21 June 2017

Vivid Facts Win Cases

In a recent U.S. Supreme Court decision over whether the Patent and Trademark Office should have the right to ban offensive trademarks, one of the most powerful arguments cited repeatedly in the Court's opinion by Justice Alito was an appendix to an amicus brief from the Washington Redskins which listed myriad really offensive trademarks that the Patent and Trademark Office had already held could be granted registration.

These vivid facts, by example, which the Court was left to its own devices to weigh and interpret, made it obvious that any application of the offensiveness standard was arbitrary. This list also strengthened the case that it would make no sense to adopt the government's argument that registration of a trademark rendered that trademark government speech which was entitled to greater regulation than other kinds of speech.

This brief is a great illustration of an important concept in persuasive legal writing. Often, vivid facts can be as powerful in which side wins or loses a case as legal precedents and statutory interpretation arguments. Certainly, vivid facts don't always work. But, even when they don't, they will often, at least, lead to a heartfelt dissent supporting your argument because they won someone on the bench over to your client's side of the argument.

A U.S. Demography Recap

As of 2008
A summary of the facts derived from census data and vital statistics reports in the U.S. as of 2008 lays out the facts demonstrating an inversion of lifetime fertility trends with the affluent having more kids rather than fewer.  
For example, African-American women have had fewer lifetime births per woman than white women in the U.S. since 2002 (although African-American women tend to have their children at a significantly younger age).
Fewer families whose incomes fall in the bottom 10% of the population are having three or more children: 33.7% of such families had at least three kids in 2006, down from 39.8% in 1990, according to Census surveys. 
By contrast, the wealthiest families are having more children. In 2004, an estimated 41.3% of the wealthiest families had at least three children, much higher than in 1995, when an estimated 29.3% of families earning in the highest income bracket (that year, $300,000-plus) had three or more kids. . . .
By age, fertility is up dramatically for women aged 30 and up, and down significantly for women under 30, since 1990. The teen fertility rate has dropped by about 33%, it has dropped by about 12% for women in their early 20s, it has dropped by about 4% for women in the late 20s, it is up by more than 15% for women in their early 30s, it is up by about 50% for women in their late 30s, it is up by about 60% for women in their early 40s and it has roughly tripled for women in their late 40s. 
Fertility rates have dropped only slightly for Cuban-American, non-Hispanic white, and Asian-American women, but have dropped greatly for other Hispanic women, black women and Native American women. 
Multiple births are up almost 50% since 1990, with a disproportionate share of that growth among triplet and higher order births, and among non-Hispanic whites, both of which indicate an impact from fertility treatments. 
In terms of lifetime births per woman the trends are as follows (by ethnicity) with 2013 date from Tables 13 and 14 here.

White:
1980 - 1.8
1990 - 2.0
2000 - 2.1
2004 - 2.1
2013 - 1.9

Black:
1980 - 2.2
1990 - 2.5
2000 - 2.1
2004 - 2.0
2013 - 1.9

American Indian, Eskimo, Aleut:
1980 - 2.2
1990 - 2.2
2000 - 1.8
2004 - 1.7
2013 - 1.3

Asian or Pacific Islander:
1980 - 2.0
1990 - 2.0
2000 - 1.9
2004 - 1.9
2013 - 1.7

Hispanic:
1980 - NA
1990 - 3.0
2000 - 2.7
2004 - 2.9
2013 - 2.1
Since 2002, black fertility has been lower than white fertility, reserving a long term trend. 
As of 2006, the higher a woman's family income the more likely it is that she is childless, so the trend towards high income families with large families is offset matched by the large number of high income families that are childless. Of the poorest women 39.4% are childless, of the most affluent (75,000+ of family income) 47.9% are childless.
As of 2008:
Overall birth rates in the U.S. hit a record low in 2002, and have rebounded only slightly since then. The recent peak was in 1990, which had the highest birthrate for the period from 1972 to the present. The birth rate declined by roughly a third from 1960 to 1972, presumably as a result of improved contraception, continued to decline until 1976, rebounded slightly until 1990, declined slowly until 2002, and then has slowly rebounded again. Part of this change is also an echo of the baby boomers. 
Infant mortality has declined almost every year for decades, dropping about 75% since 1960 and more than 25% since 1990. 
Divorce rates have declined steadily since 1981 to reach the lowest level since 1970 in 2006, after rising from 1960 or earlier until then. But most or all of the decline in divorce rates since 1981 is attributable to a declining marriage rate over the same time period, which is at the lowest level since well before 1960.
Since 2008 - Many fewer teen births especially for non-whites and diverging marriage trends
Since 2008, the trend has continued. I’ve written blog posts touting all time lows for U.S. teen births in most of the years since then.
For example, there were about 1,030 children born to mothers aged 15 to 17 in New Jersey in 2014, a rate of 5.8 per 1,000 girls aged 15-17 down 15% from 2013 and down 78% from a peak in 1991.
http://washparkprophet.blogspot.com/2016/10/child-marriage-in-new-jersey-is-not.html
 Similarly:
Birth rates are down a whopping 51 percent among Hispanics age 15 to 19 since 2006, and down 44 percent among black teens, according to a survey of census data by the Centers for Disease Control and Prevention. Teen pregnancy rates among whites also fell by a third.”
The previous year, I noted that teen births had declined at an annual rate of 7% per year from 2007 through 2013. 
This plays out against a background of dramatic divides between those with more and less education in the timing of when they have children and their marital status. The average age of a woman when she first marries (currently 27) had grown higher than the average age of a woman having her first child in 1989. The average high school educated woman has a first child two years before marrying while an average college educated woman has a first child two years after marrying. 
“73 percent of black children are born outside marriage, compared with 53 percent of Latinos and 29 percent of whites. And educational differences are growing. About 92 percent of college-educated women are married when they give birth, compared with 62 percent of women with some post-secondary schooling and 43 percent of women with a high school diploma or less” 
The likelihood of divorce is also extremely different between women with college degrees and women with only high school educations:
“the divorce rate among college-educated women has plummeted. Of those who first tied the knot between 1975 and 1979, 29% were divorced within ten years. Among those who first married between 1990 and 1994, only 16.5% were [divorced within ten years].
At the bottom of the education scale, the picture is reversed. Among high-school dropouts, the divorce rate rose from 38% for those who first married in 1975-79 to 46% for those who first married in 1990-94. Among those with a high school diploma but no college, it rose from 35% to 38%.”

20 June 2017

Happy Summer Solstice!

It is officially summer.

