may be slowly, in brief sentences. They may labor to make the sounds of words and their speech may sound distorted. Some become extremely apathetic -- they may sit for hours doing nothing at all unless prompted to do so by another, while others become extraordinarily restless, and may pace unceasingly. Some patients are hypersexual, and some, like a small child, may place anything they pick up in their mouths. Gluttonous eating occurs in some cases. Attention span is poor; patients seem to be distracted instantly by anything that they hear or see. Later in the disease, patients usually become mute. Restlessness gives way to profound apathy and the patient may not respond at all to the surrounding world. Eventually, they enter a terminal vegetative state.
Pick's disease usually begins after age 40 and is less common after age 60. It is a disease that invariably worsens. The average course is about 5 years, but it ranges from 2-15 years. It is rare, accounting for between 1% and 5% of dementia.
Like a most rare diseases and most diseases involving mental health, the causes of the disease are not well known, even though the mechanism is understood.
Taxation Without Representation
When we declared independence one of the big issues was "imposing Taxes on us without our Consent", yet we are no better to the residents of the District of Columbia now. (Puerto Rico has a deal that largely frees it of federal taxation).
We also tax the young, non-citizens, and others with no say in their taxation.
We also tax the young, non-citizens, and others with no say in their taxation.
More Bad News For Motown
June car sales numbers are in. The news is strong growth for Toyota (more than 10%), Honda (more than 11%) and Nissan (more than 22%), while declines for General Motors (more than 21%), Ford (more than 8%), and Chrysler (a little more than 1%). Even in core American car sales areas like pickup trucks, Toyota is surging, while American cars are in trouble. The American automobile industry is in a tailspin and management at the Big 3 seems powerless to do anything about it.
Don't blame disloyal consumers. For all the discounting that American automobile companies are doing their products are still inferior. End of story. Full stop. Build better cars and market share will rush back. But, they can't seem to do it.
Don't blame disloyal consumers. For all the discounting that American automobile companies are doing their products are still inferior. End of story. Full stop. Build better cars and market share will rush back. But, they can't seem to do it.
Independence Day
The 4th of July has arrived once again. It is the premier patriotic holiday. Our flag is flying, as concerned as we are that the nation is headed in the wrong direction.
Tomorrow is the second anniversary of this blog. After two years, I will have made almost 2300 posts, many of them, not so short.
Have a good BBQ and a beer, enjoy the fireworks, relax, and appreciate how lucky we are to be in a country that mostly works and has for a long time.
Tomorrow is the second anniversary of this blog. After two years, I will have made almost 2300 posts, many of them, not so short.
Have a good BBQ and a beer, enjoy the fireworks, relax, and appreciate how lucky we are to be in a country that mostly works and has for a long time.
Purging The Junk
Life gets busy. Stuff collects. And, in a neighborhood where real estate is worth $300 a square foot, simply letting junk eat up your floor space isn't an ideal proposition either. So, from time to time, one has to purge the junk. In the past couple of weeks, faced with an accumulation so great we needed the help of a family friend to pierce through it, we've dug out and done it.
The collected donation bags are enough to fill our car. Our contribution to the dumpster has been comparable. Out go the infant bath toys and less popular infant level books that our elementary school children no longer play with (my eldest is now reading Charlotte's Web). Out go the clothes that no longer fit -- like my 13 year old tuxedo, which I'd have to lose a fifth of my body weight to wear again. Winter clothes have been banished to storage for the season. Books we rarely read have been reassigned to my study from bedrooms and living rooms. I finally admitted to myself that I was never going to use the dated 100 volume legal encyclopedia neatly arranged on shelves on my garage and rid myself of them. The children conceded some of their broken outdoor toys. A broken DVD player became fodder for young inventors at camp. We finally decided that our entry rug was no longer capable of being cleaned adequately. The many years of maintenance receipts that once filled my glove compartment have been relocated to a file in a file cabinet in my study. The emerging jungle of weeds in the backyard has been eradicated once again,
We've not only thrown out junk, but also looked at the patterns in our lives that have caused it to accumulate. As children get older, we need to be conscious of what no longer matters to them, as well as what they need now. We haven't set aside enough time for slightly bigger household projects. We don't have a regular process to evaluate which of our kitchen implements, clothes, books, toys and other possessions we still need. We don't have places for everything. We don't have agreed legitimate locations to do certain activities. We don't even have a settled place to charge our cell phones. We aren't always aware of what we already have in storage when we buy new things.
The process is not over. Is it ever? The more substantial infant items, a crib, strollers, a high chair, need to be sold. It will probably take me several more serious rounds of effort before I can muster the gumption to dispose of the better share of my dozens of bankers boxes and file drawers full of marginal files that I probably no longer need to keep -- my more interesting law school class notes, out of date financial records, and boxes of newspaper clippings that would have made good blog posts had the medium been invented then. Even some of my collected books can probably be culled for the collective good of a library sale. I loved reading the full set of Kate Elliot's seven volume fantasy series in hard back (and needed to the books to refer back to while I was reading it); but I honestly can't claim that I will ever read that saga again.
But, if you meaningfully participate in the process of removing the unnecessary things from your life, it is cleansing. There is more room and less clutter at home and in the car. A random grab into a dresser drawer is now more likely to produce something appropriate to wear that actually fits. Rearranged furniture has provided us with fresh perspectives, and a reassignment of the children's places to sit at the dining room table has made a dent in dinner time fighting.
