American Elites Have Strayed From Meritocracy And Virtue

I generally don't share G. Cochran's political bent (he's a cynical curmudgeon of a conservative) but he brief posts at his West Hunter blog sometimes make important points and his latest one, that begins by recounting the career of an incompetent general in the American Army in its World War II campaign in North Africa is one such post.

His point is that the pre-World War II Army wasn't a well run organization and that as a result, men like him could get promoted to high offices that they were competent enough to carry out competently. He uses that for a launching point for his apt commentary on the current state of affairs, although in my opinion, some domains of American society are further from the mark than others in this regard:

Generally, the governing classes in the US, for the last generation or two, has not acted as if they think that winning, actually achieving your goal, is very important. Promotion follows failure: indeed, being right when almost everyone else is wrong just shows how undesirable you are. Iraq is a good example.

Covid-19 is another example. The professionals weren’t very good, aren’t very good. They didn’t know a lot of important, knowable things. Probably the most talented people were going into something other than epidemiology or virology.

We don’t have to make them unpersons, don’t have to send them to Kolyma. We don’t have to pull out their teeth and fingernails. There’s no reason to put on a black leather jacket and shoot them in the back of the head. That would be wrong.

But we can fire them. And we should.

Cochran seems to point the finger at inadequate epidemiology experts, and has previously pointed out one or two significant errors that they made. 

But I would point the finger primarily at their bosses in the federal government following the lead of President Trump (who single handedly dismantled the U.S. government's infectious disease response resources in the years immediately prior to the pandemic and then ignored the doctors and scientists when it hit) and in many Republican controlled jurisdictions that followed President Trump's lead, although the political sector, more generally, is certainly not the most meritocratic part of our society.

I think Razib Khan, who laments the lack of Confucian style virtue in our leaders, is closer to the mark. He states towards the end of a recent post on Vietnamese cultural history:

Lieberman’s thesis is that the full package of Confucian statecraft requires a large literate bureaucratic class. Vietnam after 1500 shifted in large part to this model, but it was the exception, not the rule. And Vietnam is the mainland Southeast Asian state that looks much more to China than India in its high culture. The reason the Chinese model was hard, and really only Korea pulled it off (Vietnam and Japan executed parts of it), is that it requires a level of cultural conformity and investment in education for the elites that is a massive opportunity cost in time. It’s a lot easier to just express loyalty to the semi-divine king rather than study classical texts in the hopes of achieving high office.

But, I just realized that the modern world is much more amenable to the Confucian model! Mass literacy is already common, and the bureaucratic state is the rule, not the exception.

And now, more than ever, we need virtue in our elites. The rational “eat what you can kill” model of modern elite culture in the West is producing a group of individuals who are feeding off the massive carrion of their dying societies.

Bad Law Schools

The following low schools have the lowest two year bar passage rate in the country (from lowest to higher), and all have two year bar passage rates under 80% in the class of 2015 graduates.

While lenient admissions standards gives some students a chance at a better career, admitting someone to law school and graduating them, complete with massive loads of law school debt, when that person isn't capable of passing the bar exam, does that student no favors. And, plenty of people who only barely pass the bar exam aren't good lawyers.

Also, students at these schools often leave with large amounts of non-dischargeable in bankruptcy student loan debt. Perhaps we need a compromise position by which students with student loan debt from a degree that they do not earn, or to prepare them for a profession where they can't manage to become professionally licensed can get at least 50% of the original student loan debt amount discharged in bankruptcy, five to ten years or so after the debt enters repayment status.

