The Next Bubble: Education?

I just thought of something rather depressing while reading about all the mess the sub prime mortgage crises has caused. It would seem to me that the next big bubble to burst will be the education market.

Like the housing market problem-caused by people buying houses they could not afford and then not getting the expected raise or job they needed to pay their now newly adjusted mortgages-people have for years now been buying educations they cannot afford-by borrowing on future earnings that are way less than certain.

Unlike houses however, banks will not be able to foreclose the brains of people they made loans to. Further, even if people are not deemed by bankruptcy law to meet the 'undue hardship' standard required to discharge student loans in bankruptcy (mortgages and credit card debt are much easier to discharge when you qualify for bankruptcy), that doesn't mean banks will collect money that doesn't exist.

Furthermore, education has all the signs of traditional bubbles. Tuition for higher ed has grown at a rate faster than inflation for the last several decades, and doubled adjusted for inflation in the last 10 years.

Wages for college graduates and professionals have not grown nearly as fast.

Of course, nobody knows what the future holds when this bubble bursts. What we could see is another bank panic as banks are unable to raise capital when huge amounts of their assets are trapped up in "toxic" student loan assets. In such a scenario, because of the precedent this bailout will set, banks will expect another bailout.

Just a thought.

UPDATE:

commenter Noah Goldman writes:

"They cannot repossess people's brains, but they can and will repossess everything else that's not nailed down.

This is why college should only be for the smarter kids and should only boast academic majors such as science, philosophy, and the like instead of all of these B.S. (no I don't mean Bachelor's of Science) degrees where they taught you nothing useful or that could have been taught in a trade school. Higher degrees should only be for those fields that truly need it, and university is HIGHER education."

That reminds me to suggest what could be done about this problem.

I tend to agree with Noah that more people could go to trade schools than do go to trade schools. I remember meeting quite a few people in college who got liberal arts degrees and then ended up becoming store managers or auto mechanics. We also might consider letting people go right to law school or medical school out of college.

I also think we could use more sunlight in (public) university budgets. I'm sure an awful lot of undergraduate tuition goes to things like academic research-things that most students do not really benefit from by just attending the undergraduate portion of the school. This not only unfairly drives up the price of tuition for the students, it also artificially gives academic research more funding than people would otherwise pay to fund it. This artificial way of funding research in public universities is really form of education tax on the real price of tuition. This may pay for research-but much research can be funded more efficiently by research and development companies rather than by the public. Further, using tuition as a tax revenue source to pay for the research is a pretty regressive tax when you consider the income of college students.

It's also not clear why state universities need state of the art gymnasiums, swimming pools, or housing. College graduates do not live with such amenities, and college students do not need to either.

Ironically, another thing that contributes to the tuition cost is that no matter how high the costs get, people are able to get huge loans to pay for it. Because of this availability of funding, it seems no matter how high prices get, universities are not seeing a decline in enrollment. In fact, more people are getting degrees today than ever before. Of course that brings us back to square one....

Godwin's law is wildly overated

Godwin's Law is a statistical formulation of people's tendency to compare things they think are bad or unfair one the one hand with Hitler on the other. Technically, it's theorized that the probability of any heated or controversial argument referencing Hitler approaches 100% as the conversation gets longer.

Recently, the idea of Godwin's law has been reflected on the one of my favorite (and hilarious) blogs "Stuff White People Like"

Yes I admit, sometimes people compare things that shouldn't be compared. Sometimes people exaggerate. And yes, in particular, people like to use Hitler as a point of exaggeration.

But, there are a couple of things that bug me about the (now pretty old) sensation of Godwin's law.

First, the idea that people sometimes exaggerate and over compare things to Hitler is not new, nor is it a great discovery made by some guy named "Godwin." Any intelligent person who has ever had a conversation in which somebody made an inappropriate rhetorical reference to Hitler has probably figured this out.

Second, as wikipedia pointed out when I read the article on Godwin's Law, (note: wikipedia changes-so it may no longer be on the site) the exact formulation of Godwin's law (that probability of the mention of Hitler goes up as a conversation continues) is pretty much simply a law of big numbers. Indeed the probability of ANY idea being mentioned is more probable as the conversation gets longer. Thus, Godwin's pseudo-intellectual formulation of the old concept is also pretty worthless.

Finally, sometimes references to Hitler are indeed informative. For example, suppose someone argues that a policy would be good for the economy. The other person may argue that
thats nice, but an economics's policy isn't everything. Suppose the other person says that economics should drive every decision. Wouldn't a sensible response be "even Hitler (at first) improved the economy with his polices?"

Indeed, comparisons to Hitler are what make the history of Hitler instructive. If we are too careful to ban comparisons to Hitler, we make the entire story of Hitler irrelevant and unhelpful toward preventing things like that from recurring (which-by the way-we definitely have not done a very good job of-if things like the Rwandan genocide, the current situation in Sudan, Cambodia under Pol Pot, Bosnia in the 90's, China under Mao, Russia under Stalin, or Saddam Hussein's Iraq are any indication).

True, sometimes these comparisons are so exaggerated and fanciful that they are irrelevant and unhelpful-but the mentality of Godwin's law simplistic formulation encourages us to ignore even those comparisons which would be helpful.

The Use Tax

Tax Girl has a post on something I have wondered about for about a year (since I learned about it): the USE TAX.

In every state with a sales tax, (all but 5 states, DC, and the US territories) ,there is also a use tax. This tax applies generally to businesses as well as individuals. The tax regards goods (and some services) which are bought in another state and then brought into the state for use in that state. (ex: a box of napkins bought in DC for use in MD). Such purchases have either not been taxed on sales elsewhere-or have been taxed either at a lesser rate, a greater rate, or the same rate in the other jurisdiction where the goods were bought.

When purchases are taxable under the use tax, the user of the purchases must fill out a use tax return and remit the tax that would have been paid to the state had the goods been purchased in state. Generally, the person may take a dollar for dollar credit (not a deduction) against the tax for the amount of sales tax that was paid in the other jurisdiction.

Ex. I buy a couch in DC for use in MD. I pay 5.75% tax on the couch when I buy it in DC-per the DC sales tax. (The rate in MD is 6%). When I go and bring it to MD, I am technically required to bring it to the attention of MD on a "use tax" re turn, and pay .25% (6-5.75) to the state. (not a deduction-but a credit).

In some states, you must add up all the use tax you owe and return it annually and pay. In MD, you must do the same quarterly (4 times a year). In some states, such as Pennsylvania, you must do this every month. (Technically, this means that all Pennsylvanians must file a total of 14 tax returns (at least) per year-12 sales, 1 state income, and 1 federal income).

This use tax is unaffected (generally) by the way the goods were purchased. It doesn't matter, for example, that you bought the goods online. It doesn't matter if you bought them by mail order or by telephone. You still have to pay the use tax. Note this is not a tax on the internet, (which would possibly be a violation of the current federal moratorium on such things), it is instead a tax on the purchases you are importing to the state that may not have been taxed for sale.

Also generally, only purchases which are liable for the sales tax are liable fore the use tax. So, for example, in DC, where the sales tax does not apply to certain food and drink sales, if one bought and brought in from, say, NH, (which has no sales tax), a can of soda, that person would not need to pay use tax, since it would have been exempted from sales tax in DC.

The use tax return form for MD is here. The MD Comptroller's website substantially repeats the above as it applies to MD. (In MD the tax collection agency is the Comptroller-the state equivalent of the IRS) . The form has you list purchases from out of state and the tax paid on them there and then add up the use tax you owe. The rules are basically the same in other states-except the filing rules are diffrent (annually, quarterly, monthly).


In my opinion, the Use tax, if actually enforced against individuals, would create a nightmare.

First, taxpayers have enough trouble filing 2 tax returns a year for their personal income tax (and perhaps their dependents or elderly parents etc..) Imagine if you had to file 14 returns! (see above PA rules).

Second, the rule that use tax only applies where sales tax would have when in state creates another problem. There are literally dozens of exemptions to the sales tax, and not all of them are clear. Some of the meanings of the exceptions sales tax have been the subject of complex tax litigation with companies in state. Most consumers (and even tax lawyers) cannot understand their meanings completely. An example of this problem: one foggy exemption (at least in Md) from sales tax are sales by vendors which don't usually sell and sell less than a certain amount per year ( a kid's lemonade stand, or a garage sale, for example-would usually not have to pay sales tax). So how do you know if the vender you buying from out of state meets this exemption? must you ask the vender before you buy on Ebay how big he is and how muc h slaes he does every year so that you know if he would be liable in your state for sales tax-so that you then know your liable in your state for the use tax if you buy form him and use it in your state?

To make matters even worse, many counties and municipalities also have sales/use taxes. This means you could be liable for the tax (and the requirement to fill out and file a return) simply by shopping in a neighboring county that has a diffrent sales tax rate. MN's use tax return form, for example, has a place to calulate extra use tax you owe becuaase you bought the items out of county and brought them in for personal use.


Of course, exceptions and timing for filing various municipality use taxes will inevitably be slightly different from those of the state.

Finally, there is the issue of back taxes. Suppose Md suddenly got serious and prosecuted everyone who hadn't paid their use tax in a while. Not only would you owe the taxes, you would also owe interest and penalties for each tax you didn't pay based on when that particular tax was due. Furthermore, many state tax laws have statues of limitations far longer than the federal 5 year statute. For example, the Md statute of limitations on tax issues is 7 years. We could all be hit with 7 years of use taxes on our ebay, amazon, and itunes purchases at any minute the Comptroller decided to clamp down. Some state have no time limitations on the gov suing for tax.

