What Drives Court Dockets In Colorado?

The 2010 Annual Report of Colorado's Judicial Branch, as usual, is one of the best empircal descriptions of what is going on in the state courts. This year is notable for including beter data about hearings, as well as "trials" than previous years.

Overview

Colorado's superior jurisdiction judicial branch courts are its District Courts, which are unified in most of the state, but in Denver are divided between the District Court, the Denver Probate Court and the Denver Juvenile Court. The Denver District Court also has a number of special responsibilities that do not involve a separate court as the venue for cases involving state government that are localized to the capital. Seven district courts have divisions that double as "water courts."

Colorado's primary inferior judicial branch courts are its County Courts. Outside Denver, these are identifical, but in Denver the County Court also doubles as a municipal court where ordinances are enforced. Small claims court is a division of the County Courts. All of these courts, except for the Denver County Court, are part of the state judicial system with judges appointed by the Governor. Denver County Court has a hybrid city and state status.

Crimes other than ordinance violations are prosecuted by District Attorneys, who are locally funded and elected from a judicial district but are formally considered to be state employees.

Ordinance violations at the county level are generally prosecuted in county court by country attorneys (a position distinct from the District Attorney that mostly is responsibile for representing county government as in house counsel in civil matters).

Ordinance vilations at the city level are generally prosecuted in municipal courts that municipalities may established by city attorneys. Municipal courts are regulated by state law, by have judges appointed by the city, are administered by the city and are not part of the comprehensive state record keeping system in place for state courts. In practice, it is common for the same person to be a municipal judge for multiple municipalities, and/or to be both a part-time county court judge in a rural county and a municipal judge at the same time. State law limits the magnitude of the criminal sanctions that can be imposed for ordinance violations (basically limiting the punishment to that available for less serious state misdemeanors) and provides for the appeal of municipal court judgments to the state courts, in a manner typical to that of other appeals for courts of record with lawyer judges, and with a trial de novo in the case of municipal courts not of record. There are 273 municipalities in the State, but not all of them have municipal courts and very few of them have a full time municipal judge. The lion's share of municipal court cases concern traffic violations prosecuted via municipal ordinances, although they also include a smattering of ordinance violation cases.

Non-lawyer judges are permitted in rural county courts and in municipal courts not of record, but in practice, there are no more than four non-lawyer judges in the state courts and very few who preside over municipal courts.

Trials, Hearings and ADR

There were 1399 jury trials in District Court in Colorado in fiscal year 2010: 1,059 in criminal cases, 306 in civil cases, and 34 in juvenile cases (generally only termination of parental rights cases give rise to a right to a jury trial in juvenile cases). I know from other data that approximately 75% of general jurisdiction civil jury trials are personal injury cases.

There were also 763 bench trials in District Court: 53 in criminal cases, 368 in civil cases, and 342 in juvenile cases (many of which are quasi-criminal juvenile delinquency cases).

There were 13,860 domestic relations hearings in District Court: 13,487 permanent orders hearings in dissolution of marriage cases, 202 legal separation hearings, and 171 invalidity of marriage hearings. Note that almost every dissolution of marriage or legal separation of invalidity of marriage case must be concluded with a hearing (including every case where children are involved) even if the cases are uncontested. So this doesn't necessary capture the full number of active litigations in these cases.

There were 183 mental health hearings in District Court: 49 for involuntary committment for alcohol treatment, 78 long term certification hearings, and 56 short term certification hearings.

There were 2,729 probate hearings: 430 for combined conservatorships and guardianships, 614 for conservatorships without guardianships, 1,517 for guardianships without conservatorships, 137 for the formal probate of a will, 11 for will contests, and 20 hearings related to trusts. Many of the conservatorship, guardianship and formal probate cases are not genuinely contested but do require in court testimony to establish the faces beyond mere affidavits.

In County Court in Colorado, in fiscal year 2010, there were 1,321 jury trials: 821 in misdemeanor cases, 483 in traffic cases, and 17 in civil cases.

In County Court there were 4885 bench trials: 275 in misdemeanor cases, 176 in traffic cases, 1,295 in civil cases other than small claims cases, and 3,139 in small claims cases. There were also 9,053 final hearings in infraction cases.

These figures, naturally, omit, federal court trials and hearings, and hearings in administrative courts (e.g. DMV license revocation hearings). This list also omits parole revocation hearings and many hearings that aren't the moral equivalent of a final bench trial in a case (e.g. schedulinng hearings, motion hearings, temporary orders hearings, contempt hearings, etc.).

Compared To Case Loads

District Court Civil

There were 116,346 civil cases filed in District Court in Colorado in fiscal year 2010, that produced 306 jury trials and 368 bench trials, but not all of those filings are created equal.

Rule 120 hearings filings (a summary hearing, often uncontested and dispensed with after filing for lack of objection, in the non-judicial mortgage foreclosure process) accounted for 39,404 of those cases. The bulk of of the non-judicial foreclosure process is handled by the executive branch public trustee's office, whose duties are ministerial and comparable to those of a sheriff enforcement a judgment rather than by a court imposing one. The court in a rule 120 hearing addressly solely the question of the existence of default justifying foreclosure (in all but rare cases due to non-payment of amounts due on a promissory note), not damages.

Distaint warrant filings (state tax lien filings) accounted for another 45,528 filings and generally don't produce a hearing. A distaint warrant is roughly equivalent proceedurally to the administrative registration of a judgment obtained in another state and does not require proof of the merits before a claim can enforced against property.

These case make up 73% of the district court civil docket, but have a comparatively trivial impact on the court's work load. The 578 foreign judgment filings, 322 out of state subpeonas and 278 name change petitions are also almost purely administrative matters that do not greatly burden the court.

There were 30,236 cases of other types on the District Court civil docket in the state.

About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. These cases make up a greatly disproportionate share of civil jury trials in District Court with about one in thirty-three of them actually proceeding to a jury trial

About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connnection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property. The number of jury and bench trials in cases such as these greatly understates the number of actual controversies resolve by the court process, because many "paperwork intensive" cases can be resolved by judges on the merits, or in a manner that makes a determination on the merits largely a foregone conclusion, in motion practice prior to trial.