Moderate Brain Damage Common But Not Universal In Serial Killers

Most serial killers have brain damage, but several prominent ones (e.g. Ted Bundy, Jeffrey Dahmer, and John Grady) did not. Those that do have brain damage do not have the most severe cases of brain damage, probably because that would critically impair their ability to plan and execute complex behavior.

We know that traumatic brain injury (TBI) is extremely common in the most difficult inmates. My guess is that those serial killers who do not show signs of brain damage are individuals who were born psychopaths, but who have escaped brain damage from trauma.

19 June 2017

More SCOTUS Rulings

The latest from the U.S. Supreme Court:

* An Ohio death penalty sentence for a 1985 murder in Jenkins v. Hutton, is affirmed in a per curium opinion (overturning a 6th Circuit reversal) where the jury was not properly instructed regarding how to weigh evidence in the penalty phase of the case, but the objection was not preserved and neither the 6th Circuit nor the defendant could show in a way that met the heavy burden of proof that no reasonable jury would have convicted him had it been properly instructed.

* In Matal v. Tam, a unanimous 8-0 court (although with some concurring opinions) affirmed the determination that a law prohibiting offensive trademarks (in this case for the band "The Slants") is unconstitutional, affirming the en banc Federal Circuit, at least in this context. The statute is "a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a)." Neither of the two concurrences undermine the holding in any way. (The case name was changed between oral arguments and a decision on the merits because the director of the PTO changed in the interim.)

* In McWilliams v. Dunnthe Court's 5-4 decision marks the first dissenting opinion that Judge Gorsuch has joined, which he does with the other conservatives on the court. The Court reversed an Alabama death sentence where the defense was not permitted to obtain a mental health expert as part of his right to effective counsel in his defense to argue their client's insanity as a mitigating factor in the face of evidence that there was a mental health problem present. Neither the state expert's testimony nor brief assistance from a volunteer psychiatrist meet this obligation. A harmless error determination was reserved for the 11th Circuit on remand.

* In Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. the court finds that "specific personal jurisdiction" (as opposed to general jurisdiction) is lacking in this case brought in a California state trial court in an 8-1 decision. According to the official syllabus:
A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. 
The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. The high court is also unimpressed with the fact that the drug giving rise to the product liability is distributed by a California company. The official syllabus also notes that:
The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.
Statutory limits on federal court jurisdiction probably prohibit the possibility of federal court jurisdiction now, but the decision leaves Congress with the option of potentially changing that statute. which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, even though this is probably not constitutionally required.

Sotomayor's dissent argues that:
Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.  
I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . 
It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. 
In short, this is another manifestation of the Court's longstanding aversion to class action lawsuits. I agree strongly with Sotomayor on this point, but the reality is that the majority's rule is the one I'll have to litigate under for the indefinite future.

* In Packingham v. North Carolina, a unanimous court held that a ban on social media usage for sex offenders was unconstitutional. The official syllabus explains that:
North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e). According to sources cited to the Court, the State has prosecuted over 1,000 people for violating this law, including petitioner, who was indicted after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the indictment on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down §14–202.5 on First Amendment grounds, but the State Supreme Court reversed. Held: The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. 
Basically, the judges find that the ruling is not sufficiently narrowly tailored to the objective to meet constitutional must and must be limited to postings that could harm children or facilitate contact with children.

* Ziglar v. Abbasi is procedurally weird. Two Justices of the eight person court (both liberal whose involvement would have resulted in the opposite conclusion on the merits) recused themselves and Justice Gorsuch did not participate, and two Justices dissented, so the majority opinion commanded only 4 votes out of 6 justices participating (still a quorum). SCOTUS blog explains that the release of the decision involved some drama, no doubt, in part, because the liberal wing of the Court was pawned on procedural grounds allowing a minority of the court to prevail when it wouldn't have been able to otherwise. The dissent accurately discerns that this ruling is dangerous to the future of liberty in the United States. An analysis at the Atlantic explains why this is the case - basically because it lets officials get away with admittedly wrongful conduct against innocent people in violation of their civil rights in the name of the War on Terrorism.
Kennedy’s second opinion is in Ziglar v. Abbasi, about whether a so-called Bivens civil rights action is available to six people of Arab or South Asian descent detained after the Sept. 11, 2001, terrorist attacks who challenged the conditions of their confinement. 
Kennedy’s opinion for a four-justice majority (out of six participating) holds that most of the Bivens actions brought by the detainees should not have been allowed to go forward. 
“Judicial inquiry into the national security realm raises serious separation-of-powers concerns,” Kennedy says. He is joined in full by Roberts and Alito, and for the most part by Thomas. Sotomayor and Kagan did not participate for unspecified reasons of recusal, and Gorsuch did not participate because he was not on the court when the case was argued. 
Breyer has written a dissent, joined by Ginsburg, which he will read from at some length from the bench. It is the first dissent from the bench in a term in which some were predicting we might not see any at all. 
“The majority concludes that the plaintiffs cannot or may not be able to bring their suit, even if they prove their allegations and even if the defendants violated clearly established constitutional commands,” Breyer says. “Justice Ginsburg and I disagree. In our view, Bivens actions should continue to provide appropriate compensation for those deprived of important constitutional rights and in times of special national-security need.” 
Breyer goes on for a good 15 minutes. Alito mostly looks down or out toward the crowded courtroom, as do the other justices. 
“We understand the majority’s basic concern, namely that federal officials might hesitate in carrying out their security-related responsibilities if they fear future lawsuits for damages with an attendant risk of judicial second-guessing of decisions,” Breyer says. 
In time of war or national-security emergency, Bivens actions “may be particularly needed,” he adds. “History warns of the risk to liberty in times of national crisis.” He cites the Alien and Sedition Acts, the suppression of civil liberties during World War I, and the internment during World War II of “70,000 American citizens of Japanese origin.” 
While the majority points to suits for injunctive relief that may be brought to challenge government overreach, those are filed during national emergencies when the courts may be hesitant to interfere. “A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available,” Breyer says. 
He closes by citing Lord Atkins, a British judge who wrote during World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” 
“The court should say the same here,” Breyer concludes.

Quote of the Day

Canon Jesus was way better than Fandom Jesus.
- Wil Wheaton

There is a lot of truth in the quote, but not enough to win my faith in a ministry based to a great extent on a demon-possession theory of mental and physical health, or a demigod sacrifice theory of personal salvation in the afterlife, as portrayed in the Gospels and some of the remaining New Testament. The Canon Jesus is way better than Fandom Jesus, but ultimately, they are both just stories - perhaps even legendary history, but hardly the truth.