The flip side of this argument is that there are good reasons for use taxes. For example, if one state has a higher rate than another, business in that state would suffer if one could get a lower rate by traveling to the neighboring state. Furthermore, the state would suffer a loss of revenue on the missed sale.

Some states try to strike a balance by just having consumers estimate the use tax on their yearly state income tax return. KY is one example of this.

Many other states are trying to organize a streamlined sales tax that would give each state 1 rate ( no special tax districts) and then allow states to require businesses out of state to collect the tax and remit the portion of the tax above the out of state rate to the state of the purchasers' origin. There is difficulty getting legislatures to sign on, and more difficulty in implementing it without a lot of states getting involved.



I'm not sure what the solution is. But its a serious problem.

Update: The point of this post is not to compare the tax burdens of diffrent states, neither by looking at a single tax, nor the total tax wedge. There are long complicated analyses written about such issues-comparing all the state and local taxes of one jurisdiction, to anther. Some studies do this per capita tax charged to residents-others do it by a percentage of the average personal income which ends up taxed. Some only include state taxes. Some include both state and loical taxes. Some of these include the offset of the intersection with federal taxes. BTW one good site for this is the tax foundation's site. For example I do not mean, by one of the examples in this post, to state that sales and use tax rate of DC (5.75%) is lower than the MD rate of 6% and that therefore DC residents pay higher taxes overall. Nor do I intend to say that a sales tax may not be increased in some circumstances based on the good you bought. (ex: dc has a hinger sales tax on restaurant food than their normal rate). Indeed the point of this post is not even to talk about the monetary burden of a use tax. The point of this post is to talk about the administration of the use tax (and how its basically impossible), not to talk about which states are the best tax havens. I had thought this was clear-but apparently not.

MANDATORY LIFE! for failure to update information within 72 hours.

The Atlanta Journal Constitution, The Volokh Conspiracy, and Sentencing Law and Policy all cover a story about a prosecution under GA's law requiring a mandatory life sentence for the second failure to update your registration.

GA, has had lots of problems with its draconian sex offender laws.

In one case, the GA high court dealt with a case in which a person was on the registry and had moved into a house in GA. A school bus stop was placed near his house after he had moved into the house. The GA law required him to move, since he was not allowed within that distance of a school bus stop. I don't remember how the courts ruled on possibly striking that down...but GA subsequently revised that law to allow people who were already living somewhere not to move if a school bus was put up after they moved in.

In another case in GA, a 16 year old got a 10 year sentence for statutory rape with a 15 year old-thinking she was older of course. That guy got a sentence reversal form the GA Supreme Court on 8th amendment 'cruel and unusual punishment' grounds.

Now, in another 8th amendment cruel and unusual punishment case before the GA Supreme Court, the defendant was originally convicted of both sexual solicitation of a minor and statutory rape and served his time for both. For the second offense, he was required to register as a sex offender. GA requires a sex offender in the registry to update his information with the sheriff if it changes. The update must be done within 72 hours.

In one instance, the defendant failed to register his change of address becuase he inadvertently transposed two numbers in his address. This was his first failure to register. In the second instance, the defendant tried to change his address, then wasn't able to move into the new address within 72 hours, and was hence technically in violation.

Unfortunatly, GA law prescribes a mandatory life sentence for failure to comply twice.

I looked up GA's sex offender registration law. (GA code 42 section 1-12). The offense's language does not require "intent". Nor is there a general statute elsewhere in the law, that applies, that says that all offenses must specifically state what intent is required. Thus, since the statute doesn't explicitly require intent, no showing of intent not to register is required to convict the guy. Thus, "I tried to comply," is not an excuse. "I tried to call and leave a message," is not an excuse. "It got lost in the mail," is not an excuse.

I noticed the law requires height and weight to be among the information in the registry. Does this mean if you go on a diet you need to call the sheriff within 72 hours!? Strictly speaking, unfortunately, yes it does.

The prosecutor in this case is quoted in the media as saying "it's not my place...to decide...what we want to enforce or not enforce."

Obviously, this prosecutor is an idiot. The choice of what to enforce is solely the prosecutors' and the prosecutor's alone. Its called absolute prosecutor's discretion. Indeed, the barrier to this kind of outrageousness is supposed to be prosecutor's discretion, not the 8th amendment. One public defender in GA on the Volokh conspiracy's web comment thread about the case, commented that prosecutor's often hide evidence of the first failure to comply, in order to avoid the outrageousness of this issue.

But the law's stupidity is what created this potential. We should not simply blame the prosecutor for this situation.

Some might argue that "sex offender's" should be getting life anyway, so such issues are not sympathetic to them.

I would suggest to people who make such arguments, that such people actually look at a sex offender registry at some point. I have looked at the sex offender registries in many states, including GA, and I notice that many people who register are there for crimes such as certain types of solicitation of a minor, or indecent exposure.

Lists of things you might be on the registry for in GA include such things as viewing online child porn, incest, and certain indecent telephone conversations. To date I have never heard of a 2nd degree murder registry or an armed robber registry.

Probably correctly, the 8th amendment is very very rarely used to invalidate sentencing laws. Probably incorrectly, as the Sentencing Law and Policy author notes, when the 8th is used to invalidate sentencing laws, it is usually used in the context of the death penalty, while ignoring disproportionate prison terms.

I guess it will be another law in the incredibly dumb, and never should be prosecuted category. Unfortunately, it will probably also be in the "now that it has been prosecuted is going to stick" category as well.

I don't know how much its costs the taxpayer to incarcerate, (and provide free health care to) such people for life for such ridiculously small offenses, but I know its too much.

It's unfair to the criminal and unfair to the taxpayer-and the politicians just eat it up.

this is the kind of thing that makes me happy i have no student loans

The egregiously unjust part= in a world where loans are not discharged in bankruptcy except for in very exceptional "undue hardship" showings under 11 USC 523a(8) (a standard nearly impossible to meet). Student loans are treated in the same basic category as criminal restitution and child support payments in bankruptcy. The statute changed in 1998 with higher education act amendments so that now even loans 7 years old require the demanding standard. (I'd be all for this idea if they had kept a time limit-its obvious you cant have students declaring bankruptcy right out of school). In 2005 the statute changed to its current version to treat regular loans the same as non profit or government loans.

heres the situation:

average student loan debt on graduation: 90k
average salary of a law school graduate (cumulative with undergrad) upon graduation: 60k

% who graduate with debt: 82-85%

yup...that about sums up the market situation where tuition for all forms of higher education, including law school, has nearly tripled adjusted for inflation while inflation adjusted salary for law school grads have remained stable. When the standard student borrows on his future earnings to pay for school-its not going to work if school price keeps growing faster than earnings at a rate of 3:1.

definitely not a economically stable situation.

in fairness,

i don't agree with the issue about the exaggeration of student employment statistics at schools. the self reports of the schools do include information on where the students are employed-including percentages of employed graduates in legal jobs and the amount that respond to surveys.

however-the idea that student loans could be twice your pre tax salary (assuming your employed at all but under average) is pretty scary.


someone who's a moron and has bad credit card debt? bankrupscy! someone who owes huge taxes to the IRS? payment plan. Someone who took a subprime mortgae? baliout! someone who choses the wrong career and financing package or who becomes unhealthy? carry it to your grave.


Update: Dad asked me how this compares to other professions/career paths.

average med school debt (cumulative with undergrad): 130k
95% borrow
average med school grad earnings?: 120.5k (AFTER residency)


average dental school debt (cumulative with undergrad): 120k
% who had debt on graduation: 85%
average dental school grad salary: 96k

average debt of 4 year program undergraduates upon graduation: 20k
% of 4 year program undergradueates with debt upon graduation who borrowed: 65%
average undergraduate starting salery technical/buisness (non mba) degree: 40-50k
average undergraduate starting salery arts/social science: 30-35k

looks like its lawyers and dentists who are struggling the most. how poetic..some might say.

by far the best deal (at first) seems to be getting a technical degree right out of college. On top of the fact they are earning more than anybody else in comparison to their debt (at first)...they dont loose earrings on the three years they are in school.

i guess even better is they person who gets a technical degree then gets their employer to pay for an advanced degree-those guys really get the gold.

More Outrageous Hillary Arguments:

Hillary argues that ALL the delegates from Michigan should go to her BECAUSE Obama wasn't on the ballot there.

from the AP:

"The sticking point was Michigan, where Obama's name was not on the ballot.

Clinton's camp insisted Obama shouldn't get any pledged delegates in Michigan since he chose not to put his name on the ballot, and she should get 73 pledged delegates with 55 uncommitted. Obama's team insisted the only fair solution was to split the pledged delegates in half between the two campaigns, with 64 each."

thats so fair! lets nominate this woman to the Supreme Court!

emergency toilet part to be launched into space

via Drudgereport:


AP reports that the only toilet on the international space station, which is now broken and in need of a new toilet pump, will receive a replacement part via emergency transport by the space shuttle Discovery.

from the article:

"While the three space station residents are eager to see the Kibo lab, the bathroom situation has become a more pressing issue. For the past week, the two Russian and one American men have had to periodically manually flush the urine side of the Russian-built toilet. The job takes 10 minutes and requires two people."

also from the article:

The solid-waste part of the toilet is working properly.

thank goodness.

nice to live in a democracy eh?