Many cases involve judicial review of, or action collateral to that of other decision makers: There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 3,820 cases are to seal records or seek habeas corpus relief that is generallly collateral to a criminal case. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases. Note also that appeals of municipal or county court cases classified as civil in district court, appear to include cases where the underlying matter appealed from would be a traffic or criminal case, and that it is possible to appeal such cases even in many cases when guilt is not disputed (and hence there was no trial) if there is an alleged error regarding the sentence. The number of civil cases appealed to District Court from county court or a municipal court is probably closer to one or two hundred.

This leaves 2,849 other kinds of cases on the docket. They include: 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases.

District Court Criminal

There were 36,993 criminal cases in District Court that were resolved with 1,059 jury trials and 53 bench trials (with the balance being resolved by plea bargain or dismissed prior to trial).

Probate Filings

There were 12,189 probate filings in Colorado in fiscal year 2010.

Of these, 5,600 were for the informal probate of a will, 1651 were for informal probate in an intestate estate, 425 were for the formal probate of a will, 225 were for formal probate in an intestate estate, 18 involved appointment of a special administrator where the probate or determination of intestacy was informal, 27 involved the appointment of a special administrator following a formal probate proceeding, 78 were small estates, 103 involved a determination of an heirship, 231 were trust cases, 93 were public administrator statements, and 149 involved "estates." All of these cases combined produced 137 hearings for the formal probate of a will (out of 452 such cases), there were 11 hearings for will contests (out of roughly 6,070+ wills presented for probate), and 20 hearings related to trusts (out of 231 trust cases). Less than two wills presented for probate in a thousand gave rise to a genuine will contest that must be resolved in a hearing in 2010 in the entire state of Colorado.

Denver's Probate Court has only a couple of dozen contested will hearings a decade. In 2010, Denver's Probate judge and her magistrate handled held 342 guardianships and/or conservatorship hearings, 3 contested will hearings, 14 formal probate hearings, and 7 trust hearings. Thus, there were 6 or 7 guardianship or conservativeship hearings in a typical week, and there was two hearing related to the probate of a will or to trusts every month. In addition, official statistics do not reflect, but there probably were, proceedural hearings, hearings on creditor's claims, and hearings related to accountings in probate and guardianship and conservatorship estates.

Of the 8,220 decedents estates that were handled by the courts in Colorado in any capacity in fiscal year 2010, only 45 (about half of one percent) involved the appointment of a special administrator which gives rise to the kind of close court oversight of the estate that is routine in many states such as Florida, New York and Ohio. Slightly more than 90% of primary decedents estates that had any court involvement in Colorado were handled administratively and approved as a matter of course by the Probate Registrar in the clerk of the court's office, rather than by a judge, on the basis of a simple court form. Other parts of the probate docket were also purely administrative and required little or no judicial intervention: 592 were trust registrations, 36 were will transfers (where a will has been lodged and is moved to a new court), 4 were registrations of foreign orders, 449 were ancillary proceedings to a probate elsewhere domesticating a foreign appointment as personal representative, and 1 was a disclaimer filing.

In contrast, there were 192 adult conservatorships, 378 combined conservatorship and guardianship proceedings, 227 conservatorships for a minor, 668 adult guardianships, 560 guardianships of minors, 26 involved approving single fiduciary transactions, and 374 were personal injury settlement approvals. These produced 430 hearings for combined conservatorships and guardianships, 614 hearings for conservatorships without guardianships, 1,517 hearings for guardianships without conservatorships. Thus, almost every guardianship and conservatorship case produces a hearing and some more then one. In most, the key issues are determining the competency of the adult in question (if the case concerns an adult), and determining if the person seeking to be appointed as guardian or conservator is the right person to do so. Frequently, only one of these questsion, or neither of these questions, is at issue.

County Court Civil

County courts in Colorado in civil cases in 2010 had 1,295 in civil cases other than small claims cases and 17 civil jury trials.

This comes from 148,425 money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." The vast majority of these cases are low stakes cases brough by collections attorneys for businesses in the business of lending money and by professional landlords. Less than 1% of civil cases in county court go to trial and only about 1.2% of trials are jury trials. This is particularly notable given the fact that county court procedure has little or no pre-trial dispositive motion practice. The vast majority of cases either produce default judgments or are resolved in a pre-trial settlement (usually reach in person in the court room at an initial appearance date or, much less frequently, immediately prior to a scheduled trial).

Court Sponsored Mediation

The courts also sponsor mediation (or its close cousins, excluding arbitration) through its ADR programs. There were 7,160 such cases in Colorado in the fiscal year 2010: 5,476 in domestic relations cases, 410 in juvenile dependency and neglect cases, 200 in child support enforcement cases, 172 in juvenile delinquency cases, 8 in probate cases, 283 in district court civil cases, 130 in criminal cases, 435 in county court civil cases, 36 in small claims cases, and 10 in restraining order cases. While court affiliated domestic relations ADR is offered in all judicial districts, other forms are offered only in some judicial districts.

For example, the Fourth Judicial District (El Paso and Teller Counties) is the only one with court affiliated, formally recognized ADR programs for criminal cases and restraining order cases. It also accounts for just under half of the dependency and neglect ADR cases (with all but ten of the rest being in Denver), and 57% of the county court civil ADR cases. All but 7 of the small claims ARD cases are in the 11th Judicial District (Chaffee, Custer, Fremont and Park counties). All but eight of the child support enforcement cases happen in one of four judicial districts in the Denver metro area (the 2nd, 17th, 18th and 19th judicial districts). Most court affiliated ADR programs in Colorado in non-domestic relations cases are effectively pilot programs.

Analysis

On the civil side, courts are primarily institutions in which people invoke their rights and provides a formal forum for official notice and communication between parties involved in a claim; court imposed dispute resolution in civil cases is by comparison almost a side proposition, particularly in cases where the gravamen of the action is to secure compulory means by which to collect a contractual or quasi-contractual or government agency imposed debt.

