Exhibit A Of The Case Against Citizen Democracy

TABOR daddy Douglas Bruce — the man who wrote some of the most significant tax laws on the books in Colorado, whose e-mail address starts with “taxcutter” and who once gained notoriety as a state representative by kicking a news photographer — went on trial yesterday on charges of tax evasion. . . . Yesterday’s hearing had a late-arriving Bruce, verbal jousting with the judge and the suggestion from the accused that his prosecutors are collaborating with the CIA. And that was before there was even a jury seated.

From here.

Does it really make sense to develop a system of lawmaking that gives the power to write tax laws that bankrupt the state in the hands of a guy like him without any public input into the details?

There may be times when putting issues to a public vote does make sense, but having random political activists write laws that can't be amended without any kind of elected representative filter is just plain stupid.

Should Good Lawyers Be Delusional?

Newt (can we be on a first-name basis?) has a special place in my heart because he exemplifies a theory I've long held about success: If you have enough bravado, you can rise to the top. I've seen this over and over again in law firms, where lawyers with modest talents rise to partnership, while some of their smarter and much more hardworking colleagues get left in the dust. If this doesn't give us hope about upward mobility, I don't what will.

But this is not as simple as it might seem: Not only do you have to project superiority, but you have to believe in it too--even in the face of evidence to the contrary. ... Being self-important (and I don't mean just being confident) is really a career propeller.

From here.

Put aside the individual mentioned in the first word of the quote above. This post isn't about him. This post is about the notion of entitlement and arrogance, even when delusional, as a formula for success. Most big law firm lawyers take this as a matter of faith. I've seen it work in politics in every party and in non-partisan races. Examples of this strategy working in fiction (often by someone who is born noble or rich but has not been recognizes as such) are legion. Macolm Gladwell is a believer in this theory.

To the extent that it does work, is may be a product of results that flow from confidence which manifests itself in interpersonal interactions, but it may also be a reflect the way that we evaluate risk. Lawyers aren't immune. Direct studies of trial lawyers have shown that their aggregate expectations are wildly out of line with reality, even when they have immense experience and expertise. Lawyers are in the business of making their best efforts, not picking winners and losers. Most people are risk averse, and so we systemmically underestimate our actual chances of success by following rules of thumb designed to avoid down side losses. Someone facing 19-1 odds may seem doomed, but one in twenty times, he or she will prevail. And, if the odds are so daunting because lots of people faced with them automatically concede without rolling the dice, the actual odds if one goes to the mat on an issue may be much higher than you think.

Unlike lottery prizes, where 100-1 risks produce $50 prizes, real life often over rewards those who take extreme risks, since most people do the sensible thing given their situation.

You see something similar in attorneys' fee shifting provisions in contracts. In theory, people evaluate the risk of being required to pay attorneys' fees into the calculus of risk when they take a settlement position. In practice, behavioral economics rules and almost nobody ever acts consistently with that theory. The rules may give lawyers the courage of their convictions to do what they felt was the right thing anyway in the face of pressure from a client, as a post hoc rationalization, but the risk that one will lose and suffer an attorneys' fee award produces an escalation of a conflict at least as often as it leads to compromise.

Footnote: Newt Gingrich has the quite admirable role model of Hari Seldon.

Labor Force Participation and Upside Down Mortgages

* Labor force participation has fallen dramatically in the 16-19 and significantly in the 20-24 age group in the last five years, mostly because these young adults choosing to stay in school during recession years when the job market looks bleak. Labor force participation is up in all age ranges 55 and up, however, as older Americans come to the realization that they can't afford to retire given that their nest eggs have been diminished by the financial crisis. Labor force participation for those aged 25-54 hasn't changed much in the last half decade.

In 1990, 1995 and 2000, most people aged 16-19 were in the labor force; in 2010 only about one in three are in labor force (and, of course, for those who are in the labor force, the unemployment rate is high).

* There are about 74.6 million households that live in homes that they own. About 22.6 million of them own their homes free and clear. About 52 million have mortgages, and about 10.7 million of those mortgages are upside down. Aggregate household net worth in the United States fell by $2.4 trillion in the third quarter and home equity was among the falling components. Aggregate mortgage debt is declining too, mostly, but not entirely due to foreclosures. More than 25 million households rent rather than own their homes.

Newt Dominates GOP Polling Less Than A Month From Primary Season

Newt Gingrich is strongly favored in polls of would be Republican primary/caucus participants over runner up Mitt Romney in Iowa (+13), South Carolina (+23), Florida (+23) and Colorado (+19).

Gingrich trails Romney by 9 points in New Hampshire, which has the first in the nation primary, and the second in the nation contest (after Iowa). New Hampshire's venerable Union Leader newspaper, however, has endorsed Gingrich rather than New Englander Mitt Romney, and Romney's support in New Hampshire is still only a plurality of likely Republican primary voters.

No one other than Newt Gingrich or Mitt Romney in the Republican Presidential race makes it into the top two candidates in any of these races. Bachmann, Paul, Perry, and Huntsman are all far behind in the single digits of likely GOP primary voter support. Herman Cain, of course, has withdrawn from the race.