I blogged about what I thought were some bad arguments Hillary supporters making before:

But how about this argument: The Obama camp is so intent on stressing the rules of the DNC, particularly the ones that currently disallow Florida and Michigan from counting becuase of their too early primaries, and even more particularly, if that could make a difference to superdelegates-many of whom simply vote for the one they think will win. See e.g. Obama's compromise position of allowing the states in but mandating they split half and half as a symbolic gesture.

So why not be even more strict with the rules?

Namely, why not invoke the (basically true) argument that most states do not require their pledged delegates to vote for whom they pledged for nor does the DNC require them to do so. technically, it seems, all delegates seated may vote for whomever they want-regardless of who won the votes in the primary that put them there! Indeed, if this is the case-Obama does not really have much of a lead-since nearly all the pledged delegates could vote for whomever they wanted to. Hillary has been stressing that pledged delegates were up for grabs since at least March. True this would use the rules to the point of making the entire primary election process irrelevant but after all-wouldn't that be the rules that all parties agreed too?

Indeed, if I didn't know better, I would say that arguing the Florida and Michigan votes should count-(in order for people to stress the rules) and then invoking this argument about the technical rules of pledged delegates would be a brilliant strategy. All the Clinton campaign need do is to agree the rules be followed (which would look like a generous concession at this point)-then go after his pledged delegates! Sneeky.

Both of these bad Hillary arguments are linked by the same theme and the same flaw.

The theme is that they both point to is that in any dispute, the party whom the rules help (assuming the rules are clear) will stress the importance of the rules, and the party that the rules hurt will stress that rules were only created to create fairness, and that rules must be set aside when they are unfair under the circumstances. The flaw is that both arguments ignore those circumstances.

The one arguing for Florida and Michigan to count argues the rules must be set aside so "the voices of those states can be heard. In the previous post I mentioned that this argument overlooks that its not just the rules that would be offended by the

The one trying this new argument, then points out how even if the rules are so important, and that the Obama campaign, who would invoke the rules with regard to Florida and Michigan, would of course be loath to invoke the rules allowing every delegate to vote for whomever they want.

The problem with the first argument, that Florida and Michigan should be counted against the rules, is that it ignores the facts that counting Florida and Michigan is unfair becuase of the ways those elections were conducted. Counting the delegates there gives an advantage to Clinton candidate who did not to campaign in Florida or have his name on the ballot in Michigan. Clinton agrues that this was his choice-but in fact-it was the rules that made it not his choice. It isn't the rules themselves that make it so unfair to count Florida and Michigan-its the facts those rules created.

Similar is the problem with pledged delegates. Insisting on archaic rules allowing delegats to vote for whomever they want to and disregard the entire primary process does indeed invoke the rules. But it ignores the facts-the facts that that disenfranchising not just tow states-but the entire voting population. The fact that both candidates campaigned in reliance on the fact that those pledged meant something.

The party has made huge mistakes with its rules. Obviously the rules should force whomever the pledged delegate has pledged for to vote for that person. Obviously the rules should not have been used as a penalty against Florida and Michigan's voters-who had no real hand in the date the primary was set. (there are plenty of other ways of controlling the ever incrementally earlier primary disease-like having all states-including the spoiled New Hampshire and Iowa- simply agree to have all the primaries the same day so as no state would gt more or less attention). But the key when rules are bad is to look to the facts to provide...and the facts seem to support Obama. (note to DNC-the other key when rules are bad is to correct them for next time)

Hillary may still try to offer as a fact that she has won the popular vote-but that's still in dispute (due to the question of counting Florida and Michigan and the impossibility of counting caucus goers).

I will be the first one to admit that the Hillary campaign does seem to have some strong ways of confusing that issue ("do you want to follow the rules or don't you? hmmm?")-and if she has enough clout among party elites-it seems like she could still win this thing-even if she pisses off everyone else in the process. Indeed, if she is somehow able to establish that she won the 'popular vote' it would seem then we are in a real pickle-with rules allowing pledged delegates to choose whomever the want-and facts which support both candidates' claims to the nomination.

By the way-to those republicans thinking only the DNC could be so screwed up-I bet a bundle that the RNC has similar rules about their delegates being able to technically vote however they want. Also I would point out that in the general Electoral college system, nothing stops the electors from not voting according to which candidate selected them. In fact it happened in 2000 and many other times-and it hasn't yet made a difference -but what if it did? It is ironic that this all started with two states wanting to get more political clout and on based on the conventional wisdom, which held at the time that only the early primaries really mattered as candidates would drop out quickly. This attempt to inflate political influence over other states and gaming of the political system has not only hurt those states-it has now has brought attention to the flaws in our entire electoral system.

US house moves aginst residential treatment abuse

The US house's Education and labor full committee had a hearing on May 14th and passed a bill which would directly regulate residential treatment facilities (one of my pet peeves-if you don't know anything about this issue a good place to start is this Government Accountability Report) for minors at a federal level, enforced by random visits, mandatory reports, civil penalties, and federal private rights of action.

This may not make it of course-becuase some of the facilities trying to be regulated don't receive federal funds-and the congressmen may be wondering whether the proposed law would be constitutionally valid under interstate commerce doctrine. Also the appropriation to fund the oversight is a bundle, and it only passed committee by 27-17.

I would have required states to regulate the facilities and simply threatened to remove regular educational funding as a penalty.

We will see where this goes. I'm optimistic becuase it does appear that the issue will see debate on the whole house floor. It would be nice if our congress knew that there was more regulation of animal shelters than there are for residential treatment of teens in some states. It would be nice if they heard about widespread allegations of physical torture and cult like brainwashing sometimes resulting in death. It would be nice if they knew these programs were funded by unwitting parents requiring second mortgages promised expert treatment by professionals. it would be nice if the victims of these facilities were no longer forced to sensor their thoughts out of fear of more punishment.

it would be nice.

no there will not be a kosher meat shortage

no I'm not an economist. Nor am I in the kosher meat business.

But I do think we have some pretty dispositive facts on the issue-enough to calm fears of shortage I think.

Unless you've been in a cave for the past few weeks-you know that the Federal government has raided a mega huge kosher meat slaughterhouse in Iowa. The company is known officially as Agriprocessors. However, as reported by the Cleavland Jewish News, its products are sold under the brand names Aaron’s Best, Aaron’s Choice, Rubashkin’s, European Glatt, Nevel, Shor Habor, Supreme Kosher and David’s.

Mostly, it was an Immigration raid, but there may be some drug issues as well. Depressingly, it was also the largest immigration raid in US history to date.

After the raid, there was talk of the horrible effect and possible shortages, since Agriprocessrs, according to the Cleavland Jewish News, the Jerusalem Post, and the Washington Jewish Week, is responsible for 55-60% of American kosher meat.

Moreover, according to other reports, here and here about85% of the meat from Agriprocessors is from the plant that was raided.

However, Cleavland Jewish News, also reported that the raided plant itself opened the very next day-albeit at 40% capacity.

In theory, we would be left with a total nationwide production reduction of 60%of85%of60% of the meat-or 30% of the meat-which would mean 70% of what it was before the raid is now being produced.

Also, when it comes to the most ubiquitous kosher 'meat' product-chicken-Agriprocessors is reported to be only responsible for 40% of that market. If thats the case-then the reduction in nationwide kosher chicken production alone would only be about 20%-leaving us with 80% of the chicken production form before the raid.

However, this estimate would assume that
a) the plant continues to run at 40% for a while
b) Agriprocessors is unable to shift any production to other plants
c) other kosher companies are unable to step up any production at all

And, in fact, these things are likely to be false. In this article, an official at the plant says he expects the raided plant to be up at full capacity soon. Further, other producers are likely to capitalize as much as they can from any market fluctuations.

So while I would think that there would be some adjustment, and some possible price shocks-I don't think anyone who wants to buy kosher meat-and is willing to pay-will be out of luck-at least for now.

In the long term, the OU has talked about removing its stamp of kosher supervision to the compnay-provided a felony conviction against the company. However, felony convictions are usually against people, not companies, and this may be a way of the OU responding without having to respond.

Furthermore, the calls for boycott from the conservative movement seem to have subsided after the federal raid, probably with the thought that the federal enforcement/prosecution itself is enough pressure to comply with the human rights concerns that boycotters are concerned with.

I can't end this post without repeating what goes without saying-that the practices the plant is being accused of are incredibly despicable-and that anyone with sense should understand the need to pay higher prices to eradicate this kind of smut-particularly from kosher business.

What's even more sick, perhaps, is the fact that there has been little surprise from the jewish community regarding the incident. Sure, people are outraged. But few people, at least in my circles, are surprised. In other words, everyone knew that this kind of thing goes on. (caveat-I myself was a little surprised, not by the immigration allegations, but by the meth lab-I guess the fact that it was the largest immigration raid in history also makes me a little surprised-but not really). That, perhaps, is an even greater tragedy.

Finally, while I personally think many if not all of the allegations against the plant/people working at the plant, are true-it is important to remember that not all the people who have been accused of the various things have had adequate time to respond. It may be that some of the allegations are false or exaggerated. Indeed, while I think we need not presume them innocent, it may be appropriate to not take the government at face value either.

Bad pro Hillary arguments

Some people are now arguing that the Hillary camp position, (that Florida and Michigan should be counted as normal and without penalty) is simply a normal case of rules/guidelines.