Cases involving bona fide disputes over liability in civil cases, the analysis of which makes up the bulk of the training of new lawyers, makes up a very modest share of the litigation docket. Moreover, a very large share of all of those litigated cases with disputed liability involve extremely ordinary contract terms and claims and defenses, or tort suits for simple negligence in utterly pedestrian fact scenarios (e.g. car accidents and slip and falls).

Lenders, landlords and government agencies make up the vast majority of plaintiffs, and a very large share of the rest of the cases are domestic or quasi-domestic in nature.

Where there are bona fide disputes, they frequently involve cases where the existence of an event giving rise to liability is not seriously contested, but there is legitimate dispute over the appropriate remedy, mostly because the facts are muddy and the law (e.g. in domestic relations cases or in non-economic damages cases) does not provide a definitive answer even in cases where the facts are known with absolute certainty.

Courts, of course, have authority to adjudicate a far, far wider range of disputes, but the exceptions make up a surprisingly small share of the docket relative to the bread and butter component of the docket.

READ MORE - What Drives Court Dockets In Colorado?

A Criminal Justice Catch-22

Ezell Gilbert is now before us asking to be relieved of the consequences of a mistake we made in his direct appeal in 1998. He told us then that the District Court was wrong in sentencing him substantially more harshly based on that court’s decision that carrying a concealed weapon is a crime of violence. We rejected his argument, and affirmed his sentence of more than 24 years. United States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998). We did this on a record containing the District Judge’s clear statement that the sentence was longer than he would have imposed, but for the then-mandatory Sentencing Guidelines. Id. at 1372–73. It turns out, of course, that Mr. Gilbert was right and we were wrong. Carrying a concealed weapon is not a crime of violence. We said so, belatedly for Mr. Gilbert, in United States v Archer, 531 F.3d 1347 (11th Cir. 2008).

The effects of our mistake are quite dire for Mr. Gilbert, insofar as his
properly calculated (and advisory) guideline range would today be 130–162
months, or approximately 11 to 13 years. As I write this, I understand that he has already served more than fourteen years in prison. And yet the majority opinion tells Mr. Gilbert that the laws and Constitution of this country offer him no relief.

From the dissenting opinion of Judge Martin from an en banc ruling of the 11th Circuit in an appeal of a U.S. District Court denial of a habeas corpus petition.

The majority opinion by Judge Carnes (at the same link) opens with the following:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced. Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed. . . . The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes. For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.

Gilbert had a prior criminal record as a drug dealer, and the sentencing was conducted on the basis of plea bargain that stipulated that "his statutory sentencing range was ten years to life imprisonment on the crack distribution count and not more than five years on the marijuana distribution count. . . . Gilbert’s base offense level was 32 because his distribution offense involved at least 50 grams but less than 150 grams of crack." His lengthy and serious criminal history produced a sentencing guideline sentence about twice what appears to have been anticipated by either party because one of his prior convictions for unlawfully carrying a concealed weapon was treated as a violent rather than a non-violent offense.

The majority makes much of the fact that Gilbert received many instances of leniency in his prior run ins with the criminal justice system and could have faced a mandatory life in prison sentence if the prosecutors had chosen to take a fairly strong case to trial rather than plea bargaining. Basically, the majority argues rhetorically, although not really legally, that bad people like Gilbert deserved to suffer from judicial mistakes anyway, and gets to benefit from mistakes made in his favor, so judicial mistakes of law aren't worth correcting when they prejudice him.

In contrast, as Gilbert's lawyers see it, the basic problem is that he got a sentence twice as long as the one that he had bargained for (and of course, it bears noting that this long sentence was only made possible by laws imposing hysterically long sentence for dealing crack cocaine in small quantities that the Congress has since disavowed.)

The 11th Circuit is one of the most conservative of the U.S. Court of Appeal Circuits in the United States federal court system. The case eptiomizes the divide between liberals and conservatives over habeas corpus relief. (Note that this was a federal court decision, so the federalism aspects of habeas corpus law are absent from this case.)

It also illustrates the fact that in the federal sentencing guidelines system, slight nuances of interpretation regarding gray areas of the governing law can have profound consequences for criminal defendants. This suggests that there are real problems with the fundamental structure of this criminal sentencing system, which in practice can be quite capricious.

Then again, there is wide bipartisan consensus that far more profound mistakes in fact finding by juries cannot be corrected on any kind of appeal, and these mistakes are probably considerably more common than mistakes on questions of law that are subject to appeal or correction in a collateral attack on a conviction.

Reasonable estimates put the error rate of juries on the question of conviction for a crime, based on comparing the conclusions drawn by juries and judges and other judges with each other based on the same evidence and based on exoneration rates in cases where DNA evidence is available, at 10%-20%. Of course, something on the order of 90%+ of cases are plea bargained, so jury errors make up only about 1%-2% of criminal prosecutions. But, this still probably dwarfs the number of material mistakes made by judges on questions of law that are not corrected on direct appeal. While fixing mistakes that are clearly wrong, even if discovered and accurately addressed only much later, makes the system more accurate, errors in fact finding and poor legislative and quasi-legislative standards for sentencing across the board are a bigger problem in the inaccuracies of the criminal justice system as a whole.

READ MORE - A Criminal Justice Catch-22

Selected Bad Precedents and Rules of Law

What rules of law (other than those in the U.S. Constitution) and court precedents, that remain good law, are on my list of the worst precedents and rules of law?  I supply the bad holdings only below, rather than presenting a more scholarly version that cites the case making that law in this post.

Criminal Justice

1.  Acquitted conduct may be considered when calculating a sentence under the U.S. Sentencing Guidelines, or in general, as a basis for a sentence by a judge following a jury verdict.

2. It is constitutional to try guilt or innocence for a death penalty crime before a "death qualified" jury.
3. The death penalty is permitted in felony-murder cases where the convicted defendant was not a trigger man and did not solicit a murder or conspire with the intent of causing a murder.

4. No imprisonment sentence for a recidivist felony offender, no matter how trivial the current offense, violates the 8th Amendment protection against cruel and unusual punishment.