Romney polls much better than Gingrich in head to head matchups with Obama among Democrats and independents, while polling only slightly worse in that matchup with Obama among Republicans.

In other words, the Republicans seem poised to shoot themselves in the foot in 2012, in substantial part, because they just can't bring themselves to connect culturally with Yankee Mormon Mitt Romney, even though he seems like the most electable of the members of the GOP field at the moment. They have not been in the wilderness long enough to feel the need to moderate their choice of candidates to win the next election. GOP insiders are more so now than ever before, as partisan realignment has largely run its course and the Tea Party faction had made big gains in the party's inner circles, a party whose insiders are predominantly Evangelical Christians from Dixie and the rural Midwest and West.

Tom Martino and Contact Law

A story on television news consumer advocate Tom Martino's bankruptcy case today illustrates a common scenario in debtor-creditor law. A debtor incurs a valid and enforceable debt to a creditor. The debtor default on a payment on that debt. The debtor and creditor enter into discussions regarding repayment. In those discussions, the debtor makes a proposal that, if accepted, would allow the creditor to mitigate their damages from a default on the debt, in whole or in part. The creditor rejects the proposal and sues.

In this context, when, if ever, can the creditor be denied a recovery for failing to mitigate damages?

Every creditor has a common law duty in a suit for breach of contract, which includes almost all debt collection cases, to take all reasonable steps to mitigate damages.

The classic mitigation case in a breach contract is one where a tenant breaches of lease and vacates. In that situation, assuming it is not reasonable for the landlord to refuse to rent the property to the substitute tenant based on the character of the substitute tenant (e.g. it might be reasonable to refuse to rent to a substitute tenant whose business is in violation of local zoning laws), the landlord is generally not entitled to recover from the original tenant the rent that could have been paid by the substitute tenant during the lease term, whether or not the landlord actually allows the substitute tenant to move into the property.

In general, however, mitigation of damages is a tricker matter when the contract is a simple contract to pay a fixed sum of money, with interest and certain fees, at one or more dates certain, that is not attached to any collateral, i.e. an unsecured loan.

Martino's argument is less textbook: "[Tom Martino] said his wife, Holly Martino, offered to pay the card in full if the company agreed to move the balance into her name, which FIA [the credit card company] refused."

Presumably, Martino is arguing not that his wife was offering immediate payment in cash of the credit card, but that she was offering to guarantee the debt in exchange for a release of the original debtor.

In hindsight, this surely would have been a good deal for the bank. Tom Martino's bankruptcy was triggered due to liability on business investments gone bad that his wife had no involvement in, so only he went bankrupt. A debt owed by his wife would still be valid, enforceable, and in all likelihood current today, notwithstanding the husband's bankruptcy, in which the credit card company is almost sure to take a huge loss, even if part of their balance can be recovered as pennies on the dollar like any other unsecured creditor, and perhaps on the theory that some of his purchases were "luxury purchases" that can't be discharged if made on the eve of bankruptcy.

On the other hand, usually, in a mitigation case, the debtor offers a way for the creditor to reduce the damages suffered by the creditor, but is not fully released. In the classic substitute tenant case, the original tenant still has liability for the full amount of the rent due that the substitute tenant does not pay, and often the substitute tenant will be paying less than the full rental amount owed by the original tenant. For example, if the original tenant has a lease with a rental payment of $2,000 a month, the proposed substitute tenant may be paying $1,600 a month, leaving the original tenant on the hook for the $400 a month balance for the remainder of the lease.

A promise to repay from a secondary earner in a family in exchange for a full release of the primarily liable primary earner in the family is not obviously a risk free proposition that will reduce the creditor's exposure, ex ante, so it may not be unreasonable for the lender to refuse to agree to that deal in order to mitigate its damages.

This isn't to say that mitigation arguments are never relevant in the case of unsecured loans. But, they are harder to establish.

FDA Blocks OTC Emergency Contraception For Teens

In an unprecedented move, the Secretary of Health and Human Services Kathleen Sebelius in the Obama Administration has killed a regulatory proposal from the Food and Drug Administration to allow girls under seventeen of reproductive age to have access to emergency contraception at pharmacies without a prescription just as women seventeen and older can right now.

The pills have to be taken within a few days of having sex to be effective (and the sooner they are taken, the more likely they are to work) so the move will lead to delays in the time need to acquire the drugs that materially increases the likelihood that teen girls who have unprotected sex will get pregnant. The drugs are safer than many other over the counter drugs and there is no evidnece that teen girls would misuse them.

The decision makes no sense from a policy perspective and is a simple case of the Obama Administration's FDA head bowing to conservative lobbying rooted in the anti-abortion movement, even though this high dose birth control pill form of contraception is no different in mechanism than other oral contraceptives (unlike RU-486 a drug based early term abortion inducing drug).

The follows a similarly head scratching move this fall, to back away from prior Obama Administration policy to refrain from using federal law enforcement resources against medical marijuana operations which are in compliance with state law.