More deeply, junk purging has focused our attention on how we parent. Must we concede the entire house to the children as a fragile free zone, or can we meaningfully expect them to refrain from engaging in activities that are prone to breaking things now? Is the cost of imposing the rule worth the benefits of forcing the children to put away one project before they start another? Can we expect our children to be good at cleaning up until we establish a place for them to put each item? How are we going to establish better routines to get homework done next year, when there is more of it, than we did last year? Where can we keep library books, so that we won't lose them? If we want them to keep food out of their bedrooms, do we need to make appropriate snacks easier for them to get at in the kitchen themselves, or harder?
Spring is a lousy time for spring cleaning. Everyone is busy. Parties abound. Uncertain weather makes it hard to put clothes in storage. It is too nice outside to waste the day indoors straightening up and cleaning. And, school projects which will soon come to an end have to remain front and center.
In modern Colorado, the time for spring cleaning is the summer. The winter clothes are definitely out of season. Parties grow infrequent as vacationers make them hard to schedule. The children have time on their hands, and even the pace at the office seems to slow. Last year's school things can be put away. On the hot, languid days, nothing is a rush, so there is time to contemplate arrangements that will work. Casual summer clothing is perfect for cleaning in. And, the swamp cooler keeps indoors a more attractive place than outdoors. The start of the year is an arbitrary thing which different cultures have assigned to different times. Once, in the West, it began in the spring. Now, we follow commercial culture and start after the Christmas rush in January. But, for my druthers, the Jewish calendar, which starts the year in the early autumn, almost in tune with the academic calendar, has it right.
The collected donation bags are enough to fill our car. Our contribution to the dumpster has been comparable. Out go the infant bath toys and less popular infant level books that our elementary school children no longer play with (my eldest is now reading Charlotte's Web). Out go the clothes that no longer fit -- like my 13 year old tuxedo, which I'd have to lose a fifth of my body weight to wear again. Winter clothes have been banished to storage for the season. Books we rarely read have been reassigned to my study from bedrooms and living rooms. I finally admitted to myself that I was never going to use the dated 100 volume legal encyclopedia neatly arranged on shelves on my garage and rid myself of them. The children conceded some of their broken outdoor toys. A broken DVD player became fodder for young inventors at camp. We finally decided that our entry rug was no longer capable of being cleaned adequately. The many years of maintenance receipts that once filled my glove compartment have been relocated to a file in a file cabinet in my study. The emerging jungle of weeds in the backyard has been eradicated once again,
We've not only thrown out junk, but also looked at the patterns in our lives that have caused it to accumulate. As children get older, we need to be conscious of what no longer matters to them, as well as what they need now. We haven't set aside enough time for slightly bigger household projects. We don't have a regular process to evaluate which of our kitchen implements, clothes, books, toys and other possessions we still need. We don't have places for everything. We don't have agreed legitimate locations to do certain activities. We don't even have a settled place to charge our cell phones. We aren't always aware of what we already have in storage when we buy new things.
The process is not over. Is it ever? The more substantial infant items, a crib, strollers, a high chair, need to be sold. It will probably take me several more serious rounds of effort before I can muster the gumption to dispose of the better share of my dozens of bankers boxes and file drawers full of marginal files that I probably no longer need to keep -- my more interesting law school class notes, out of date financial records, and boxes of newspaper clippings that would have made good blog posts had the medium been invented then. Even some of my collected books can probably be culled for the collective good of a library sale. I loved reading the full set of Kate Elliot's seven volume fantasy series in hard back (and needed to the books to refer back to while I was reading it); but I honestly can't claim that I will ever read that saga again.
But, if you meaningfully participate in the process of removing the unnecessary things from your life, it is cleansing. There is more room and less clutter at home and in the car. A random grab into a dresser drawer is now more likely to produce something appropriate to wear that actually fits. Rearranged furniture has provided us with fresh perspectives, and a reassignment of the children's places to sit at the dining room table has made a dent in dinner time fighting.
More deeply, junk purging has focused our attention on how we parent. Must we concede the entire house to the children as a fragile free zone, or can we meaningfully expect them to refrain from engaging in activities that are prone to breaking things now? Is the cost of imposing the rule worth the benefits of forcing the children to put away one project before they start another? Can we expect our children to be good at cleaning up until we establish a place for them to put each item? How are we going to establish better routines to get homework done next year, when there is more of it, than we did last year? Where can we keep library books, so that we won't lose them? If we want them to keep food out of their bedrooms, do we need to make appropriate snacks easier for them to get at in the kitchen themselves, or harder?
Spring is a lousy time for spring cleaning. Everyone is busy. Parties abound. Uncertain weather makes it hard to put clothes in storage. It is too nice outside to waste the day indoors straightening up and cleaning. And, school projects which will soon come to an end have to remain front and center.
In modern Colorado, the time for spring cleaning is the summer. The winter clothes are definitely out of season. Parties grow infrequent as vacationers make them hard to schedule. The children have time on their hands, and even the pace at the office seems to slow. Last year's school things can be put away. On the hot, languid days, nothing is a rush, so there is time to contemplate arrangements that will work. Casual summer clothing is perfect for cleaning in. And, the swamp cooler keeps indoors a more attractive place than outdoors. The start of the year is an arbitrary thing which different cultures have assigned to different times. Once, in the West, it began in the spring. Now, we follow commercial culture and start after the Christmas rush in January. But, for my druthers, the Jewish calendar, which starts the year in the early autumn, almost in tune with the academic calendar, has it right.
03 July 2007
Tax Collection Due Process Illusory
In theory, there has been a right to "Collection Due Process" when the IRS collects taxes since 2000. In reality, out of 15,000,000 collections and about 3,000 contested cases, only 16 taxpayers have prevailed. The analysis also makes a deeper point:
Some commentators contend there can be no proper “rule of law” without adversarial process. This study proves the opposite claim: adversarial process, used in the wrong place and the wrong time, becomes a rule of deception rather than a rule of law.