5. There is no constitutional requirement that criminal sentences for clearly lesser crimes be no more severe than clearly greater crimes (e.g. child rape is often punishable by a shorter sentence than non-commercial possession of child pornography).

6. Photographs of lawful conduct can be criminal to produce and distribute (e.g. in child pornography cases involving adolescents above the age of consent engaged in consensual, non-commercial sex).

7. Neo-natal homicide by women in the throes of childbirth constitutes first degree murder (true in Colorado and in some other states).

8. Criminal defendants who have been convicted are not generally permitted to benefit from subsequent reductions in the sentence for the crime of conviction.

9. A decision of a criminal defendant to testify in his or her own defense opens the door to introduction of evidence of prior criminal convictions that would otherwise be inadmissible.  (Note that there is not a single alternative to this rule, but the rule as currently posed is problematic.)

10.  Plea bargain offers are not relevant in any legally binding way to the validity of a later sentence upon conviction.

11.  Acquittal of an offense in a state court does not trigger double jeopardy protections in a criminal prosecution by another state or the federal government (and likewise acquittal of a offense in a federal court does not trigger double jeopardy protections in state court).

12. Federal habeas corpus review is limited the violations of constitutional rights that took place through the conviction, even if after acquired evidence can establish innocence or cast substantial doubt on the accuracy of the verdict.

13. Forfeitures of rights in a criminal case as a result of the failure of court appointed counsel to act is not, per se, unconstitutional ineffective assistance of counsel.

14. The exclusionary rule applies to physical evidence obtained in violation of the 4th Amendment.  (In such cases, damage awards would be more appropriate.)

15. Defects in grand jury indictment process, or preliminary hearing process can constitute a basis for the reversal of a conviction in a criminal case.

16. Multiple offenses, not interrupted by a period of incarceration or a criminal proceeding, often lead to consecutive rather than concurrent sentences of imprisonment.

17.  State court criminal juries need not be unanimous as a matter of constitutional law.
Governmental Liability

1. Liability for civil rights violations is not vicarious. Employers of civil rights violators are only liable if affirmative misconduct is shown.
2. The 11th Amendment establishes a substantive principle of state sovereign immunity, rather than merely limiting venue in select types of lawsuits.

3. Qualified immunity for civil rights violations of constitutional rights that are not well established extends to all liability, rather than merely to liability for punitive damages.

4. Imprisonment as a result of a wrongful conviction does not give rise to liability under the takings clause of the due process clause of the 5th and 14th Amendments.

5. Judicial enforcement of a legal right does not constitute state action for civil rights action purposes.

Civil Procedure and Choice of Law

1.  A federal court complaint fails to state a claim in cases where an alleged civil liability arises from acts that only the alleged offender is in a position to know absent espionage or whistle-blowing for failure to establish that it is "plausible" that such secret action took place.

2.  A federal law counterclaim does not give rise to federal court jurisdiction in a civil action.

3.  Corporations not treated a residents of every state where they have a regular place of business for diversity jurisdiction purposes.

4.  Appeals from courts of inferior jurisdiction (at least in Colorado, New York, and some federal court contexts) are to the court of general jurisdiction rather than to the intermediate court of appeals.

5.  Default civil judgments cannot be set aside for mistake, inadvertence, surprise, execusible neglect, fraud, misrepresentation or other misconduct of an adverse party more than six months after the judgment is entered, even if no action is taken to enforce the judgment in that time period.  (Many defendants don't recognize that a default judgment has been entered or is a problem and have an incentive to do something about it, until it is enforced.)

6.  Judges are not permitted to resolve disputed issues of fact prior to trial in actions where the right to a jury trial has been waived.

7.  The right to a jury trial depends upon the classification of an action as arising in law or in equity, rather than expressly on facts such as the availability of money damages v. injunctive or declaratory relief, the availability of damages for non-economic damages, or allegations of fraud.

8.  Personal jurisdiction is available in defamation actions in forums other than the forum in which the allegedly defaming party resides, or was present when the defamatory statement was allegedly made by the defaming party.

9.  Personal jurisdiction is available in contract actions in forums other than the forum in which the allegedly breaching party resides, where the allegedly breaching party was present when executing the contract, where the contract provides that jurisdiction shall be available, or where the contract duties other than payment are to be performed (e.g. where the non-breaching party resides, or where contract negotiations took place).

10.  The U.S. Supreme Court and federal courts have jurisdiction to review disputes concerning the outcome of federal elections (i.e. U.S. House of Representatives, U.S. Senate, electoral college votes) made by state courts and by state and local governments, as opposed to confining these decisions exclusive to state courts and Congress.

Constitutional Law Other Than Individual Rights

1.  Treaties may be unilaterally repealed by an ordinary law enacted by Congress and are not generallly viewed as self-executing.

2.  The filibuster has the practical effect of imposing a sixty vote supermajority requirement on all legislation in the U.S. Senate for which a higher supermajority requirement is not imposed.
Tort and Environmental Law

1.  The CERCLA (superfund) liability exception for innocent property owners is not sufficiently narrow to protect innocent property owners from all liability in excess of forfeiture of the property and forfeiture any profit received from the property.

2.  There is no vicarious liability for medical malpractice.

3.  Warnings that it is foreseeable that an ordinary user of a product will not read are relevant to product liability.

4.  Ordinances requiring property owners to clear their sidewalks of snow do not give rise to negligence per se civil liability in Colorado.

Intellectual Property Law

1.  Intellectual property protection is available for images of publicly available buildings.

2.  Intellectual property protection is not per se unavailable for materials delivered voluntarily to an intended receipient on a non-commercial basis.

3.  Statutory damages are permitted in intellectual property actions in cases where the existence of a market for identical or closely comparable intellectual property and a calculation of attorneys' fees permits accurate determination of the damages actually suffered by a defendant.