The First U.S. Dog Fight In 18 Years

For the first time since the 1999 Gulf War, a U.S. fighter jet (a carrier based F-18) shot down another jet fighter in the air (and Syrian Su-22) in Syria in defense of its allies in the war against ISIS in Syria that is one part of a complex civil war there.

The U.S. military spends an immense amount of time and money developing fight aircraft optimized for air to air combat and training pilots to conduct it, but, in part because of that developed superiority in capability, almost never actually does.

Also, notably, Iran has joined the fight against ISIS by firing ground based missiles at ISIS targets in Syria. This move not only retaliates against recent ISIS terrorism in Iran (which as a Shi'ite state is anathema to Sunni ISIS in addition to the fact that Iran has backed the rump Iraq government fighting ISIS in Iraq). It also demonstrates the military capability of Iran to strike far outside its borders, which coupled with nuclear weapons which it claims to have stepped back from developing, could pose a real threat to Israel.

Questioned Foundations

They called it the end of history. 

Liberal, democratic capitalism would be universal. So would human rights. Almost all interactions in society were to be based upon strict, mutual consent revocable at any time except in the most extreme circumstances. Religion incompatible with science in daily practice, if not in principle, would fade away. Equality on the basis of race, national origin, ethnicity and gender would prevail by people sharing a common cosmopolitan culture with regional variation.

The zeitgeist, however, is starting to question, often quietly, these foundational ideas.

Democracy is growing less sacred on both the left and the right. The left is concerned about populist demagogues like Donald Trump, the alt-right, and the emerging far right parties of Europe - the UK Independent Party, the Greek National Socialists, Marie LePen's party in France, and so on. The right admires authoritarianism praising regimes like Putin's Russia and China's regime, and tolerating the regime in Saudi Arabia, although still condemning and deriding North Korea's totalitarian de facto absolute monarchy.

While secularism has almost run its course in much of Europe and the number of non-religious is growing rapidly in the United States, especially among the young, Evangelical Christian and conservative Catholicism are thriving on both sides of the Atlantic, and Muslims have become common in most of Europe achieving a foothold through peaceful immigration what the faith had not managed to secure by force. Meanwhile, mainline Christianity continues to be in free fall and some of those who are abandoning it who do not become non-religious have started to adhere to peaceful threads of Eastern religious thought, neo-paganism and re-imagined religious/philosophical movements like Humanism, new Satanist communities, transhumanism, patnheism, and more.

On the right, equality has been openly disavowed by a growing white supremacist movement, and more opaquely challenged by those who have started to frame their thinking into a focus on national, racial and class based intelligence levels. Even strict opponents of identity based discrimination have become comfortable with the notion that in our meritocracy, lower social class equates with less intelligence and also even with lower worth. On the religious side, the prosperity gospel movement is fundamentally one of class superiority with a religious rather than secular dimension. Notions of a gender blind, color blind world are under attack from both the left and right.

Even consent and choice as fundamental principles are doubted - not so much in public debate, but very much in the brewing cauldron of artistic endeavors. BSDM has become a not infrequent element of the pop music, pulp fiction and video streams of ordinary people. Russia just decriminalized wife beating, while Saudi Arabia offers lessons in wife beating on public television. Liberals are trying to come to terms with the fact that this fundamental tenant of their worldview was not widely followed historically, is not widely followed in much of the world, and is absent even in major institutions like the military. If this idea can be absent in so many places, can it really be so fundamental and necessary?

The end of history may still be coming. But, as it arrives the collective discussion and thoughts of the people he think at all are looking backward and exploring, at least intellectually, the alternatives.


15 June 2017

Blimps Are Not Crash Proof

While the issues that caused the notorious Hindenburg crash have long ago been resolved, blimps are still not entirely crash proof.

14 June 2017

Fertility Rates Vary Dramatically Within India By Region


UPDATE June 19, 2017 in response to the comments:


Razib Khan notes the huge range of lifetime fertility rates for women in different parts of India at the Brown Pundits blog. The high fertility areas, for example, in the Himalayan foothills, have fertility rates comparable to Nigeria (at the peak in the 5.0 to 6.0 range). The low fertility areas, mostly in Southern Indian, have fertility rates four times as low, comparable to Italy or Japan (as low as 1.2). He states before providing a table with the state by state figures:
The map above shows the most recent district level fertility rates in India. It is immediately clear why comparing India to Pakistan and Bangladesh (let alone Nepal, Sri Lanka, or Bhutan) is a major error. 
In some of the northern regions of the Hindi-speaking “cow belt” as well as the lightly populated Northeast the total fertility rate is similar to what you find in Nigeria, between 5 and 6 children per woman. For comparison the TFR for Saudi Arabia is 2.75. For Bangladesh it is 2.20 and for Pakistan it is 3.6. In contrast, much of the South, Punjab, and West Bengal have below replacement fertility.
In the comments, he notes that data is not available from the gray area (basically Kashmir) due to political turmoil there.

The cause isn't obvious, leaving us to speculate based upon correlations rather than causation. Generally speaking linguistically Indo-Aryan, Munda and Tiberto-Burmese regions seem to have higher fertility than linguistically Dravidian regions. Alternatively, fertility is lower in places where crops with Sahel African crops thrive and is higher in places where Fertile Crescent Neolithic crops and rice farming are employed.

This is contrary to the historical stereotype of Northern India as more urban and developed and Southern India as a more rural and less developed. On the other hand, megacities in Southern India may be larger than those in Northern India, and the size of the largest cities is usually a good proxy for economic development.

It is also seemingly contrary to the usual rule of thumb that unpredictable risks of death are disproportionately and non-linearly associated with higher fertility levels (i.e. people overcompensate for the marginal risk of losing a child by having more children). Deaths from natural disasters are clearly more common in low fertility areas of India than they are in high fertility areas. And, the infectious and parasitic disease load is likewise probably higher in low fertility areas of India than they are in high fertility areas.

Of course, Razib's core point that South Asia is not demographically homogeneous is all well demonstrated by this data point. 

13 June 2017

Opal Out Of Business

After a long run, the restaurant "Opal" on 9th and Lincoln Street in Denver, Colorado, which was arguably the worst Sushi restaurant in the world, has finally gone out of business.

How Do We Purge Monsters From The Political Class?

The junior senator from Georgia jokingly asked the audience at Friday’s Faith & Freedom Coalition’s Road to Majority conference to pray for the death of President Barack Obama on Friday, choosing a chilling passage from Psalms to make his point. 
According to The Daily Beast’s Betsy Woodruff, Republican Senator Frank Perdue jokingly told attendees: “We should pray like Psalm 109:8 says: Let his days be few.” 
Christians well acquainted with Psalms 108, know that it is not just a wish for Obama to be out of office, but a call for vengeance upon a rival.
From here.

