Posted by: Patrick Allen Foster | March 25, 2014

Tuesday Link Encyclopedia: Sentencing, Rent-seeking, Couch-crashing, and Other Items of Note

Here’s to everyone stretching to make it through this week.

Dayton, Harvard, and Mercer have reduced all of my brackets to shambles.

Some links for your consideration:

1. Earlier this month, New Jersey’s Motor Vehicle Commission (bowing to pressure from the New Jersey Coalition of Automotive Retailers and similar lobbyists) unanimously passed a rule “clarifying” current law and requiring that companies like Tesla sell their electric cars through franchisees, rather than through company showrooms that sell directly from the manufacturer to customers. This clarification by the MVC has brought heat on Governor Chris Christie, as liberals and conservatives find common ground in their frustration with protectionist regulation. Gov. Christie, for his part, blames the state legislature.

A fortunate consequence of the Sturm und Drang in New Jersey has been that people are paying attention to the way that protectionist, rent-seeking franchising laws hinder new business models without visibly benefiting consumers. (This attention is likely quite transitory, I fear.) At Marginal Revolution, Alex Tabarrok has a good post on the history and economics of these protectionist franchising laws: “Tesla versus the Rent Seekers”:

Franchising rules evolved in Coasean fashion so that manufacturers could not expropriate dealers and dealers could not expropriate manufacturers. To encourage dealers to invest in a knowledgeable sales and repair staff, for example, manufactures promised dealers exclusive franchise (i.e. they would not license a competitor next door). But with exclusive franchises dealers would have an incentive to take advantage of their monopoly power and increase profits by selling fewer units at higher profits. Selling fewer units, however, works to the detriment of the manufacturer and the public (ala the double marginalization problem (video)). Thus the manufactures required dealers buy and sell a minimum quantity of cars, so-called quantity forcing. Selling more units is exactly what we want a monopoly to do, so these restrictions benefited manufactures and consumers.

Politics, however, began to intrude into this Coasean world in the 1940s and 1950s. Auto sales accounts for some 20% of sales taxes and auto dealers employ a lot of people so when it came to a battle in the state legislatures the auto dealers trumped the manufacturers. The result was franchise laws that were increasingly biased towards dealers. In essence, exclusive franchises became locked into place, manufactures lost the right to add dealers even with population expansion, quantity forcing became illegal and dealer termination became all but impossible.

2. New York Times: “School Data Finds Pattern of Inequality Along Racial Lines”: “A quarter of high schools with the highest percentage of black and Latino students do not offer any Algebra II courses, while a third of those schools do not have any chemistry classes. Black students are more than four times as likely as white students — and Latino students are twice as likely — to attend schools where one out of every five teachers does not meet all state teaching requirements.” (H/T: Althouse.)

3. In response to the Swiss initiative restricting immigration, the European Commission “has made the nation largely ineligible for EU research funding.”
(H/T: Tyler Cowen.)

4. Regarding the guilty plea and sentencing last week of US Army Brigadier General Jeffrey Sinclair, former JAG Eric at Unwashed Advocate has a number of helpful posts: see here, here, and here. One good point (emphasis added):

The court-martial cannot reduce an officer in rank. This is because of the nature of a commission (he is a commissioned officer) and some strange legal nuances. So, he’ll retire a Brigadier General, right?

Not so fast, my friends.

When an officer retires from the Army, they face the possibility of a Grade Determination Review Board if any negative information is found in their military files. In this case, plenty of information will be placed in his file to include the conviction record and probably a letter of reprimand that explains the charges and the who, what, when, where, and how. Evidently, the allegations go back to a point when BG Sinclair was Colonel Sinclair. This is important.

The Grade Determination Review Board is tasked with one thing. They must decide the rank that an officer last held honorably.

Here’s an example: Lieutenant Colonel X is retiring. He, a married man, has a letter of reprimand for having an adulterous relationship (consensual) with a married female. This happened while he was a Lieutenant Colonel. The board will review his file, read the letter, and decide whether they believe he held the rank of Lieutenant Colonel honorably. Generally, the board will decide that he did not. Then, they look at his records while he was a Major (one level below Lieutenant Colonel). If they find no negative or dishonorable information, they will decide he can retire at the grade of Major, because it is the rank he last held honorably.

In this case, it appears information will soon exist in Sinclair’s official records to show that he committed misconduct while both a Colonel and a Brigadier General, making Lieutenant Colonel the last rank he held honorably.

Depending on his lifespan, this loss of rank could cost him millions.

5. TPM: “Anita Hill: Biden Did ‘Terrible Job’ Running Clarence Thomas Hearings.”
(H/T: Althouse.)

I assume that this is coming out now at least in part because of the release this month of Freida Mock’s documentary Anita: Speaking Truth to Power.

Alan Scherstuhl reviews the documentary in the Village Voice, and Ignatiy Vishnevetsky reviews it for the A.V. Club (with a grade of D+). See also this Althouse post.

I suppose the topic may also become timely if Biden runs for president in 2016.

6. Scott Greenfield has a very good post on allocution (the stage in sentencing where the criminal defendant directly speaks to the court, generally right before the judge imposes sentence). Counselor Greenfield essentially reviews and expands upon a law review article and study by Judge Mark W. Bennett (Northern District of Iowa) and Prof. Ira Robbins (American University). Here’s Bennett and Robbins:

Many judges commented on the value of hearing the defendant reflect on his or her victims. But as one judge observed, defendants should “resist the powerful urge to whine and blame others.” Also, although defendants might think it wise to ask the court for forgiveness, at least for one judge, it is actually better to ask for leniency instead: It is not a “judge[’]s role to grant forgiveness. Asking for leniency and providing reasons why [a] certain sentence is appropriate works much better.” As this semantic difference demonstrates, defendants must forever be on their toes, navigating the bear-filled woods of each sentencing judge’s preferences—and defense counsel should be their guide.