4.  Stautory damages are determined per infringing work rather than per defendant.

5.  Injunctive relief is available for patent law violations even when the holder of the patent has known about the infringement and has failed to assert any rights until the economic impact of an injunction far exceeds the economic impact had the infringement been alleged when the infringement was first discovered, or when the patent holder is not engaged in the production of a competing product.  (In such cases, a court imposed accounting for profits on the basis of the licensing agreement that would have been made if the parties had negotiated a license should be imposed instead).

6. Intellectual property protection is available for public performance without modification of intellectual property made available for free, for example, via broadcast television or radio.

7. Copyrighted works take an extremely long time to enter the public domain, even if the owner has taken no action whatsoever, even a copyright registration, to assert copyright protection.

Bankruptcy

1. There is no general priority for trade creditors.

2.  It is not generally possible to cramdown a personal residence mortgage in bankruptcy.

3.  Replacement value, rather than the value of a debtor's assets to a creditor if obtained via a writ of execution, is used to value tangible personal property in bankruptcy.

4.  Default interest in excess of pre-default interest rates, late payment fees, and punitive damages have the same priority as general creditor claims as pre-default interest rates and principal claims.

5.  Exemptions from creditors in bankruptcy vary from state to state.

Trusts and Estates

1. Beneficiary designations supercede later executed probates wills.

READ MORE - Selected Bad Precedents and Rules of Law

Does Recidivist Sentencing Work?

Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.

From the abstract to Preventing Crime Through Selective Incapacitation by Ben Vollaard.

Some highlights:

[J]udges almost exclusively sentenced drug-using, older individuals under the law for whom there was thought to be no hope of preventing high-rate offending by any other means than incapacitation. Most of the convicted offenders were not able to maintain a normal life style. They were out of work and did not have stable housing. They committed theft for a living, collecting a daily income of some 50 to 100 euro ($70-130) to be able to maintain their habit, which implies stealing property valuing some 300 to 600 euro ($400-800) on a daily basis. By 2001, many of these highly prolific offenders were aged 40 or over: they had fallen victim of the heroin epidemic that swept Europe back in the 1980s. The offenders spent some three to four months in prison each year in absence of the new law, and some had as many as 300 offenses on their criminal record. On average, offenders had been convicted 31 times prior to being sentenced under the habitual offender law. The enhanced prison sentence was not only meant to reduce crime through incapacitation but to provide a window for coercive treatment as well. Incarceration was often combined with drug treatment and other rehabilitative services, such as social skills training. Evaluations of the law suggest the treatment programs had little effect on recidivism. . . .

The offense data show that 85 percent of all offenses known to the police were committed within the urban area an offender has been assigned to. The other 15 percent of offenses were mostly committed in smaller communities directly bordering the urban area. . . .

[T]he rate of theft is some 30 to 40 percent lower as a result of selective incapacitation of prolific offenders. The size of the drop in crime corresponds with the results of some back-of-the-envelope calculations. If 1,200 offenders are responsible for 70 percent of crime, as we argued above, then the close to 700 offenders serving time under the law by mid-2007 are responsible for 40 percent of crime. . . . The crime-reducing effect of the law is smaller than this percentage share, however, since some of the offenders would have been doing time also in absence of the law. Assuming 8 additional months of incarceration per year as a result of the law, the drop in crime can be put at some 30 percent, which is close to what we find. . . . under the assumption that the affected offenders spend 8 additional months in prison per year, the law prevents some 80 thefts from car and 9 domestic burglaries annually per long term incapacitated offender. That implies that the costs per crime prevented are equal to some 600 euros. In other words, if the social costs of a domestic burglary and a theft from car are higher than 600 euros, then the policy is welfare improving. Estimates of the costs of crime are surrounded by controversy. Ex post approaches estimate the cost of crime that has already occurred to identifiable victims. Based on jury awards, Roman (2009) estimates the average costs of a burglary to be $4,444 (3,300 euro). Accounting for all of the costs that are known to be related to crime, including damage and the costs of use of the criminal justice system, the Home Office produces a somewhat higher estimate of the costs of a burglary of 4,600 euro ($6,000) per incident. A separate estimate for the cost of a theft from car is only available from the Home Office study, which puts it at 1,200 euro ($1,600) per incident. . . .

A habitual offender law adopted in the Netherlands in 2001 allowed for a two to three year prison sentence for offenders with ten or more offenses on their criminal record. Although the group of offenders sentenced under the law accounted for only 5 percent of the prison population six years after its introduction, the sentencing policy lowered the rate of burglary and theft from car by an estimated 40 percent through the incapacitation effect alone. The estimated impact of the law is large, but in line with self-reported crime. In addition, police counts of active prolific offenders are found to go down proportionally with the number of prolific offenders serving extra time in prison as a result of the law. . . .

Even for this highly selective sentencing policy that only affected 1,400 offenders in the period 2001-2007 we find evidence for rapidly decreasing returns to scale. The marginal crime-reducing effect of incapacitating another prolific offender declines by more than half from the lowest to the highest rate of application of the law. The benefit-cost ratio drops sharply when more offenders are serving time under the habitual offender law. The social returns to selective incarceration remain positive over the whole range of application of the policy, however. . . .

The incapacitation effect may be particularly large in the case of the Netherlands as the habitual offender law primarily affected offenders that were addicted to drugs, heroin in particular. These offenders tend to have an age-crime curve that is flatter than that of other groups of offenders – even other prolific offenders. Possible negative effects of longer prison sentences on the life of offenders such as disruption of employment, relationships and housing were limited as most of the affected offenders were out of work and did not have stable housing.

The Dutch policy of selective incapacitation started from a low base. The rate of incarceration in the Netherlands around 2001 was similar to the rate in the beginning of the 1970s in the US, for instance. Enhancing prison sentences of a few weeks or months to three years is likely to have a greater payoff in terms of preventing crime than enhancing prison sentences that are already many years long. To compare: an enhanced prison sentence for burglary of 2 to 3 years based on the Dutch habitual offender law is comparable to the default sentence for burglary in the United States. Our finding that the habitual offender law adopted in the Netherlands had a large incapacitation effect should therefore not be interpreted as evidence that all policies of selective incapacitation are likely to have a similarly favorable cost-benefit ratio. Given the rapidly diminishing returns to incarceration, the high costs of the enhanced prison sentences may soon exceed the benefits of crime prevented.