This argument, as explained by Ann Althouse here, goes:

This isn't insanity. It's...[q]uite normal. If the rules help you, you insist on the importance of rules. If the rules hurt you, they are mere guidelines that must bend flexibly for the sake of justice.

I believe that it is true that often, whether in court or other decision, when one side has sympathetic facts, but the other side has the rules on its side, that there is always a question as to whether to go hard line with the rules or whether to relax/bend the rules to allow a more fair decision in the place of the sympathetic situation.

For example, in a contract between a simple farmer and a huge company that sells equipment, we may be more likely to invalidate as unconcionable certain terms the company has barried into a formal, legalistic, and complex contract, then we would be to do so in say, a contract between Google and Microsoft.

But that is a ridiculous prism with witch to view the situation here. The rules are against Hilliary, AND THE FACTS ARE ALSO AGAINST HILLARY.

lets look at some FACTS:

FACT: Obama didn't campaign in Florida
FACT: Clinton did
FACT: Obama didn't have a name on the ballot in Michigan (despite the campaign for voting ofr no candidates that they had there)
FACT: Clinton did.

But wait, says the Hillary supporter, what about the fact that Hillary won/is winning the "popular vote?"
Answer: not a fact. Its speculation at best. First, you couldn't possibly count the votes int the caucus states. Second, defining the popular vote as including Florida and Michigan to make that argument is inherently circular.

Acording to DNC rules, it seems, even pledged delegates don't officially have to vote for the candidate they were elected for. This is pretty clear about Electorial voters in the general election too.

Now there are some rules that we might say are bad if they cause a "real winner" to loose.

but lets not delude ourselves into thinking that counting Florida and Michigan regularly is in the interest of justice-its in the interest of the DNC in November at best.

The ever aggravating DNC

First I heard some people complaining that having superdelegates in the democratic presidential primary at all was pretty silly. But I also heard the answers that superdelagetes are part of the agreed to system, and that there have to be objective leaders in the party

But then we hear of Clinton and Obama's massive campaign contributions to suerdelagets running elsewhere. (Pointed out in the Boston's Globe article just liked to is that giving money to a single voter to vote for a candidate would be ridiculous-but that we seem tolerate it at the level of superdelagtes-which count many many many more times than a single vote) How objective these superdelagtes must be!

And then I hear that Hillary Clinton's position is for the Florida and Michigan delagates to count normally, despite her violation of the rules in both states by campaigning there, and despite Obama not being on the ballot in Michigan and not campaigning in Florida pursuant to the same rules which she broke, and despite prior rulings by the DNC that the delegates there would not count becuase of violations of party rules.

So much for rules. The possibility, however slight, that these delegates could be the deciding factor (or indirectly deciding factor- as counting Florida and Michigan will have an effect on superdelagates) makes a mockery not only of democratic principals-but of fundamental principals of reliance on agreements between parties.

I even hear that it seems like a political possibility given that most democrats, even Obama, do support counting Florida and Michigan in at least some way-yet virtually nobody is thinking of paying for a revote. I also understand that the party has the right to nominate anyone it wants reagraless of any rules-because it has first amendment rights to support whoever they want-so the courts could not fix this unfairness.

All that alone is pretty aggravating to me.

I didn't need then, for Hillary to make the situation look more ridiculous, by today coming out with a statement comparing the need to count these delegates to freeing the southern slaves. No, I'm not joking, click on the link.

So how could it be worse?

How about talk, in the Washington Post, of a future President Obama nominating this same Hillary Clinton to serve on the Supreme Court of the United States? Forget about the fact that she has no judicial experience nor has even showed interest-her statements today virtually prove that she has no concept of fairness.

A while back I predicted that Florida and Michigan would count and Hillary would win by that and Obama would have no remedy-that seems unlikely now.

New prediction: someone finds a loophole in the DNC "rules" which allow even "pledged delegates" to vote however they want according to the 'technical rules" -wouldn't that be just hilarious?

EDIT: oh wait-its already being talked about here... i suppose this is what happens when you have no real rules

$54 million pants lawsuit admin judge/jerk back in the news.

AP reports he is now suing for $1 million and his job back.
Hattip: Volokh and How Appealing

thoughts on pesach; kitniyos etc.

ok. Dad said this might make a good blog post. I personally think its been beaten to death, year after year, but I would kinda like to have my opinion on the subject memorialized in some form.

The thought's are really about kitniyos in the United States, but some background is required.

These thoughts are as is. I'm not a rabbi. Im also writing from an orthodox jewish perspective and I understand there are other ideas in Judaism on how to interpret jewish law other than those of the orthodox.

The background:

1. Food which is Chametz, food which is a mixture of chametz and non chametz (even if the ratio is 1 in a million and the chametz falls in by accident), or food that was cooked with chametz, are all prohibited to own, benefit from while possessed by you, or, of course, eat, on pesach. A derivate of a chametz, such as the alcohol from wheat found in beer, is chametz, to the same degree that bread is chametz, and mixtures of it or food cooked with it are all chamtz. Even a very small amount of chametz is still chametz. If there is a doubt as to whether something contains chametz, chametz derivative, or is cooked with chametz or chametz derivative, it is treated as chametz, since the prohibitions to own use chametz you own, or eat chametz are all Torah prohibitions by way of the oral tradition, and we generally treat doubts in torah law strictly. (actually the eating and owning ones are right there in the bible itself).

Food prepared with chametz untensils or with utensils used to prepare chametz derivative are only rabbinically considered chametz, but the same restrictions apply albeit, with the same leniency for difficult situations and cases of doubt that rabbinic prohibitions are usually subject to.

Further, once chametz is owned by you on pesach, they are rabbinically assur to use or eat even after peasach-subject to the some leniences for difficult situations and cases of doubt that rabbinic prohibitions usually are subject to.

If you got chametz before pesach, you have two choices- 1 destroy, it somehow or 2 disown it somehow and don't use it. Mostly, in modern times, we go the second route, by selling it. We also declare anything we missed to be dust of the earth, however we only rely on this method as a backup.

This is all pretty much beyond dispute from an orthodox jewish halachic perspective.


2. Regardless of what is in an item, its only chametz if its edible by at least a dog*. Such food must edible by at least a dog to be considered chamtez**. This means that things which contain leaven but are not edible by even a dog, are not chametz. You can own or use such things. True, you can't eat them- but that's because you can't eat things that are not edible. This is also pretty much indisputable halachicly**.

this is also why:
Deodorant is not a problem at all. Don't give it any thought.
same goes for
gasoline
laundry detergent-though except for emergencies-you shouldn't be doing laundry even on chol hamoed
rat poison
fill in the blank

Your kitchen utensils are not chametz because of this-although they cant be used to cook food on pesach or for pesach (see number one).

If you could eat any of these items, please call a psychiatrist.

*Warning: don't confuse this with saying that as long as something isn't eaten, its not chametz. Something which anybody could eat which is leven is assur to own, derive benefit from while owning, regardless of whether its actually eaten...however, if NO ONE could eat it because its not EDIBLE then it cant be chametz. It is a distinction between being eaten and being eatable. Astoundingly, this distinction is lost on 99% of the population, though its probably the most important rule of chametz and matzah there is. Some ignorant right wingers consider even non food items as chametz. They try to find out what laundry detergent is kosher for passover. Some left wingers think that as long as they don't eat chametz, they are fine, this is universally incorrect from an orthodox jewish perspective.)

**The actual question of what is or is not editable by a dog IS in great dispute. Rabbis decide the answer to that, and they don't use empirical studies of dogs, nor do they care about what you think a dog may or may not eat. The answer is technically, not what a dog really would or would not eat, but what the rabbis say a dog would or would not eat. There is great dispute about say, perfume, that contains a leaven derivative such as alcohol. Is such perfume edible? Well, not by my imagination. But can I really know whehter it would be by an alcoholic or a dog? Perhaps. But wait, you might say, I'm not going to eat my perfume so its doesn't matter. Wrong! it does matter. If a dog would drink you perfume, containing leven derivate, its chametz, even if you wouldn't drink it. If an alcoholic would drink such perfume, its chametz. You can't use or own chametz on pesach- please see the previous paragraph and point 1. Lipstick has a similar status as perfume in terms of edibility (its quite tasty you'd be surprised), and many lipsticks contain leven product derivatives-such as the cause and answer to life's problems-alcohol). Toothpaste is an interesting case since, while not edible-it sorta gets eaten anyway. Likewise, there is substantial questions concerning how to treat medicine (obviously-medicine which is not absolutely necessary for health reasons) as there is the entire year when it comes to regular kashrut). Vitamins, for example, are universally considered not medicine in the orthodox world. They require full kashrus supervision all year round because you don't know what is in them in addition to the actual vitamin, nor do you know how they were prepared. None are really made for pesasch. Thus, unless your doctor has specially ordered them for some reason, (such as deficiency-in which case pesach is probably low on your list of concerns) they are assur to use on peasech. Things such as chewable flavored tablets are usually in the same category. Tasteless things are easier to justify. Sometimes a rabbi will be able to know that a particular pills problem is only rabbinic (such as a utensil problem), in which case even less serous patients will be allowed to take it.