ARIZONA SUMMIT LAW SCHOOL				59.75%
NEW ENGLAND LAW | BOSTON				60.26%
PONTIFICAL CATHOLIC UNIVERSITY OF P.R.				60.73%
INTER AMERICAN UNIVERSITY OF PUERTO RICO				63.87%
DISTRICT OF COLUMBIA, UNIVERSITY OF				64.71%
ST. MARY'S UNIVERSITY				64.93%
ATLANTA'S JOHN MARSHALL LAW SHOOL				67.50%
WYOMING, UNIVERSITY OF				68.92%
VALPARAISO UNIVERSITY				69.35%
WESTERN MICHIGAN UNIVERSITY				69.75%
SYRACUSE UNIVERSITY				71.20%
OHIO NORTHERN UNIVERSITY				71.88%
FLORIDA COASTAL SCHOOL OF LAW				72.08%
SOUTH TEXAS COLLEGE OF LAW HOUSTON				72.12%
GOLDEN GATE UNIVERSITY				72.26%
SOUTH DAKOTA, UNIVERSITY OF				72.73%
HOWARD UNIVERSITY				72.88%
NORTH DAKOTA, UNIVERSITY OF				73.21%
BARRY UNIVERSITY				73.50%
WHITTIER LAW SCHOOL				74.26%
AMERICAN UNIVERSITY				74.94%
DUQUESNE UNIVERSITY				75.54%
AVE MARIA SCHOOL OF LAW				75.90%
THOMAS JEFFERSON SCHOOL OF LAW				76.75%
SOUTHERN UNIVERSITY				76.76%
MISSISSIPPI COLLEGE				77.19%
DAYTON, UNIVERSITY OF				77.27%
PUERTO RICO, UNIVERSITY OF				77.58%
APPALACHIAN SCHOOL OF LAW				78.33%
FLORIDA A&M UNIVERSITY				78.33%
CHARLESTON SCHOOL OF LAW				78.42%
ST. THOMAS UNIVERSITY (FLORIDA)				78.57%
LA VERNE, UNIVERSITY OF				78.95%
TOURO COLLEGE				79.12%

India Doesn't Have Enough Civil Servants

Lately, there has been renewed interest in India’s lack of state capacity. One hardly need explain the dysfunction arising from this problem to the average Indian citizen. It is as pervasive and embedded as any other social, cultural or economic facet of Indian life. Yet, we continue to chug along and sometimes even manage to surprise ourselves—conducting free and fair elections for hundreds of millions of voters, or providing unique biometric identification to close to a billion people. So, it is not a complete failure.

Lant Pritchett famously labelled India a flailing state—one where “the head, that is the elite institutions at the national (and in some states) level remain sound and functional but that this head is no longer reliably connected via nerves and sinews to its own limbs.” . . .  

Almost all of India’s governance problems can find links to the lack of manpower in state services. India has only 12-15 judges per million compared to the US’ 110 per million. The immediate goal is to reach the law commission’s 50-judges-per-million recommendation. Similarly, India has about 129 policemen per 100,000 citizens—only Uganda fares worse. In order to meet the UN recommended ratio, India is short of half-a-million policemen. The situation for judges and the police also holds true for firemen, traffic police, garbage collectors, inspectors, engineers, bureaucrats, and so on.

From here. 

The author points to over-criminalization of what should be civil violations and obsolete bureaucracies as potential short term solutions, but I'm skeptical that this will matter much. Many better functioning states also have over-criminalization and obsolete bureaucracies, but fixing these things tends to be a trailing indicator of overall improvement, rather that a first line solution.

The elites may be functional in some respects, but they clearly aren't raising funds for and expending enough money on state administration, and that is quintessentially a problem at the top, and not in the detail.

TANF Block Grants Were A Failure

Look at what happened with welfare, or the Temporary Assistance for Needy Families (TANF) program, which was turned into a fixed block grant to the states during the Clinton administration and has become a Republican exemplar of the efficiency argument ever since. “In 1996, we block-granted money for welfare reform, and it worked like a charm,” Graham said at a news conference this month, making the case for his health-care legislation. “We put governors in charge of the program. We held them accountable.” 

But the welfare rolls shrank mostly because states kicked people off of the program, not because the program got more effective and efficient. An initiative that used to cover 68 of every 100 families in poverty now reaches just 23 of every 100 with cash benefits, the Center on Budget and Policy Priorities has found. Plus, given more flexibility and authority, states started using the money for initiatives other than cash benefits for poor mothers, such as early-childhood education and job training. That led to wide state-by-state differences in program outcomes. California covers 65 out of every 100 families in poverty with cash benefits under TANF, for instance, while Louisiana covers just four. 

From The Atlantic.

It also notes that Social Security and the IRS are both extremely efficient at what they do compared to either the states or other countries.

Another For Profit College (Heritage College) Bites The Dust

WHEAT RIDGE - More than a dozen former students sat outside the Heritage College campus off Harlan Avenue in Wheat Ridge Wednesday afternoon, wondering what to do after the private medical arts school closed 10 campuses without warning. Students say they paid the college roughly $15,000 in tuition. Many are days away from their graduation date from the nine-month program. 

Left without a degree or certification, some students wonder if the internships and jobs they've lined up will now fall through. Many are wondering what will happen to their student loans. 

A sign on the door says the school ran out of money, and offers an email address for further communication. 

PREVIOUS STORY: For-profit Heritage College shutters Denver campus

From 9News. 