Both prescription free emergency contraception for teens and tolerating medical marijuana operations in compliance with state law are common sense, easily defensible, moderate ways to deal with social issues that have broad public support, and even more broad support among the moderate Republican, independent and Democratic voters who might conceivably vote for President Obama in 2012 that are quite visible to these moderate voters. While many people oppose abortion in at least some circumstances, only the most hard core subset of the anti-abortion community opposes oral contraceptives and nobody is a strong advocate for unplanned teen pregnancies. While many people oppose legalizing marijuana outright, far fewer are opposed to making marijuana available with a physicians prescription under a system authorized by state law. These are the low hanging fruit of the abortion and drug war debates respectively, where the moderates overwhelmingly favor these liberal leaning compromise approaches.

Of course, it could be possible that President Obama is simply allowing his subordinates to make these decisions without his involvement, but the possibility that his appointees could be making such politically sensitive decisions without consulting with him is just as bad as the possibility that President Obama thinks that these decision make any political sense.

Rather than wooing social conservatives who will never support President Obama or any other Democrat in the 2012 election, or allowing unwise politically sensitive decisions to be made without his involvement, President Obama should be backing sensible, moderate, post-partisan compromises on hot button issues like the war on drugs and reproductive choice in the rare circumstances where they exist (something his 2008 primary opponent Hillary Clinton has been famously doing from her post as Secretary of State), and should instead be "triangulating" on social issues and other political issues where his backing from independents and moderate Democrats is less solid.

Mental Health News

* A new study suggests strongly that co-morbidity in mental health conditions diagnosed under DSM-IV may be largely an artifact of many mental health conditions having identical or overlapping diagnostic symptoms. The study looks as DSM-IV symptoms, 439 in all for 201 conditions, and compared them to cases of multiple diagnoses. This passage from the study (corrected for an obvious clerical error) illustrates the idea:

For instance, among the symptoms of MDE [major depressive episode] we find sleep deprivation and concentration problems, while GAD (generalized anxiety disorder) comprises irritability and fatigue. It is feasible that comorbidity between MDE and GAD arises from causal chains of directly related symptoms; e.g., sleep deprivation (MDE)→fatigue (GAD)→concentration problems (MDE)→irritability (GAD).

The co-morbidity in this case may be more than a mere artifact, however. One of the leading theories of major depression posits that in many cases there is a causal link between anxiety and depression, with anxiety building up until the body's capacity to trigger normal physiological responses to anxiety eventually reached overload and causes those systems to shut down, leading to depression during which anxiety channel responses cease to function, until the anxiety response systems can recover. This theory is buttressed by the notion that some major anti-depressant drugs appear to actually be anti-anxiety drugs that are most effective in people with co-morbid anxiety and depression and treat the anxiety systems more reliably than the depression symptoms.

A core of symptoms show great overlap, while a large share of symptoms are unique to particular conditions.

Their chart is found here:

* A new study suggests that interactions between receptors for the neutransmitter chemicals serotonin (5HT) and glutamate may explain why psychedelic drugs, like LSD, and antipsychotic drugs, both of which act directly on serotonin receptors in the brain but have now been discovered to also lead to an interaction between serotonin and glutamate receptors, act differently than anti-depressant drugs that affect the same serotonin receptors in a different way. The study also suggests that it may be possible to develop psychedelic and antipsychotic drugs that act on glutamate receptors which trigger the sname serotonin receptor-glutamate receptor interaction in the opposite direction.

The interaction [that seems to explain psychosis and hallucinations] turns out to be all about G proteins, which are part of the chain of transmitter substances that convey signals within the cell, in response to neurotransmitters outside it.

* Colorado's mental health care system is still an ineffective mess, despite slight recent improvements over the last decade:

"People always say 'the system is broken. . . The system is not broken; it's just really complicated, and it's never really worked." . . .

• Three in 10 Coloradans — about 1.5 million people — need mental-health or substance-abuse treatment.

• State spending on substance-abuse treatment and prevention is one-third of the national average.

• The state needs more mental-health and substance-abuse treatment providers, but the numbers have grown, from 10,564 in 2003 to 14,217 in 2010.

• The overwhelming majority of treatment providers — 82 percent of all psychiatrists, 86 percent of all child psychiatrists and essentially all psychiatrists specializing in substance abuse — are in the Denver and Colorado Springs areas. Many rural counties, especially on the Eastern Plains, have few, if any, treatment providers.

• The most recent data, from 2007, show Colorado ranks 32nd in the nation for funding mental-health care, down a notch from its ranking of 31st in 2001. While Colorado has increased per-capita spending, from $62 in 2001 to $84 in 2007, other states have made greater increases. . . . "If you are a youth or an adult of color, it is very likely that the first time you get services will be in jail."

While many insurance carriers are offering more coverage for mental-health care. . . for those with severe mental illness, Medicaid or other public programs often offer more comprehensive treatment. . . . [M]ental-health care in Colorado was woefully underfunded and so complicated that the state barely had a mental-health system at all.