3. Once an item is not exempt as in number 2 however, it is impossible, in 99% of cases, for you to determine whether or not it is chamtaz without a heksher saying so, or otherwise a statement from a supervising agency saying that a certain class or brand of foods couldn't be a problem. It would be impossible for the greatest rabbi in the world. Here is why:

In a very small minority of cases, for example, fresh fish, fresh vegetables, and fresh fruit, you can be sure that the item is ok. However, if you think about it, about 99% of the groceries you buy are processed, packaged food. Processed food contains lots of little ingredients and additives and chemicals. You can't know whats in your food by looking at the ingrediants, since ingredients labels are not that descriptive. (do you know whats in artificial flavoring "red 5"? What is monosodium glutamate anyway?) Further, and most importantly, even somebody who could interpret all of this is still out of luck. The ingredients label doesn't tell you how food was prepared, and, as stated in number 1, the preparation process can make otherwise ok food rabbinically, or even generally (if its cooked with actual chamatz) not ok.

Yes, this is the same reason you need a regular heksher all year round for your regular food. I.E. You don't know whats in it, and even if you did, it wouldn't really help.

There isn't a single orthodox rabbi who would argue with point 3. They would all admit that processed food needs a heksher all year around to guarantee there is no non kosher food or mixture of milk or meat. they would also admit that, for pesach, a heksher is also needed to confirm the absence of chametz or chamatz prepared food.

Background on Kitniyos:

It is true that there is a special category of food out there, which is not chametz, nor really kosher for passover. This food is called kitniyos. Kitniyos means "small things". Supposedly some "small things" looked to some rabbis at some point in time something like chamatz. These rabbis were worried it looked bad to eat such food on passover even if it wasn't chamatz. They told their communities to refrain, and the practice caught on. This category of food has its origin neither from the oral tradition nor rabbinic, but rather from minhag. Only Ashkenazi jews, and only some of them, give any meaning this category of food-non ashiknazic jews consider kitniyos to be kosher for passover.

Those who give meaning to this category of food, which they, again, call kitniyos, do not eat it on passover.

Assuming a particular food can be established as not chametz, but kitniyos, four things could indisputably be said about such food.

a) no orthodox rabbi would say the kitniyos cant be owned or benefited from. The owning and benefiting prohibitions concern chamatz
b) no orthodox rabbi would say that the kitniyos, when cooked with kosher for passover food, would create a problem for the kosher for passover food.
c) no orthodox rabbi would say that the kitniyos, when cooked on kosher for passover dishes, makes the dishes a problem.
d) anyone who is sick and in need of such kitniyos, could eat it.

One other thing could maybe be said about such an item-that its derivatives, could possibly be eaten on pesach even by those who accept the kitniyos category. In fact, according to those authorities, all you gotta do to turn it from kitniyos to kosher for passover is disguise it by mashing it up or such. The logic here is that, since kitniyos grew out of a situation of confusion, when you take the physical remnants of that confusion away by disguising the food, the problem goes away.

Most orthodox Ashkenazi authorities, including the all powerful Rema (the author of the Ashkenazi supplement to the Shulchan Aruch (which carries the same weight, roughly, in modern Ashkenaz circles as the shulchan aruch), however, would also prohibit an item which veritably contains no chametz, nor is prepared by chamatz untensils, but contains only kitniyos derivative, from being eaten on passover. Sorry, he is dead, you can't call him up to argue. His descendants have unlisted numbers (kidding of course).

In any case, the MAJOR HOWEVER, for those of us who live in the US, whether they believe in the idea of kitniyos or not, is that it is impossible for the consumer to tell, 99% of the time, whehter an item is kitniyos or chametz*. see point 3 above.

the real reality of kitniyos is that NONE of the major kashrus supervising agencies in the US, (generally speaking-the OU, the star K, the Circle K, the Caf K and the CRC) will, under any circumstances, certify a product containing kitniyos, or kitniyos derivatives, as kosher for passover. Nor will they provide any certification that the only problem with a product is kitniyos or kitniyos derivative. In Isreal, where supposedly, many Sephardim or other people who don't believe in kitniyos live, kashrut supervisions such as the Rabbanut and the Beis Din Zedek HaEdah Hacharadit "BADATZ" give special certifications that food is ok but contains kitniyos. (its pretty obvious whether when a product has such a heksher the problem is derivate of kitniyos or kitniyos itself-since you can see kitniyos straight up).

As far as the US consumer is concerned when it comes to processed food, there are two categories, kosher for passover and not. We don't know why an otherwise kosher product is not kosher for passover if its not certified. It may be chametz. It may be cooked or prepared with untensils used for chametz. It may be kitniyos. Heck, it may even be kosher for passover but not certified-thus leaving the item in doubt as to what it is. You just don't know-and since one of the reasons is that it might contain chametz-not only cant you eat it-you cant use it, and you cant own it-because something in doubt of chametz is treated as chamtaz see number 1.

Thus, for the US consumer, 99% of the time kitniyos is a theoretical category that does not impact our decisions.*

This leads to your bottle of canola oil (the kashrut agencies generally consider this to be kitniyos derivative and refuse to examine it to see that is the only problem with a particular canola product)-going in your chamatz pile.-because you don't know whats in it. It leads to your bottle of non kosher for passover tomato sauce, which probably doesn't have anything in it even remotely chametz or kitniyos related, going in the chametz pile, since you don't know whats in it-and therefore there is a doubt that its chamtez.

It is sometimes hard to wrap our brains around the reality that kitniyos is a theoretical category. It seems to me, that, around pesach time, everyone becomes a sudden expert on the history and laws of kitniyos, and it is the subject of articles, shul speeches, hot debates, and even accusations of heresy on the one hand, and fundamentalism on the other.

*ok, true, certain stand alone unprocessed foods out there may still be verifiable not chametz and still kitniyos. For example, peanuts in shells or fresh ears of corn.

Not so novel additional thoughts on the kitniyos situation:

There are, of course, legitimate issues and problems in the US community about kitniyos.

As I explained above, the kitniyos issue really shouldn't affect our day to day decisions in the US as consumers. However, it does affect us, since if the US kashrut supervision agencies did tell us whether an item was only kitniyos and not chametz, there would be a lot more choices out there for those who either do not subscribe to kitniyos at all or would eat kitniyos derivites. A growing majority of the disgrunteled modern orthodox and a huge portion of the kashrut observing non-orthodox communities do would fit this bill)

It's unfortunately, really unknown exactly why US kashrus agencies refuse to get involved in differentiating kitniyos and chametz. But, the situation is more complex than agencies like the OU simply deciding to do it or not to do it.

Here the OU explains why it is unable to create a special certification for food that are not chamtez and only contain kitniyos. It begins by genearlly explaining that the OU is American and thus follows ashinazik tradition.

It then explains that the OU is a large organization, and relies on other kashrus agencies for supervision of certain parts to food. Basically, when you see an (OU)p on a can of soup, the OU may actually only directly responsablle for part of that supervision. Some ingredients of the soup may not have been directly supervised by the OU, but by another agency. The OU takes the word that that agency and says-ok that inderediant is good. It then might take the word of another agency on a different ingredient. Then it might, itself, supervise the process of putting those ingredients together to make the soup. Or it might rely on someone else for that. Other ingrediants may also be outsourced, or may be done directly. Since the ingredients are supervised somewhere either by the ou or a partner, and the process is supervised somewhere, either by them or a partner, the OU can then proudly put its name on the whole thing and certify it.

It explains that when it relies on these partners for part of the process, it relies mostly on their reputation, not on their precise details of whats in the product they are getting certified by the partner. Thus, while the OU would surely occasionally audit smaller kashrus partners on their practices and procedures, its not directly in charge of them, nor does it run them, or have access to the details of how it certified each and every product or procedure it certified. It can only choose whether to accpet the word of what those organizations are saying, or not accept it. Thus, while it takes the word of the agency on the issue of kosher (for passover) or not, it does not also take the list of ingrediats and procedures with it. All it knows is that their trusted partner has either said (yes-it is kosher for passover, or no its not). It also does not always know exactly why not. Basically, the OU is a bit of a consumer of kashrus information as well.

I would assume that this process of using small local authorities to certify parts of a product and then putting the information together to certify the whole, is probably used by the other major kashrus organizations as well.

But this only begs the question, why don't the smaller agenices separate kitiniyos from chamatz? Then the OU could use that info and pass it on to you when it gave its final seal on the end product. The answer to this one can only guess, and the reason, or reasons, probably vary from local authority to local authority.

Here are a few possible reasons:

a) the most important reason is the risk-reward ratio. Why should I, small kashrus agency X,
decide to invest administrative ability into creating a new certification for "just kitniyos-not chametz"? Even if I do, the other products my certified products are combined with will not make the distinction, and the OU, or final other product certifier such as caf K star k etc.., will still not be able to certify it as "just kitniyos" Thus, until other agencies get on board, I'm wasting my time. Of course, every other agency will think this way too, and hence, it never happens.

b) There are other reasons too. Some kashrus providers undoubtedly feel, in typical rabbinic jewish fashion, that if products do get the label that they are "just kitniyos" it will encourage some people to eat kitniyos on pesach, when perhaps they are not supposed to because 'their minhag' says not to.

this second reason sparks lots of deabte:

For one thing, who is the kashrus organization to tell people what "their minhag" is? If i tell you I eat kitniyos, doesn't that pretty much mean, by definition, that my minhag is to eat kitniyos?

For another, there is an elephant in the room here. Does the kashrus community really think that people don't already take matters into their own hands kitnoiyos wise? I'm certain, that many many of my orthodox friends self proclaim certain products kitniyos, and proceed to eat them on passover. It would be better if such people could do this knowing they aren't eating chametz, then the status quo, which has lots of those people accidentally eating chametz or chametz prepared products that they have self proclaimed to be kiniyos.