Murphy Reversed On Rehearing
A panel of judges in the U.S. Court of Appeals for the D.C. Circuit unanimously reversed their prior holding in the Murphy case that a provision of the United States Tax Code was unconstitutional. If they had not done so, the door would have been open to all sorts of cranky tax protester arguments.
Eighteen months
There are about eighteen months until the winners of the 2008 election take office.
Safe Bets On Who Will Win in 2008?
We don't know who they will be, but we can say with considerable certainty that they will be neither George W. Bush, nor Dick Cheney. We can also say that it is almost certain that the President will be either the Democratic party nominee, or the Republican party nominee.
We can say with almost as much certainty that winner will be someone who has either announced that they are a candidate at this point in time, or has been seriously discussed as a candidate in the press, as it is about six months before the primary/caucus process starts. The next President is highly likely to be one of fewer than twenty people currently seriously in the running, and the short list contains fewer than a dozen people. A serious third party spoiler candidate could still enter the running at this point, but it is too late in my opinion for a viable third party candidate to emerge and win the race.
It is too early, however, in my opinion, to rule out second tier candidates. Presidential candidate prospects often change dramatically between the December 31, before an election, and March 1 of an election year. Those two months can change everything and have done so in the past. But, by March 1, 2008, the number of viable Presidential candidates will have probably dwindled to 1-3 per major political party, and 2-6 overall. By the time that the parties hold their national conventions (the Democrats will be holding theirs in Denver this time around), it is very likely that the nominee in each party will be a foregone conclusion, and extremely unlikely that more than one party would need to have a brokered convention.
We can also say, with considerable certainty, that at least 90% of incumbent House of Representatives candidates will be back (probably a far higher percentage), and that there are going to be no more than a few dozen open seats in the 435 member House of Representatives. Likewise, we can say, with certainty, that two-thirds of U.S. Senators will not be facing re-election, and that probably less than half of the of those races will be open or displace an incumbent Senator (probably a far lower percentage). It is possible right now to identify the 50 or so federal legislative races that will matter in 2008 with a high degree of accuracy, although handicapping those races is a harder task.
Finally, we can safely guess that over the next 18 months, fewer than 10% of the outstanding District Court and Court of Appeals judgeships will be filled with new judge (simply because vacancies are rare), that on the U.S. Supreme Court that it is highly unlikely that there will be more than one or two vacancies, and that both the U.S. Supreme Court and the federal courts generally, are unlikely to move meaningfully to the left on the political spectrum in the next eighteen months.
Political party control of the Presidency and Vice Presidency, of the U.S. House of Representatives, and of the U.S. Senate are still up for grabs, although only the Democratic party and the Republican party need apply in each case. Furthermore, neither major political party has any realistic chance of securing a veto proof majority, and even a filibuster proof majority in the U.S. Senate would be a serious stretch for either party.
A win at the Presidential level tends to have coattails for the winner in House and Senate elections. Right now, national polls are as favorable to Democrats as they have been for a long time, and nothing on the horizon suggests that a dramatic redemption of the President in the public eye is in the offing before November 2008. But, eighteen months from now, it is hard to tell how much the President's phenomenally low popularity will taint other members of his party, or if it will have any impact at all. All politics is local.
Right now, it looks like it is more likely than not that the Democrats will hold the Presidency, the Senate and the House at the federal level after the 2008 elections. But, it is hard to make a prediction much more definitive, until we get closer to the fateful day.
For example, while we can safely predict that Mark Udall's successor in Congressional District 2 will be one of a handful of Democratic party candidates who have announced, and while we can safely guess that Mark Udall will be the Democratic Party nominee for U.S. Senate in 2008, the Republican nominee for the nationally important U.S. Senate race in Colorado in 2008 is still anybody's guess, although there are some front runners, and it is hard to handicap a general election race for U.S. Senate in Colorado until we know who the candidates will be.
The Political Scene Until 2008
Until the next election it is highly likely that George W. Bush will continue to be President, that Dick Cheney will continue to be Vice President, that Democrats will continue to hold majorities in the U.S. Senate and U.S. House of Representatives, and that those majorities will be neither veto-proof nor filibuster proof.
Barring a political tsunami driven by some remarkable political crisis, the United States Constitution will not be amended in the next eighteen months, and even if it was, any amendment would be unlikely to overwhelmingly change the political scene. Congress is too evenly divided right now for bold constitutional change.
Pre-2008 Contingencies
An assassination (to be clear, I am not advocating such a thing, only considering what is possible), of either Bush or Cheney, individually, would probably alter the political course of the nation only slightly, and this country has never lost a President and a Vice President in a single incident. Cheney is more conservative than the President, and the President almost always follows the Vice President's advice on matters of importance.
While impeachment is inching towards the realm of the possible with outrages like the commutation of the sentence of Scooter Libby and the ongoing debacle that its the war in Iraq, it would take another grade A scandal or two to make it happen, because there aren't enough Republican votes in the Senate to do so now, and the process would take months. Every month that passes reduces the practical utility of the impeachment process, because the next election is getting closer and closer. Moreover, to make a political difference, an unprecedented double impeachment of both the President and Vice President would be required. If this process was completed in the next twelve months and produced an impeachment conviction, I would be very surprised.