Unfortunately, truly monstrous politicians like David Perdue, and outright criminals in public office, are not terribly uncommon.

How do we built a political culture and political institutions that keep the worst of the worst out of public office?

Also, add this to the overflowing file of examples of Christians who have pretty much permanently destroyed the Christian brand by deeply intertwining it with a culture of hate.

White Southern Christian culture is unfortunately pretty much a wasteland of depravity.

12 June 2017

Quote of the Day

In most sciences, models with poor out-of-sample fit are labeled "wrong." 
In macro[economics], "all models are wrong."
- Noahpinion (at slide 29 in the link).

Harsh Rulings From SCOTUS

* The U.S. Supreme Court has previously held that life without possibility of parole sentences for a rape committed by a juvenile are not permitted. But, it concluded per curiam in Virginia v. LeBlanc that habeas corpus review was not available in such as case when the sentence was only life with possibility of "geriatric release" finding that this was not an objectively unreasonable reading of its ruling by the Virginia Supreme Court. In all likelihood, however, SCOTUS will hold in the proper case that this sentence is unconstitutional, but people with existing sentences will be hard pressed to benefit and will languish in the meantime.

* In Henson v. Santander Consumer USA Inc., SCOTUS gutted the Fair Debt Collection Practices Act by holding that firms that purchase defaulted debts for collection are not subject to the Act. This unanimous ruling is the first written by new Justice Neil M. Gorsuch and reflects a crabbed method of interpreting statutes that focuses on their literal wording rather than their intent, putting form over substance (since a sale of a defaulted debt for collection is for all purposes relevant to the FDCA economically equivalent to collecting debt for a third party).

The background to the grant of certiorari illustrates why the Court's unanimous conclusion was far from a foregone conclusion. As the headings in the Petition for Certiorari explain, the Circuit Courts of Appeal were quite evenly split on this issue and the U.S. Supreme Court adopted the minority rule (incidentally, affirming the much maligned 9th Circuit's position):
There Is A 5-3 Conflict Over Whether Collectors Of Purchased Defaulted Debt Are “Debt Collectors” Under The FDCPA. The Third, Fifth, Sixth, And Seventh Circuits, And The District of Columbia Court of Appeals, Hold That Collectors Of Purchased Defaulted Debt Are Debt Collectors Within The Meaning Of The FDCPA. The Fourth, Ninth, And Eleventh Circuits Reject The Majority Rule.
The majority view was also the interpretation of the Act made by the federal agencies charged with enforcing the law:
As originally enacted, the FDCPA authorized the Federal Trade Commission to “enforce compliance with” the Act, using its powers under the Federal Trade Commission Act. See 15 U.S.C. § 1692l(a). As part of the Consumer Financial Protection Act of 2010, the Consumer Financial Protection Bureau was also given overlapping enforcement authority with 27 respect to non-bank financial institutions. See id. § 1692l(b)(6). These two agencies and the Solicitor General have consistently construed the FDCPA to apply to purchasers of defaulted debt. 
* In Microsoft Corp. v. Baker, the Court narrowed the availability of the class action remedy by eliminating the right of a class to appeal on an interlocutory basis the denial of class action status, when all of the named Plaintiffs settle, or voluntarily dismiss with prejudice, their cases. This unanimous decision reflects longstanding hostility towards class-action lawsuits by the Supreme Court.

* In Sessions v. Morales-Santana, the Court agrees that the gender discrimination between the citizenship requirements for children with U.S. fathers born outside the U.S. and for children with U.S. mothers born outside the U.S. is improper. But, rather than following the nearly universal rule of leniency in such acses, it adopts the harsher rule applicable to U.S. fathers (prospectively) for mothers while leaving the rule for fathers unchanged, denies the party claiming U.S. citizenship relief, and exhorts Congress to rewrite the law. The decision was unanimous.

* In Sandoz Inc. v. Amgen Inc., the U.S. Supreme Court once again rebuffs the Federal Circuit on a patent law issue related to patent claims in products (basically drugs) biologically similar to products subject to an existing patent. If the inventor of the biosimilar product doesn't have the cooperation the the inventor of the original product, the original product owner may immediately sue for patent infringement. In this case two points were at issue. First, could the new applicant give an FDA required notice before it had its license to sell the product in hand, thereby avoiding a six month waiting period during which the old product owner would have a monopoly. The Federal Circuit held that notice could not be given in advance and the U.S. Supreme Court disagreed, eliminating a six month waiting period for newly approved products going to market. Secondly, it wasn't clear if an injunction against selling the product pending litigation was available in lieu of the waiting period. The U.S. Supreme Court held that an injunction justified by state but not federal law could be available even though the Federal Circuit had held that all state law claims were pre-empted. Overall, the case was a slight win for companies wanting to introduce new biosimilar drugs to the market and a slight loss for companies with existing drug patents whose protection against biosimilar competitors was weakened. This follows the general trend of recent patent holdings of weakening court created protections for existing patent holders (which one would expect the Federal Circuit to create due to industry capture). The decision was unanimous. This is the sixth federal circuit reversal on a patent issue this session of the U.S. Supreme Court, and was a narrow opinion avoiding many of the issues presented.

In addition to these ruling the high court granted cert in yet another patent law case involving the process for reviewing already issued patents.

09 June 2017

Theresa May's Snap Election Hurts Conservative Party

Overview

Theresa May called a snap election in the U.K. that was held on Thursday, three years earlier than she had to after just two years in office. This, in hindsight, was a very bad call

Her party has lost its parliamentary majority and will now have to form a coalition government to remain in power, mostly likely with the Democratic Unionist Party, the right leaning party of Northern Ireland. Labour has to include everyone but the Conservative Party in its coalition to form a government. and that is likely to be a harder sell. For example, while the leading unionists and anti-U.K. parties of Northern Ireland had a unity government in Northern Ireland's devolved government for almost a decade, that coalition has since collapsed making the parties less than natural fellow coalition partners.

Two political parties in Northern Ireland and the far right U.K. Independence Party are no longer represented in parliament. The UKIP received one in eight votes in 2015, despite winning only one seat in parliament, but only one in fifty votes in this election.

Voter turnout was 69%.

The Results

Theresa May's Conservative party went into the election with a thin majority. Post-election, the Conservative Party will still be the largest party in parliament, but will lack the 326 seats out of 650 necessary for a majority, with a projected net loss of 13 seats, leaving the Conservatives 8 seats short of a majority.