The federal government has recently set new tougher eligibility standard for federal student aid in the form of grants and loans that disqualifies many for profit institutions that overwhelmingly have much higher tuition, much higher student loan default rates by their former students (see also here), and lower graduation rates than comparable state, federal and non-profit higher educational institutions.

Marketing for for profit colleges (which makes up a huge share of their expenses while only a modest percentage of the budgets of other colleges), also often exaggerates the extent to which degrees from these college's increase a student's earning potential (see also here). 

While for profit colleges are generally accredited (they aren't "diploma mills" that grant decrees and certificates to students who haven't done the work necessary to earn them at ordinary colleges), many two year and certificate programs at "for profit" colleges either do nothing to increase a graduate's earning potential or actually tend to decrease a graduate's future earnings, and more are net negatives after the cost of earning the degree or certificate is considered. 

In contrast, public community colleges offer comparable programs at a fraction of the price on a more or less open admissions basis (at a much lower cost per student), and routinely provide graduates with significant personal economic returns (on average).

The business model of for profit colleges is heavily dependent on federal student aid because a larger share of their students than comparable institutions which aren't "for profit" institutions receive federal student aid which is the only way it is possible for them to finance their educations.

This said, it is hard not to be sympathetic to the plight of current students at colleges like Heritage who have invested considerable sums of money into programs and are in some cases close to graduating, yet will have nothing to show for their efforts. One suspects that even getting a transcript necessary to transfer to another college to complete a degree will be difficult.

Sure, going to a "for profit" college is usually a poor decision in the first place (with some focused on narrow exceptions including two or three such institutions in Colorado* such as the Rocky Mountain College or Art and Design which has a statistical profile much more similar to non-profit higher educational institutions than to for profit colleges), which is why these colleges tend to target their marketing at less sophisticated students.

And, the writing has been on the wall ever since the federal government adopted the new regulations for federal student aid (something most people, including students at "for profit" colleges, are unaware of). 

But, the abrupt nature of the shutdown and the timing of this inevitable turn of events, have made the closure much harder on innocent (indeed, often exploited) students than it had to be.

It doesn't appear that Heritage College has filed a bankruptcy petition, which makes a certain amount of sense. Limited liability entities like the one that own's Heritage College, can't receive a discharge of its debts in bankruptcy, a reorganization of the business isn't possible because the business model itself, and there is no compelling argument for a stay of actions by creditors to enforce their rights against it when it is liquidating anyway and if the money really is all gone, the shareholders have no interest in further funding a money losing enterprise. 

Creditors of the company could intervene to force an involuntary Chapter 7 bankruptcy to assure the orderly disposition of its remaining assets to creditors and to determine if any money can be clawed back from creditors who received preferential treatment before it shut down, or the attorney-general of Colorado could force a formal state law dissolution of entity process which also allows for an orderly disposition of its assets (albeit with less power for the person involved in shutting it down).

To make matters worse, students who were cheated out of a chance to finish their degrees which were financed, at least in part, in most cases with federal student loans, will generally find that it is virtually impossible to ever discharge those loans in bankruptcy without paying them in full (many federally guaranteed student loans are routinely discharged as a matter of course rather than pursued as probate claims when a student dies, however, although there is no legal requirement that this be done that I am aware of). This provision is particularly harsh in the case of students who don't graduate who make up a disproportionate share of defaulting student loan debtors.

Students loans now make up about a third of all outstanding unsecured consumer debt (something that excludes mortgage and car loans and business loans, but includes most credit card debt and other consumer loans for which there is no collateral).

There have been isolated instances when student loans outstanding for all or for some subset of students at a failed for profit institution are forgiven en masse, but I'm not aware of this ever being done on a case by case basis, and students with loans incurred for educations at Heritage College right now certainly can't count on receiving this kind of relief.

This is a situation that is likely to recur in the near future and really calls for federal intervention so that students can receive orderly transfers to complete their studies, can access transcripts of their studies when needed in the future, and can receive relief in appropriate cases from their student loans. Indeed, the entire regime of harsh treatment of student loan debtors in bankruptcy really needs to be revisited, either through the bankruptcy code or through reforms to the student loan program that issues these extraordinarily preferred debts.