Basically, the lastest report, entitled "The Status of Behavioral Health Care in Colorado," commissioned by the Colorado Health Foundation, Caring for Colorado Foundation, the Colorado Trust and the Denver Foundation concludes that when the mentally ill were deinstitutionalized, no meaningful alternative to replace the widespread use of inpatient mental hospitals was ever established.

* Colorado's foster care system is also deeply flawed as illustrated by a case where a seven year old child's mother had her parental rights terminated for child neglect, ending up with the child in the foster care of her ex-boyfriend (who was the father of of the other son of the mother's whose parental rights were terminated, who was thus the half-brother of the child) and his new girlfriend who staved him to death while confining him to a closet in conduct that produced a report to the Colorado Department of Social Services that ignored obvious signs of abuse. Both abusive foster parents were sentenced to long prison sentences for murder. The mother of the child whose rights were terminated and the father of the child who died in foster care are suing the social workers who failed to act on the obvious signs in a suit that has been allowed to go forward.

Romanoff Out In Colorado's 6th Congressional District

Democrat and former Colorado State House Speaker Andrew Romanoff has disavowed rumors that he will run in Colorado's 6th Congressional District race against incumbent Republican Mike Coffman (who replaced Tom Tancredo in the seat in the 2008 election) in a seat that is far more competitive than it used to be a result of a Congressional redistricting plan to take effect for the 2012 election that was recently approved by the Colorado Supreme Court. State Representative Joe Miklosi, a district resident who has been campaigning for many months in the race (back when the old district lines made the seat look unwinnable), is the only announced Democratic challenger to Coffman. Romanoff's decision suggests that Miklosi will probably not face a primary fight.

Romanoff mounted a fierce primary challenge against U.S. Senator Michael Bennet in 2010, a race that cast Bennet as a corporate, establishment Democrat against a Romanoff campaign that was styled as a grass roots campaign opposed to excess big business power. The quality of his election campaigns when he served the 6th state house district in Denver's Washington Park neighborhood, is legendary, as was his aptitude for getting deals done under the dome downtown. Some pundits and Democratic insiders had hoped that Romanoff's reputation as a "big name" in the party would help the party win a critical swing district that lower profile Miklosi might lack. But, Romanoff has thrown is support to Miklosi in the 6th Congressional District race.

NIMBY is in the eye of the beholder, Australian edition.

Read this story.

New Colorado Congressional Districts Affirmed On Appeal

A Denver District Court judge imposes a Congressional District map for Colorado because the Colorado General Assembly failed to reach an agreement on how to redraw the map in light of the 2010 Census in time for the 2012 election.  This map was affirmed on appeal by the Colorado Supreme Court today.  While further appeal to the U.S. Supreme Court on the grounds that the map imposed is an unconstitutional one could be made, such an appeal, if made, would be very unlikely to prevail.

A Trifurcated Contract Approach To Property Issues In Divorce Considered

In a divorce, the main issues are the termination of the marriage, parenting time for children of the marriage, parental decision making for children of the marriage, child support obligations, the division of marital property, and the need for a maintenance award, if any. As I explain below, there are good reasons to consider the seemingly complicating process of "trifurcating" these decisions into three different decoupled proceedings.

If divorces were trifurcated, with (1) parenting delegated to one forum (not necessarily such a foreign idea; when I was admitted to the bar, New York State's Family Court in each county with jurisdiction over parenting, but not the authority to grant a divorce), (2) termination of the marriage itself delegated to a ministerial official as a matter of course, and (3) the remaining issues of marital property and maintenance handled by the civil courts of general jurisdiction as they are now.

Unmarried co-parents would need only the first. A legal separation is, of course, the first and the third component of these proceedings without the second. Married people who were not co-parents or had only adult children or who managed to reach a mutual agreement regarding parenting issues would need only the latter two. Couples that managed to resolve marital financial issues out of court, or for whom the financial stakes did not justify the effort and expense associated with litigation, might dispense with the third component.

People would invoke the legal system's assistance in this private law matter only to the extent actually necessary, and could avoid state intervention in either the parenting component, or the financial matters related to marriage component if they could reach a mutual agreement. Separation of the forums and greater predictability for the financial component (on the merits) and termination of marriage component (in terms of timing) would also make it harder for one party to act strategically to secure, for example, concessions on financial issues in exchange for parenting time.  An ethical rule prohibiting enforcement of such agreements and prohibiting professional advocates in each forum from proposing such settlements would also be easier to impliment if the forums really were separate and the professional advisors to the parties in each forum were likely to be different people with different kinds of professional credentials.

I also consider an approach to the third issue that is framed in analogy to a suit for breach of contract or unjust enrichment, rather than what amounts to a property law concept analogous to a partition action.

I don't necessarily belief that this would be better in all respects than the status quo, but it is worthwhile to recognize conceptually that there are alternatives to the status quo that could make sense and to explore the pros and cons of them.  This post is one such attempt.


Parenting

The law has evolved in the United States to a point where the issues of parenting time, parental decision making, and child support have been largely decoupled for the other issues in a divorce.