The Labour Party made big gains (30 seats) and the Liberal Democratic Party made small gains (from 8 to 12 seats). The U.K. Independence Party, a far right party, appears to now have no seats in parliament. The Green Party held onto its single seat.

The Scottish Nationalist Party lost twenty-one seats, about half lost to the Conservatives and about half lost to Labour and the Liberal Democrats.

The Welsh Nationalist Plaid Cymru gained one seat.

In Northern Ireland, the Democratic Unionist Party won 10 of 18 seats picked up three seats. Meanwhile separatist Sein Fein won 7 of the 18 seats picking up two seats. These gains were at the expense of two parties which no longer hold any seats in parliament, the Ulster Unionist Party which lost both of its seats and the Social Democratic and Labour Party which lost all three of its seats. One Northern Ireland seat in the generally unionist eastern part of Northern Ireland was filled by an independent candidate.

Thus, two small parties in Northern Ireland and one in England lost all of their seats in parliament. Eleven parties that didn't have seats in parliament before the election failed to enter parliament.

Analysis

The Conservative Party will be given the first opportunity to form a governing coalition and will continue to serve as a caretaker government, and if it fails to do so, the Labour Party will be given an opportunity to form a governing coalition. But, this process is much faster than the transition period in the U.S. which takes three months. When there was a hung parliament in 2010, a coalition was formed in 5 days and is unlikely to take as long as two weeks. 

The Green Party, the Liberal Democratic Party, the Scottish Nationalist Party and Plaid Cymru are most naturally coalition partners of the Labour Party, although for sufficient compromises, the Liberal Democratic Party would probably be willing to join in a coalition with the Conservatives, although its platform promises not to join a coalition with either party.  My recollection is that Sein Fein generally does not enter into governing coalitions unless they will agree to Northern Ireland joining Ireland which none of the other parties is willing to do. If it did join a coalition, it would only join a coalition of the left.

Labour needs virtually all parties other than the Conservative Party in its coalition to secure a majority, although it could have a minority government seeking support from the Liberal Democratic Party and Sein Fein on an issue by issue basis, or at least for the prime minister's appointment.

The most plausible coalition partner for the Conservative Party and the most likely government to emerge would be a coalition of the Conservative Party with the Democratic Unionist Party, which is the more conservative of the two parties of Northern Ireland, with all other parties in opposition, which would provide a very thin majority. Indeed, the DUP is probably more conservative than the Conservative Party whose platform is honestly closer to centrist Democrats in the United States than to the Republican Party in the United States and includes large amounts of increased government spending, for example. Also, the SNP and Sein Fein both want independence for their regions, while the DUP only wants devolution.

Regional Politics

Northern Ireland

As noted above, 17 of the 18 seats in Northern Ireland are held by two Northern Ireland political parties, the Democratic Unionist Party and the Sein Fein, with the last seat held by Independent Lady Sylvia Hermon who was re-elected.

Sein Fein holds the western ridings and Belfast West (which is surrounded by unionist ridings), and the Democratic Unionist Party holds the eastern ridings except one seat on the coast held by Lady Hermon.

Seats in the U.K. parliament aren't terribly relevant in Northern Ireland because it has its own system of self-government.

Scotland

Scotland also has its own system of self-government as well as 59 seats in parliament. As I write, those seats have been called as follows:

35 for the Scottish Nationalist Party (down 21 from 56).
13 for the Conservative Party (up from one).
7 for Labour (up from one).
4 for the Liberal Democratic Party (up from one).

Thus, the Scottish Nationalist Party has gone from almost complete control of all Scottish seats in parliament to a mere majority of the outstanding seats, with the remainder split more or less evenly between the Conservatives on one hand, and Labour and the Liberal Democratic Party on the other.

Still, while they made gains from an extraordinary high point for Scottish Nationalists, the Conservatives are not strong in Scotland.

Wales

Unlike Northern Ireland and Scotland, Wales does not have genuine self-government, but does have 40 seats in parliament. As I write, those have been called as follows:

28 for Labour (up 3)
8 for the Conservative Party (down 3)
4 for Plaid Cymru (up one)

The Liberal Democratic Party lost its sole seat in Wales.

Thus, the Conservatives lost ground in Wales which was already a weak point for them. The trend in Wales mirrors the trend in England.

England

England like Wales does not have a government separate from the U.K. parliament, so Scotland and Northern Ireland have a say in making the laws for England and Wales even though they have their own self-governments and aren't bound by those England and Wales specific laws. England has 533 seats in parliament.

In England, as I write the seats that have been called are as follows:

Conservatives 297 (down 22 seats)
Labour 227 (up 21 seats)
Liberal Democratic Party 8 (up 2 seats)
Green Party 1 (unchanged)
U.K. Independent Party 0 (down 1 seat)

This includes one BBC projection which hasn't actually been called yet for Labour in London. It was previously held by the Conservatives. But, apparently, the BBC thinks that the London seat (Kensington) is going to flip to Labour while based upon exit polling.

England has moved significantly to the left in two years.

Conservatives have a majority in England.

National Parties By Region

Conservative Party: 297 England, 8 Wales, 13 Scotland
Labour: 227 England, 28 Wales, 7 Scotland
Liberal Democratic Party: 8 England, 4 Scotland

Voting System Impact

The Conservatives are only anywhere close to having a majority in the U.K. because of the first-past-the-post single member district voting system that is used.

The vote share of the non-nationalist parties in the U.K. from right wing to left wing was as follows:

U.K. Independence Party (far right) 1.9%
Conservative Party 42.2%
Right and Center-Right Subtotal 44.1%

Liberal Democratic Party 7.1%
Labour Party 40.4%
Green Party 1.6%
Left and Center-Left Subtotal 49.1%

The Scottish Nationalist Party got 3.1% and is much closer to Labour than to the Conservative Party.

The political left to left-center gets less than their fair share of seats because they are divided. The Conservative Party gets more than its fair share of seats because the British Right is comparatively unified.

2015 Results

In 2015 the results were as follows:

Conservative Party 331 (+24)
Labour 232 (-26)
Liberal Democrat 8 (-49) 
Scottish Nationalist Party 56 (+50) (Scotland)
Democratic Unionist Party 8 (0) (Northern Ireland)
Sein Fein 4 (-1) (Northern Ireland)
Plaid Cymru 3 (0) (Wales)
Social Democratic and Labour Party 3 (0) (Northern Ireland)
Ulster Unionist Party 2 (+2) (Northern Ireland)
U.K. Independence Party 1 (+1) (England)
Green Party 1 (0) (England)
Independent Lady Sylvia Hermon 1 (Northern Ireland)

08 June 2017

The Undeclared War On Trophy Hunting

Not all political wars are openly declared. 

