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American family law practitioners handling a divorce case with a significant English connection should understand that, even if a U.S. court has properly granted a divorce and handled its financial consequences, an English court might allow the ex-spouse to subsequently bring suit in a court in England seeking a more generous award.
England (and Wales) has a special procedure-known to its family bar as a "Part III claim"-whereby an ex-spouse whose foreign divorce resolved the financial consequences of the divorce can bring a new case for a "second bite of the cherry."
Part III of the U.K.'s Matrimonial and Family Proceedings Act of 1984 provides, in essence, that if England has divorce jurisdiction, or if it does not but the parties have an interest in a matrimonial home in England, then, even though a foreign court has issued a divorce and made a financial award, an English court may, in its discretion, make a subsequent financial award if justice so requires.
Since England is renowned-with ample justification-as the best place in the world for a less-wealthy spouse to divorce a more-wealthy spouse, the English procedure can yield great opportunity to a disgruntled already-divorced spouse and can create tremendous risk to the other party.
There is no need to establish that the foreign court acted unlawfully or unjustifiably or that the foreign proceeding was tainted by fraud or by any other factor.
-All of the parties' assets, both premarital and post-marital, are in the "pot" that can be divided by the courts.
-In a reasonably lengthy marriage the starting point for considering how to divide the pot will be 50-50.
-If there is insufficient capital to compensate a spouse for the improvement during the marriage of the other spouse's career or for a relationship-generated disadvantage suffered by a spouse who has, for example, sacrificed a career for the family, the English courts may award a compensatory factor in a spousal maintenance award.
-The English disclosure rules are strong, and the English courts will make strong inferences against a party who fails to make full and frank disclosure.
-The English courts will fully evaluate assets that are held in trust or corporate form if they believe that one spouse is the true owner of such assets.
-In big money cases the courts may require the wealthier spouse to fund a spousal maintenance award in the form of an up front lump sum.
In order to initiate the Part III process, an applicant applies first without notice to the other party by setting forth in writing the basis for a claim that a foreign court's order was financially insufficient and that the matter has a sufficient English connection. The second step is then a final hearing. If the application is successful, the English court can make such "order for financial relief" as it deems fit. In effect, it can issue the very same orders that it would have made if the divorce had actually taken place in England.
The leading case on Part III is Agbaje v. Akinnoye-Agbaje  UKSC 13. The parties were divorced in Nigeria, where they were born. They had dual Nigerian and British nationality. They resided in Nigeria for most of the marriage but they owned a second home in England. The husband was a barrister in Nigeria. After they separated the wife moved to England. Four years later the husband sued for divorce in Nigeria. Six months later the wife initiated a competing divorce case in England. The Nigerian court required the husband to provide a life estate in certain real estate to the wife and to provide her with a modest lump sum for spousal maintenance.
The then-former wife then brought a Part III case in England on the ground that she lived in England and that the Nigerian order was severely detrimental to her and compelled her either to live in England in poverty or to return to Nigeria against her wishes. The trial court upheld those claims, and the U.K. Supreme Court ultimately affirmed an order under Part III which required the ex-husband to transfer to his ex-wife a share in the proceeds of sale of the house in London.
In its judgment the Supreme Court insisted that there must be a flexible approach to determining whether to allow a Part III application. It declared that the courts have broad discretion in these cases to avoid "injustice," but it failed to provide much "meat on the bones" as to just how that should be accomplished. It declared that, on the one hand, "mere disparity" between a foreign award and what would be awarded on an English divorce "will certainly be insufficient to trigger the application of Part III," but on the other hand it also insisted that, "Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction."
Likewise, there is flexibility as to whether, having allowed a Part III application, the English court should determine the financial issues as if the case had been originally brought in England or should instead provide a more limited remedy. The court in Agbaje distinguished between two situations. It stated that if the English connections of the parties are very strong, the English courts should generally apply the English concepts of "fair" sharing of all of the assets of the marital partnership.
Under the famous cases of Miller/Macfarlane  UKHL 24 and their progeny that would include sharing of both the premarital and post-marital assets of the parties. It would also include the English view in a "big money" case that there should be a "clean break" so that a financially weaker party should be provided with ownership of an appropriate residence and a lump-sum capital payment for projected spousal and child support.
On the other hand, however, the Supreme Court held that if the connection to England is not strong and a spouse has received adequate provision from the foreign court it is not appropriate for Part III to be used simply as a tool to "top up" that provision to that which he would have received in an English divorce.
Agbaje was followed last year in Z. v. A.  EWCA 1434. There, the parties were divorced consensually under Sharia law in an undisclosed foreign country. The husband was very wealthy but the wife also had substantial assets. The wife was allowed to pursue a Part III claim in England, despite the foreign divorce. However, the judge found that it was not appropriate to apply the English notions of sharing and compensation and ruled instead that the wife's claim should be assessed purely on the basis of her (and the child's) needs. (But note that "needs" in England means "needs generously interpreted," Miller/Macfarlane, supra). This was apparently because the parties were connected to several jurisdictions globally, although the judge went out of his way to say that judicial discretion in this area was remarkably unfettered.
Ultimately, the husband was ordered to pay a multi-million-pound lump sum, two-thirds being for the purchase of a substantial residence and one-third for capitalized spousal maintenance, together with substantial child support, which was ordered to be secured due to the husband's globe-trotting lifestyle.??
Most recently, in M. v. M.  EWHC 2534 (Fam), an English court awarded £53 million to a Russian ex-wife even after she had procured a divorce in Russia. The English court accepted her claim that she had been unaware that the courts of England and Wales had jurisdiction. The parties, both Russian, had lived in the UK since 2005. The ex-wife traced assets, primarily in Russia, that her ex-husband held in a network of complex offshore corporate structures. The ex-husband refused to participate in the English proceedings and was found in contempt of court "many times over" for his breach of court orders and for repeatedly failing to disclose his assets. As a consequence, the court drew adverse inferences against him. The English court applied the full "sharing principles" of English law.
The M. v. M. court also applied England's broad principles of disregarding the form and looking to the true substance of the ownership of alleged marital assets. The ex-husband had asserted that various properties were owned by various companies as part of a planned tax-mitigation scheme, which necessitated both the beneficial (as well as the legal) interest in the properties being held by the companies. The judge found that the properties were held in a resulting trust by the companies for the husband. He ordered that the properties must be transferred to the wife.
Thus far, the English decisions in Part III cases have been applied primarily in cases outside the European Union and the United States. Nonetheless, the principles of the recent case law could well apply just as well to cases emanating from the United States. This should serve as a warning-or as an opportunity-to clients and astute counsel handling cases in the United States that have a significant English connection.

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Alfred Bell & Co. v. Catalda Fine Arts, Inc.
ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc.
Chamberlain Group, Inc. v. Skylink Technology, Inc.
Frank Music Corp. v. Metro-Goldwyn-Meyer, Inc.
Gottlieb Development, LLC v. Paramount Pictures Corp.
In re Pandora Media, Inc.
Intervest Construction, Inc. v. Canterbury Estate Homes, Inc.
Kelly v. Arriba Soft Inc.
Matthew Bender & Co. v. West Publishing Co.
Pivot Point, International, Inc. v. Charlene Products, Inc.
Rouse v. Walter & Associates, L.L.C.

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PURPOSE: The purpose of this Policy Statement is to describe the circumstances under which the Department of Revenue Services (DRS) allows tax exempt purchases with the new U.S. Government "GSA SmartPay" credit cards.
EFFECTIVE DATE: Applicable to all purchases with GSA SmartPay credit cards on or after the issuance of this Policy Statement.
STATUTORY AUTHORITY: Conn. Gen. Stat. §12-412(1).
BACKGROUND: DRS previously issued Policy Statement 95(2), Retailer’s Acceptance of U.S. Government "I.M.P.A.C." Credit Card for Purchases Exempt Under Conn. Gen. Stat. §12-412(1), which indicated that the I.M.P.A.C. credit card could be accepted by retailers for most tax exempt purchases, including the payment of travel, meals, and lodging expenses, without the use of DRS’ Governmental Agency Exemption Certificate.
On November 30, 1998, the U.S. General Services Administration (GSA) replaced the I.M.P.A.C., American Express, and Wright Express credit cards with the "GSA SmartPay" Credit Card Program. As a result of this change to the federal credit card system, DRS has determined the circumstances under which it will allow tax exempt purchases with the new U.S. Government "GSA SmartPay" credit cards.
CREDIT CARDS ISSUED UNDER THE "GSA SMARTPAY" PROGRAM: The GSA SmartPay program uses four categories of cards: Fleet, Purchase, Travel, and Integrated Cards. The cards are embossed with the GSA SmartPay logo (pictured at right), as well as "United States of America."
The GSA SmartPay program uses several providers such as US Bank, Citibank, NationsBank, Mellon Bank, and First National Bank of Chicago to issue Visa, Voyager, and MasterCard credit cards.
EXEMPT PURCHASES: Sales of tangible personal property or services, including sales of meals and lodging made directly to the U.S. Government, are exempt from Connecticut sales and use taxes. Sales to federal employees (rather than to the U.S. Government itself) are subject to sales and use taxes, even if the U.S. Government reimburses the employees for all or a portion of their purchases.
With respect to the GSA SmartPay Credit Card Program, Fleet Card and Purchase Card sales are exempt from Connecticut sales and use taxes because they are billed directly to the U.S. Government. Purchases using the Travel Card and Integrated Card may or may not be exempt because some sales using these cards are billed to and paid by federal employees rather than by the U.S. Government and therefore are subject to sales and use taxes.
DRS does not require federal employees to provide retailers with the Governmental Agency Exemption Certificate when using the GSA SmartPay Cards for tax exempt purchases. Where such purchases are not tax exempt, retailers must charge tax and the Governmental Agency Exemption Certificate may not be used.
Important: U.S. Government agencies making tax exempt purchases of meals and lodging using GSA SmartPay Cards are not required to obtain pre-approval for such purchases from DRS. In addition, U.S. Government agencies making tax exempt purchases under these circumstances are not required to provide retailers with a CERT-112, Certificate for Qualifying Exempt Purchases of Meals or Lodging by an Exempt Organization or Qualifying Governmental Agency.
FLEET CARDS AND PURCHASE CARDS: Purchases with Fleet Cards and Purchase Cards (pictured below) are tax exempt because they are billed directly to and paid by the U.S. Government.
Fleet Cards are used to purchase fuel and repair services or other items related to motor vehicles, boats, and airplanes. These cards are either Voyager or MasterCard, and are imprinted with "For Official Government Fleet Use Only."
Purchase Cards are used to purchase tangible personal property. These cards are either Visa or MasterCard, and are imprinted with "For Official Government Purchases Only."
Retailers may accept Fleet Cards and Purchase Cards with proper identification from the user (see section, "Verifying Authorized Card Users"), as evidence that the purchase is made by the U.S. Government, and is exempt from sales and use taxes under Conn. Gen. Stat. §12-412(1).
TRAVEL CARDS AND INTEGRATED CARDS: Purchases made with Travel Cards and Integrated Cards are not necessarily tax exempt because some sales using these cards are billed to and paid by federal employees rather than by the U.S. Government.
Travel Cards are used to purchase airfare, meals, and lodging. These cards are either Visa or MasterCard, and are imprinted with "For Official Government Travel Only." Not all purchases using the Travel Cards are exempt from Connecticut sales and use taxes. See section, "The Taxability of Purchases Made Using Travel Cards and Integrated Cards."
Integrated Cards are used for purchasing goods and services associated with the Fleet, Purchase, and Travel cards. These cards are either Visa or MasterCard, and are imprinted with "For Official Government Use Only." Not all purchases using the Integrated Cards are exempt from Connecticut sales and use taxes. See section, "The Taxability of Purchases Made Using Travel Cards and Integrated Cards."
THE TAXABILITY OF PURCHASES MADE USING TRAVEL CARDS AND INTEGRATED CARDS: The GSA has embossed a series of numbers on the Travel Cards and Integrated Cards so that retailers can determine whether travel and travel-related purchases using these cards are subject to Connecticut sales and use taxes.
The sixth digit of the account number identifies whether or not the Travel or Integrated Cards may be used to make exempt purchases.
The 4486 number of this sample account number indicates that the card is a Visa credit card. The sixth digit is "6," which, according to the chart, indicates that purchases made using this card are paid directly by the U.S. Government and therefore are tax exempt.
Here, the 5568 number indicates that the card is a MasterCard credit card. The sixth digit is "1," which, according to the chart, indicates that purchases using this card are paid by the employee and therefore are taxable.
VERIFYING AUTHORIZED CARD USERS: To verify that an authorized person is using GSA SmartPay cards, a retailer must require identification establishing the person's identity and status as a U.S. Government employee, such as an employee photo identification card. The retailer must note the employee's identification number and agency on the merchant copy of the sales receipt the retailer retains for its records.
If a retailer has reason to believe that a card is being used to make any purchase not directly billed to and paid by the U.S. Government, or that for any other reason does not qualify for exemption under Conn. Gen. Stat. §12-412(1), the retailer must charge sales and use taxes on the purchase. The credit card holder can then request a refund from DRS for the taxes by submitting evidence that the purchase was paid directly by the U.S. Government. The purchaser should follow the procedures in Policy Statement 98(5), Sales and Use Tax Refund Policy.
Retailers failing to follow the verification guidelines set forth by DRS for authorized GSA SmartPay card users may be held liable for sales and use taxes on purchases in question.
EFFECT ON OTHER DOCUMENTS: This document supersedes Policy Statement 2000(1), Retailer's Acceptance of U.S. Government "GSA SmartPay" Credit Card for Purchases Exempt under Conn. Gen. Stat. §12-412(1), and modifies and supersedes Policy Statement 95(2), Retailer's Acceptance of U.S. Government "I.M.P.A.C." Credit Card for Purchases Exempt under Conn. Gen. Stat. §12-412(1). This document also modifies Policy Statement 96(7), Purchases of Meals or Lodging by Exempt Organizations or Qualifying Governmental Agencies, and Policy Statement 98(7), The Motor Vehicle Rental Surcharge and the Tourism Account Surcharge.
EFFECT OF THIS DOCUMENT: A Policy Statement is a document that explains in depth a current Department position, policy or practice affecting the tax liability of taxpayers.


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Ms. Tor’s practice focuses on complex civil litigation, arbitration, and appellate practice, primarily in the areas of product liability, construction litigation, and commercial litigation. Ms. Tor also has significant experience defending class actions related to allegations of consumer fraud, allegedly defective consumer and building products, and allegedly deceptive product labels. She routinely litigates complex matters in state and federal courts throughout the country on behalf of manufacturers and retailers of consumer and building products and pharmaceutical drug companies as well as real estate developers and general contractors.
Because of her experience in federal court, Ms. Tor is often sought out as local counsel in intellectual property matters, including Hatch-Waxman and patent infringement litigation.
Ms. Tor was recognized as one of New Jersey’s “New Leaders of the Bar” by the New Jersey Law Journal for 2014. Ms. Tor is also a Leadership in Energy and Environmental Design Accredited Professional (LEED®-AP). Additionally, Ms. Tor was recognized as a New Jersey Super Lawyers "Rising Star" in 2009-2011 and 2014-2019.
Ms. Tor is committed to diversity and inclusion and serves on the K&L Gates firmwide Diversity Committee. She also actively participates in the K&L Gates pro-bono program and in particular with Kids in Need of Defense, representing unaccompanied immigrant and refugee children in immigration proceedings.
Prior to joining K&L Gates, Ms. Tor was a law clerk for the Honorable Erminie L. Conley, P.J.A.D., of the New Jersey Superior Court, Appellate Division. She was also an associate in the litigation practice group of a major New Jersey law firm. During law school, Ms. Tor interned with the Honorable Garrett E. Brown, Jr., of the United States District Court for the District of New Jersey, and with the Office of the Massachusetts Attorney General, Environmental Protection Division.
“Consumer Litigation: The Year in Review and the Years to Come - What to Expect in Consumer Litigation Under the Trump Presidency,” K&L Gates HUB Webinar, January 2017.
“The Evolving Nature of Class Actions in New Jersey,” New Jersey State Bar Association 2016 Annual Meeting and Convention, May 19, 2016.
“New Jersey Law Update: Are Your Arbitration Provisions Enforceable?,” Association of Corporate Counsel New Jersey CLE program, April 21, 2015.
“Timing Issues: Statute of Limitations,” Construction Law 2014: Handling the Construction Defect Case, NJICLE, June 4, 2014.
“Warranties and Construction Contracts,” Construction Law 2012: Tackling Contract Provisions and Insurance Issues, NJICLE, June 2012.
“Mold Litigation,” NJICLE Hot Topics in Real Estate Law, September 2011.
“How to Market Green Buildings and Materials: Complying with Applicable Green Standards and Laws,” 2010 International Builders' Show, January 2010.
“Green Building Products: Can They Perform as Promised,” 2009 International Builders’ Show, January 2009.
Representation of retailer in state-wide putative class action based on allegations of consumer fraud and breach of warranty relating to representations on product labels.
Representation of a window manufacturer in eighteen class actions consolidated in a federal multi-district litigation based on allegations of breach of warranty, consumer fraud, and other claims relating to allegedly defective windows.
Representation of public utility in litigation with manufacturer and supplier of meters regarding breach of contract and breach of warranty in manufacturing and supplying defective meters.
Representation of a retailer in a state-wide putative class action based on allegations of consumer fraud, breach of warranty, and unjust enrichment relating to the sale of motor oil.
Representation of retailers in putative class actions based on alleged violations of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA).
Representation of a dishwasher manufacturer in nationwide and state-based putative class actions based on allegations of breach of warranty, consumer fraud, and other claims relating to allegedly defective dishwashers.
Representation of a microwave manufacturer in a nationwide and state-based putative class action based on allegations of negligence, strict liability, breach of warranty, and other claims relating to allegedly defective microwaves.
Representation of composite decking manufacturer in nationwide putative class action based on allegations of negligence, consumer fraud, breach of warranty and other claims relating to allegedly defective decking.
Representation of treated lumber manufacturer in litigation by building owners based on allegations of negligence, breach of warranty, consumer fraud, and other allegations.
Representation of HVAC manufacturer in litigation by homeowners based on alleged personal injuries caused by exposure to mold.
Representation of HVAC manufacturer in litigation by building owners based on alleged property damage caused by mold.
Representation of bathroom fan manufacturer in litigation based on property damage caused by fires alleged to have been caused by bathroom fans.
Creation of residential warranty program for national home builder for use in new construction throughout the United States.
Representation of national home builder with respect to numerous warranty and consumer fraud-based lawsuits filed by homeowners throughout the country relating to alleged construction defects, personal injury actions based on alleged exposure to mold, and actions against design professionals and subcontractors to recover the cost to repair design and construction defects.
Representation of condominium developers with respect to litigations brought by condominium owners’ associations seeking multi-million dollar damages for alleged construction and design defects in condominium complexes.
Representation of a home builder in various jurisdictions relating to bodily injury claims of subcontractor employees, including employees who sustained brain injuries in falls on construction sites, including both defending against the personal injury action and seeking insurance coverage as an additional insured.
Representation of home builder in various jurisdictions relating to suits by homeowners alleging personal injuries caused by exposure to mold.
Representation of a home builder in over 70 arbitrations regarding disputes with defaulting purchasers over the retention of deposits for the purchase of condominiums.
Representation of client in action based on breach of contract, fraud, and negligence related to the collapse of a road.
Representation of a pharmaceutical drug company with respect to numerous litigations (including both individual actions, a class action, and a mass action) throughout the country based on allegations of manufacturing defects.
Representation of a pharmaceutical drug company in federal multi-district litigations, New Jersey-based multicounty litigation, and individual actions with respect to allegations of personal injuries caused by prescription drug.
Representation of university in dispute arising from breach of license agreement relating to the licensing of intellectual property.
Representation of generic pharmaceutical drug company in Hatch-Waxman pharmaceutical patent litigations as local counsel.
Betancourt v. Endo Pharmaceuticals, Inc., et al., 2014 WL 10677480 (N.D. Ga. Dec. 17, 2014).
McGaffin v. MI Windows and Doors, Inc.
Ross v. Trex Company, Inc.
Borger v. Trex Company, Inc.
Meifert v. MI Windows and Doors, Inc.
Wani v. MI Windows and Doors, Inc.
Knecht v. 225 River Street, L.L.C.

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June | 2014 | VAMboozled!
Rethinking Value-Added Models in Education: Critical Perspectives on Tests and Assessment-Based Accountability by Audrey Amrein-Beardsley.
Here is a book that every teacher must read in the era of standardized test-based accountability. In school after school, in state after state, teachers are being judged (in small or large part) on value-added models (VAMs) based on student performance on standardized tests. Amrein-Beardsley is the foremost authority on VAMs in the country. She created the blog Vamboozled! as a forum for information and criticism of VAM based accountability measures. In this book, Amrein-Beardsley takes a scholarly approach to the dismantling of the research and rhetoric behind VAMs.
Her conclusions: VAMs are unreliable, invalid, nontransparent, unfair, full of measurement errors, and being used inappropriately to make key decisions about teacher retention, termination and pay. Other than that they are just peachy.
Beardsley’s book is not just a critique of a failed accountability measure, however. In the final chapter she offers alternatives, solutions and conclusions. Her key recommendations are listed here.
Credibility and trust are key to any evaluation scheme. VAMs lack this basic requirement.
Educators’ professional judgment should not be removed from any evaluation system.
Any evaluation system should rely on multiple measures that are aligned with locally defined criteria for demonstrating effectiveness.
Any evaluation system must include a plan to evaluate and refine the system.
If you’re performance is being judged, even in small part by value-added measures, this book is a must read.
The other two books listed??
50 Myths & Lies That Threaten America’s Public Schools: The Real Crisis in Education by David C. Berliner, Gene V. Glass and Associates.
A Chronicle of Echoes: Who’s Who in the Implosion of American Public Education by Mercedes K.Schneider.
I just came across the first external review of my new book, Rethinking Value-Added Models in Education on Amazon, and I thought I would share this review with you all in that I am happy to announce that it captures exactly what I meant to do with this book, particularly for those of you out there who are practitioners working within (and under) the realities the come along with the adoption of VAMs for increased accountability.
Mission accomplished, I hope! I hope as well that, as this reviewer wrote, this book will continue to “provide the research” you all might need to continue “to [wisely] challenge your candidates and policy makers” in these regards.
For more information about the book, see it on Amazon or see a prior post about it here.
Moshe Adler on Chetty et al.
Well, one of this study’s biggest critics, and most important critics as an expert in economics himself, has written a response to all of this. More specifically, Moshe Adler – economist affiliated with Columbia University and Empire State College, State University of New York and author of the 2010 book, Economics for the Rest of Us: Debunking the Science That Makes Life Dismal – first (in April 2014) wrote a critique of Chetty et al.’s studies for the National Education Policy Center (NEPC) during which he also compared this study from its first release in 2011 (cited by Obama) to its current 2014 version (cited by the judge in Vergara v. California) that can be found here, after which Chetty et al. wrote a response (in May 2014) that can be found at the bottom of the page here, after which Adler released a final response (in June 2014) that can also be found at the very bottom of the page here.
For those of you interested in reading all three pieces, all three are really quite critical to understanding Chetty et al.’s methods, as well as their methods’ shortcomings; their assumptions, as well as their feasibility in context; their results, as unfortunately overstated as they are; and the like. For those of you who want just the highlights, though (as also referenced in the press release just released here), here are the nine key points taken from now the two studies. These are the nine concerns made and established by Moshe in the first round, to which Chetty et al. responded, but seemingly still stand as solid criticisms.
Value-added scores in this report and in general are unstable from year to year and from test to test, but the report ignores this instability.
The report inflates the effect of teacher value-added by assuming that a child’s test scores can be improved endlessly [over time].
The procedure that the report develops for calculating teacher value-added varies greatly between subjects within school levels (math or English in elementary/high school) and between schools within subjects (elementary or middle school math/English), indicating that the calculated teacher value-added may be random.
The commonly used method for determining how well a model predicts results is through correlations and illustrated through scatterplot graphs. The report does not [however] present either the calculations or graphs and instead invents its own novel graph to show that the measurements of value-added produce good predictions of future teacher performance. But this is misleading. Notwithstanding the graph, it is possible that the quality of predictions in the report was poor.
An earlier version of the report found that an increase in teacher value-added has no effect on income at age 30, but this result is not mentioned in this revised version. Instead, the authors state that they did not have a sufficiently large sample to investigate the relationship between teacher value-added and income at any age after 28, but this claim is untrue. They had 220,000 observations (p. 15), which is a more than sufficiently large sample for their analysis.
The method used to calculate the 1.34% increase [that a 1 standard deviation increase in teacher VA raises wages at age 28 by 1.34% (p. 37)] is misleading, since observations with no reported income were included in the analysis, while high earners were excluded. If done properly, it is possible that the effect of teacher value-added is to decrease, not increase, income at age 28 (or 30).
The increase in annual income at age 28 due to having a higher quality teacher “improved” dramatically from the first version of the report ($182 per year, report of December, 2011) to the next ($286 per year, report of September, 2013). Because the data sets are not identical, a slight discrepancy between estimates is to be expected. But since the discrepancy is so large, it suggests that the correlation between teacher value-added and income later in life is random.
In order to achieve its estimate of a $39,000 income gain per student, the report makes the assumption that the 1.34% increase in income at age 28 will be repeated year after year. Because no increase in income was detected at age 30, [however] and because 29.6% of the observations consisted of non-filers, this assumption is unjustified.
The effect of teacher value-added on test scores fades out rapidly. The report deals with this problem by citing two studies that it claims buttress the validity of its own results. This claim is [also] both wrong and misleading.
Following the Vergara v. California decision now two weeks ago (see three recent VAMboozled posts about this court decision here, here, and here), one of my mentors and still friends/colleagues – Gene Glass, Regents’ Professor Emeritus at ASU – wrote the following on his twitter and Facebook account about Raj Chetty’s and Tom Kane’s testimonies, testimonies that played key roles in the judge’s (unfortunate) decision ruling teacher tenure as unconstitutional.
Testimony in Vergara by Harvard profs. Does anybody–other than Judge Treu–really believe these guys?! Amazing! — These dudes must be in love with their production functions. How anyone but a know-nothing judge could buy this stuff is amazing to me. A bad teacher costs a class of 28 kids $1.4 Million in life-time earnings. Really? What do a couple of lousy economists cost society?
Glass then followed up with a comment: “Aristotle in Nichomachean Ethics: “We must not expect more precision than the subject-matter admits.” (Chp. 3)…after which a Facebook friend replied…”Aristotle was 2.13 times more effective than Plato at teaching Aristotle’s ethics.” Funny!
Anyhow, somebody else at The Becoming Radical seemed to come across this post and wrote another blog post around it titled, “The Very Disappointing Teacher Impact Numbers from Chetty.” To read more about what this author has titled the now “very famous” but still “mostly hypothetical” Chetty et al. study and what their numbers ACTUALLY mean, even if true and accurate in the real world, click here.
Well, “WT” said nothing, besides a bunch of nothingness surrounding his anonymous withdrawal from the conversation string. Perhaps this was Chetty as “WT?” Perhaps not, but I’d bet some serious cash whoever “WT” was was pretty darn close to the Chetty et al. study and didn’t want to show it.
Sooo…now getting to the best part of all of this and how this has, in an interesting and similar turn of events, evidenced itself elsewhere. This video just came out on our local news station in Phoenix about a very similar situation in the state of Arizona and the state’s Superintendent of Public Instruction – John Huppenthal – engaging in some equally shady blogging tactics. Do give it a watch if you want yet another check on reality.
I received this “public letter” via email and felt compelled to share it with you all. It is written by Ed Johnson, “Advocate for Quality in Public Education” and devotee of W. Edwards Deming. It is about the quite honestly shameful testimony of Harvard Economics Professor Raj Chetty (the source of prior posts here and here), his testimony’s impact on the Vergara v. California decision last week (see two recent posts about this court decision here and here), and the deleterious implications of the ways that Chetty and those whom he advises (including Obama’s key leaders) think about educational measurement — implications that unfortunately span well beyond the teachers at the center of what is now so many similar VAM-based measurement systems.
Thanks mainly to Raj Chetty’s testimony, corporate school reformers won, or bought, the Vergara v. California case. Now, in consequence, there should be grave concern. California Superior Court’s ruling and Chetty’s cheerful and gleeful testimony offer insight into the kind of intelligence-without-wisdom that can only lead to hastening the demise of democratic ideals along with the rise of plutocratic ideals and attendant morally and ethically corrupt and corrupting ways of social life legitimized in public law. It is worth spending nearly two hours to watch and listen to Chetty’s testimony, so one may disallow oneself ever being able to claim, as some in Germany once claimed, “I didn’t know.” Be sure to listen to Chetty explain President Obama’s and the White House’s involvement.
Chetty based his testimony on having posed and answered for himself the question: “Are teachers’ impacts on students’ test scores (“value-added”) a good measure of their quality?” He testified that his research findings brought him to answer the question in the affirmative. As if nothing much beyond test scores matter, Chetty concluded that teachers’ impact on students’ test scores are a good measure of the quality of students’ teachers. Now just think about that for a minute and what it means and the potential precedent it holds for the future.
Chetty applied economic reasoning to “big data” sets of students’ test scores and relatable other kinds of data to, in effect, contrive little more than a method for distributing teachers over the mythical bell curve. Bottom-line result? “Déjà vu all over again” – that is, teachers ranked. The five percent or so of teachers forced into the head of the bell curve are deemed, arguably, highly valuable teachers. Similarly, the five percent or so of teachers forced into the tail of the bell curve are deemed, arguably, non-valuable teachers. Then Chetty intimated that the teachers ranked by his method establish the justification to fire the non-valuable teachers among them. And the quicker that is done, the better for the students. But, of course, “the quicker, the better” can only be done if teachers are disallowed tenure – that is, if teachers are allowed no rights to due process.
Now, the rub is, why would anyone today believe Chetty’s magical “value-added” genie of a measure will still be in its bottle in the future? Why would anyone believe corporatists will never apply Vergara v. California to employees? Why would anyone believe our government will never back Vergara v. California to be applied beyond public school teachers to include ever more citizens? Why would anyone believe “teachers” will never be generalized to “people” at the behest by plutocrats’ desires to get rid of non-valuable people the quicker, the better? Why would anyone believe eugenics will never be embraced, again?
“Let X be the contribution of some individual, (YX) the effect of the system on his performance. Then suppose that we have some number for his apparent performance, such as eight mistakes during the year, or sales of $8,000,000.
“Then, X + (YX) = 8.
“We need X. Unfortunately, there are two unknowns and only one equation. Johnny in the sixth grade knows that no one can solve this equation for X. Yet people that use the merit system think that they are solving it for X. They ignore the other term (YX), which is predominant.
“There is another factor to take into account, the Pygmalion effect. Rated high at the start, anyone stays high. Rated low at the start, he stays low.
“Ranking creates competition between people, salesmen, teams, divisions. It demoralizes employees.
–W. Edwards Deming. The New Economics for Industry, Government, Education (pp. 25-26). Kindle Edition.
Raj Chetty’s value-added measure (VAM) contrivance simply invites staying stuck in the status quo of regressive and mechanistic ways of thinking that try to reduce life’s complexity to simplistic algorithms and scripts. Instead, the country could be progressing, provided it had leaders that held a stronger adherence to democratic ideals than to plutocratic ideals, and that held a more just, moral, and ethical social systemic world view (see Ackoff, 11/1993).
Frankly, where are the words with which to express deeply felt sorrow and revulsion with Raj Chetty’s VAM, California Superior Court’s ruling, and Obama’s involvement? How ironic that the country’s first self-proclaimed “African American” President serves a chief facilitator of attacks on public education.
“I am part cognitive scientist, part statistician, and I work for ACT, Inc. About a year ago I was asked whether value-added models (VAMs) provide good estimates of teacher effectiveness. I found lots of papers that examined if different statistical models gave similar answers to each other and lots showing certain groups tended to have lower scores, but all of these papers seemed to bypass the question I was interested in: do VAMs accurately estimate teacher effectiveness? I began looking at this and Audrey invited me to write a guest blog post describing what I found.
The difficulty is that in the real world we don’t really know how effective a teacher, that is in “objective” terms, so that we do not have much with which to compare our VAM estimates. Hence, a popular alternative/way for statisticians to decide if an estimation method is good or bad is to simulate data using particular values, and then see if the method produces estimates that are similar to the values expected.
The trick is how to create the simulation data to do this. It is necessary to have some model for how the data arise. Hence, I will use a simple model to demonstrate the problem. It is usually best to start with simple models, make sure the statistical procedures work, and then progress to more complex models. On that note, I have an under review paper that goes into more details with other models with more simulation studies. Email me if you want a copy.
Anyhow, the model I used to create the data for this simulation starts with three variables. The first encapsulates everything about the students that is unique to them, including ability, effort, grit, and even the home environment (called AB in the code below). The second encapsulates all the neighborhood and environmental factors that can influence everything from financial spending in schools to which teachers are hired (called NE). This value is unique to each teacher (so it is simpler than real data where teachers are nested in schools). The third is teacher effectiveness (called TE). I created it from the neighborhood variable plus some random variation. These three variables would be unmeasured in a real data set (of course, some elements of them may be measured, but not all elements of them), but in a computer simulation their values are known.
In addition, there are two sets of test scores. The first are scores from before the student has encountered the teacher (called PRE). They are created by adding the student ability variable, the neighborhood variable, and some random variation. The second set of test scores are from after the student has encountered the teacher (called POST). They are created by adding the first set of test scores, the student ability variable, one-fifth of the teacher effectiveness variable (less than the other effects since the impact of a single teacher is usually estimated at about 10% or less of student achievement), and some random variation.
Again, however, this model is simpler than real educational data. Accordingly, there are no complications like missing values, teachers nested within schools, etc. Also, I will use a very simple VAM, just using the first set of scores to predict the second set of scores, but allowing for random variation by teachers and by students. Given the importance placed on the results of VAMs in many different countries and in many industries (not just in education), this method should work…Right?
Theories about causation actually suggest that there will be a problem. I won’t go into the details about this (again, email me for my paper if you want more information), but using the first set of scores in the VAM allows information to flow between the teacher effectiveness variable and the second set of test scores through the other unmeasured variables. This messes up trying to measure the effect of teachers on the final scores.
But let’s see if a simulation supports that this is problematic as well. The simulation used the freeware R and the code is below so that you can repeat it, if you want, or change the values. Download R onto your computer (follow the instructions on http://cran.us.r-project.org/), open it, copy the code, and paste it into R. The # sign means R ignores the remainder of the line so I have used that to make comments. If you think another set of numbers are more realistic, put those in. Or construct the data in some other way. One nice thing about simulations is you can keep trying all sorts of things.
For the values used, the correlation is -.13. A negative correlation means the teachers who are more effective tend to have lower estimated teacher effectiveness scores. That’s not good. That’s bad! Don’t get hung up with this specific number, though, as it moves around depending on how the data are constructed. The correlation can go up (e.g., change any one, but not two, of the first four values to -1) and down (e.g., increase the size of AB2POST to 2).
Given this, there is a conclusion, as well as a recommendation. The conclusion is that value-added estimates can be very inaccurate for what seem to be highly commonsensical and plausible models for how the data could arise, and where they are bad is predicted from theories of causation. The recommendation is that those promoting and those critical of VAMs should write down plausible models for how they think the data in which they are interested arose and see if the statistical procedures used perform well.
*The personal opinions expressed do not necessarily represent the views and opinions of ACT, Inc.
Following up on my most recent post regarding the “Vergara Case Lost in Los Angeles,” it seems “they” aren’t stopping in Los Angeles.
A VAMboozled! follower posted this recent op-ed on this topic on Aljazeera, in which the authors write about how “Students Matter, financier of the case (Vergara vs. State of California) with the funding of tech magnate David Welch, is preparing to bring similar suits to New York, Connecticut, Maryland, Oregon, New Mexico, Idaho and Kansas. This state-by-state strategy follows a historical precedent by similarly motivated groups, such as turn-of-the-20th-century women suffragists and contemporary gay marriage activists, seeking to challenge regulations at the state level to build a groundswell for national upheaval.” To read more, click here.
But also in breaking news, it seems that the Houston Independent School District (HISD) – the district in which the American and Houston Federation of Teachers are suing the district for their wrongful use of, and over-emphasis on VAMs (see a prior post about this here) – is to be defended by the same law firm who just won the Vergara trial.
As for the national and local unions’ response? As per a joint press release: “Hiring a powerful law firm and accepting a grant from one of the country’s most conservative and well-endowed foundations shows the Houston school system will spend as much money as it can to defend what we believe are unjust and unfair actions, rather than act in the best interests of the district’s students and teachers.” To read more, click here.
A few months ago, I wrote a few posts about the “Vergara v. California” case happening in Los Angeles, California, as well as posts about the testimonies of Thomas Kane (Economics Professor from Harvard University), David Berliner (Regents Professor Emeritus from Arizona State), Linda Darling-Hammond (Professor from Stanford), and Jesse Rothstein (Economics Associate Professor from the University of California – Berkeley).
The case involved nine public school students (backed by some serious corporate reformer funds) who were collected by the “Students Matter” to challenge five California state statutes that supported the state’s “ironclad [teacher] tenure system.” The prosecution’s argument was that students’ rights to a good education were being violated by teachers’ job protections…protections that were making it too difficult to fire “grossly ineffective” teachers. The protections at issue included the set of statutes that granted permanent employment status to teachers after 18 months on the job, that required a lengthy procedure to dismiss teachers, and that set up a seniority system in which the teachers most recently hired were the first to be fired when layoffs occurred, or in recent years needed to occur given economic crises and swings.
The suggested replacement to the “old” way of doing this, of course, was to use value-added scores to make “better” decisions, as based on “the data,” about whom to fire and whom to keep around as per whether they were positively impacting student achievement, and growth in student achievement. This is precisely why this case mattered so much for this audience here, particularly as we continue to think about VAMs and how they are being positioned, many times falsely, for that which they theoretically can do versus what they really can do in practice.
The case will certainly be appealed to a higher court, however, so while a loss there is still hope, as per Welner.
Again, to read this post, please click here. It is definitely worth the balanced read and point of view.
The Education Department is pulling Washington state’s No Child Left Behind waiver because the state has not met the department’s timeline for tying teacher evaluations to student performance metrics.
Washington is the first state to lose its waiver. The loss will give local districts less flexibility in using federal funds. For instance, they may now be required to spend millions on private tutoring services for at-risk students. The waiver revocation could also result in nearly every school across the state being labeled as failing under NCLB.
Washington had pledged in its waiver application to make student growth a significant factor in teacher and principal evaluations by the 2014-15 school year. But the state Legislature refused to pass a bill mandating that student performance on statewide assessments be included in teacher evaluations. The department placed the state on “high-risk” status in August. Arizona, Kansas and Oregon are also at risk of losing their waivers.

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Tobias Lutzi, the author of this post, is an MPhil Candidate at the University of Oxford.
AG Saugmandsgaard Øe has delivered his opinion in Case C-572/14 AustroMechana, raising an interesting question as to the scope of Art. 5(3) Brussels I (= Art. 7(2) Brussels I recast).
The case concerns the so-called ‘blank-cassette levy’ that sellers of recording equipment have to pay under § 42b(1), (3) of the Austrian Copyright Act (Urheberrechtsgesetz – UrhG). The levy constitutes a compensation for the right to make private copies for personal use provided in § 42 UrhG. It is collected on behalf of the individual copyright holders by a copyright-collecting society called Austro-Mechana. According to the ECJ’s decision in Case C-521/11 Amazon.com, this system is consistent with the requirements of Art. 5(2) of the Copyright Directive (Directive 2001/29/EC).
Austro-Mechana had seized an Austrian court based on Art. 5(3) Brussels I in order to seek payment of the blank-cassette levy from five subsidiaries of Amazon, established in Luxembourg and Germany, which were selling mobile phones and other recording material in Austria. Austro-Mechana argued that the blank-cassette levy was intended to compensate the harm suffered by the copyright holders by reason of the copies made pursuant to § 42 UrhG and would thus fall within the scope of Art. 5(3). Amazon objected that the levy was payable upon the mere act of selling recording equipment, which in itself was neither unlawful nor harmful; the copyright holders would only suffer harm from the (equally lawful) use of the equipment by third parties; as a consequence, Art. 5(3) would be inapplicable to the present case. Amazon did not contest, however, that if Art. 5(3) would apply, Austria would be the place of the harmful event.
In his opinion, AG Saugmandsgaard Øe first gives a detailed account of the blank-cassette levy system created under §§ 42, 42b UrhG (paras 28–51). In order to decide whether a claim brought under this system would fall within the scope of Art. 5(3) Brussels I, he then refers to the well-known two-stage test from Case C-189/87 Kalfelis, according to which an action falls under Art. 5(3) if it ‘seeks to establish the liability of a defendant’ and is ‘not related to a “contract” within the meaning of Article 5(1)’ (para 56). The AG first assesses the second condition and rightly points out that the defendants’ obligation to pay compensation under § 42b UrhG was not ‘freely entered into’ and could thus not be qualified as contractual (paras 58–61).
The difficulty of the present case, however, clearly lies in the first condition established in Kalfelis, the role of which has always remained somewhat unclear and subject to debate. While its German translation (‘Schadenshaftung’) and the ECJ’s decision in Case C-261/90 Reichert (No 2) seemed to indicate that a claim would only ‘seek to establish the defendant’s liability’ in the sense of Art. 5(3) if its aim was to have the defendant ordered to ‘make good the damage he has caused’, the court’s recent decision in Case C-548/12 Brogsitter seems to be understood, by some, as promoting a wider interpretation of Art. 5(3), covering all obligations not falling under Art. 5(1). Yet, AG Saugmandsgaard Øe seems to adhere to the former interpretation when he states that ‘a “claim seeking to establish the liability of a defendant” must be based on a harmful event, that is to say, an event attributed to the defendant which is alleged to have caused damage to another party’ (para 67).
Surprisingly, though, the AG considers as this harmful event the fact ‘that Amazon EU and Others failed, as is alleged, deliberately or through negligence, to pay the levy provided for in Article 42b of the UrhG, thus causing damage to AustroMechana’ (para 72). Therefore, he concludes, ‘a case of this type is an absolutely quintessential instance of a matter relating to tort or delict’ (para 75).
This understanding of Art. 5(3) seems hardly reconcilable with the commonly accepted interpretation of Art. 5(3) established in Case 21/76 Bier, according to which the ‘harmful event’ refers to the (initial) event ‘which may give rise to liability’. Besides, if it were correct, the first condition established in Kalfelis, which the AG appears to uphold, would be rendered completely meaningless since every claim potentially falling under Art. 5(3) is ultimately motivated by the defendant’s failure to comply with an alleged obligation.
Instead, the correct question to ask seems to be whether the initial sale of recording material constitutes a ‘harmful event’ in the sense of Art. 5(3). Of course, the ECJ may still hold that it does, promoting a rather broad reading of the notion of ‘tort, delict or quasi-delict’ that also accommodates lawful behavior if it triggers a legal obligation to pay some sort of compensation. But the court may also come to the conclusion that the obligation to pay a ‘blank-cassette levy’ simply does not constitute a ‘matter relating to tort, delict or quasi-delict’, relegating the claimant to proceedings in the defendants’ home jurisdiction(s) pursuant to Art. 2(1) Brussels I (= Art. 4(1) Brussels I recast).

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