Disputes between separated parents concerning parental rights and responsibilities have been almost completely decoupled from those particular to divorcing couples. The same rules apply whether the parents have never been married, are currently married but separated, or are divorced, and without regard to whether or not they have remarried.

It would be practicable under current law to have two different proceedings, one related to parenting and the other related to marriage, possibly in different forums using different rules of procedure.

The law in this forum would be quite straightforward.

Ex ante marital agreements regarding parenting are always voidable. Even guardianship designations in a Will are merely presumptive and can be overruled by a judge who finds by a preponderance of the evidence that someone else would be better at the time and place when the guardianship must be established.

Every jurisdiction in the United States uses a best interests of the child standard to govern disputes regarding parenting.

Child support schedules and standards for establishing paternity administratively are largely uniform nationally because federally funded welfare programs set standards that must be met in order for a state to be eligible for these funds.

If parenting were handled in a separate forum from divorces, the rules for parenting actions (where there is no inherent reason for money to litigate the matter to be available) could be dramatically simplified. Complex financial affidavits could be trimmed to include only matters pertinent to child support calculations. One could authorize independent non-lawyer professionals who were certified to have expertise only in the narrow corner of the law to advocate for parties, instead of much more expense lawyers. Parenting decisions, for children who refuse to stop growing and changing even when their parents are in court, would not have to be held hostage to the time necessary to effect due process with regard to more complex financial issues. Civil procedure principles and evidence rules designed for contract and tort actions between strangers tried by juries could be revised to be more appropriate for these kinds of decisions.

For example, it is much harder to make sense of Colorado Rule of Evidence 402 (irrelevant evidence inadmissible) when the substantive decision making standard in the case is to act in the best interests of the child, and it is absurd to have the exclusion for character evidence found in Colorado Rule of Evidence 404.  More generally, the rules of evidence fundamentally assume that the parties are proving the narrowly construed elements of a cause of action which includes only past material facts, when the best interests of the child test is fundamentally a forward looking legal doctrine about what is likely to happen in the future rather than what has actually happened in the past.  The doctrine inherently involves opinions, but few of those opinions the kind of opinions that are contemplated by Colorado Rule of Evidence 702-706 (expert witness opinion testimony).  Many of the predictions a judge is expected to make in a parenting case about what will work best would be called speculation in other kinds of litigation.

It also might be easier politically to rally support for a statutory right to a state funded paraprofessional advocate for each party in this kind of forum, than in a forum where the termination of marriages and the division of assets of people who are often middle or upper middle class was at issue. But, even if this wasn't done, it would be much more feasible for lawyers to provide unbundled services in a trifurcated process than in an all purpose dissolution of marriage action.

Termination Of the Marriage

The issues that are particular to divorce itself are the termination of the marriage, marital property division and maintenance. In the fault era, proving up grounds for termination of the marriage was the main event. In the on fault era that now prevails, however, unilateral termination of the marriage is available on demand for all intents and purposes.

One could just as easily effect a termination of the marriage by a perfunctory filing with the clerk of the court, or the clerk and recorder, or the ministerial governmental official who issues marriage licenses, of a "notice of intent to terminate marriage" (or alternately, a "notice of intent to legally separate") with proof of service upon the spouse, which would either mature into a termination of a marriage effective immediately upon expiration of the statutory cooling off period, or alternately upon the affirmative filing of a "termination of marriage" after the cooling off period has expired.

Indeed, one of the reasons that we have so many pro se parties in divorce actions (60% of cases have no attorney on either side) is that the courts have a monopoly on granting terminations of marriages, while most other kinds of civil matters can be resolved outside the court system without judicial involvement if a mutual agreement is reached between the parties, often without lawyers if the expense of a judicial system solution doesn't justify the expense.

The ability of a spouse to terminate the marriage promptly prior to resolution of other issues, would also reduce the often long ambiguous period of limbo in which a couple is married but in the process of dissolving a marriage in which there is little practical legal benefit to the marriage continuing to exist in theory, when the existence of a theoretical marriage rather than a marriage that is already officially over can exacerbate the emotional tensions of the parties over relationships with new significant others, can muddy the waters in states that have a marital exception to rape or testimonial privileges related to marriage, can lead to absurd conclusions based upon the fiduciary relationship between spouses that exists during the marriage, and holds the substantive question of the date upon which separate earnings, debts and appreciation in assets are truly separate hostage to the happenstance of hearing scheduling in the judicial system.

One Time Financial Issues Unique To Divorce

This would leave property division and maintenance which are one time financial issues which are unique to divorces.

One of the things that makes litigation of this last point difficult is that the issue of marital property is handled essentially like a partition action between co-owners of property, with an emphasis on in kind divisions. A divorce decree routinely retitles much or all of a couple's property, a process complicated by the fact that the court will typically not have jurisdiction over third parties with interests in marital property like mortgage and vehicle lenders, credit card companies to whom one or both spouses owe money and so on.