Furthermore, regrading the idea that local agencies may not want to get involved in kitniyos for an ideological reason doesn't sit well with some people. That the agencies might make decisions about what to certify based on anything other than what's in the product is actually a little dangerous. If the product is good, they should say, and if bad, should say its bad. there should be nothing else. Otherwise, what you have is a giant body pretending to be about kashrus, that is really forcing its own ideas and polices about things unrelated to kashrus on people through the guise of claiming food isn't kosher. Ask anyone who has ever worked preparing jewish food commercially or, better, in kashrus work itself, to get stories of how politics has prevented kosher products from being certified. I tend to agree with this sentiment for the most part, but only for the most part.

Here are two, I think, ligit hypothetical, situations in which I think food which, totally kosher, should nonetheless told no dice.

1. The food is from hooters. hypothetically-lets suppose hooters went kosher. Ok your food is kosher-your restaurant isn't, and our agency cannot support your business by saying the food is kosher even if it is. The entire idea of the restaurant runs counter to jewish values, and many people go there to do things that are explicitly forbidden to do.

2. The food is from a provider that decided to make a 'fake' heksher to try to convince people that the food was kosher. (btw-anybody can make a heksher and say food is kosher-and in most states-it is not illegal in most jurisdictions provided you use a symbol not owned by somebody else, and there is no barrier to doing so other than the fact that the kashrut community will tell each other that your no good. Even where there is some law saying that hekshers must be approved by some body of orthodox rabbis the state recognizes, such laws are questionably (really questionably) constitutional under the 1st amendment. Some yeshiva boys like to say 'new hekshers arise every day" well, not exactly, but you get the idea. An old WAWA near the University of Maryland College Park, which is no longer in business, tried this one day. Suppose this WAWA had, before going out of buisness, then tried to get a real heksher on some of its items-i gotta think it would be ok if the OU told them 'screw you.' (note-i don't know that the ou or anybody else does this-im just saying)

So to the people saying there should be absolutely no politics in kashrut-i have sympathy, but ask you to see some reality.


Update: The other major problem with kitniyos in the US is that the kashrus supervisors keep adding to the amount of things that, if inside a product, they will label as kitniyos-and thus unfit for passover. I think there is a lot of real concern here too.

More on absolute immunity for prosecutors; a reponse to Irwin Weiss

Highly prestigious Baltimore personal injury and insurance attorney Irwin Weiss, (hes my uncle, so he sometimes reads my blog) emails regrading my post on absolute immunity for prosecutors and the possible problem of floodgates of liability. I had challenged opponents of immunity, Irwin, to state why prosecutors work was in need of immunity, while the work of doctors, lawyers, and cops, were not. In other words, I had asked, why is it enough in cases against cops or doctors that we simply require the plaintiff to prove his case?

emails Irwin:

"Most encounters between a doctor and a patient don't result in a bad outcome. People who go to doctors are, in general, reasonable. However, a huge percentage of criminals are convicted (bad outcome for them). Then, many go to jail where they have nothing to do. Look at the large number of totally frivolous criminal appeals and habeas petitions. Many are filed pro se [ i.e.without a lawyer] from the jail. They all need to be looked at by court clerks, judicial clerks, judges, etc.

Might be interesting to try to find some statistics on the number of pro se criminal appeals and habeas petitions.

Granting sanctions against a pro se criminal filing a habeas petition is worthless.

It's the class of potential plaintiffs that is different."

I guess he acknowledges that removing immunity doesn't mean you have proved your case, nor does it mean that you haven't been actually guilty and contributory negligent to the process that put you in jail (thereby making the possibility of recovery from a malicious prosecutor, even without immunity, nearly impossible for anyone who cant prove their innocence). It seems he would also acknowledge that the government may, as it always does, cap penalties at a certain amount per incident or per person, regardless of actual damages. Governments, by statute, are almost never liable for punitive damages ever.

It seems, though, that Irwin is concerned about frivolous litigation. That is, argues Irwin, it doesn't matter that such lawsuits would fail unless meritorious, since the court would still have to spend time screening them out. The process normally used to prevent frivolous civil litigation, monetary penalties for filing frivolous suits, he argues, would be of little value against a mostly indigent criminal population.

There are indeed, indisputably, many many criminal pro se appeals and habeas petitions. And it is true that we have no choice but to allow them, since we would need to violate due process (to limit appeal) or suspend the writ of habeas to limit habeas. In truth, there has already been some legislative solutions. Congress, in the Anti-terrorism and Effective Death Penalty Act (AEDPA) of 1996, has already limited you to 1 federal habeas based on anything other that new evidence of actual innocence unknown to the defense at trial-and that petition is heard with huge deferential standard toward the direct appeals courts on matters of law-i.e, for habeas to issue, the decision of the appeals court must have be contrary to clearly established precedent).

I imagine, that, it also makes sense that sanctions against a criminal complainant is almost always useless.

Note: at least some criminals do end up paying large portions of fines or restitution and court costs-either through their work in the prison for (x cents an hour), or after they get out and get a job on probation. (on the point of repayment it would really be interesting to have statistics.)

However, I do have some further responses:

1. Why do we allow suits against criminal defense attorneys for malpractice? (yes even for negligence). Wouldn't every prisoner file a lawsuit against their criminal defense attorney? Of course, again, you have to prove your case-and of course, your going to have to prove you didn't actually do it, and thus get yourself in the mess. (otherwise-plaintiff is contributorily negligent toward the process that put him in jail which would limit or eliminate his award). So i guess thats enough protection for defense attorneys, but not enough for prosecutors. I guess we don't care so much about defense attorneys do we?

2. How about cops and prisons? Same problematic population. Oddly however, we allow the lots of civil complaints against police officers for brutality, and complaints by prisoners against the prison for relief from prison conditions (such as suits complaining the warden denied them access to this or that thing in violation of statue or constitutional right.) These types of suits are are not necessary from a due process or constitutional standard, (particularity the ones that claim violations of state or federal statues). But we allow them, and the courts don't seem to fall over with the burden of processing the complaints. These suits are by the same problematic population that we worry, legitimately, would also file frivolous litigation against prosecutors if they had no immunity.

But I guess cops and prisons are not in need of the same absolute immunity to protect them because-after all, the plaintiff must prove their case. (end sarcasm)

3. Because appeals and habeas actions are necessary, but admittedly, also mostly frivolous, state legislatures and the federal government have both set up full time pro se litigant screening clerks. These are clerks hired by the courts, solely with the job of screening out frivolous pro se litigation. Often these clerks are recent law school grads who aren't good enough achievers to make real clerks. (such as, i don't know, myself possibly ;)) Thus the clerks are usually pretty cheap to hire. The cases are relatively simple to process to simply pull out the frivolous ones, and the real ones get passed on to be looked at by a real judge. (hint: the ones written on lined paper in pencil, which don't quote a single case or statue-are frivolous) This is actually why i find it so odd that in MD, two high court judges, look at all cases that go to the intermediate court, the CSA, for possible sua sponte cert before being heard by the CSA. It had seemed to me this defies the whole efficiency of having a CSA in the first place.

4. Pro se prison litigation such as this (aside from police brutality suits) is usually only not moot while the guy is still in prison. Thus, these suits are heard regardless of the fact that the guy is in prison, and probably bored with nothing to do but file lawsuits.

But civil litigation for compensation based on wrongful conviction, whether based on negligence or real malice, would be ripe long after the guy was out of jail and exonerated.

Therefore, were I to suggest a legislative solution to a legislator with Irwin's concern, it would be that for immunity not to apply to a prosecutor, the applicant must have already secured an overturning of his guilt from appeal, or habeus petition. (or by the state filing a petition for release based on actual innocence-done often in the cases handled by the innocence project). Since the plaintiff couldn't really recover unless he was actually innocent anyway (otherwise-hes contributorily negligent toward the process that put him in jail which would limit or eliminate his award), such a limitation wouldn't eliminate relief for any of the wronged plaintiffs, but would be very effective in screening out litigation by bored inmates.

It could also be a court imposed solution.

The supreme Court, hearing the negligence case for wrongful conviction against the CA prosecutor and deciding whether to end absolute immunity (it recently granted cert) will be dealing with a plaintiff who has been out of jail for quite some time.

Later, if it allows the suit, courts may limit as premature and unripe suits in the future if a guy in jail decides to sue a prosecutor.

I understand that fairness comes expensive. But a certain type of fundamental fairness is worth quite a bit of money. As Oliver Wendell Holmes and later the IRS have famously stated "taxes are the price of a civilized socially." I don't think that virtually unchecked ability to knowingly prosecute innocent people for crimes, ruin their lives, and not be legally responsible except to possible administrative sanctions (which usually don't apply to knowing prosecution of the innocent unless probable cause was ever originally established-even if they are later demonstrably innocent), is a "civilized" system.

DUI prosecution persecution..real life victims of absolute immunity

The Agitator has a good post about some horrible DUI injustices recently.

He points to two documented cases where police arrest drivers who blew very very low (and quite legal to drive) amounts on the breathalyzer. In both cases, the police believed that although the breathalyzer was low, the defendants were probably under the influence of drugs. This belief of the police constituted probable cause.

After they were arrested, the defendants were tested for drugs, and none were found.

Undaunted, the prosecutors of the cases went forward anyway.

Of course, because the defendants were clearly innocent, the cases were eventually beaten.