The delicacy with which the Dutch approach a very modest habitual offender law that applies only to those with ten previous offenses (although many of those would be misdemeanors under U.S. law and generally not within habitual offender provisions except under laws that allow aggravation of multiple theft amounts into a single felony theft prosecution), is itself fascinating. Habitual non-violent felony property crime defendants in Colorado and most U.S. states receive sentences many times as long.

Also, the fact that someone in the Dutch public policy process is even seriously trying to quantify the cost-benefit ratio of incarcerating habitual thieves for long periods of time, and considering even the economic impact of the sentence on the thieves themselves, is itself interesting. So too is the fact that somebody in the Dutch criminal justice policy making world finds bicycle thefts, larcenies from cars, and non-violent burglaries of unoccupied dwellings worth of interest at all. By comparison, most American criminal justice policymakers are so interested in reducing violent crime that any other objective is virtually irrelevant.

Felony Sentencing In The United States

A link to the latest data on felony sentencing in the United State can be found here (almost no state or national level statistics are kept on misdemeanor sentencing apart from overall jail incarceration rates, records of court cases commenced, and sometimes a distinction between the share of those in jail who are awaiting trial and those who are actually convicted). This year's highlights:

* In 2006 an estimated 69% of all persons convicted of a felony in state courts were sentenced to a period of confinement--41% to state prison and 28% to local jails.
* State prison sentences averaged 4 years and 11 months in 2006.
* Men (83%) accounted for a larger percentage of persons convicted of a felony, compared to their percentage (49%) of the adult population.
* Most (94%) felony offenders sentenced in 2006 pleaded guilty.

Jury trial rates do not exceed 5% for any category of crimes other than serious violent crimes. Even 61% of murder convictions are the result of guilty pleas.

The average burglary sentence in the U.S. in 2006 was 44 months of incarceration where incarceration is imposed (median 24 months), and the average larceny sentence was 22 months (median 12 months) of incarceration where incarceration is imposed. Of course, many and probably most of those sentences don't involve recidivist offenders.

Life sentences are imposed in the U.S. in about 25% of murders, 5% of rapes, 1.5% of robberies, 0.8% of non-rape sexual assault cases, 0.6% of aggravated assaults, 0.4% of other violent crimes, and 0.1% of non-violent crimes for which incarceration in prison is imposed as a sentence.

Surprisingly, no fine is imposed in 55% or more of cases for every particular kind of felony. Overall, fines are not imposed 62% of the time.

Colorado Sentencing in 2009

In Colorado, there were 42 habitual offender commitments to prison in fiscal year 2009 (see page 23 of the pdf), compared to 26-66 per year in years since 2005. These included a 40 year sentence for forgery, a 25 year sentence for burglary, four cases with an average 36 year sentence for burglary, three theft sentences of an average of 18 years each, four for trespassing or criminal mischief for an average of 11 years each, a 6 year forgery sentence, a 6 year perjury sentence, and an 11 year trespassing/criminal mischief sentence. Three habitual offender sentences were for escape, fourteen were for violent or weapon related crimes, six were for drug crimes, and two were for a felony traffic offense. All but one of the 42 habitual offenders were men and the trigger for habitual offender sentencing is two or three prior felonies of the relevant type under each habitual offender statute (there are several). While these terms are long, they are far more lenient in most cases than under California's controversial three strikes law. The average Colorado prisoner serves about half their full sentence due to good time and other considerations.

About 3% of offenders in Colorado prisons were sentenced under habitual criminal statutes. In all there were 22,961 people in Colorado prisons as of June 30, 2009. Another 12,773 were on parole.

The "need assessments" of Colorado prisoners is always notable.

Educationally, just 1% of those admitted to prison had an associates degree or more education although about 11% have some college, while 37% lacked a high school diploma with 36% being at least functionally illiterates who needed adult basic education instruction, rather than high school level GED instruction which would be too advanced for them. About two-thirds of those with either a high school diploma or GED had a GED rather than a high school diploma. So, less than a quarter of Colorado prison inmates graduated from high school in the ordinary course. In Colorado as a whole, 11% lack a high school diploma or GED, 89% of the age 25+ population has at least a high school diploma or GED, 65% have at least some college, 43% have an associates degree or higher degree, and 33% have a bachelor's degree.

About 8% had an IQ of under 81. A moderate to severe mental health problem is an issue for 30%. A moderate to severe substance abuse problem is an issue for 79%. A moderate to severe medical problem is present in 15%. Sex offenders make up 11% with another 5% suspected of having sex offense histories who are not convicted. An absence of adequate skills to get a job is a factor for 42%. Mental health needs differed considerably based on gender. A moderate to severe mental health problem was an issue for 22% of men and 55% of women.

The DOC doesn't include crosstabs in its annual report or relate needs data to recidivism data, although some data along that line are collected in a separate report and here. Offenders with mental health issues are slightly more likely to lack of high school diploma or GED (31%-32% v. 28%), to lack job skills (94% v. 91%), to be sex offenders (22%-24% v. 18%), to have substance abuse problems (80%-83% v. 78%) and to have anger issues (40%-41% v. 39%) than other inmates. They are much more likely to have medical problems (25%-28% depending on severity v. 16%), to have IQ below 81 (about 8% v. 4%), and to have suicidality issues (about 21% to 30% depending on severity v. 9%). Only 30% of inmates without a substance abuse problem have a high school diploma and 24% have neither that nor a GED.

Some mental health data don't make much sense. Those who were classified as having mental health issues often had prior psychiatric hospitalization (18%-24% depending on severity) and out patient mental health treatment (42%-47% depending on severity), but among those not classified as having mental health issues, 5% had prior psychiatriic hospitalization and 27% had prior outpatient mental health treatment, suggesting significant underdiagnosis of mental health issues by the DOC. Among those with mental health issues 23%-34% had a history of psychotropic medications, but so did 4% of those not so classified. Notably, less than 1% of inmates with mental health issues had a prior not guilty by reason of insanity case.