Of course, some people of both political parties like very much to see a watershed event that changes everything, like the 9-11 attack or the Watergate scandal. Investigations are in place to try to make that happen, and every news cycle leaves open the possibility of shocking news that impacts the general public. But, the likelihood of that kind of event happening in the next eighteen months is modest; hardly zero, but low. Who benefits in a situation like that is also often hard to predict. Even a major disaster and scandal, like the mismanagement of Hurricane Katrina that has in the end analysis cut the population of New Orleans in half or a major scandal like Abu Grahib, can have relatively modest discernable political effects.
For example, no one can safely predict the political consequences eighteen months from now, of an attack on Iran or an Iranian attack on U.S. interests. Subtle details in these events and the responses taken to them will matter, if they occur.
Tactical Options, In General
Politics is the art of the possible, and these are the boundaries of what is possible, not legally, but practically.
The question that matters is what these constraints mean as a matter of policy options and political tactics. What can be changed in the next eighteen months, and what makes sense to do or try to do in preparation for the next election?
For Democrats, this means that there are basically two kinds of bills that make sense to push (1) those with wide Democratic party support, tolerated by moderate Senate Republicans and not likely to face a Presidential veto (ideally, favored by most viable Democratic Presidential candidates and opposed by the most viable Republican Presidential candidates), and (2) those with wide Democratic party support and wide public support that Republicans in close races will suffer at the ballot box for opposing.
Also, as discussed above, Democrats can help break the next scandal, for example, by forcing a showdown over subpeonas served on the White House, but these only help if managed well in the court of public opinion.
Policy Pressure Points
Some issues are ripe for action, if it is possible, in the next eighteen months.
Iraq
We aren't going to win the Iraq War. The only question is whether we will begin to withdraw in the next eighteen months, if so why, and if not, how long it will take the next President to decide to withdraw. Any Democrat elected to be President will withdraw promptly, and so will some, but not all, of the Republican candidates. Pro-war candidates like McCain will be at a disadvantage in 2008 if we are still at war in Iraq then. Democrats will have to decide if they should force the issue, by withholding funding, or not.
War On Terrorism
If a Democrat is elected President, most of the Bush Administration war on terrorism abuses will end. Some of the Republican candidates would act likewise, others will try to continue the status quo. The possibility that the Guantanamo Bay military prison will be closed, and that NSA wiretapping will be restrained, is real. Extraordinary rendition, secret foreign CIA prisons, and prisoner abuse could also hit the spotlight and result in action to change the current approach. Outright repeal of the Military Commissions Act of 2006, however, seems a dim political prospect due to veto threats and filibusters, unless the U.S. Supreme Court strikes it down.
Immigration
Ken Salazar's compromise on immigration, which echos the President, has crashed and burned. It didn't make enough xenophobe Republicans happy, and wasn't that popular with Democrats anyway. I suspect that this marks the death of the tighter borders in exchange for more guest workers and mass legalization formula for the next year and a half.
The President is more liberal on immigration than almost any other issue, so a veto isn't a worry here as it is in so many other policy areas. I suspect that a compromise could be reached, however.
I could see a compromise offering xenophobe Republicans a similar border security compromise to the current bill. But, I think that a massive guest worker program would have to be left out, as it is hated by both liberal Democrats and xenophobe Republicans, although for different reasons. Democrats don't want to create more second class workers, Republicans think that the guests won't go home. I also think that a nearly universal program to legalize the status of existing illegal aliens is a poison pill until the next election, although some hard case situations, like illegal immigrant children who went on to graduate from U.S. high schools or very long term illegal immigrants with solid jobs and ties to the community might pass muster, if it impacted only say 5-15% of illegal aliens. But, I think that there is still considerable room to simply increase liberal immigration quotas on a longer term basis in existing categories, to increase funding of the passport and visa processing bureacracies, and to fix the asylum appeals process. I also think that there might be considerable room to allow H1-B visa holders greater flexiblity to unite their families and convert their visas to permanent resident visas.
Democrats have already forced Republicans to vote down real immigration reform, albeit a compromise. Now, the question is whether they should push a more moderate reform bill so that they can accomplish something positive, or deny Republicans a bipartisan achievement to campaign upon.
Taxes
Many of the Bush tax cuts came with expiration dates.
One of the most pressing are the estate tax, which will be abolished for a year under current law, and then come back with a vengance to have a far greater bite than it does today the next year. The obvious solution would be to lock in the 2007 or 2008 status quo permanently. This would probably still revenue score as a tax cut, but would curtail a long sought after Republican priority to abolish the estate tax.
Another is the alternative minimum tax, which will impact a huge swath of middle class taxpayers if it is not reformed, Congress has passed only a short term extension.
The political climate is not friendly to big business tax breaks, especially for oil and gas, for hedge funds and for international businesses, right now. Democrats are united in wanting to shift the tax burden from earned income to investment income. The grass roots pressure for income tax cuts is low, but will balloon if the AMT has a mass impact. Deficit hawks are seeing their clout wax.
Also, isolated, revenue neutral tax simplification efforts are still in the realm of possibility. Simplified taxation of social security benefits, and simplified earned income tax credit calculations might be particularly attractive as each is the cause of a great many audits that generate little revenue, but aggravate working and middle class voters.
President Bush is almost certain to veto any naked tax increase. But, he has shown some tolerance for accepting bills that contain a mix of revenue cutting and revenue enhancing provisions. The President might be forced to compromise in order to save at least some of his signature tax legislature from expiration.
Crime and Punishment
The Second Chance Act is surging forward with bipartisan support. Some progress on the crack-powder differential in cocaine sentences is being made now. Wider opposition to mandatory minimum sentences is securing a growing consensus, even from moderate conservatives; the President has even commuted a few. Anti-terrorism fervor is drowning out a long since discredited drug war. Many states, some conservative, have established sentencing commissions to reduce incarceration costs. Most Democrats are widely receptive to some moderation of harsh federal criminal sentences. The U.S. Supreme Court action partially invalidating the Sentencing Guidelines and the Scooter Libby pardon have opened up the debate on sentencing.