Also: “defense counsel should encourage their clients to be concise while allocuting. Verbose allocutions more frequently detract from an allocution’s effectiveness than any other factor. Indeed, as one judge advised: ‘Don’t let them read these long, prison-written letters. They tend to become maudlin, self-indulgent, and annoying … . Some defendants get carried away and start to whine that it wasn’t their fault, etc. That hurts any good that the attorney may have done.’ Overly brief allocutions, however, are less likely to have a negative impact.”

Says Greenfield:

The article offers a number of takeaways that are helpful in guiding a defendant’s preparation for allocution. At the same time, there are so many internal contradictions that it appears to reduce the allocution to a game, despite the emphasis on sincerity. About the only thing that is universal is to be concise, focus on the judge’s concerns (rather than the typical apology to the defendant’s family, which the judge couldn’t care less about) and don’t try to shift blame.

Of course, most defendants want nothing more than to shift blame, and demand their right to do so. The problem is that they are sometimes right about blame, putting sincerity in conflict with remorse. But as this article makes clear, truth just gets in the way, and it remains one of the most ironic aspects of criminal defense that defendants often have a desperate demand for truth, albeit their truth, from the system.

Please do read the whole thing. And see some related thoughts by Senior Judge Richard Kopf (District of Nebraska) and this post by Prof. Douglas Berman (Ohio State) at Sentencing Law & Policy.

7. Using GameStop as a bank: “I got really pissed off with US Bank because I kept overdrafting my account even though I opted out, and the same thing happened with my credit union when I got a debit card. Now whenever I get paid I go preorder a whole shitload of games. Whenever I need money, I go to the nearest gamestop and ask for my money back on a game I don’t want and make a withdrawal. The lines are shorter at gamestop than at the bank and I can trade in old games and have money go straight to my savings account.”

I have to believe GameStop will soon respond with some combination of policies to prevent people from doing this. (H/T: Tyler Cowen.)

8. Oh Japan, thank you for being you: Crimea’s new attorney general, Natalia Poklonskaya, has gone viral in Japan and inspired anime art. For more examples of anime Poklonskaya, see here and here.

9. Couch-crashing: Slate advice columnist Troy Patterson tackles the question of when it is no longer acceptable for a gentleman to crash on a friend’s couch when visiting another city.

Rather than enunciate a simple line in the sand — say, age 30 — beyond which couch-crashing and couch-surfing are no longer cool, Patterson lays out a point system and formula to arrive at a number score that can drive the decision (he’s like the Stephen Breyer of advice columnists). A sample from Patterson’s system:

Have you ever lived with the crashee? If yes, add 3 points.

If you have not lived with the crashee, have you otherwise bunked with him or her (e.g., at slumber parties, on camping trips, while splitting a hotel room, as a consequence of jointly crashing in the apartment of a third party)? If yes, add 1 point.

Has the crashee crashed on your couch within the last 18 months? If yes, add 2 points.

Is the crashee a childhood friend? If yes, add 1 point.

If the crashee a family friend? If yes, add 3 points.

Does the crashee live alone? If yes, add 1 point.

Is the apartment a studio? If yes, subtract 3 points.

Are you visiting one of the five most expensive hotel cities in the U.S. (New York, Honolulu, Boston, Miami, New Orleans)? If yes, add 3 points.

Is the primary purpose of this trip, or this leg of this trip, to visit with the crashee? If yes, add 2 points.

Are you in town for a job interview? If yes, add 1 point.

And so on. (Query: how would the algorithm for ladies differ?)

10. Nate Silver’s new site is up and running. Paul Krugman has some thoughts on the new site, as does Tyler Cowen (“I have long been a fan of Nate Silver, but so far I don’t think this is working”). See also this Althouse post and this post by Megan McArdle.

I would bear in mind that these are still early days.

11. What happens when a walrus decides to take a nap on a surfacing Russian submarine? Something awesome — that’s what happens.

12. Killer Snail: If you are in dire need of new material for nightmares, please do check out the video at this link, showing a carnivorous snail that stabs its prey with a harpoon to inject them with a powerful paralyzing venom. This snail can swallow fish whole. Pretty much equal parts awesome and terrifying. (H/T: a friend on Facebook.)

Image Credits: (1) “Snail Stretch,” photo by Chairunnas Chairunnas, Botang, East Kalimantan, Borneo, Indonesia. Source: (Via Shakesville.) (This is not one of the scary fish-eating poison-harpoon killer snails mentioned in item #12.) (2) Boulder, Colorado, at sunrise. Photo by Ann Althouse, March 20, 2014. Used under a CC BY-NC 2.0 license. Source: Flickr.



  1. […] Tuesday Link Encyclopedia: Sentencing, Rent-seeking, Couch-crashing, and Other Items of Note Here’s to everyone stretching to make it through this week. Dayton, Harvard, and Mercer have reduced all of my brackets to shambles. Some links for your consideration: 1. Earlier this month, New Jersey’s Motor Vehicle Commission ( bowing to pressure from the New Jersey Coalition of Automotive Retail … Tue, 25 Mar 2014 07:45:00 CDT more info… […]

  2. Poklonskaya is 34, looks 17. I had to look her up, wondering if one becomes a “senior prosecutor” at age 12.

    Her Wikipedia bio is a hoot; click on “particular attractiveness.”

    • I clicked on the “particular attractiveness” link and learned a new word for the day. 🙂

    • “In post-Soviet Russia, juvenile prosecutes the adults.”

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