An alternative to this approach would be to create a contract right to a money judgment equal to half of the fair market value of the total value of the marital property reduced by the fair market value of the marital property (net of marital debts) still in the name of the spouse seeking a property equalization judgment. The parties could agree otherwise, or appeal to the court in the action to partition property titled in the names of both parties that is not easily divisible, like a marital residence, but the default rule would be that title would remain as it was when the action was commenced unless otherwise agreed. The default property division decree in a divorce, under this system, would be a single dollar amount that one spouse owed to the other with statutory interest.

One could imagine a similar approach to separate maintenance. A rule, ideally one that provides much more definitive guidance than the "do the best thing" gillion factor test that applies under current law, would establish how much maintenance, if any, one spouse was entitled to from the other, and if not otherwise agreed, this could be reduced, based on life expectancy projections and a statutory interest rate, to a single dollar amount that would be added or subtracted as the case might be to the property division money judgment and would accrue interest at the same statutory rate.

In order words, as in a breach of contract action or unjust enrichment civil action, once a cause of action to establish that the marriage had been terminated was established as a matter of course, the job of the court would be simply to determine the dollar value of the non-fault based damages for the breach that reflect the benefit of either the default bargain established by law, or an alternate bargain reached in a marital agreement. The property rights of each of the parties would generally be unaltered and identical to those of unmarried cohabitants in the absence of an agreement to the contrary by the parties.

With more firm rules (an equal share of marital assets rather than an equitable one, and a more formulaic maintenance award rule), that would make much less information relevant, in many cases the only discovery that would be needed would be an exchange of financial affidavits, and even when more discovery was needed, the scope of discovery, and the scope of the evidentiary issues that would be relevant at trial, would be much narrowing in this trifucated proceeding context.

Of course, unlike a traditional contract or unjust enrichment action, a pre-judgment temporary order for maintenance, charged against the ultimate award, might be the norm rather than the exception.

There would be a statute of limitations to bring a property equalization and maintenance suit that would begin to run from the termination of the marriage or in the alternative a desire to be legally separated, similar to a breach of contract or unjust enrichment action, and, if either party felt it was worth the money to bring that suit they could, or they could settle in the shadow of what a court would be likely to do in such a suit, without actually commencing an action, or the spouse entitled to a remedy could decide that the returns were not worth the hassle to receive them, for example, in the quite common case of a divorce where the couple has a low net worth and the husband's income is not very impressive relative to the wife's after adjusted for child support payments that are paid or could be paid.

Maintenance and property division debts could be collected over time, via the garnishment process, or via creditor collection remedies. Rather than being bankers to each other, there would be an incentive for parties to pay off their debts to their ex-spouses in lump sums that would end the need for further resort to the judgment collection process, with third parties, thus disentangling them from each other completely.

A simple money judgment will typically involve much less documentation that requires the skilled assistance of an attorney, than a detailed in kind distribution that requires many assets to be retitled and raises questions of alienability and creditor's rights.

Conclusion

The naive expectation that handling all issues between two parties in a single forum is more efficient is often wrong.

The concept of breaking the consequences of a single incident into three different forums is really not so remarkable. For example, following a drunken driving traffic accident, there will usually be a criminal prosecution for drunken driving, an administrative proceeding to revoke or assess points against a driver's license, and a civil proceeding for compensatory and/or punitive damages against the drunk driver brought by people who are harmed in the accident. Trying to do all three things at the same time would make the process much more cumbersome.

Breaking up parenting disputes between non-cohabiting parents of minor children, the termination of a marriage, and financial adjustments to reflect the benefit of the marriage bargain that each spouse is entitled to, into three separate forums, would simplify a process. This is sensible because the process is often handled without lawyers, so each forum's process needs to be simple, would make the process move more swiftly because it could proceed on parallel tracks that would not have to be coordinated with each other, and would allow people who didn't need all three components of a tradition divorce action to only petition the courts for assistance where it was actually needed. It would also bring clarity to legal doctrines that currently have to be twisted to meet the natural doctrinal consequences of legal fictions like the continued existence of a marriage during the pendency of the dissolution action.

The conception of a dissolution action as primarily being an action for partition in kind of marital assets and debts, rather than a contract action that evens the scales on a net fair market value basis with reference to a merely hypothetical division of marital assets and debts, could also considerably simplify divorce litigation and the loose ends that persist after a divorce, by making the default financial component of a divorce a mere money judgment for a sum certain for property division and maintenance combined unless otherwise agreed that leaves the nominal ownership of property and the nominal debt obligations of the parties to third parties unchanged.

Colorado Caucus Feb 7, GOP Primary Season A Month Away

Just over a month from now, Republicans in Iowa will start the process of choosing their nominee for the Presidential race in 2012, followed in short order by New Hampshire, and then South Carolina. Colorado Republicans will caucus on February 7.

Law Without Lawyers Or Juries In Colorado

Most people assume that lawsuits, apart from those in small claims court, are primarily both brought and defended by lawyers. The reality, however, is that a very large share of all cases are handled without lawyers. Consider the following statistics from the 2010 fiscal year in Colorado's state courts:

In 60% of divorce cases, neither husband nor wife has a lawyer - this is the case type in which it is most common for neither party to be represented by counsel that generally involves meaningful adversarial litigation activity beyond a partial day one time hearing (apart from the small claims court division of county court limited to money claims of up to $7,500, which are lawyerless by design; about 12,000 of these cases are filed each year and about one in five are resolved through a brief bench trial with no pre-trial proceedings).   At least one of the parties in a divorce is not represented by a lawyer in an even larger share of all divorce cases in Colorado.

There were no lawyers in 73% of adoption cases, and in 65% of juvenile relinquishment cases, both of which are frequently uncontested, form driven and involved fairly small raw numbers of cases. There were no lawyers in 56% of district court civil case (although I have a suspicion that this may include all of the "distaint warrant" cases, which are basically state tax lien filings prepared by the State of Colorado, that don't involve meaningful court proceedings since the due process takes place within the Colorado Department of Revenue process). About 50% of all district court civil cases are distaint warrants (which rarely give rise to any hearing) and another 26% are approvals of non-judicial foreclosures in brief, unappealable hearings, usually by default and when held usually involving unrepresented defendants at which the non-payment of a mortgage payment is typically the only issue which may be considered.  Fewer than half a dozen law firms handle the vast majority of non-judicial foreclosures statewide in Colorado.


Defendants are not represented by lawyers in 64% of misdemeanor criminal cases, although describing these cases initiated by the District Attorney's office as lawyerless is deceptive, and the lack of representation is related in part to an unconstitutional Colorado practice of denying misdemeanor defendants access to a public defender prior to considering a plea bargain offer, that will probably be discontinued by court order in the near future.

A very large share of all civil cases brought in county court (mostly consumer debt collection and residential eviction actions), about 200,000 a year in round numbers statewide in Colorado, are brought by a collections attorney (often en masse with the pleadings prepared primarily by collections officers and paralegals), but give rise to a default judgment or result in an answer being filed by an unrepresented defendant.  A typical county court case alleged that the defendant has missed one or more credit card or rent payments.

Less than 1% of county court civil cases (other than small claims court cases) give rise to a trial, despite the almost complete absence of pre-trial dispositive motion practice or discovery in county court once an answer is filed. The rest of the county court collections cases produce default judgments or settlements. There were just 14 limited jurisdiction county court civil jury trials in the entire state in 2011 (about 1% of all county court civil trials), excluding Denver (which is not part of the state court statistical system at the county level) - eight of which were in the counties that are home to Colorado Springs (6) and Boulder (2), respectively (if the proportions are the same in county court as in District Court in Denver, one would expect about 5 civil jury trials in Denver each year, but small numbers produce many flukes).

Defaults are less common, but not unusual, in District Courts which have exclusive jurisdiction over lawsuits for more than $15,000 in Colorado, and over most lawsuits seeking non-economic relief. Nationwide, about a third of general jurisdiction civil cases (exclusive of summary proceedings like lien filings and non-judicial foreclosure approvals) produce a default judgment. In a significant share of cases where an answer is filed in general jurisdiction civil cases, an unrepresented party files the answer.

Overall, about half of state court general jurisdiction court civil trials are to juries and half are bench trials. Denver accounts for about 25% of the state's civil jury trials at the general jurisdiction District Court level (about 90 per year), and nationally about 75% of civil jury trials at the state court level involve personal injury lawsuits (the largest share of which are motor vehicle accidents and slip and fall cases) despite making up a much smaller part of the general jurisdiction court docket, typically with a Plaintiff's lawyer paid on a contingent fee basis and a defense attorney paid for by an insurance company. The State of Colorado as a whole has just a couple of civil jury trials in cases other than personal injury cases statewide each week in a state with something on the order of 30,000 lawyers and about 5 million residents.

Source of statistics: Adam J. Espinoza, "Ethical Considerations When Providing Unbundled Legal Services", The Colorado Lawyer (September 2011) at page 75; Colorado Supreme Court Administration Annual Reports. Context provided from general personal knowledge.

Three Player Chess

A really elegant three player variant on the game of chess has been developed, which has only a few new rules and a circular board. Regardless of how fun it is to actually play, it looks truly impressive and appeals to the same sense of beauty you feel when you see a clever generalization of a simple concept, like a fractal dimension, or complex numbers.

Best Practices In Depression Treatment Elusive

There are multiple modalities for treating mental health conditions like unipolar depression. Many of them seem to do some good. But neither drugs nor any particular modality of therapy has any clear advantage over the others, according to a recent metastudy on the subject.

The overall results showed that while CBT was clearly better than doing nothing, it was pretty much the same as antidepressants, and other psychotherapies, in adults with depression[.]

Given the length of time that psychologists and psychiatrists have identified and clearly defined the need for a treatment for unipolar depression, the number of very smart people who have devoted whole careers to addressing this issue, the fact that this condition is sufficiently common and impairing that it is on anyone's top five list of nation and world's mental health treatment needs, the sheer number of trials that have been conducted of various drugs and treatment modalities, and the degree to which we understand the mechanism of what is going on, it is really quite depressing.

Pinker On Humanism

Harvard psychology professor Steven Pinker, author of "The Better Angels of Our Nature: Why Violence Has Declined" had this to say in a recent FAQ about his book:

Does this book represent a change in your politics? After all, a commitment to human nature has traditionally been associated with a conservative fatalism about violence and skepticism about progressive change. But Better Angels says many nice things about progressive movements such as nonviolence, feminism, and gay rights.

No, the whole point of The Blank Slate was that the equation between a belief in human nature and fatalism about the human condition was spurious. Human nature is a complex system with many components. It comprises mental faculties that lead us to violence, but it also faculties that pull us away from violence, such as empathy, self-control, and a sense of fairness. It also comes equipped with open-ended combinatorial faculties for language and reasoning, which allow us to reflect on our condition and figure out better ways to live our lives. This vision of psychology, together with a commitment to secular humanism, has been a constant in my books, though it has become clearer to me in recent years.

How and why has it become clearer?

Though I have always had a vague sense that a scientific understanding of human nature was compatible with a robust secular morality, it was only through the intellectual influence of my wife, the philosopher and novelist Rebecca Newberger Goldstein, that I understood the logic connecting them. She explained to me how morality can be grounded in rationality, and how secular humanism is just a modern term for the world view that grew out of the Age of Reason and the Enlightenment (in particular, she argues, from the ideas of Spinoza). To the extent that the decline of violence has been driven by ideas, it’s this set of ideas, which I call Enlightenment humanism (pp. 180–183), which has driven it, and it offers the closest thing we have to a unified theory of the decline of violence (pp. 694–696).

From here.

For future reference, I'm also linking to an interesting story at the New York Times on African-American atheists.

Pope Loses It In Translation

The Roman Catholic church has embraced bad translation practices for English speaking Catholics in a mass liturgy marked by overliteral translations (did somebody fire a human and use Google translate instead?), vocabulary that isn't really even part of vernacular English ("consubstantial"!?), abandonment of the gender neutrality (where an inclusive meaning is intended) that is part of modern Standard English, changes in meaning (Jesus died "for you and for many," rather than for you and everyone) that aren't obviously part of a theological agenda for doctrinal change, and just plain clunkiness.

Vatican II had fostered ecumenical trends as Roman Catholics and liturgies Protestants learned that their liturgies were actually almost identical when the new one was rolled out in 1973, and now that cleft has been restored.

It all began on the first Sunday in advent yesterday, the first day of the liturgical church year (an annual rhythm that I've never truly shaken). If only the church translators had spent more time reading Language Log, and less trying to figure out what passes for "formal" English these days, the world would be a better place.

It isn't that there isn't something to be said for crafting a uniform international liturgy to bind the faithful together. The Anglican Book of Common prayer has provided that faith with a uniformity and poetic cadence that has stood the test of time. But, of course, Anglicans defining trait is that they are native speakers of English. The Pope is Polish and spends his days in Italy surrounded by people speaking Latin. Little wonder then, that they did a comparatively inferior job.

Ultimatley, it doesn't matter to me directly. I'm not Roman Catholic. I'm not even Christian. And, half the time when I do listen to a Catholic mass, it is in Latin (which Jesus didn't speak, if he existed at all), anyway. I do wince in horror at a whole new generation who will learn to aspire to a horrible model of how to translate an important text. But, after addling their brains with Sponge Bob and amputating their linguistic faculties with text messaging, how much worse can they turn out anyway.

The change may even help the cause of skepticism by reminding people who arbitrary the core rituals of their faith are and by taking them out of their traditional comfort zones in a faith that many seek out precisely because of its traditions. I certainly got a dose of reality when I learned how the Biblical canon was made, and many Catholics are probably going through the same thing right now.

Still, it is a shame to see any important cultural task done poorly. Somehow or other, it makes us all a little less well off.

Stock Options Are Part of The Problem

I'm not the only one who thinks that replacing stock options (warning, audio file) in the corporate executive pay packages with stock ownership that executives are required to maintain is a critical element of corporate governance reform. This is because stock options create an incentive for short term games and no proportional penalty for poor performance, while buy and hold stock ownership aligns executives incentives with their shareholders.

A key piece of the problem is the tax code which greatly favors stock options relative to stock for services arrangements.

The commentator also suggests that successful companies rarely lay off employees, but often stockpile cash.

Gun Nuts Strike Again

A couple of paranoid gun nuts in Avon, Colorado are suing for the right to bring guns into the post office. Leaving the guns on a car parked on the across the street is just too much of an infringement on their right to bear arms, they think. Never mind that their choice makes everyone else less safe.

The rule they seek wouldn't necessarily have wide application, however. Avon is unusual in not having home mail delivery (FWIW, a better idea than cutting Saturday mail delivery that would build community and make sense in far more places).

Their battle makes fighting for the right to party and bra burning look positively respectable and non-violent by comparison.

Those Who Can't Do, Teach?

The essential how-tos of daily practice are a subject that many in the faculty know nothing about—by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day.

From here.

Nobody doubts that law professors are top-tier schools are wicked smart. But, do they know the right things? Shouldn't they have at least enough experience to reality check just a little?