I don't believe that the political will exists for a wholesale end to the war on drugs, or an across the board liberalization of criminal sentencing. But, I do think that there is room for significant incremental movement to mitigate the most harsh sentences in the federal criminal code, particularly for non-violent offenders. It is hard to attack a reduction in mandatory minimum sentences, if the discretion to impose harsh sentences in particularly egregious cases remains.
One particularly interesting compromise proposal might be to overhaul the sentencing guidelines to formally give judges wide discretion to deviate upforwards from guideline sentences (so called "topless guidelines") in exchange for an end to statutory mandatory minimums, so that judges would be allowed to depart downwards from guideline sentences in many cases where they cannot now, but would have to justify that departure as they must now under the sentencing guidelines.
A bill to improve screening of gun buyers for mental health issues also seems likely to progress.
Defense Funding
As the wars in Iraq and Afghanistan require vast amounts of federal funds, Congress may be able to secure reductions in non-war related defense spending, like the missle defense program and various big ticket naval and air force spending items, to help finance those wars. Appropriations bills visibly pitting low priority programs against higher priorities are particularly attractive. For example, a bill to replace funding for one new submarine with funding for a large quantity of foreign language instruction for Army and Marine troops might play well.
Health Care
Broad federal reform of health care is going to be nearly impossible until, at least, the next election. There are some avenues open for positive change, however. Limitations on state level action could be lifted. Bans on importation of foreign drugs could be relaxed. Medicaid reimburement formula problems could be corrected. The federal mandate to provide emergency medical care could be funded. Rules to strengthen the medical billing process and transparency of prices for medical services could be adopted. ERISA pre-emption of health care bills of rights could be relaxed. Bird flu type public health infrastructure could be improved.
Stem cell research funding is the signature Democratic bill to force Republicans to take an unpopular stance.
Education
Bush would veto a wholesale repeal of the No Child Left Behind Act, but a bill to soften unrealistic targets and attach a grab bag of smaller sensible reforms might pass.
Civil Rights
A tweak of statutes dealing with employment discrimination, discrimination against the disabled, whistleblower protection, and habeas corpus procedural deadlines to address some recent stingy technical interpretations of existing laws by the U.S. Supreme Court is within the realm of the possible. Affirmative action is on the defensive and is unlikely to make progress in Congress this session.
Safe Bets On Who Will Win in 2008?
We don't know who they will be, but we can say with considerable certainty that they will be neither George W. Bush, nor Dick Cheney. We can also say that it is almost certain that the President will be either the Democratic party nominee, or the Republican party nominee.
We can say with almost as much certainty that winner will be someone who has either announced that they are a candidate at this point in time, or has been seriously discussed as a candidate in the press, as it is about six months before the primary/caucus process starts. The next President is highly likely to be one of fewer than twenty people currently seriously in the running, and the short list contains fewer than a dozen people. A serious third party spoiler candidate could still enter the running at this point, but it is too late in my opinion for a viable third party candidate to emerge and win the race.
It is too early, however, in my opinion, to rule out second tier candidates. Presidential candidate prospects often change dramatically between the December 31, before an election, and March 1 of an election year. Those two months can change everything and have done so in the past. But, by March 1, 2008, the number of viable Presidential candidates will have probably dwindled to 1-3 per major political party, and 2-6 overall. By the time that the parties hold their national conventions (the Democrats will be holding theirs in Denver this time around), it is very likely that the nominee in each party will be a foregone conclusion, and extremely unlikely that more than one party would need to have a brokered convention.
We can also say, with considerable certainty, that at least 90% of incumbent House of Representatives candidates will be back (probably a far higher percentage), and that there are going to be no more than a few dozen open seats in the 435 member House of Representatives. Likewise, we can say, with certainty, that two-thirds of U.S. Senators will not be facing re-election, and that probably less than half of the of those races will be open or displace an incumbent Senator (probably a far lower percentage). It is possible right now to identify the 50 or so federal legislative races that will matter in 2008 with a high degree of accuracy, although handicapping those races is a harder task.
Finally, we can safely guess that over the next 18 months, fewer than 10% of the outstanding District Court and Court of Appeals judgeships will be filled with new judge (simply because vacancies are rare), that on the U.S. Supreme Court that it is highly unlikely that there will be more than one or two vacancies, and that both the U.S. Supreme Court and the federal courts generally, are unlikely to move meaningfully to the left on the political spectrum in the next eighteen months.
Political party control of the Presidency and Vice Presidency, of the U.S. House of Representatives, and of the U.S. Senate are still up for grabs, although only the Democratic party and the Republican party need apply in each case. Furthermore, neither major political party has any realistic chance of securing a veto proof majority, and even a filibuster proof majority in the U.S. Senate would be a serious stretch for either party.
A win at the Presidential level tends to have coattails for the winner in House and Senate elections. Right now, national polls are as favorable to Democrats as they have been for a long time, and nothing on the horizon suggests that a dramatic redemption of the President in the public eye is in the offing before November 2008. But, eighteen months from now, it is hard to tell how much the President's phenomenally low popularity will taint other members of his party, or if it will have any impact at all. All politics is local.
Right now, it looks like it is more likely than not that the Democrats will hold the Presidency, the Senate and the House at the federal level after the 2008 elections. But, it is hard to make a prediction much more definitive, until we get closer to the fateful day.