* Full disclosure. I was a full time associate professor of estate planning for a while in the Master's Degree program at the "for profit" College for Financial Planning, an institution that invented the "Certified Financial Planner" designation before it was converted from a non-profit college to a for profit sister college of the University of Phoenix under its holding company, Apollo. Management of the CFP designation was spun off into a separate Denver based non-profit at that time. I was the most recent hire there and as a result my employment was terminated on October 31, 2005 when the College was required to lay off professors because the College for Financial Planning failed to meet the sales growth targets set for it by Apollo and was forced by Apollo to cut its costs as a result. (I've been self-employed ever since, that was the last W-2 job I ever held.) The College doesn't offer tenure to any of its professors that I know of, although I can't say that I ever faced any interference in the content of what I taught in that position, but even if it had, tenure does not ordinarily protect professors from participating in layoffs, at least if non-tenured faculty are laid ooff first.

In connection with that post, I had to sign a non-disparagement provision which may or may not be legally valid at this point, eleven years after I left that post, that effectively limits my ability to comment on Apollo or its subsidiaries in particular if it is still in force. (I'm not sure I even have a copy of the contract any more and it may be a moot point soon in Apollo goes out of business as many other firms in the for profit higher education industry have, although I have no idea whether it will do so or not, and if it did it would have little or nothing to do with its particular flaws in an industry whose overall business model has been rendered obsolete by new regulations.)

When All Else Fails, Blame Ghosts

Abuses at a Pueblo center for people with severe intellectual disabilities included a resident performing a sexual act in exchange for a soda and another burned with a blow dryer in an attempt to raise her body temperature, according to a federal report obtained by The Denver Post. 

A group of men, some who are nonverbal, had words scratched into their skin, including “die,” “kill,” and “I’m back,” federal investigators found. When questioned, three staffers said they believed the markings were the result of “paranormal activity.” Staffers had posted photos of the etchings on social media, the report said. 

The incidences of abuse at the Pueblo Regional Center — one of three centers in Colorado that are home to adults with developmental, physical and intellectual disabilities — occurred before November 2015. Yet federal investigators who visited the home in April found safety protocols still lacking. They notified Colorado Medicaid officials in an August letter that they were enacting a moratorium on new residents at the center and that Colorado must repay millions of dollars in Medicaid funding. 

“These are some of our most vulnerable people in Colorado,” said Stephanie Garcia, executive director of The Arc in Pueblo, a nonprofit advocacy group for people with developmental disabilities. “To read some of the things going on, it’s shocking.

When all sorts of signs of serious abuse are discovered at a Pueblo, Colorado regional center for the severely intellectually disabled and 5% of the residents die from neglect, do the government employees who have total control over the facility take responsibility?

No.  Of course, not.  They blame the abuse on ghosts. Really, no kidding. Fortunately, this time, in 21st century Colorado, federal investigators did not buy this story.

I was in Pueblo for a trial and reading the local papers when this story broke originally, but many of the details were shrouded in secrecy at the time.

DOD's IT Hardware Is Just Barely Post-Slide Rule

It is not reassuring that the U.S. military's nuclear weapons arsenal is controlled by computers with 1970s vintage eight inch floppy disks.

[T]he Pentagon is planning to replace its floppy systems -- which currently coordinate intercontinental ballistic missiles (ICBMs), nuclear bombers and tanker support aircraft -- by the end of 2017.

My children, who are just a few years younger than the soldiers using these antiquated computers have never even seen a computer using one.

Isn't the strategic nuclear force supposed to be one of the high technology parts of the U.S. military?

I thought it was bad when tanks and Stryker armored personnel carriers in the Iraq War had to rely on Microsoft Outlook and civilian cell phones to communicate with each other.  But, it turns out that this was actually rather sophisticated by Defense Department standards.

BYU Loves Rapists, Hates Rape Victims

Brigham Young University is a Mormon educational institution. This means that it applies religious values rathe than secular morality.

So, it isn't at all surprising that it routinely persecutes students who report being raped while taking no action to punish the rapists. According to Sarah Westerberg, BYU's Title IX coordinator, "almost all of the reported rapes and assaults at BYU are false reports made by women that feel . . . morally bad after they're having consensual activities." 

What a remarkable official policy.  But, why would anyone expect anything else from a religious institution? 

In the eyes of Mormons, like most Christians, this is what Jesus would do.  And, both the Bible and the Book of Mormon are full of instances of women being treated like shit with God's blessing and endorsement.  So, maybe they're right.

OSHA Still Irrelevant

When a Greeley man working for an oil and gas company died, the Occupational Health and Safety Administration investigated, found that the death was caused by violations of federal safety rules by two companies working at the site, and . . . . fined one company $5,000 and the other company $9,800.  The original fines of $8,400 and $14,700 were reduced without explanation.