One of the more artful undeclared wars in modern America is the undeclared war on trophy hunting, which is being fought not in court cases, or with legislation, but by guileless statements that implicitly assume that everyone knows that trophy hunting rare African megafauna is manifestly immoral.

Case in point, a national TV put down in connection with meta coverage of reactions to former FBI director Comey's testimony today by MSNBC newscaster (you can't really legitimately call someone in her position a "reporter") Nicolle Wallace:
For a guy who kills baby elephants for kicks to be giving James Comey a lesson in character and strength of character is rich at best and pathetic at worst.
Wallace doesn't formally argue that "killing baby elephants" are wrong. Indeed, she implicitly acknowledges that it is legal and doesn't try to call Donald Trump, Jr. (the man targeted by her comment), whose elephant hunting pictures have been circulating around the web recently, a criminal. Instead, she simply assumes, by implication, that this should be so obviously morally wrong that it doesn't require any explanation. 

Moreover, if Donald Trump, Jr. defenders come back and dispute that the elephant wasn't a baby, or that his conduct was legal, or that it wasn't just "for kicks", they may defend Donald Trump, Jr. this time around, but they are also conceding the critical point (for the larger African megafauna debate) that "killing baby elephants" is immoral.

This is one of a fairly long running series of a mostly social media based campaign to "out" wealthy big game hunters with their own prized photographs, framing those photos as evidence of disrespect for nature, of cruelty, and of oblivious affluence.  These too viscerally connect the killing of charismatic African megafauna to condemnation, without bothering to argue on the merits that the wrongness of this conduct needs to be debated. 

And, as far as I can tell, it's working. 

Hunting, in general, is dramatically less common than it used to be as people have moved in droves from rural areas to suburbs and cities, and have taken jobs that don't allow them to be away every year for long hunting trips. Moreover, even media that has glorified hunting, like the first "Hunger Games" movie, have taken care to make clear that "moral" hunting is mostly about providing your family with food, while underlying the aspects of hunting as an emotional dual between the hunter and the hunted that figures into predominantly British traditions like fox hunting and safari hunting.

This fits the evolving demographics of hunting. Hunters are increasingly working class rural people who really are engaging in that activity, in part, as a way to provide premium food for their families at a pretty modest cost, in local forests and meadows. The people who primarily hunted for sport moved to the cities, and while there are gun loving, sport hunting families out there still in the cities, their numbers of dwindled dramatically and with those numbers, their influence on public opinion has fallen as well.

It is a tactic firmly rooted in movement politics - making the personal political and changing hearts and minds - rather than traditional electoral or legislative or even governmental politics. And, it has turned what was once an exuberant reward for success into a source of shame and social rejection.

The campaign is brilliant for is subtlety, restraint and ability to influence people's beliefs in a basically unconscious, emotional and visceral way without resort to the kind of overt, logical, formalistic modes of persuasion that Democrats, generally, and their last Presidential candidate, Hillary Clinton, in particular, have been so wedded to and reliant upon. 

This isn't to say that this isn't completely divorced from electoral and legislative politics. Liberals made great hay out of efforts early in the Trump Presidency to cancel regulations prohibiting practices like hunting hibernating bear cubs that are both squarely examples of sport hunting for trophies and are also widely viewed as unsporting and inhumane.

07 June 2017

Battery Prices Falling

Batteries Are Cheaper

Batteries are the key to transitioning from fossil fuel powered vehicles to electric vehicles, and to making renewable energy sources a viable way to meet baseline power demands. So, dramatically falling prices for battery storage units (a drop of more than 75% in six years) is a very big deal.
Storage prices are dropping much faster than anyone expected, due to the growing market for consumer electronics and demand for electric vehicles (EVs). Major players in Asia, Europe, and the United States are all scaling up lithium-ion manufacturing to serve EV and other power applications. No surprise, then, that battery-pack costs are down to less than $230 per kilowatt-hour in 2016, compared with almost $1,000 per kilowatt-hour in 2010.

McKinsey research has found that storage is already economical for many commercial customers to reduce their peak consumption levels. At today’s lower prices, storage is starting to play a broader role in energy markets, moving from niche uses such as grid balancing to broader ones such as replacing conventional power generators for reliability,1providing power-quality services, and supporting renewables integration.
From here.

As noted previously, solar power has also gotten dramatically cheaper in the last few years. This is the case for other renewable energy sources as well.

Economic Implications

In general, better batteries, by facilitating the replacement of gasoline or diesel fuels derived from oil are not just substituting the coal that has historically been the primary source of electricity. Wind, solar, hydroelectric sources, nuclear, and natural gas based energy sources, as well as coal, are used to generate electricity and the market share of coal in electricity generation has fallen by about 20 percentage points (40% of its previous market share) in the last few years.

We can expect an extended period of very low EV market share until better batteries make electric vehicles superior in total price and performance to gasoline and diesel powered vehicles, at which point there should be a dramatic transition that should take about ten to twelve years (the useful life of a motor vehicle starting on the date when the the threshold is crossed), followed by a vehicle market in which EVs have a dominant market share and gasoline and diesel remain only in niche markets (e.g. vehicles with little regular access to a power grid).

As demand falls, so will oil prices, and oil extraction will cease in places where it is more costly to extract oil (including a lot of the Colorado oil and gas industry).

Political Implications

Once this transition is well underway, it will also have dramatic geopolitical implications, weakening the economies and political power of oil exporting countries and regions, and strengthening the economies and political power in relative terms of oil importing countries and regions.

Since oil exporting countries and regions very frequently have authoritarian, repressive or otherwise ill functioning political systems relative to those that do not export oil, this is generally speaking a good thing.

The UpStairs Lounge Fire

Four years after the Stonewall riots and the formation of the Metropolitan Community Church, an arson attack on a private gay pride gathering at the UpStairs Lounge bar in New Orleans killed 32 people in a horrifically painful way and injured about three dozen more people who were there on June 24, 1973. Per the linked material:
The UpStairs Lounge arson was the deadliest fire in New Orleans history and the largest massacre of gay people ever in the U.S.
The mostly likely perpetrator of the attack was never charged but committed suicide in 1974. Despite it's magnitude, this event is not widely known.

Fighting Conspiracies With Idiocy


06 June 2017

Getting Into Law School Is As Easy As It Has Been For A Dozen Years

The number of law school applicants plunged almost 50% from 2004 to 2016, but the number of prospective law students admitted to law school has remained almost unchanged in that time period, with the decline mostly reflecting the shuttering of a few very marginal law schools that were having great difficulty getting a sufficient number of their graduates to pass the bar exam.


The nominal admissions rate of law school applicants to some law school, is now 76%, which is down slightly from a 2015 peak of 78%, but that decline simply reflects a change in definitions that makes the pre-2016 data not precisely comparable to the 2016 data.


By comparison "the nationwide average acceptance rate for UNDERGRADUATE colleges & universities" is 65.8 percent. So, it is easier, on average, to get into law school than it is to get into an undergraduate college or university. (This is somewhat misleading because you have to be accepted into an undergraduate college or university and then graduate to even be eligible to apply to law school.)

Basically, today, everyone with any reasonable shot at passing the bar exam is being admitted to law school.

Meanwhile, the salaries of newly minted law school graduates in law related jobs declined somewhat after the Financial Crisis in 2008 and continued to fall through 2011 until the economy had more or less recovered, but has held steady since then.

In contrast, the number of medical school slots has remained constant for half a century or so, while the number of applicants has steadily increased to the point where medical schools are twice as selective as they used to be and continue to be harder to gain admission to with each passing year.

05 June 2017

Five More Unanimous SCOTUS Rulings

The U.S. Supreme Court issued five unanimous opinions today, which I summarize below with my commentary in italics. 

Justice Gorsuch has now participated in three U.S. Supreme Court decisions, but, because all three were uncontroversial and none involved an opinion written by him, we still have no useful actual information about how he will behave as a Justice. These decisions only confirm the already expected conclusion that he is unlikely to become a gadfly who fights otherwise consensus rulings in the way that Justice Thomas has sometimes tended to be.

* A three judge panel's decision on an injunction related to election districts in a special election in the wake of racial gerrymandering was remanded in a per curium opinion because the trial court's analysis of the equitable issues involved in fashioning a remedy was only perfunctory. The case is North Carolina v. Covington.

While the decision doesn't presume a particular outcome on remand, the Supreme Court disavows a rule that injunctive relief is almost always available to prevent an election in a racially gerrymandered district as a remedy. The decision feels like a consolation prize in the wake of the Court's recent affirmation of a racial gerrymandering decision on the merits in North Carolina.

* ERISA plans established by hospital systems owned and controlled by a church are "church plans" for purposes of ERISA. The decision was 8-0. The case is Advocate Health Care Network v. Stapleton.

The language of the new statute expanding the definition of church-plans, which are exempt from many ERISA regulations, from true churches to certain church-controlled entities was far from clear on its face, but the Supreme Court's resolution is an expansive bright-line rule that will have wide effect in the health care industry (and probably in church controlled educational institutions as well).

* Civil forfeiture is not available as a remedy from someone who received no profits from the crime in question, even if that person was convicted as a co-conspirator in the crime. The decision was 8-0. The case is Honeycutt v. United States.

This ruling provides a very meaningful limitation on the civil forfeiture remedy with broad application in a situation where the statutory scheme could plausible have permitted either result.

The Sentencing Law and Policy Blog has an interesting insight on this ruling:
The opinion's first footnote indicates that a majority of circuit courts embraced a broader view of the federal forfeiture statute, which in turns further reinforces my long-standing view that SCOTUS these days is generally more pro-defendant on a wide range of sentencing issues than most lower federal courts.
* The SEC can seek disgorgement (i.e. a surrender of profits obtained from securities fraud), but the applicable statute of limitations was unclear. The Supreme Court holds (per the official syllabus) that "Because SEC disgorgement operates as a penalty under §2462, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued." The decision is 9-0. (This decision and the next constitute the second and third decisions of Justice Gorsuch in his service as a Supreme Court Justice).  The case is Kokesh v. SEC.

In yet another example of Congress not doing its job to make the law clear in a situation where there would inevitably be litigation over the issue, Congress failed to clarify whether and what statute of limitations applies to SEC claims for disgorgement of securities fraud proceeds in one of multiple plausible ways (a different one of which was chosen by the judges of the Second Circuit). The practical effect of the decision is to increase the amount of fraud profits that securities fraud perpetrators can hold onto in the face of SEC litigation, with the benefit of allowing people whose conduct might be challenged as securities fraud (but who are not charged by the SEC in the vast majority of circumstances) clarity about when they are in the clear.

* An individual developer brought a takings claims related to a zoning dispute and his real estate company sought to intervene in the federal court action. Was the real estate company required to have Article III standing? Per the official syllabus: "an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that requested by the plaintiff. That includes cases in which both the plaintiff and the intervenor seek separate money judgments in their own names." The decision was 9-0.  The case is Town of Chester v. Laroe Estates, Inc.

It is remarkable that this basic question of civil procedure that has potentially been an issue under the federal rules of civil procedure since the 1930s is only being resolved now. The outcome, however, makes perfect sense and is pretty much compelled by prior case law, which may help to explain why it took so long to be considered by the U.S. Supreme Court. The case is remanded to determine the correct resolution on the merits under the correct legal standard.

02 June 2017

This Is Why We Can't Have Nice Things

We Are In A Crisis Caused By Bad Political Leadership

It can be painful to absorb the daily news.

The sheer senseless stupidity of it all can leave you wanting to crawl back into bed and wanting to erase all memory of what you've learned.

Not all of the bad news is due to bad political leadership, but bad political leadership is responsible for a lot of it and the social climate created by these leaders is responsible for a lot more of it. Without bad political leadership, our world would only suck to the usual degree and not at the crisis levels we are experiencing right now.

We Have Bad Political Leadership Because So Many Voters Are Ignorant and Immoral

We Have Bad Political Leaders Because So Many Bad People Are Voters

Yes, Donald Trump is ignorant, immoral, and incompetent. But, we wouldn't have him if it weren't for the plurality of voters in dozens of states who voted for him in the general election and the plurality of Republicans who supported him in the primaries. 

Trump won the GOP primary because the Republican rank and file is more on his wavelength than they are on the wavelength of establishment Republicans. Trump won the election because most Republicans are suicidally loyal to their party and lots of independents in key states wanted to send a fuck you to the nation's political and cultural establishment.

Yes, votes were suppressed. Yes, bad tactical choices were made. Yes, Hillary Clinton was not an inspiring orator, didn't respond effectively to efforts to create scandals, and focused on listening and twenty point plans on every topic under the Sun instead of articulating a larger and simpler vision for the country.