For example, while we can safely predict that Mark Udall's successor in Congressional District 2 will be one of a handful of Democratic party candidates who have announced, and while we can safely guess that Mark Udall will be the Democratic Party nominee for U.S. Senate in 2008, the Republican nominee for the nationally important U.S. Senate race in Colorado in 2008 is still anybody's guess, although there are some front runners, and it is hard to handicap a general election race for U.S. Senate in Colorado until we know who the candidates will be.
The Political Scene Until 2008
Until the next election it is highly likely that George W. Bush will continue to be President, that Dick Cheney will continue to be Vice President, that Democrats will continue to hold majorities in the U.S. Senate and U.S. House of Representatives, and that those majorities will be neither veto-proof nor filibuster proof.
Barring a political tsunami driven by some remarkable political crisis, the United States Constitution will not be amended in the next eighteen months, and even if it was, any amendment would be unlikely to overwhelmingly change the political scene. Congress is too evenly divided right now for bold constitutional change.
Pre-2008 Contingencies
An assassination (to be clear, I am not advocating such a thing, only considering what is possible), of either Bush or Cheney, individually, would probably alter the political course of the nation only slightly, and this country has never lost a President and a Vice President in a single incident. Cheney is more conservative than the President, and the President almost always follows the Vice President's advice on matters of importance.
While impeachment is inching towards the realm of the possible with outrages like the commutation of the sentence of Scooter Libby and the ongoing debacle that its the war in Iraq, it would take another grade A scandal or two to make it happen, because there aren't enough Republican votes in the Senate to do so now, and the process would take months. Every month that passes reduces the practical utility of the impeachment process, because the next election is getting closer and closer. Moreover, to make a political difference, an unprecedented double impeachment of both the President and Vice President would be required. If this process was completed in the next twelve months and produced an impeachment conviction, I would be very surprised.
Of course, some people of both political parties like very much to see a watershed event that changes everything, like the 9-11 attack or the Watergate scandal. Investigations are in place to try to make that happen, and every news cycle leaves open the possibility of shocking news that impacts the general public. But, the likelihood of that kind of event happening in the next eighteen months is modest; hardly zero, but low. Who benefits in a situation like that is also often hard to predict. Even a major disaster and scandal, like the mismanagement of Hurricane Katrina that has in the end analysis cut the population of New Orleans in half or a major scandal like Abu Grahib, can have relatively modest discernable political effects.
For example, no one can safely predict the political consequences eighteen months from now, of an attack on Iran or an Iranian attack on U.S. interests. Subtle details in these events and the responses taken to them will matter, if they occur.
Tactical Options, In General
Politics is the art of the possible, and these are the boundaries of what is possible, not legally, but practically.
The question that matters is what these constraints mean as a matter of policy options and political tactics. What can be changed in the next eighteen months, and what makes sense to do or try to do in preparation for the next election?
For Democrats, this means that there are basically two kinds of bills that make sense to push (1) those with wide Democratic party support, tolerated by moderate Senate Republicans and not likely to face a Presidential veto (ideally, favored by most viable Democratic Presidential candidates and opposed by the most viable Republican Presidential candidates), and (2) those with wide Democratic party support and wide public support that Republicans in close races will suffer at the ballot box for opposing.
Also, as discussed above, Democrats can help break the next scandal, for example, by forcing a showdown over subpeonas served on the White House, but these only help if managed well in the court of public opinion.
Policy Pressure Points
Some issues are ripe for action, if it is possible, in the next eighteen months.
Iraq
We aren't going to win the Iraq War. The only question is whether we will begin to withdraw in the next eighteen months, if so why, and if not, how long it will take the next President to decide to withdraw. Any Democrat elected to be President will withdraw promptly, and so will some, but not all, of the Republican candidates. Pro-war candidates like McCain will be at a disadvantage in 2008 if we are still at war in Iraq then. Democrats will have to decide if they should force the issue, by withholding funding, or not.
War On Terrorism
If a Democrat is elected President, most of the Bush Administration war on terrorism abuses will end. Some of the Republican candidates would act likewise, others will try to continue the status quo. The possibility that the Guantanamo Bay military prison will be closed, and that NSA wiretapping will be restrained, is real. Extraordinary rendition, secret foreign CIA prisons, and prisoner abuse could also hit the spotlight and result in action to change the current approach. Outright repeal of the Military Commissions Act of 2006, however, seems a dim political prospect due to veto threats and filibusters, unless the U.S. Supreme Court strikes it down.
Immigration
Ken Salazar's compromise on immigration, which echos the President, has crashed and burned. It didn't make enough xenophobe Republicans happy, and wasn't that popular with Democrats anyway. I suspect that this marks the death of the tighter borders in exchange for more guest workers and mass legalization formula for the next year and a half.
The President is more liberal on immigration than almost any other issue, so a veto isn't a worry here as it is in so many other policy areas. I suspect that a compromise could be reached, however.
I could see a compromise offering xenophobe Republicans a similar border security compromise to the current bill. But, I think that a massive guest worker program would have to be left out, as it is hated by both liberal Democrats and xenophobe Republicans, although for different reasons. Democrats don't want to create more second class workers, Republicans think that the guests won't go home. I also think that a nearly universal program to legalize the status of existing illegal aliens is a poison pill until the next election, although some hard case situations, like illegal immigrant children who went on to graduate from U.S. high schools or very long term illegal immigrants with solid jobs and ties to the community might pass muster, if it impacted only say 5-15% of illegal aliens. But, I think that there is still considerable room to simply increase liberal immigration quotas on a longer term basis in existing categories, to increase funding of the passport and visa processing bureacracies, and to fix the asylum appeals process. I also think that there might be considerable room to allow H1-B visa holders greater flexiblity to unite their families and convert their visas to permanent resident visas.