The death was part of a series of nine deaths under similar circumstances in Colorado recent years caused by safety violations by oil and gas companies.

But, they don't really care, and why should they, if they are being economically rational and loyal to their shareholders?

Economics works and firms respond to incentives or the lack thereof.  In the case of oil and gas worker safety, there are no economic incentives for companies to protect their workers.

The OSHA fines are pitifully small relative to the seriousness of the offense and the profits generated by the enterprise, and relative to the administrative and legal costs of investigating and pursuing the case.

The OSHA fines probably aren't even large enough to make it cheaper for the companies to comply with the safety regulations than to incur the fines.  It also is not uncommon for OSHA fines to go unpaid for years.

And, since the oil and gas industry is governed by OSHA, which has a tiny budget to cover almost every workplace in the United States, rather than by the Mine Safety and Health Administration, MSHA, which has a similar sized budget to cover the tiny number of high risk mine workplaces in the United States, OSHA lacks the resources to imposed more rigorous regulations or to enforce them with a frequency that amounts to anything more than random chance in the absence of a workplace death. Yet, oil and gas operations are every bit as dangerous or more so than other kinds of natural resource exploitation jobs governed by MSHA.

The family of the man who died can't sue his employer, even though OSHA has established that it violated safety laws, because worker's compensation pre-empts the right to sue in exchange for paying for the minimal medical expenses present in the case of a death, a four or five figure death settlement, and a very modest pension to his surviving wife and minor children if he has any (if this 57 year old man is single, and has no children or has adult children, worker's compensation doesn't have to pay any death benefits other than a meager sum that will barely pay for a funeral).

The company doesn't even pay a deductible when a worker's compensation claim is made by the man's family, and while its rates could go up based upon the employer's claims history, the reality is that most of the risk of regular deaths is already figured into the worker's compensation premium which sets races based upon occupation and industry, which are high for high risks like coverage for oil and gas workers.

Like most private sector workers in Colorado, he was not part of a union, so there was no one, from his union or OSHA, to effectively advocate to provide him with a safe workplace.

So long as the worker's compensation system is in place, the solution to making oil and gas companies respect worker safety is simple:

1. Increase the amount of fines imposed by MSHA and OSHA when a death or serious injury occurs, or there is a near miss that could have caused death or serious injury by roughly a factor of 100.  The fines in a case like this one should have been on the order of $500,000 and $980,000, not $5,000 and $9,800.

2. Transfer jurisdiction over oil and gas workers from OSHA to MSHA, and increase funding for MSHA by a factor of two or three so that it has the resources to investigate the oil and gas industry in addition to its existing responsibilities.

3. Vigorously insist upon collecting the fines that are imposed even if it shuts down non-compliant businesses.

4. Put someone who is willing to aggressively enforce the laws in charge of the agency which shows signs of industry capture.

5. Acknowledge that the model of having OSHA cover every workplace with the power to impose only minimal fines, when it lacks the resources to do so, has failed.  Instead, limit OSHA enforcement powers to high risk industries and cases of actual deaths or injuries, and create a private cause of action to enforce its regulations (even in the case of violations that don't lead to injuries), which it would continue to promulgate for all industries, in all other cases, on a model similar to the EEOC, the Colorado Consumer Protection Act, or the federal and state securities laws.  Arbitration of these claims should be prohibited and class action lawsuits to enforce these regulations should be permitted.

With reforms like that, worker injuries and deaths would plummet, and yet, it is very likely that the industry would remain profitable.

Russia's Navy Not As Awesome As Naval Intelligence Suggests

An unclassified December 18, 2015 report summarizing the state of the Russian Navy prepared by the United States Office of Naval Intelligence presents a somewhat surprising and unrealistically positive assessment of the capabilities of the Russian Navy. (Thanks to a helpful reader for locating it, which is includes a nice easily accessible summary of the different kinds of submarines and ships in Russian naval service.)

The Russian Navy is probably the most formidable blue sea naval adversary that the U.S. has in the world.  But, the report doesn't even hint at the most important thing that more independent naval analysts have to say about it, which is that the Russian Navy is hollow.  To recap the relevant part of a post at this blog from August of this year discussing that issue:

The loss of access to suppliers in the Ukraine due to Russia's seizure of some of its territory, an inability to obtain replacement suppliers in the West for the same reasons, and a weak economy in Russia, as well as the fact that Russia is trying to support all of the Soviet Navy with a smaller population and economy than the Soviet Union had, has taken a huge toll on the Russian Navy. The bottom line:

On paper the Russian Navy currently has 270 combat ships (including amphibious and combat support vessels). But only about half of these are in any shape to go to sea. The rest are too old, and usually too poorly maintained for too many years, to leave port. Russian shipyards are terrible at building or repairing ships and efforts to remedy this have so far failed. Thus only about 15 percent of Russian naval vessels are major surface warships or submarines. In comparison the U.S. Navy has 290 warships and about 85 percent can go to sea (the others are being upgraded or repaired.)