Unfortunately, in most jurisdictions, once probable cause is established, as long as a prosecutor choses to continue prosecuting a case, the case remains open until the defendant pleas out or the case is tried. This is true even if overwhelming evidence of innocence appears before trial. Because of this, these clearly innocent people were out thousands in attorneys fees.

I don't blame the police for the arrests in these cases. In fact, I agree with these arrests, and would have made them myself. There was clearly probable cause at the time of arrest.

However, for the prosecutor to go ahead with a case, not when there is just obvious reasonable doubt-but when the balance of the evidence is in favor of the dependent strikes me as unjust-and a waste of the taxpayers money-who pay the prosecutor to prosecute people they think are guilty.

Of course, its bad enough that the people must go through this ordeal-but because of absolute immunity they are not entitled to any compensation for this prosecution despite the prosecutors knowledge of overwhelming exculpatory evidence. they are out thousands for appearing guilty at one point-despite being able to prove their innocence.

These prosecutors are also highly unlikely to be disiplined administratively. In most jurisdictions, there is usually no real ethical rule that the prosecutor would have broken with these prosecutions. Most ethical rules simply tell prosecutors not to prosecute if they think there is no probable cause. They say nothing about knowledge of actual innocence or overwhelming probability of a failed prosecution. For these prosecutors-it was just another day at the office.

Of course-this is all statistically unlikely to happen to you-but thats why nobody cares. Its also what makes problems like this so frustrating to those affected: if your arrested-even your closest friends will think you must have done something.

possible end to absolute prosecutorial immunity?

The LA times reports that the Supreme Court may hear a case from the ninth circuit that could overturn the absolute immunity for wrongful convictions that prosecutors have. *update: the Supreme Court granted review today*

Prosecutors in America (both federal and state) have long enjoyed absolute civil immunity for damages incurred during the course of a criminal prosecution. While they are still civilly liable for things not done in the course of the prosecution (such as defamatory media statements), and they may be administratively disciplined by their office or their state's bar association for misconduct during the prosecution, they, nor the government they are under, can ever be civilly liable to the person prosecuted during a criminal prosecution.

This immunity grows out of the history of holding governments liable in court for torts. By default, governments may not be sued until they concede to do so. This is the doctrine of sovereign immunity, a common law doctrine stemming from the idea that the king can do no wrong. Until recent decades, governments pretty much held onto their sovereign immunity for torts (the government had long been liable for contract since it needed willing contractors), and redressed wrongs they committed at their leisure, by passing private bills that would compensate a particular wronged individual or small group of parties.

The private bill system proved inefficient and inequitable. There was no limitations of the discretion of the legislature in passing these private bills, and more influential parties got more than they deserved, while less influential parties got less than they deserved. Further, because there was no finality to such not court proceedings, the governments found that the parties would simply keep petitioning again and again for the same injury.

The solution was to waive sovereign immunity for certain issues and provide court processes for the government to pay its liabilities. State and local governments, and the federal government, passed laws allowing private parties to sue the governments (and be sued by the governments) for certain torts as long as the actions met certain requirements. (Usually that the torts were not about policy-but rather some direct proprietary damage-that the plaintiffs notified the government well in advance-that the total liability limitation was not more than a certain amount per person or per incident etc..).

Even after such waivers however, some state parties still held special immunities, either due to specific exemption from the wavier, or due to a court interpretation of the wavier as not applying to some officials.

Currently, only a very small group of professions still have absolute immunity from suit: judges, prosecutors, and legislators.

Absolute immunity is absolute. It doesn't matter if the tort was intentional, knowing, blatant, and/or politically motivated. It doesn't matter if it was done with malice. As long as it was done in the course of the immune conduct, it is immune from civil liability to the person wronged.


(Other officials, such as police, enjoy qualified immunity, whereby an officer may not be held liable, even for an intentional breakage of constitutional or other rights, as long as the right had not been clearly established at the time. Without qualified immunity, police departments would be held liable for new legal interpretations as they come down-even if the rule hadn't been discerned until your case-which is how most liability usually works.)

At any rate, prosecutors still enjoy absolute immunity. For example, suppose a prosecutor knows you are innocent, and prosecutes you anyway, while withholding mounds of exculpatory evidence and lying to the court about doing so. Also suppose, the defense attorney doesn't know about the prosecutor's false motives or the exculpatory evidence, so you get convicted. Suppose, because of this, you go to jail for 30 years, loose your wife and kids, your job, and are ostracized by your community. Suppose you went through a surety bond for your bail, posting ten percent of the bail (say 1 million ten percent of which might be 100,000) in return for forfeiting the right to get it back. Suppose you are raped in jail. Also, assume that all this conduct is done while in official capacity, and the prosecutor never does anything with your case outside the court processes, such as talk to the media. In such a case, under the law of absolute immunity, neither the prosecutor nor the government that prosecuted you owes you a penny. Small comfort that the prosecutor may be disciplined at some point.

Egregious cases such as the above are of course rare, but when they do happen the monetary compensation comes not from litigation (because of immunity), but from those private bills passed by the legislature to give some compensation to a particular wronged individual. There is no legal obligation for the government to do this, and it is not always done. The system is still the old private bill system which was found so unworkable in the past.

Proponents of keeping absolute immunity have always claimed that, although possibly unfair, it is needed so that prosecutors don't have to worry about the possible civil consequences the city might face for their actions. These proponents claim that any sort of possible liability for prosecutorial conduct would inhibit prosecution to intolerable levels. Some, like the prosecutors in the LA times article linked to above, worry about the "floodgates" of cases if prisoners who were wrongfully convicted were allowed to allege negligence on the part of a prosecutor.

I have never been persuaded by such arguments.

It seems to me that, from a policy perspective, deciding how much protection to give the prosecutor requires balancing the risk of overzealous and malicious or reckless prosecution with the risk of floodgates of litigation and the possibly of perverse incentives not to prosecute legitimate cases. However, with absolute immunity very little exists to fight the risk of overzealous prosecution.

In contrast, several things would exist, even without absolute immunity, to fight the risk of an overly shy prosecutor.

First, government officials, who are sued for their government work (and loose), get their judgments payed for by the state through the indemnity process. While the threat of a lawsuit is still real, the idea that a prosecutor will not personally pay is surely a comfort to the anxious prosecutor deciding whether or not to do something because he worries about future liability.

Second, there are several limitations on such a liability for prosecution that would survive a cancellation of absolute immunity:

a) not having immunity for a certain harm doesn't mean you are liable. It just means that if you are liable-you can be sued and will have to pay if you loose. If you claim the prosecutor did something intentionally or negligently wrong , you would still have to prove it beyond a preponderance of the evidence. You would also still have to show, beyond a preponderance of the evidence, that the conduct was the actual and legal cause of your harm, including that you wouldn't have come by that harm anyway. In the case of negligence you may also have to show that the harm was reasonable foreseeable or a substantial factor-depending on the rules of negligence where you are. If you don't show any of the things you are supposed to, you loose your suit-even if the prosecutor isn't 'immune.'

b) Even without absolute immunity, if you were contributory negligent in any way (such as by being actually guilty of the crime you were unfairly prosecuted for) the government would still not have to pay anything in jurisdictions where contributory negligence is an absolute defense. Even in jurisdictions where contributory negligence isn't an absolute defense, the judgment is limited by the amount you were contributorily negligent. This means that even if you were acquitted-but the court finds for the purposes of contributory negligence in your civil suit that you did it (and thus contributed to the process that put you in jail), you would be unlikely to collect anything-even if the prosecutor was not immune from suit.

c) Even if you do establish a large liability, it doesn't mean the government will pay the whole thing. The government almost always puts statutory limits on tort liability it must pay-limits that apply even when the actual damage or judgment is for much more.

I also do not buy the "floodgates of litigation" argument pushed by proponents of absolute immunity. I find it hard to believe that there is a problem of mounds of innocent people who have been maliciously, or even negligently, prosecuted by a prosecutor. There is no incentive for the prosecutor to prosecute innocent people. Prosecutors have absolute discretion in deciding who to prosecute for what and vise versa, and there are plenty of guilty people out there to choose from.

If there are mounds of such people, then perhaps we it would be nice to have such abuses come to light, so that the system can be corrected.

If the proponents are worried about frivolous litigation, there are many systems in place to address such problems, including court screening processes for frivolous litigation and sanctions for the more egregious offenders.

Furthermore, absolute immunity need not vanish into no immunity in order to hold prosecutors liable for their most egregious conduct. For example, the new immunity rule may be similar to the 'qualified' immunity for police. Or it may only hold prosecutors liable for intentional misconduct and continue to hold prosecutors immune from negligence.

True, of course, for some proponents, such protections will not be enough. Any possible liability, to them, is too much risk for the all important work of prosecution. I simply cannot agree with such an assessment. Police doctors and firefighters do very good and sensitive work and do it within the bounds of the civil laws governing their work. If they can still do their work with the threat of being held liable for mistakes, then I must wonder what makes the prosecutor's work so much more special and delicate that it cannot be infringed upon by liability. If a cop making a split second decision about who to chase in a high speed accident can be held to liability by a jury looking at what was reasonable under the circumstances, than why cant prosecutors, who sit in a air conditioned office making reasoned and slow decisions, be subject to liability for prosecuting people they know are innocent?