Democrats have already forced Republicans to vote down real immigration reform, albeit a compromise. Now, the question is whether they should push a more moderate reform bill so that they can accomplish something positive, or deny Republicans a bipartisan achievement to campaign upon.
Taxes
Many of the Bush tax cuts came with expiration dates.
One of the most pressing are the estate tax, which will be abolished for a year under current law, and then come back with a vengance to have a far greater bite than it does today the next year. The obvious solution would be to lock in the 2007 or 2008 status quo permanently. This would probably still revenue score as a tax cut, but would curtail a long sought after Republican priority to abolish the estate tax.
Another is the alternative minimum tax, which will impact a huge swath of middle class taxpayers if it is not reformed, Congress has passed only a short term extension.
The political climate is not friendly to big business tax breaks, especially for oil and gas, for hedge funds and for international businesses, right now. Democrats are united in wanting to shift the tax burden from earned income to investment income. The grass roots pressure for income tax cuts is low, but will balloon if the AMT has a mass impact. Deficit hawks are seeing their clout wax.
Also, isolated, revenue neutral tax simplification efforts are still in the realm of possibility. Simplified taxation of social security benefits, and simplified earned income tax credit calculations might be particularly attractive as each is the cause of a great many audits that generate little revenue, but aggravate working and middle class voters.
President Bush is almost certain to veto any naked tax increase. But, he has shown some tolerance for accepting bills that contain a mix of revenue cutting and revenue enhancing provisions. The President might be forced to compromise in order to save at least some of his signature tax legislature from expiration.
Crime and Punishment
The Second Chance Act is surging forward with bipartisan support. Some progress on the crack-powder differential in cocaine sentences is being made now. Wider opposition to mandatory minimum sentences is securing a growing consensus, even from moderate conservatives; the President has even commuted a few. Anti-terrorism fervor is drowning out a long since discredited drug war. Many states, some conservative, have established sentencing commissions to reduce incarceration costs. Most Democrats are widely receptive to some moderation of harsh federal criminal sentences. The U.S. Supreme Court action partially invalidating the Sentencing Guidelines and the Scooter Libby pardon have opened up the debate on sentencing.
I don't believe that the political will exists for a wholesale end to the war on drugs, or an across the board liberalization of criminal sentencing. But, I do think that there is room for significant incremental movement to mitigate the most harsh sentences in the federal criminal code, particularly for non-violent offenders. It is hard to attack a reduction in mandatory minimum sentences, if the discretion to impose harsh sentences in particularly egregious cases remains.
One particularly interesting compromise proposal might be to overhaul the sentencing guidelines to formally give judges wide discretion to deviate upforwards from guideline sentences (so called "topless guidelines") in exchange for an end to statutory mandatory minimums, so that judges would be allowed to depart downwards from guideline sentences in many cases where they cannot now, but would have to justify that departure as they must now under the sentencing guidelines.
A bill to improve screening of gun buyers for mental health issues also seems likely to progress.
Defense Funding
As the wars in Iraq and Afghanistan require vast amounts of federal funds, Congress may be able to secure reductions in non-war related defense spending, like the missle defense program and various big ticket naval and air force spending items, to help finance those wars. Appropriations bills visibly pitting low priority programs against higher priorities are particularly attractive. For example, a bill to replace funding for one new submarine with funding for a large quantity of foreign language instruction for Army and Marine troops might play well.
Health Care
Broad federal reform of health care is going to be nearly impossible until, at least, the next election. There are some avenues open for positive change, however. Limitations on state level action could be lifted. Bans on importation of foreign drugs could be relaxed. Medicaid reimburement formula problems could be corrected. The federal mandate to provide emergency medical care could be funded. Rules to strengthen the medical billing process and transparency of prices for medical services could be adopted. ERISA pre-emption of health care bills of rights could be relaxed. Bird flu type public health infrastructure could be improved.
Stem cell research funding is the signature Democratic bill to force Republicans to take an unpopular stance.
Education
Bush would veto a wholesale repeal of the No Child Left Behind Act, but a bill to soften unrealistic targets and attach a grab bag of smaller sensible reforms might pass.
Civil Rights
A tweak of statutes dealing with employment discrimination, discrimination against the disabled, whistleblower protection, and habeas corpus procedural deadlines to address some recent stingy technical interpretations of existing laws by the U.S. Supreme Court is within the realm of the possible. Affirmative action is on the defensive and is unlikely to make progress in Congress this session.
Excessive Legal Fees
Like every lawyer in private practice, I make my living by charging clients for my services. Sometimes, I charge by the hour; sometimes I charge a flat fee or a contingent fee. Different kinds of cases have different fee structure. I'm neither the most expensive attorney in practice today, nor the cheapest. I call fees expensive only rarely, as you never have the full facts before you in a case. But, I think I've found a candidate:
The opinion notes, for example, that two full days of more than eight hours were charged to have attorneys pack boxes.
Suppose, for shits and grins, that the lawyers retained are charging $1,000 an hour, and suppose, that out of pocket costs, which are generally the smaller part of the total bill in a case are $1,000,000. This would imply that the lawyers spent 2,200 hours on the appeal, and 12,800 hours in pre-trial preparations and two trials. In a trial context, you can burn through a lot of time knowing the witnesses and the evidence cold and gather potentially favorable evidence, but it is hard to fathom employing half a dozen lawyers to work nearly full time for a year on a criminal case. Consider also that since this is a criminal case, Mr. Lake didn't have to respond to a single significant discovery request, and was not deposed, as a result of his 5th Amendment rights. The public defender's office spends about 400 hours per death penalty case it has, although, those are, admittedly often quite simple cases, even though the stakes are high, as they often involve an incident that took place in a matter of hours on a single day.