The most common mental health conditions were drug addiction, depression, bipolar disorder, anxiety disorders, alcoholism, schitzophrenia and psychotic disorders, dsythmic disorders, "disorders usually diagnosed in childhood" like ADHD, and "sexual and gender identity disorders" 1%. In all 34% of disciplinary violations were attributed to the 25% of inmates classified as having mental health issues in the detailed study on the issue, and these inmates were much more likely to be in solitary confinement or "close" supervision than other inmmates (23%-24% v. 11%), despite generally similar offense severity.

The overall percentage of inmates with moderate to severe needs in some category other than job skills (which almost all inmates seem to lack) is probably in excess of 90%, and once job skills are considered is probably in excess of 95%.

The DOC also doesn't detail good time forfeitures or gang crime connections in its annual report, although it tracks both. About 7% of Colorado inmates are eligible for deportation upon release because they are not U.S. citizens. About 9% are foreign born (the same as the 9% of the general Colorado population that is foreign born foreign born), but the remainder are U.S. citizens not eligible for deportation. Colorado's inmates are 45% Anglo, 32% Hispanic, 20% African American, 3% Native American and 1% Asian. Colorado as a whole is 71% Anglo, 20% Hispanic, 4% African American, 1% Native American and 3% Asian.

For prisoners released in 2005 and for prisoners released in 2006, the three year return to prison rate was 53.2% (a little higher for men, a little lower for women). The largest proportions of returns to prison are for technical violations of parole. For example, looking at the cohort released in 2004, the percentage of the cohort commiting ofirst time technical violations or new crimes by number of years from release is as follows:

---------------New Crime----------Technical Violation
Year 1----------8.8%------------------24.1%
Year 2----------6.2%-------------------7.8%
Year 3----------3.6%-------------------1.9%
Year 4----------2.3%-------------------0.4%
Year 5----------1.8%-------------------0.3%

Even a 1.8% crime conviction rate per year is huge compared to the general population. But, inmates in Colorado prisons are highly atypical of the general population in a variety of "needs" categories as well as in having a history of having seriously violated the law. About 43%, however, will go five years from release from prison without a single technical violation forcing their return to prison or new crime, and about 77% will not be returned to prison for a new crime in that five year time period.

Recidivism rates are higher for those with moderate mental health issues than those with none or those with severe mental health issues.

The average annual cost of incarcerating an inmate in Colorado was $32,338 in fiscal year 2009. The state has 23 prisons. None of them was under 100% of capacity. Twelve were over 100% of capacity, in one case at 186% of capacity (Skyline Correctional Center). The state prison system employs more than 6,000 people full time. State prison populations did almost hold steady in 2009 (increasing by only 189 inmates), however, after many years of steady and rapid prison population growth due to both decreased admissions and increased releases. New crime convictions leading to prison sentences declined, while technical parole violations rose.

READ MORE - Does Recidivist Sentencing Work?

America's Tame Politics and Labor Relations

One of the striking aspects of the politics of Europe and many other nations of the world is the high level of political violence that takes place.

In Spain, members of rival political parties beat each other up as demostrators and counter-demonstrators clash, controversial arrests can lead to street protests, and informal labor actions have put Spanish air traffic controllers under martial law supervision, Portugal has had a widely successful general strike, Greece is experiencing general strikes and violent clashes between demonstrators and law enforcement, controversial parlimentary votes in Italy trigger riots in Rome, the streets of Dublin are full of Irish citizens protesting austerity plans, and even London has tens of thousands of demonstrators doing things like walking over police cars and breaking the windows of Prince Charles' car while he was in it.

All of that was just in the past month, and is confined to Europe. The spin would be different from different sources, but nobody denies that major strikes, general strikes, street demonstrations, violent clashes between demonstrators and police, and all sorts of "street politics" outside formal political channels are far more common in most European political systems and labor relations than they are in the United States. If you looked back just a little further, you'd find similar activity in France and many other European countries. Spain, France and Italy have all had general strikes since the 1980s. Spain and Northern Ireland have had on and off armed insurgencies in my lifetime. Greece and Germany have both had domestic terrorism in that time period.

Latin America, and much of the rest of the world, has followed this pattern of politics that spill outside the constitutional process into the streets, and of labor relations that produce frequent labor actions as strategic tools in negotiations between labor and management.

There are occassional large marches and public demonstrations in the United States, and even some small scale clashes between police and demonstrators. But, the United States has really seen nothing like what Europe and much of the rest of the world is experiencing right now in terms of street politics in the last thirty years. Even the turbulent activism and political violence of the 1960s and 1970s in the United States was probably not quite as intense as what much of Europe is experiencing right now.

The Growing Docility of American Labor Relations

Wikipedia notes six general strikes in U.S. history, one in 1919 in Seattle, and four in 1934, at the height of the Great Depression, one in Toledo, one in Minneapolis, one in San Francisco and one at West Coast Ports. There was also a general strike in the Commonwealth of Puerto Rico in 1998. The last one in the English Speaking United States was 76 years ago, and very few people living today remember it. The United States has never had a nationwide general strike and just two general strikes in its history, on restricted to a single industry, and the other to a U.S. territory, extended beyond a single city.

Union-management relations in the United States used to look a lot like they do in Europe. Strikes were large, frequent and involved a large share of the work force. National guard forces or private security forces were frequently called in to put them down in bloody conflicts. Openly socialist political parties were organized.

In 1950, a year that revisionist history remembers as a tranquil period in American history, there were 424 strikes involving 1,000 or more workers, in all involving 1,698,000 workers, which was more than one in nine members of the unionized workforce of 14.3 million workers who made up 31.5% of the total work force.

In 2008, there were 15 strikes involving 1,000 or more workers, in all including 72,000 workers which was one in two-hundred and twenty-three members of the unionized workforce of 16.1 million workers who made up 12.4% of the total workforce. The public sector which is 36.8% unionized, is as unionized as the private sector was at its peak. The private sector, which is 7.2% unionized, has the lowest level of unionization in the private sector since the 1920s, if not earlier.