Would the proponents of absolute immunity for prosecution (whehter they are afraid of overly shy prosecution or afraid of floodgates of litigation) also support absolute immunity for doctors? lawyers? police? corporations? If not..why are those positions not in need of immunity whereas prosecutors are?

The case involves a jailhouse informant that had been given a deal by one CA prosecutor. Another prosecutor used the testimony gotten by the deal (which was made up for the purpose of the deal) to wrongfully convict the plaintiff in this case. The case says the prosecutors were negligent for failing to share the information that the testimony was part of a deal, and thus the jailhouse informant had a good reason to lie.

obviously, the case involves a negligence claim, and I am more concerned with intentional misconduct. The ninth circuit has ruled against immunity, and said the case should proceed to determining liability. The state has moved for review by the supreme court. The case is in federal court because the plaintiff sued under the federal civil rights statue. *update: the Supreme Court granted review today*

One last thing I find interesting in the LA times article is that the government of CA had considered passing a law outlawing the use of uncorroborated jailhouse informant testimony in a criminal case but had decided there were not enough cases where such testimony had does harm. I must wonder if these are the same people arguing there would be a "floodgate of litigation" should innocent people be allowed to sue prosecutors for intentional misconduct.

Not guilty? go to jail based on it anyway..the catch of discretionary sentencing

A blogger on Slate's Convictions blog has this post about the Supreme Court's denial of certiorari in Hurn v. United States. His post is a really good snapshot of an, at least seemingly unfair, reality of our criminal justice system.

Put simply, the problem Hurn deals with is that, in the criminal justice system, many defendants go to trial on more than 1 crime. For example, you might be charged with possessing one drug and another as well (two crimes-because they are each different items.) So what if you get convicted of one of them and acquitted of the other? Well, basically, under the system established by the Supreme Court in United States v. Watts, (a 1997 Supreme Court case) your acquitted offense can be used to increase the sentence you get for a related conviction of a different crime, effectively making you go to jail for BOTH CRIMES ANYWAY. This is provided, of course, that the judge finds the conduct of the acquitted crime was committed beyond a preponderance of the evidence-the standard of proof required for a sentencing enhancement under the US code.

Here is the basic way it works: When you go to trial for crimes-as everyone knows-you must be found guilty beyond a reasonable doubt to be convicted of a crime. In serious prosecutions, you also have a right to have a jury of your peers decide if the evidence is in fact beyond a reasonable doubt.

That's all well and good, but when it comes to the sentencing phase-where the judge takes over to decide what sentence to give-the burden of proof changes. The sentence is supposed to be between a maximum and a minimum set by statue, and adjusted according to certain considerations such as the defendant prior history, and whether the offense was committed in tandem with other offenses. The catch is that these sentencing factors, in many jurisdictions including the federal system, need not be proven-even in just the judge's mind-beyond a reasonable doubt. They must only be found 'more likely than not' i.e to a preponderance of the evidence. If you base a sentencing on that-and need only prove it beyond a preponderance of the evidence-then, reasons the Supreme Court, what difference does it make if the defendant hasn't been proven to have done it beyond a reasonable doubt-its a sentencing factor-and one only needs to prove sentencing factors to a preponderance of the evidence. The fact that the jury didn't find reasonable doubt is irrelevant.

In Hurn, the case the Supreme Court refused to hear a few days ago, if the defendant had been sentenced for the first offense only-he would have been looking only at a few years in prison (as would have been the average sentence for him based on his offense history and other factors). But because the judge used his other, acquitted offense as a 'sentencing enhancement', he was sentenced to an extra 18 years for a crime the jury said could not be proven beyond a reasonable doubt. Wow. Now, because of the precedent in Watts , the 7th circuit has upheld the sentence-and now the Supreme Court has declined to hear the case.

In fact, in some US jurisdictions, this little 'sentencing enhancement' catch gets even worse. In some US circuits-the federal courts are obligated to sentence based on acquitted conduct. A few days ago, in an unpublished opinion of United States v. Ibanga, the federal 4th circuit (the circuit in which I live btw) ruled that a sentence is unreasonable (and must be overturned)-when the sentencing judge decided not to consider conduct that the defendant had been found not guilty of doing into a sentencing enhancement. Thus, not only can acquitted conduct be used against you at sentencing, but in the 4th circuit, it must be used against you or face being overturned by an appellate court as Ibanga's was. This decision noted not only that using aquitted conduct in sentencing isn't a constitutional violation-but that it was therefore mandatory based on 18 USC. 3661, which says that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." I guess the court could have avoided this result by holding that the statute only means no outside limitation (other than the constitution of course) be placed on the sentencing factors-but that the judge may be fine otherwise to ignore what he wishes...but this might be a little activist construing.

Of course-

There are some constitutional limitations on this 'sentence enhancement':

For example, if the maximum statutory sentence for the crime you got convicted for is 5 years-then you cant get your sentence enhanced beyond this 5 years until you are convicted-beyond a reasonable doubt-of another offense. This is because the Supreme Court found in a 2000 case, Apprendi v. New Jersey, that doing otherwise would be a violation of the 6th amendment's guarantee of the right to a jury trial in serious criminal prosecutions. The logic here is that once the maximum penalty for a certain offense is 'used up' and the highest possible-anything further would have to be punishment for some other offense-and not a sentencing enhancement-thus-it must be that anything beyond the limit for that offense is another offense-and the familiar jury trial beyond a reasonable doubt rule kicks back in.

Furthermore, in states which use a mandatory sentencing scheme-a scheme that gives little or no discretion to trial judges to adjust a sentence and instead require judges to enhance a sentence based on certain findings-the Supreme Court has also ruled such 'enhancements' must be found beyond a reasonable doubt by the jury. This was a 2004 case called Blakeley v Washignton. The reasoning is that if there is no discretion in the sentencing enhancements-then the 'enhancements' are really not enhancements-but indeed, separate statutory categories and thus, separate crimes. Therefore, enhancements that are non jury found in a mandatory scheme are violations of the 6th. Of course, at about the same time as the 2004 Blakeley decision, the federal sentencing guidelines became discretionary in a separate Supreme Court decision called United States v. Booker.


I find two interesting things here,

The first is strictly legal-the Booker and Blakeley decisions seem to put the Watts precedent in a very weird position.

On the one hand, from a strictly precedental perspective, where you look at the holding of cases for precedent, Watts was decided at a time when the federal sentencing guidelines were mandatory, and allowed non jury found conduct to be used in sentencing. And, because the later case of Blakeley prohibits using non jury found conduct in the context of mandatory Guidelines, it seemed that Blakeley overruled Watts. Under this perspective, Watts should be no longer president, and the 7th circuit should be free to decide however it likes in Hurn. (as for the statue cited in Ibanga, if the 7th had held that Watts didn't apply, they would have had to hold that statue unconstitutional in order to justify placing the acquitted conduct limitation on the sentencing court.

But from a perspective of where you look at the underlying reasoning of cases for precedent, Watts would control. Given that the discretionary nature of the guidelines removes any Blakeley problem, the underlying reasoning of Watts-that sentencing enhancements are based on preponderance of the evidence, and that therefore, the fact that certain conduct has been acquitted does not effect that standard and is therefore irrelevant, should now be applied to this, post Blakeley, world. Furthermore, the Watts court 'didn't know' that mandatory guidleines could cause a problem, and didn't consider it an issue, and thus, there is little reason to think the Watts court, sitting today, would have decided differently under this discretionary regime. In fact, from this perspective of the underlying reasoning of Watts, it even makes MORE sense that acquitted conduct be used in sentencing, since we now know that non mandatory guidelines allow for more freedom to use non jury found conduct, not less.

It was my understanding that the reasoning of cases is typically referred to as dicta, and the holdings are usually way more important. But here, the 7th circuit (and clearly now the 4th circuit in Ibanga) seems to have gone for this, underlying reasoning, understanding of the Watts precedent, and hence has affirmed the sentence.

Apparently, the Supreme Court does not think the issue is important enough to discuss right now, although one fairly conservative criminal law expert, Orin Kerr, believes that the Court eventually will overturn Watts decisively.

Orin Kerr also notes that, even if later the Supreme Court decides to give acquitted conduct some special status and not allow it to be used in sentencing, this may just cause prosecutors to only charge one crime-get one conviction-then dump the rest on sentencing enhancements.

There would be a number of restrictions in this strategy however.

a) Prosecutors still need to get at least 1 underlying conviction in order to get to sentencing at all. It would lessen the chances of an underlying conviction to begin with if you use this strategy-(you got more chances getting a conviction with 10 charges than with 1 charge).
b) Prosecutors would still not be able to go over the statutory maximum for the convicted offense-if they wanted to, they would need another conviction under Apprendi, thus, they would have still a big incentive to get more than one conviction.

so taking the acquitted conduct outside the sentencing world would possibly create a small incentive for this perverse prosecutorial move-but it might not come to fruition given the realties of prosecution and Apprendi.

The other interesting thing is that, after Apprendi, Blakeley and Booker, (and later United States v. Gall and United States v. Kimbrough-two cases which made it clear that once sentences were decided, whether in or outside the guidelines range, they were to be reviewed only for abuse of discretion-a very hard thing to show-including when judges took into consideration then 100:1 crack/coke discrepancy) it seemed that things were getting a little easier for defendants-the guidelines were no longer mandatory, and it seemed that very high federal sentences would finally come down.

But as this denial of certiorari in Hurn, and certainly, the 4th circuit decision in Ibanga show, discretionary sentencing is not always a blessing to defendants.