As a result, the U.S. blue sea naval superiority is actually considerable greater than one would naively expect.Moreover, any realistic assessment of naval force has to consider not just each individual country's naval resources, but those of its likely allies in any particular conflict.

The United States has a lot of BFFs who also have modern, well maintained, powerful naval forces. None of them are even near peers to the U.S. Navy which is far and away the most impressive navy in the world.  But, the navies of countries like the U.K., France, Italy and Japan aren't milquetoast either.

Russia has a few BFFs with navies, and more countries who might be unreliable allies like Syria, Iran, China or North Korea.  But, just as its naval is less impressive than the U.S. Navy, its allies navies are less impressive than the navies of U.S. allies in almost every potential theater of naval warfare.

The fact that Russia has nuclear weapons may mean that it will never make sense for anyone to engage in full fledged conventional naval warfare with Russia.  But, when push comes to shove, the only respect in which Russia is truly a near peer of the U.S. in naval capabilities is in its President's rather reckless willingness to use the military resources at his disposal.

Why would the Office of Naval Intelligence unrealistically puff up Russian naval capabilities?

Well, to ask the question is very nearly to have your answer.  The unmatched U.S. Naval budget needs to be justified, and a report that reveals that our nearest peer force is much less impressive than it seems on the service won't help the naval fight the biggest real war that it has fought in the past two generations that have seen very few actual naval military conflicts - the budget wars that rage in Congress.

From an institutional perspective, Naval Intelligence can never go wrong by overestimating its enemy.  It is is right, it gets the funding it needs to combat the threat.  If it is wrong, it will win any conflict that comes up handily.  A win-win for the navy, even if this means a loss for American taxpayers.

Manifest Misconduct and Mismanagement

It isn't uncommon for a court case to reveal serious misconduct or mismanagement that is beyond the scope of the current litigation and therefore doesn't give the party suing a right to relief.

For example, a recent 7th Circuit case involving sex discrimination at a state prison in Indiana, revealed a rampant lack of discipline among the staff to the point that night shift workers were having sex on the Plaintiffs desk almost every night.  This was widely known and the supervisor expressly said that he didn't care and that she should just wash her desk off each morning.

The Court held that this didn't constitute sexual harassment because night shift workers only had sex there because it was convenient, and not because she was a woman, and further held that she had no retaliation claim because her complaint was not about gender related harassment, but merely run of the mill, not federally regulated harassment.

There is room to disagree with that conclusion, but the screaming and yelling obvious point revealed by evidence like this in her case, for which she personally wasn't allowed to sue in federal court, is that the management of the prison under both the current and previous warden was absolutely egregious.

This should, but all too often does not, have serious consequences.  The facts that came to light should cause every single manager on the day shift and night shift, and everyone who was involved in carrying out the harassment at that prison, to be fired in a matter of days.  If the staff at the prison cannot maintain some minimal degree of professionalism at work, then there is no way that anyone can reasonably expect that they are fulfilling their other professional duties in a reasonable manner.

Once upon a time, grand juries were convened when this sort of scandal was revealed to investigate the mismanagement of a public institution, but now, that doesn't seem to happen.

Indeed, this case also reveals an all to common divide and conquer litigation tactic.  The core sex discrimination in this case involved a slap on the wrist punishment for a male employee with seniority and higher rank who was involved in an affair, while she lost her pension, had a difficult time obtaining unemployment benefits and lost any hope of working for the state again.

In other contexts, it is common for a defendant to settle with someone who has the greatest capacity to litigate a wrongdoers misconduct, while the settlement leaves obvious harm to other similarly situated people as a result of the same pattern and practice of conduct who have less of a capacity to litigate without relief.  Similarly, even if multiple people violate the law in ways that give rise to legal liability, private litigators frequently satisfice, litigating until enough big pockets have paid enough in damages, even if that means that there are no consequences for equally guilty offenders who pose a continuing threat to the general public.