But, Donald Trump wouldn't have been able to come remotely close enough to winning for any of those factors to matter if there wasn't something deeply wrong at the grass roots voter level in this country.

For example, the best predictor of a voter's likelihood of supporting Donald Trump was the extent to which that voter is racist, xenophobic and sexist. The connection was cultural much more than it was economic, for example. But, this was only electorally relevant and actually gave Donald Trump an edge, because so many Americans are racist, xenophobic and have incredibly backward views about women.

American Conservatives Are Predominantly Immoral And Ignorant

Establishment conservatives have long tried to project a myth that the American conservative movement is about people with an exceptionally strong moral compass whose superficially harsh economic policies are necessary to achieve prosperity. But, this is rubbish.

Actual American conservatives are about as hate filled, prejudiced and immoral as all but a handful of other political factions on the planet and have managed to refrain from utterly ruining our nation mostly only because they have lacked the power to do so. They are deeply disconnected from reality in almost all matters scientific and economic. The demagogues who lead them have convinced them to support policies in areas from health care to economics to gun control to the war on drugs that are starkly contrary to their own self-interests.

We have been placed in a situation where our nation is ruled by psychological toddlers, crackpot religious fanatics and radical white supremacists, none of whom have any grasp of the kinds of policies that are empirically supported, because so many conservative voters are just as ignorant and hateful, or more so, than they people they have elected - not just to the Presidency and Vice Presidency, but to the U.S. House, to the U.S. Senate, to Governorships and to state legislatures.

Misguided And Mean American Conservatism Predates The Civil War

This is not a new problem. For the most part, this cancer predates the U.S. Civil War. Serious post-civil war efforts to treat this cancer, like Reconstruction and the Civil Rights movement damped and contained its progress somewhat, but certainly hasn't successfully removed this malignancy from our body politic.

The North had an opportunity to surgically remove the lion's share of this cancer from our body politic by accepting Southern succession in support of slavery in 1861, and then to try to reform the Confederate stance on slavery and other bad policies from the outside. But, instead of choosing a less bloody course of action, that left the former Confederacy a half-way unrepentant nation of hate facing tighter economic discipline from the outsider world, Lincoln went to war. As a result, even places where there are more enlightened majorities, must always struggle to counteract the ignorance and hate from the right that flood out room for compromise and good sense.

To be clear, I don't mean to say that fighting the Civil War didn't produce worthwhile results. The Civil War was fought to end slavery, and it did, although it took another century to end Jim Crow and the struggle for reforms that really make things right is ongoing.

The North stayed in the relationship and fought for it to protect members of its community who were being mistreated in the South, and the North continued to do so protect its politically powerless and mistreated community members in the South through the federal government through the Civil Rights movement and into the present. But, this unselfish conduct was costly. The price the North paid for protecting the rights of the oppressed in the South as much as it could out of its moral imperative to do so, has been that their own progress has been limited by the resistance of the regressive movement in the places that were retained.

Conservatives Favor Means Spirited, Tribal, Emotional Policies That Ignore Reality

The Core Positions Of American Conservatives Are Divorced From Reality And Harmful

Rather than grapple with reality, American conservatives deny that pollution of the air, soil and water causes any serious harm. They ignore the overwhelming evidence that tax cuts don't pay for themselves, and that low tax rates are associated with economic malaise. Natural experiments, like the aftermath of huge tax cuts in the state of Kansas, strongly suggest that tax cuts are a first order cause of this economic malaise, rather than being merely correlated in a scenario where the pressure to lower taxes comes from economic malaise, and rather than being only a higher order effect dwarfed by other factors in economic success that have more of an impact on the health of the economy.

The Case Of Gun Control

Gun control is another area where American conservatives have a worldview that is fundamentally absurd, as suicide rates and accidental firearm death rates closely track the availability of guns.

In contrast, the use of guns for legitimate purposes by citizens who are not in law enforcement is vanishingly rare. Indeed, far more than a majority of incidents in which non-law enforcement citizens claim to be using a firearm to defend themselves or others, turn out to be cases where the use of force or a threat of force by the citizen did not qualify under the law as legally justified. There are roughly a hundred-fold fewer instances in which there is a legitimate uses of firearms for self-defense or to defend others, than there are instances in which firearms are used in a manner that violations criminal laws (excluding suicide and accidental harm by people not engaged in criminal activity). From a cost-benefit perspective there is no plausible way to justify America's lax gun control laws as good policy.

Yet, American conservatives repeatedly fail to learn from experience and absurdly argue that the way to make concerts, college campuses, elementary schools, churches, and other scenes of mass killing or terrorist attacks, it to arm more of the people who attend activities in those locations. And, in each case American conservatives routinely and selfishly disavow all empathy with and concerns for the plight of people other than themselves rejecting the existence of a common community, no matter how cruel the consequences of their proposals may be.

Bad Conservative Policies Flow From Objectively Wrong Factual Premises

A key point in each of these policy battles is that what is at stake is more than a mere difference of opinion regarding what constitutes desirable outcomes, or mere differences in preferences. These are cases where the conservative position requires one to assume facts that can be demonstrated empirically to be objectively false. Conservatives are not just immoral, they are also self-deluded.

Admittedly, there are selected issues upon which liberals often cling to positions that are not factually supported. But, the issues for which this is true aren't the central pillars of their policy agenda, are fewer in number, and are issues upon which liberal leaders aren't opposed to sincerely considering evidence which could persuade them otherwise in the vast majority of cases.

Solutions

Not Viable: Let Conservative Form Their Own Screwed Up Country And Leave The Rest Of Us Alone

One approach would be to eject the former Confederacy (and perhaps some of its political allies outside the former Confederacy proper, like Oklahoma) from the union so that these states cannot impose externalities arising from the stupidity of their people on the rest of us through the national political process and through the day to day needs of many of the sane people from sane states who do business with people in these misguided states. But, the consensus is that this approach it out of political bounds, even for the far right and far left political factions in the United States. 

Viable But Wickedly Hard: Change The Views Of Grassroots Voters With Movement Politics

So, the only practical means to address this cancer is to relentlessly and effectively take steps to transform this culture's world views, ideally in a manner that is perceived as coming from inside the group, rather than being imposed. This approach is sometimes called "Movement politics", because it takes a prolonged social movement to accomplish this kind of mass ideological change.

This is a daunting, and perhaps even "impossible" task, in much that same way that resorting to forensic physical anthropology and archaeology to infer the language these people spoke and the broad outliners of unwritten aspects of their culture, is a wickedly difficult problem.