The unionized workforce has remained more or less constant for half a century, despite a growing workforce, and that masks the fact that there has been substantial growth in public sector union membership and a substantial decline in private sector union membership over that time period.

The United States, there has been only one year since 1983 that more than 3% of unionized workers went on strike (1986), and there has only been one year since 1998 (the year 2000) when more than one in eighty union members went on strike. In the entire United States from 1990 to 2008, there wasn't a single year that there were more than 45 strikes involving 1,000 or more workers in the entire United States, in a period that started with a labor force of 103 million workers and peaked at just short of 130 million workers. In contrast, there wasn't a single year from 1950 to 1987 that had less than 46 strikes, despite that fact that the workforce was signficiantly smaller. Prior to the 1980s there were a couple hundred major strikes in the United States per year, about ten times current levels of labor action.

Almost all strikes in recent memory have involved workers at just a single employer. Those strikes that do happen have mostly been pretty tame by international standards. American labor unions do not, as the French do, for example, kidnap members of management until a deal is reached.

Japan is probably the only other developed country in the world with a lower level of recent labor action.

The Rarity of American Political Violence

Political violence has been very rare, and mass demonstration have been both rare and mostly peaceful. The only real riot worth mentioning in that time period was the L.A. riots of 1992 sparked by the acquittal of a policeman whose acts of racially tinged brutality were captured on videotape; the riots left 53 dead and thousands injured. In brief summary:

FIFTY-THREE PEOPLE DIED in L.A.'s riot . . . Gunfire killed 35, including eight people shot by law enforcement and two by National Guardsmen. Six died in arson fires. Attackers used sticks or boards to kill two others. Stabbings killed two. Six died in car accidents; two in hit-and-runs. One was strangled. The violence crossed racial and ethnic lines. The dead included 25 African-Americans, 16 Latinos, eight whites, two Asians, one Algerian, and one Indian or Middle Easterner. Men outnumbered women, 48 to 5.

A lot of the killings in L.A. appeared to be random. Some of the killings in L.A. involved people trying to loot businesses or defending themselves from looting.

There have been other periods of civil disorder, in college towns after major wins and defeats in sports, and in connection with natural disasters like Hurricane Katrina, but few that could properly be called political or labor related. Most of the other politically driven incidents of civil unrest, like the L.A. riots, involved instances of alleged toleration of police brutality.

You can count the number of politicans and judges assassinated in the United States in the last thirty years on your fingers (nine out of hundreds of thousands of politicians and judges over that time period) and in addition eight other successful assassinations of people for political reasons, a failed attempt to assassinate President Reagan in 1981 (that seriously injured three others), and a failed attempt to assassinate a civil rights leader in 1980. In the same period there have been more than a hundred political assassinations in Europe.

While we haven't been entirely free of domestic terrorism, particularly in support of animal rights and far right anti-government movements, it has been exceedingly rare and lacked any kind of mass support. But, the only fatal instances of terrorism in the United States by U.S. citizens were the Oklahoma City bombing and a couple of anti-abortion assassinations (one included in the list of political killings above).

There have been a few instances of deadly terrorism in the United States perpetrated by foreigners (e.g., the first World Trade Center bombing, an attack on CIA headquarters, and 9-11), but these instances have generally not involved a network of domestic supporters. Suspected foreign terrorist plots involving networks of domestic supporters have thusfar all been stopped.

It isn't that the U.S. has had particularly low levels of violence generally. Its murder rate was the highest in the developed world for much of this time period. Crime rates in the U.S. are quite low by historical standards at the moment, but the lack of political violence in the United States in the last thirty years hasn't been strongly linked to overall violent crime rates.

For whatever reason, perhaps demographic, perhaps in the political and legal system, perhaps because few issues have stirred Americans like the draft and civil rights movement did in the last major episode of street politics and political violence in the United States, politics has worked out the way we are taught in civics classes in schools, through voting, legislative action, and political litigation.

The Clarity of American Electoral Outcomes

The closest the United States has come to the kind of disputed Presidential election result that routinely come up in new democracies, such as the one pending in Ivory Coast right now, the most recent Presidential election in Afghanistan and Haiti, and the Presidential election in Ukraine a few years ago, each of which brought masses of supporters for both sides into the streets in mass demonstrations, was the 1876 Presidential election. We've had very close elections, such as the 2000 Bush v. Gore election, but that was resolved in courtrooms and election committees through basically normal channels and never led to public unrest.

Despite the fact that the 2010 election in the United States featured some of the most vitriolic and violent political rhetoric of a generation, and even a few instances of menancing with weapons, not a single person in the United States was killed or serious injured in election related violence, and no violence or threats of violence had no significant effect on the outcome of the election. The results didn't produce street protests or demonstrations. The election didn't even produce that many really large political gatherings in the course of the campaigns. The most notable rally of the campaign season was held October 30, by a couple of TV comedians on a more or less non-partisan basis.

The Demise of the Civil Jury Trial and Other Coincidences

Perhaps it is a coincidence, but the decline of labor union actions, street politics and political violence in the United States has coincided with the "vanishing trial" in which fewer and fewer civil cases actually are tried before a jury (or go to trial at all), despite swelling civil dockets. Criminal trials are also less frequent, although the decline has been less marked.

The decline has also coincided with a general decline in civil society membership organizations, and with declining church attendance and religious denominational affiliation.

A long period of economic growth may be a factor. The past thirty years has been a largely prosperous one of sustained economic growth with only short or mild recessions, until the current Great Recession. It has also been a period in which blue collar economic stagnation has been steady but mostly gradual.

Whatever the reason, the question of why American's politics and labor relations are so tame by international standards is a question worth considering.

READ MORE - America's Tame Politics and Labor Relations

Invoking Christianity Incites Prejudice

Is a Christian invocation as the start of a jury trial really harmless?

Apparently not.

“[A]ctivation of Christian religious concepts increases subtle and overt prejudice towards a racially disadvantaged group”. . . . well—priming Christian religion led to significant increases in negative attitudes toward gay men, Muslims and atheists.

READ MORE - Invoking Christianity Incites Prejudice