In a world where harms were mostly isolated incidents, this wouldn't be a serious problem.  But, in a world in which systemic conduct by big businesses, government agencies, and even not so big businesses that interact with many customers or vendors are the norm, as often as not, misconduct directed at one person or one employee is part of a pervasive pattern of misconduct that impacts many people.

For example, even if a contract term if found to be void as against public policy in a court case, it is rarely actionable for a firm to continuing using the same form contract in the hope of strengthening their negotiating position in future disputes with people who don't know that this happened.

In a better world, when a litigated case reveals something rotten, that information should be shared widely and have consequences.  All too often, however, this is artfully avoided.  Class action lawsuits were meant to address this kind of problem, but have not been very effective.  Routinizing other collateral consequences of misconduct and mismanagement that are revealed in a case should be one objective in reforming our civil litigation system.

Too Secret By Far

Colorado's state courts use an electronic filing system called ICCES. This is great for some purposes. But, its effort to preserve privacy in probate cases has gone overboard.

The system will not admit or deny that a probate case exists until your attorney enters an appearance in the case.

Admittedly, private financial information in probate filings should be protected from uninterested parties (Colorado law does not even require that such filings be made a matter of public record - they may simply be distributed to interested parties upon request). But, the notion that a process that is designed to provide a forum for third party creditors who are outsiders to lodge their claims operates in secrecy otherwise reserved only for terrorism cases is absurd.

Prison Still Hell

In Indiana, a prisoner had 30 days of good time revoked because he followed the directions of prison staff regarding accessing the Internet while acting as a prison librarian.  Had he disobeyed orders, he could also have been disciplined for that.

The 7th Circuit disagreed and was troubled by the stance that the prison took in litigation in the case.  The Court also pointed out the prison's failure to disclose the charges to the prisoner, creating Kafkaesque circumstances for the prisoner as he tried to set forth his claim.

We Shouldn't Trust The National Security Establishment

There is a very simple reason that we shouldn't trust the national security establishment to act in good faith and be truthful. This is that repeatedly, when the truth eventually does come out, it becomes clear that they haven't been in the past.

For example, high level administration officials repeatedly lied about why Rahinah Ibrahim was on the "no fly" list. The truth: a simple clerical error. But, it took "seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time," and false statements by high level officials including Eric Holder, for this fact to be revealed. A redacted version of the final court opinion can be found here.

Administration officials also lied about the extent of NSA surveillance programs and about their effectiveness.

Administration officials have been very misleading in their statements about how sexual assault cases are handled in the military.

Administration officials in the Bush administration lied about the claim that the Guantanamo Bay involved only high value prisoners, and about U.S. use of torture.

The Bush Administration lied about the connections between Iraq and 9-11.

The use of the cloak of secrecy afforded to National Security matters for improper purposes has historically been invoked for a very, very long time to hide mistakes, ineptitude, and human rights abuses in cases that almost never require such sweeping secrecy to protect legitimate national security interests.

While President Obama has had significant achievements in reforming domestic policy in a liberal direction, he has inexplicably mostly left extremely radical national security policies from the Bush Administration undisturbed.

Georgia Courts Still Confused About Outcome Of Civil War

DECATUR, Ga. -- A new online juror questionnaire offered by the DeKalb County Court listed "slave" as an occupational option. Court Administrator Cathy McCumber told 11Alive, the questionnaire went online a month ago, but is based off an internal list that's been used for 13 years. She says the list is 62 pages long, so she's not sure if the word slave has always been on it, or if it was added before the questionnaire went online. 11Alive and the court learned about the problem Monday morning, after a potential juror filling out the form hit the letter "s" for sales. He says he got "slave" instead. . . . The company that designed the software says the drop down menus in the survey are inputted by the user. . . . Until a month ago, jurors had to fill out the questionnaire by hand and mail it in to the courthouse.

From here.

The "slave" option was removed within an hour of being discovered and brought to the Court's attention. My suspicion is that it was a bad joke inserted by data entry employees assisting in the transition who felt they were mistreated and were describing themselves.

Connect For Health Colorado Website Still Down

Try to sign on to the State of Colorado's health insurance exchange and it will tell you that your users ID and password are broken.  But, in fact, the system is actually down and everyone who tries to sign on is told this, the telephone support line will tell you (not that the website warns you of this fact).  The related Colorado Peak website for Medicaid applications is also broken, as is the automated telephone support prompt system that goes with Colorado Peak (and its phones are only answered during state government business hours).