The appeal fee, while smaller, is in many respects even harder to understand. In an appeal, the task is more more standardized -- you prepare a brief short of appeal and docketing statement (rarely more than dozen pages and from a standard form), you direct that a record of the trial proceedings be prepared (a couple of page standard form document), you read the trial court record (the bulk of which is a full transcript of the trial and sentencing hearing), you prepare a principal brief of 14,000 words (generally less than 50 pages), and you prepare a reply brief of 7,000 words. Then, you prepare for an deliver an oral argument of about an hour. End of story. This happens on a very compressed time schedule. Suffice it to say that it is possible to conduct a very solid appeal in a reasonably complex case for 220 hours, and a respectable, professional appeal in a typical case with considerably less time.
Particularly appalling in that his attorney is threatening to withdraw over non-payment of fees, when mere attorneys representing mere mortals are frequently not allowed to do this even when they have been paid a mere pittance and their clients then run out of money.
A recent district court decision in Westar Energy v. Lake . . . gives a little bit of insight into just how much money is involved, and the resources the firms commit to defending their client. Douglas Lake was a senior executive at Kansas utility Westar Energy, and was indicted along with former CEO David Wittig on fraud charges. The first trial ended in a hung jury, while the second resulted in a conviction of Lake on some counts related to an alleged fraud involving the use of corporate resources for personal purposes and false reporting to the SEC. In January 2007, however, the Tenth Circuit reversed the convictions, finding insufficient evidence to support some of the charges and remanding for a third trial on others, including a conspiracy count, and Lake was released from prison. In February 2007, the government decided to go forward with a third trial.
Westar has a broad indemnification provision in its by-laws that allows for advancement of reasonable attorney's fees, and through April 2005 the company advanced $4.6 million to Lake's attorneys from Hughes Hubbard in New York and local counsel. After that point, however, Westar refused to pay any further, and Hughes Hubbard has moved to withdraw from representing Lake in the third trial because it has not been paid about $4 million in fees. In addition to his trial counsel, Lake retained Wilmer Cutler from Washington D.C. to represent him on appeal, which cost $2.2 million and involved seven or eight attorneys billing time on the matter. All told, Lake's legal fees in the criminal matter to this point have totaled over $15 million, and he has also incurred costs in defending private securities class actions and shareholder derivative suits. . . .
Given the complex nature of the case, Judge Robinson determined that Lake's hiring of New York trial counsel and DC appellate lawyers, along with local counsel, was not unreasonable. The court only required Westar to pay 50% of the claimed fees for Hughes Hubbard and Wilmer Cutler because of questions about the reasonableness of their bills, but still ordered a payment of over $3 million.
The opinion notes, for example, that two full days of more than eight hours were charged to have attorneys pack boxes.
Suppose, for shits and grins, that the lawyers retained are charging $1,000 an hour, and suppose, that out of pocket costs, which are generally the smaller part of the total bill in a case are $1,000,000. This would imply that the lawyers spent 2,200 hours on the appeal, and 12,800 hours in pre-trial preparations and two trials. In a trial context, you can burn through a lot of time knowing the witnesses and the evidence cold and gather potentially favorable evidence, but it is hard to fathom employing half a dozen lawyers to work nearly full time for a year on a criminal case. Consider also that since this is a criminal case, Mr. Lake didn't have to respond to a single significant discovery request, and was not deposed, as a result of his 5th Amendment rights. The public defender's office spends about 400 hours per death penalty case it has, although, those are, admittedly often quite simple cases, even though the stakes are high, as they often involve an incident that took place in a matter of hours on a single day.
The appeal fee, while smaller, is in many respects even harder to understand. In an appeal, the task is more more standardized -- you prepare a brief short of appeal and docketing statement (rarely more than dozen pages and from a standard form), you direct that a record of the trial proceedings be prepared (a couple of page standard form document), you read the trial court record (the bulk of which is a full transcript of the trial and sentencing hearing), you prepare a principal brief of 14,000 words (generally less than 50 pages), and you prepare a reply brief of 7,000 words. Then, you prepare for an deliver an oral argument of about an hour. End of story. This happens on a very compressed time schedule. Suffice it to say that it is possible to conduct a very solid appeal in a reasonably complex case for 220 hours, and a respectable, professional appeal in a typical case with considerably less time.
Particularly appalling in that his attorney is threatening to withdraw over non-payment of fees, when mere attorneys representing mere mortals are frequently not allowed to do this even when they have been paid a mere pittance and their clients then run out of money.
02 July 2007
Criminal Trial Error Rates
Analysis of a special set of state court cases in 2000-01 from four jurisdictions in a study by the National Center for State Courts (Hannaford-Agor et al 2003) suggested that approximately 7% of the jury verdicts were wrongful convictions and 10% were wrongful acquittals, with corresponding rates of 10% wrongful convictions and 1% wrongful acquittals for the judges' verdicts (Spencer 2007).
Via the Legal Theory Blog.
The wrongful conviction rates in this study are pretty closely in tune with estimates from other sources (such as acquittals based on DNA evidence in murder-rape cases). Wrongful acquittal rates have been the subject of less overall examination, in part, because once there is an acquittal the bureacratic data set ends.
Also worth noting:
Virtually all of the pertinent studies since 1932 have pinpointed eyewitness misidentification as the single most pervasive factor in the conviction of the innocent.
From the article whose abstract appears here at footnote 79.
How Bad Was The Great Depression?
In 1933, "as many as half of all home loans in the country were in default." (Slip Opinion at 3).
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