Friday, September 30, 2011

Text sets WRTL free

Let's close the loop on the WRTL bribery thing. Tom Foley does respond to the points I made and I give him credit for that. I wish he'd do more of it. But the characterization of my interpretation of the statute as "extra textual" is wrong.

Textualism says that one ought to be limited to the text of a law when attempting to ascertain its meaning and application. One ought not to refer to extrinsic sources like legislative history or resort to the interpreters view of what meaning constitutes the best policy - unless that meaning is fairly inferable from the text.

That does not mean that one ignores the structure of the text or whether a particular way of reading it leads to obviously absurd or potentially unconstitutional results. Language is often ambiguous in its application and being a textualist does not mean that one ignores that. Over the years, lawyers have developed a number of guides to construction. For example, there is a long tradition of construing statutes to avoid constitutional difficulties.

Here, the statute says that a thing of value may not be offered or given to an elector or other person in order to induce an elector to vote or refrain from voting. The object of the inducement is the elector. The offer or gift must operate as an inducement to him or her. Mr. Foley wants to read it to say that this thing of value may not be given to another person to induce that person to do something (knock on doors, make phone calls, collect absentee ballot applications)that causes or helps an elector to vote.

That's not what the law says. The offer or gift must operate as an inducement to the elector (elector being the direct object of the verb) and not as an inducement to someone else to do something that might result in the elector voting.

That interpretation is based entirely on the text. It is not, as I noted before, "extra textual" to test that interpretation by asking what Mr. Foley's construction would mean. The results are absurd and would, I think, render the statute unconsitutional.

And, if that's not enough, two more reasons that the law cannot be read in the way that Tom wants. There is also a rule of construction that criminal statutes be interpreted narrowly. Tom's interpretation is, shall we say, rather expansive.

Finally, it is not inconsistent with a textualist approach to consider the intent of the statute as expressed by its text (as opposed to some extrinsic source). One has to be careful that one is not substituting one's preferences for the enacted law, but it, in this case, consideration of intent confirms what the plain language of the text says - the offer or gift must be an inducement directed to the elector. What the statute seems to be aimed at is bribing electors, i.e., "buying" their franchise. An offer or gift that induces someone else to do something - even if it results in an elector casting a vote - does not do that.

Tuesday, September 27, 2011

Why WRTL cannot be charged.

The press is reporting that the ongoing John Doe investigation may be looking at issues arising from the provision of barbecue to voters by a liberal advocacy organization and the provision of gift cards to persons involved in "get out the vote" issues by Wisconsin Right to Life.

Tom Foley offers his opinion that the good people at Wisconsin Right to Life "must" be prosecuted by the district attorney. He's wrong.

I posted briefly on the legal issues involved shortly after the matter first became public. Tom seems to think its odd that I quoted only part of statutory language paraphrasing what comes before. Not odd at all. It happens every day and the reason I did it was because I was only concerned with the quoted language. There is no question that WRTL offered or promised or gave a "thing of value." In fact, my understanding was that they had already given the gift cards which is why I said the statute applied to "providing" a thing of value. In my understanding, that is what was done. Of course, the statute could also apply to an "offer" or "promise" but that wasn't the issue.

What I was concerned with is whether WRTL could be said to have given out these gift cards (or, if you prefer, offered the gift cards) to an elector or any other person as an inducement to get an elector to vote or refrain from voting.

The problem that I see with application of the statute to WRTL is that the gift cards were offered or given not as an inducement to vote but as an inducement for people to get others to apply for absentee ballots. Even if we can characterize the latter as trying to get people to vote, this is a huge distinction. Here's why.

Tom wants to read the statute to say that it is unlawful to offer a thing of value to a person in order to induce that person to persuade another to vote. This is not what the law says. In fact, if we were read the statute in the way that Mr. Foley wants, it would apply to any compensated "get out the vote" effort. If a political party or a candidate or even the League of Women Voters pays people to encourage or facilitate voting, they will have violated the statute. Not only is that a nonsensical reading of the statute (the law can be an ass but it usually isn't), it is a reading that would place it in dire constitutional jeopardy. The freedom of association involves, I think, the right to organize to get out the vote including paying the organizers.

As I suggested in the post that Tom keeps referring (but never responding to), I argued that the inducement - whether given directly to an elector or another person -must function as an inducement to the elector, i.e., whatever is provided to the elector or a third party must be a quid pro quo for the elector's decision to cast (or to refrain from casting) a vote.

Thus it would be unlawful for the Republican Party to give my son $ 100 in order to induce me to vote. It would not be unlawful for it to hire my son to register voters, get absentee ballot applications and otherwise participate in what politicians refer to as "the ground game" - even if he winds up getting me to submit an absentee ballot request.

There could, I suppose, be additional facts about the arrangement that make the law applicable and, as I blogged when this story broke, I would have advised that the program be structured a bit differently in order to err on the side of caution.

Sunday, September 25, 2011

One More Time - Slowly

Some commenters here and lefty bloggers are in a dither about my post criticizing their own Chris Liebenthal for being less than forthcoming about his own past when discussing a current investigation of unknown persons for unknown behavior which may have something to do with political activity by Milwaukee County employees on County time or using County resources. Or not.

I don't often engage with other local bloggers (and am generally told that I should do less of it) because there are relatively few local bloggers on the left with the slightest interest in engaging in responsive and minimally courteous discourse. But I did start it and it could be that the point was too subtle. Or perhaps I failed to make my point clear so I'll try again.

First, I am not claiming that Mr. Liebenthal's conduct is the same as whatever is being investigated in the current John Doe proceeding in Milwaukee County. I am not claiming that they are similar because I can't compare them at all. I don't know who or what is being investigated in that proceeding - and neither does Chris Liebenthal, Emily Mills, Tom Foley or any one else who seems so eager to comment on it. Responding to my post, Mr. Liebenthal writes "Mr. Esenberg, we do know a lot more about Walkergate than you are indicating." If he does know more, I sure can't find it on his blog.

In fact, just about anyone who does know anything is under order of the court to keep their mouth shut. Given that there are a number of people out there who are quite loquacious on the subject, I must assume that they are complying with the law and, therefore, don't know a damn thing. A case in point is that this post by Ms. Mills which claims there to be a "seemingly shady deals between Gov. Scott Walker and his various friends/aides" and the the investigation is "circling ever closer" to Walker for whom it reeks. She then proceeds to offer absolutely no evidence for any of that.

Second, I am claiming that Mr. Liebenthal's conduct is not unlike what we do know actually happened and what seems to have prompted the investigation, e.g., the fact that Darlene Wink posted comments to the Journal Sentinel's website. It is not unlike the only specific things that Mr. Liebenthal has managed to refer to in a number of posts, e.g., a County official doing "noncounty work on county time." Everything else is what is known in the business world as a SWAG.

I do understand the natural desire to speculate on what might be going on. But in light of the nature of the limited information that is available, it seems to me that if Mr. Liebenthal wants to comment on the subject, he ought to be forthcoming about his own past. I say that only because he is the one who decided to write a "primer" on the subject in which he pulled a great deal of innuendo out of nothing more than stuff that looks alot like what he did and the fact that someone is investigating something.

Third and ironically Mr. Liebenthal himself seems to have recognized that he should say something. But what he said was not forthright. He acknowledges the complaints against him but then blows them off by saying only that the supporting documentation was "irresponsible." This implies that he was exonerated and that the whole thing is part of a narrative about Republican chicanery. The fact is that the complaints led to his suspension without pay for ten days. If you're going to mention it, tell the whole story.

Fourth, I did not claim that Liebenthal was "blogging" at work or misrepresent publicly available information about what he did. I noted that the District Attorney's office issued a statement that said he had engaged in "extensive blogging." I explained that later reports claimed that the Assistant District Attorney for Milwaukee County in charge of political corruption apparently did not know what "blogging" is and that Liebenthal had only been reading political blogs. These later reports - reading but not writing - seem to have been affirmed by the Mr. Liebenthal's superiors and apparently by the ADA himself. I linked to them - or at least to the ones that I found.

I agree that, depending on the question we are asking, the difference between reading a blog and posting a comment could be significant. But in this context and particularly when he himself brought it up, I think its close enough to warrant some mention.

Fifth, my point is not that Mr. Liebenthal did something "terrible." It is embarrassing, of course, because he has quite vocally complained that Scott Walker has slashed and burned County resources so as to impair the ability of beleaguered county employees to deliver essential services. Yet he seems to have had the time - a lot of time apparently - to do something other than attend to his job.

In fact, both now and back when the story broke, I wrote that it wasn't so terrible. In fact, I repeated in this post what I wrote before the District Attorney issued his statement. I did not think that the accusations against Mr. Liebenthal should have resulted in criminal charges whether or not he blogged at work. I thought then - I think now - that they were a personnel matter and were properly handled as such.

Let me even clearer. I don't think he should have resigned (as Wink did) and I am not even sure that he should have been suspended without pay. It actually seems a bit harsh to me. But, then again, I don't have the details. He must have done an awful lot of "reading" to get suspended for ten days.

But here's the thing. I don't know - and he doesn't know - that any of the people that he thinks are being investigated did anything worse. He doesn't know that the Governor did anything at all. When he knows something, then he can crow. But if he wants to engage in "where's there's smoke" reasoning, he ought to be complete in describing his own fire.

That leads to my sixth - and probably most important - point which I fear I did not make clear. Mr. Liebenthal and his supporters claimed in the past - and claim now - that he was disserved by a rush to judgment. As one of the commenters to my post rather crudely puts it, they became "tumescent" without having the facts. Whether or not that's so (in some cases, the conservative bloggers were merely reporting what the DA's office said), there is a worthwhile point to be preserved. One ought to be careful - and decent - in discussing unproven allegations about others. One would have hoped that Chris Liebenthal's experience taught him the virtue of temperance.

But here he is, excuse the phrase, quite "tumescent" about what he can't possibly know. He implies the Governor's involvement in whatever is being investigated by calling it "Walkergate." He pronounces the Governor "tainted" and the matter "sordid." He says that something he can't even describe is "big, very big." (In fact, so eager is Mr. Liebenthal to accuse his political opponents of wrongdoing that he suggests there is scandal in Robin Vos being in Madison on a day that the legislature was not in session. Because ... what? We wouldn't want our lawmakers to be working on legislation, meeting with other public officials or, like, actually doing their homework?)

There may turn out to be a Walkergate. But even if there does, all of this schadenfreude won't be vindicated. The fact remains that Mr. Liebenthal doesn't know that the Governor or anyone close to the Governor - or anyone at all for that matter - is guilty of serious misconduct. He only wishes it to be so just as he believes that others wrongly wished for him to be fired or carted away.

Finally, there is a suggestion in some of the comments that "everyone does it" and Mr. Liebenthal just got caught because of the actions of the CRG. He didn't do what they thought but it put him under the microscope and who among us can survive that and come out unscathed? I don't know if that's what happened here but it's a observation worth pausing over. Increasingly, we fight our political wars by trying to destroy people we disagree with. It is a rare campaign in which opposition researchers can't find some flaw in the past of the other candidate and we aren't very good at keeping a sense of perspective about these things.

I'm not sure that Chris Liebenthal has much standing to complain about this. He blogs nasty as illustrated by the fact that his reaction to an assault on a state legislator is to speculate on whether the legislator did something wrong.

But it's still worth keeping in mind.

Finally, two points of personal privilege. Those with a life can go elsewhere. Mr. Liebenthal says - oh wait, Esenberg used his Marquette address in a filing to court on behalf of a client and that must be wrong. It certainly would have been contrary to the Dean's policy. It is the preference of Marquette Law School that faculty members not publicly identify as associated with the University when representing clients and that they use an alternative address. (That is not the case with respect to commenting on matters of public policy. Quite the opposite, actually.)

But here Mr. Liebenthal once again fails to make the basic inquiries that he insists upon from others. To the best of my recollection, I never filed a document in any court that used my Marquette address. To the contrary, I specifically instructed my co-counsel that this address never be used. The incident Mr. Liebenthal refers to arose when the clerk's office used my MULS address - which it had for other purposes - in a mailing to counsel instead of the address which we had used on our pleadings. When the clerk's office typed in my name, the MULS address came up. One phone call fixed the problem.

A commenter wants to know if I ever did anything at Marquette similar to what Mr. Liebentha admitted to doing at Milwaukee County, directing my attention to MU's Authorized Use Policy which, I have to admit, I don't recall having seen before. The short answer is I don't think so.

He fails to understand that the traditional responsibility of faculty - teaching, scholarship and service - is quite broad so that it is difficult to say that much of anything is outside the scope of organizational purposes. As much as the commenter might not understand, commenting on matters of public policy was something that I was expressly expected to do at MULS. There is a difference between "political" in that sense and "political" in the sense of organized political activity that would, for example, be subject to the campaign finance laws or IRS limitations on nonprofits. I don't really do that type of thing.

Having said that, I'm sure that I used my MULS e-mail account - although perhaps not my computer or office - for purposes other than work. I may have even used it for ordering my wife flowers. People have used it as a way for people to get in touch with me on a variety of things. I don't have fixed work hours and, at least until the past few months, much of a fixed work place. In fact, the MU AUP recognizes that such things will happen and makes clear that it is a privilege to be tolerated and not a right of employees and other users.

But Mr. Liebenthal didn't get in trouble for sending e-mails from his work account. There seems to have been a bit more going on there.

More fundamentally, I'm not the one that is speculating about grave wrongdoing by others when the only thing that I know for sure is something that I myself have done. When I blog about someone's use of their work e-mail address, I'll be sure to make a note of it.


Thursday, September 22, 2011

Wisconsin Institute for Law & Liberty

Earlier this year, I obtained funding to start a non-profit legal center in Milwaukee. The newly formed Wisconsin Institute for Law & Liberty is tasked with the promotion of the rule of law, free markets, limited government and a robust civil society. Its primary purpose will be litigation but it will also engage in advocacy and other educational activities. I am ensconced with a small - but first rate - staff in downtown Milwaukee and we have begun to represent clients.

I am not going to write much about WILL on this blog. The organization's website will be launched in the near future and I suspect it will have a blog to which I will link from here. I will continue to teach at Marquette - now as an adjunct - but my full time commitment is as the Institute's President & General Counsel. As always, I won't blog much about matters in which I represent a client.

Wednesday, September 21, 2011

He ought to know

Every once in a while, you see something that just seems wrong. A local blogger has apparently taken upon himself to pull together a few facts mixed with speculation and innuendo over something he calls "Walkergate." Although it is unclear just what is being investigated, he notes certain allegations that then County Executive Walker's staff engaged in political activity on county time or using county resources. There could be more - one would think that there is - but no one really knows for sure or what that might be.

Nevertheless, this blogger can scarcely contain himself. The scandal is big. It's sordid. The Governor is tainted.

Here's the strange part.

The blogger is Chris Liebenthal. The same Chris Liebenthal who himself was accused of political activity while on county time and using county resources. He acknowledges as much although he portrays himself as a victim, claiming that the documentation supporting the allegations was "very irresponsible." If you knew nothing of the matter, you'd assume he was pure as the driven snow.

But he was not. Whether or not the documentation was "irresponsible," the District Attorney's office said - after seizing his computer - that he had engaged in "extensive" political blogging at work. Later reports were that he had not "blogged" in the sense of posting to his blog but was visiting web sites with political content. Nevertheless, he was suspended without pay for ten days for what his supervisor called "blatantly disregarding" county policy.

To be sure, he wasn't criminally charged and, as I wrote at the time, I don't think he should have been - whether he was posting to his blog or not. To be sure, the County and the taxpayers had the right to know what he was doing. But any harm stemming from such activity is harm to the employer. While the applicability of state statutes might turn on whether or not he was posting - as opposed to merely gathering information. the matter was properly handled as a personnel issue.

But given that the only thing we know for sure about this investigation is that it was initiated by allegations that county employees have been accused of posting comments to the Journal Sentinel website and doing non-county work on county time, it takes a robust form of chutzpah to revel in the supposedly "sordid" and "tainting" conduct of people engaged in conduct very much like the very conduct that the reveler himself has engaged in.

At the very least and at least until we know more, one would think that a sense of self awareness, grace and just plain decency would have prompted him to acknowledge that he too succumbed to the temptation to pursue other activities on work time.

It is quite possible that the investigation will result in allegations of misconduct far worse than anything Chris Liebenthal was accused. (Given the resources being devoted to it, I would certainly expect that they should be looking for more than that.) Still, the idea that Mr. Liebenthal should be the left wing blogosphere's face for probity on the government clock seems a bit odd.

Tuesday, September 20, 2011

Just so you know

There has been some controversy recently over the response of Dane County authorities to protest activities that seem to be at the edge of - or somewhat past the edge of - lawful conduct. I don't know although I am not reassured when these authorites are unable to defend their conduct without adding condemnations of the Governor's policies. That sort of steps on the message of dutiful impartiality.

I do think that last week's dumping of beer on Senator Robin Vos should have been charged as criminal disorderly conduct- a class A misdomeanor. It was calculated - a step beyond two guys who toss beer at each other in a drunken argument or the woman who splashes wine in her boyfriend's face when he tells her that he wants to "see other people."

But probably no more. Battery requires the causation of bodily harm and I can't see that a beer shower qualifies.

But here is some free legal advice to the vuvezela and chant crowds. At last weekend's BobFest, noted Black Helicopter theorist Greg Palast suggested that one should drink the beer before pouring it on a Republican.

This is funny, you see, because if you drink the beer then you can only pour it on someone by urinating! It's not really beer anymore! That Pakast guy is on fire!

But here's the rub. There is case law to the effect that the act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999) That'd be a Class A misdomeanor and, if a prosecutor decides and a jury is persuaded, that the harm is substantial, you're looking at a Class I felony.

It's your call.

Here's another way to look at Medicare

Proponents of a greater role for the state in the provision of health care love Medicare. They say it's cheap (even as it heads for bankruptcy) and popular. Indeed, my guess is that much of the President's reelection campaign will be driven by MediScare.

But Medicare is a mess driven by a hidden subsidy. In discussing Netflix' problems with its provision of free or inexpensive streaming, Megan McCardle sums it up. Netflix could obtain licenses for content inexpensively as long as it did not threaten providers' normal distribution channels. Those channels would cover the average cost of producing content and, as long as Netflix paid more than the marginal cost of providing the content to it, licensers were happy to accept the additional revenue. A great deal for Netflix but not one that could be extended to the marketplace as a whole. She writes:

You can get a sweet deal if you are the customer who gets marginal cost pricing. Medicare does this--reimburses hospitals at above their marginal cost, but below their average cost, so that private insurers have to pick up most of the hospital overhead. European countries do this with prescription drugs: reimburse above the marginal cost of producing the pills, but below the total cost of developing the pills, so that the US has to pick up most of the tab for drug development.

But just as providers of content cannot extend Netflix' pricing to the rest of the market, Medicare cannot become the model for the entire market.

Obama's Misinformed Policy

Democrats like to call Republicans "the stupid party" often because conservative politicians refuse to accept controverted propositions - the efficacy of Keynesian economics, the existential nature of global warming - that Democrats want to regard as "settled." Sometimes, however, conservative politicians do make claims that are not true as all human beings tend to do.

But President Obama is making policy based on assertions of a fact - the rich pay less in income taxes than ordinary Americans - that does not bear the slightest scrutiny. It is simply not true.

Perhaps our tax system is not progressive enough. Try to make that case, but at least get the data right.

Of course, it is true that capital gains rates are taxed at a lower rate than ordinary income - this is the source of the tax break for those dread "hedge fund managers" - all 193 of them. There is economic theory justifying differential treatment of capital gains. I tend not to buy it. I think that all income should be taxed when it is realized and at the same rate regardless of source. But even under my view you have to adjust the basis so that only "real" gain is taxed. But the idea that our tax system "favors" wealthy people is not rooted in reality.

Having established that, the proposal to raise taxes on higher income earners in order to avoid reductuins in entitlements reduces to the argument that they can "afford" to give the rest of us some money. Why isn't that class warfare? It is nothing more than the assertion that some people have more than they need and rather than appeal to their charitable impulses, the "excess" should be taken from them by legal compulsion which, of course, ultimately reduces to threat of force.

The moral superiority of this position - supposedly reflected in Wolf Blitzer's "gotcha" question to Ron Paul - is not self evident. Christians certainly are charged with concern for the poor but one cannot discharge that moral obligation with other people's money.

Having said that, unlike Paul, I am not a libertarian and I think that, if for pragmatic reasons alone, a social safety net supported by moderately progressive taxation is appropriate. But no one really disputes that.

Monday, September 19, 2011

Poverty and the Fifties

In response to a post here last week showing that poverty fell more rapidly in the fifteen years prior to the initiation of the War on Poverty than it has since then, a commenter asserts that this was because we were "enjoying" the impact of government funded World War II and the Marshall Plan as well as "injection" of money into the economy through construction of the interstate highway system.

The idea the World War II "ended" the Great Depression through some type of Keynesian mechanism is quite dubious but let's review the bidding on our commenter's claim.

Federal spending as a percentage of GDP was averaged 17.8% during the period from 1950 through 1965. Since then, as poverty has remained relatively stable, it has averaged 20.9%.

Let's look at another way. From 1950 through 1965, nominal federal spending increased 77%. Between 1965 and 1980, it went up 399%. From 1980 through 1995, 156%. From 1995 through 2010, 161%.

The post war period was indeed unique. US businesses were largely immune from global competition since the rest of the industrial world had been largely laid to waste. That was not entirely a good thing but it did have positive ramifications for unionized oligopolies like the American automakers. But the notion that it was the halycon era of big government funded prosperity seems wrong.

The commenter says that the chart shows that poverty is hard to eradicate. That is my point precisely. More to come.

Friday, September 16, 2011

Can the Brewers blow it?

They are on pace to do precisely that. On September 5, they lead the Cardinals by 10.5 games. In the ensuing week and a half, they have lost almost half of that lead - five games - while playing only eight times. In those eight games, they have never scored more than three runs and only managed that twice. They are averaging all of two runs per game over that stretch.

They not only can blow out it, they are well into the process.

Thursday, September 15, 2011

Poverty is winning

This is an extraordinary chart showing a rapid fall in the poverty rate that more or less ended with passage of the War on Poverty. Since then the rate moves up and down within a relatively narrow band in correlation with the general performance of the economy. Of course, past results are no indication of future performance and it is not at all clear that the poverty rate would have continued to decline. But Vietnam was not the only war that LBJ escalated and lost.

Wednesday, September 14, 2011

Lena's Law

Godwin's Law states that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1 (100%)." A corollary - often itself called Godwin's Law - is that resort to the Reduction ad Hitlerum results in immediate defeat.

A commenter at Marginal Revolution suggests there be a version of Godwin's Law for invocation of the Koch Brothers. I want an analog to the corollary. Anyone who drops the K-bomb loses the argument. We'll call it Lena's Law.

Pass the My Job Act Right Away

Whatever the Jobs Act is about, it isn't jobs. At least not for anyone but President Obama.

We have been having an ongoing debate about the efficacy of Keynesian stimulus in our present economic circumstances. There are those who buy into a relatively clean version of the Keynesian orthodoxy that I learned in introductory macroeconomics thirty years ago. At the risk of oversimplification, the idea is that there is inadequate demand so the government should "inject" money into the economy by borrowing it and that this will cause those who are sitting on their money to change their behavior.

There are all sorts of reasons to think that this won't work in the great run of circumstances and the recent repeated failure of massive stimuli in the form of both spending and tax cuts to have any discernible effect ought to give substantial pause to those who call for more of the same. There are, of course, studies that claim the administrations' 2009 stimulus "created" varying number of jobs at a staggering cost. Other studies claim otherwise and the fact remains that stimulus has not delivered as promised.

But lets put that aside. Keynesian stimulus is not supposed to be "paid for" - at least not during the period in which it is supposed to work its magic. Raising taxes reduces the supposedly stimulative injection of cash into the economy. So Obama's plan to pay for temporary tax cuts and spending with permanent tax cuts is a category mistake. It steps on the (dubious) job creation part of the Jobs Act.*

This gives the game away. The Jobs Act is nothing more than a tax increase. Because the increase is limited to those "millionaires" who earn a quarter of a million and is paired with goodies for everyone, it is intended not to create jobs but political talking points. Republicans will oppose the scheme because it will contribute, as the Wall Street Journal points out, to a tax cliff in 2013. They believe - correctly in my view - that it will create disincentives to economic growth both because of marginal rate increases and further regime uncertainty.

Obama knows that but the objective here is not to create jobs but talking points.

*One could argue that transferring money from higher to lower earners will increase the velocity of money, i.e., the lower earners will spend it while the higher earners would not. This requires quite a few dubious assumptions and, as Megan McCardle points out, is pretty weak tea.

Shark in WI Magazine

My latest Culture Con column in WI Magazine is here. In the same issue, George Lightbourn has a lengthier piece developing the same point. George and I do not consult and we do not compare notes.

Thursday, September 08, 2011

Murphy's take on the law not quite right

I was in Madison for the first day of the state Supreme Court's 2011-2012 term, arguing on behalf of the petitioners in Wisconsin Prosperity Network v. Myse. I am happy to report that the Court was fully able to function as a court with the Justices, who seemed well informed, attending to arguments and asking questions. Perhaps the rest of us can focus a bit more on the law and a little less on the drama.

But before I go, I see that Bruce Murphy is just not impressed with Ann Althouse and me. He thinks we apparently had no basis for criticizing Bill Lueders early report of the incident between Justices Bradley and Prosser and think events have somehow vindicated that view.

Here's the thing. Lueders' report was superseded within a few hours by a much more comprehensive report by the Journal Sentinel that placed the incident in an entirely different light and, as it turned out, was a far more accurate description of the event. Although Murphy says I failed to marshall facts in support of my criticism, the conclusion that offends him was immediately preceded by an argument that the almost contemporaneous reports of the view of more than one witness were much different than Lueders' initial report.

Of course, I am not saying that Lueders is a bad reporter. People in a position to know speak well of him. I just thought that this report seemed to be rushed out and was almost immediately shown to be incomplete.

In the same piece, Murphy reports some old news from a very good reporter, David Ziemer at the Wisconsin Law Journal, to the effect that Justice Crooks often joins with the conservative majority and, therefore, people who claim that there is a 4 to 3 liberal split are dumb, piling on Professor Althouse again.

I agree that Justice Crooks is less firmly in either camp than some of the others, but you have to look at a much smaller subset of cases to address the "liberal" v. "conservative" issue since not all cases present an occasion for that divide and, in some, it is much more salient than in others. Depending on how you define that universe cases, the description of a 4-3 split - while always only a rough approximation of a complicated reality - makes some sense.

Of course, I always try to qualify identification of judges as "conservative" or "liberal." These descriptions are not wrong but they aren't the same as when used in a nonjudicial context. They don't necessarily lead to results favored by the conservative or liberal political camp and judges operate in a far more constrained environment than politicians.

But Althouse and others are not wrong when they speak of a 4-3 split and no lawyer who actually practices public law in this state would dispute it.