We started our application around October 20, and finished the mandatory application for Medicaid which we know we won't qualify for on October 22.  As of November 6, more than two weeks later and a couple of days after the state said it would restore website service, we're still in limbo.  Eventually, a customer support line human being says applications are processed not instantly, but in 30 to 45 days.  Why it takes so long is a mystery.  It took me all of two minutes to determine that we don't qualify and the hyper for the system said you could get results in less than 30 to 45 minutes.

I've looked at the provisions of the law and information from other people, so I know that I will receive many thousands of dollars of tax subsidies and that the premium on a plan comparable to the one that I have now will be thousands of dollars cheaper.  But, I can't get to that stage of the application process.

The seemingly simple website application is still an unmitigated disaster more than five weeks after it was launched.

I have nothing against the law, and understand how Republican efforts to undermine funding of the website at the federal level undermined that process, but I'm still a bit baffled about why Colorado's website is such a dismal failure.

Connect For Health Colorado Still Broken

Marketplace officials have delayed the opening of the online subsidies application and calculator until Nov. 4 — meaning that until then customers can't finish the process without phoning customer service. . . . Susan Birch, a board member who oversees Medicaid as director of state Health Care Policy and Finance, said Medicaid is working internally and with federal officials to streamline the application and get instant decisions to 90 percent of cases. Currently, many applicants are required to fill out questions on assets that are not required for Medicaid decisions.

From here.

A month after being launched, Colorado's health care exchange is still broken. The instant response rates on applications for subsidies is more like 50% than 90% and if it isn't handled instantly, it takes many days to process (mine has been in limbo for eight days). The critical functions of the system like the online subsidies application won't work until Monday, not that the website well tell you that fact.

Honestly, if the website could at least tell you to come back later when it actually works, it would dramatically reduce frustration levels.

The basic plan of Obamacare is sound, and honestly, not all that terribly complicated.  How the relatively straightforward task of setting up these websites with years of advanced warning is so FUBAR is honestly baffling.  This really shouldn't have been that hard and certainly shouldn't have taken more than a month to bring to remotely functional level, although shutting down the government for more than two weeks at the same time certainly didn't help.

School Administrators Still Stupid

Once again a school administrator has used a "zero tolerance" policy as an excuse for doing something stupid, in this case seriously punishing a volleyball team captain (loss of position and five forfeited games) for the "offense" of going sober to a party to drive a drunk friend home when the police arrived (even though the cops would vouch for her sobriety and didn't charge her with anything). The most recent case involves a teen at North Andover High near Boston.

NSA Concealed Abuses From Justice Department and Director of National Intelligence

The National Security Agency not only violated the privacy rules we are supposed to trust it to obey thousands of times a year in a trend that has gotten worse and worse since 2008, it concealed the extent and nature of the abuses from oversight officials in the Justice Department, the Director of National Intelligence to whom it reports, and established unconstitutional programs without obtaining even FISA court approval. In a related Washington Post article, the chief FISC judge is quoted stating:

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

But, this isn't really true.  In genuine courts, which have an adversary system and transparency, the people who could be harmed by government non-compliance with its order are informed of the existence of the orders and people allegedly harmed by a violation of an order have standing to enter an appearance contesting the order.  In the FISC case, only the government has standing to appear before the Court, the Orders that might be violated are known only to the government, and noncompliance is punished only if the government asks the Court to punish it.  Needless to say, this (almost never) actually happens - probably just once in the fall of 2009.

Congressional oversight committee members never saw the audits that showed this was the case and NSA employees were instructed to be purposefully vague in even internal reporting about their own abuses.  In general, Congressional efforts to provide oversight are muzzled and often thwarted by the agencies.

Former NSA contractor Edward Snowden, increasingly looks like a Patriot and not a criminal, for revealing this massive web of NSA lies, deceit and abuse.

Every day that evidence mounts that a massive overhaul of how the federal government conducts intelligence activities needs to be undertaken to provide meaningful privacy protections to Americans (and to foreigners not involved in diplomatic or terrorist activities), and to provide meaningful oversight of an agency that even members of Congressional intelligence committees, supposedly overseeing courts and senior federal officials with jurisdiction over the NSA aren't told about, but private contractors can find out about.  The NSA is broken in a way not easily mended.

Simply put, the way the NSA is operating is un-American and Unpatriotic.  Its activities are doing as much to undermine the values of our country and our national security as they are to preserve it.  They have stopped working for "Team Good" and starting working for "Team Evil."  Our elected officials have the power to act, but they need to exercise it.

TSA Now Enforcing Teen Girl Dress Code

Wonkette has the story.  The fifteen year old girl clothing that a TSA officer found objectionable is depicted below: