Monday, October 31, 2011

More on who gets to recall

Further to my post on whether to hold recalls in what are, for all practical purposes, defunct Senatorial districts, Mary Lazich (R - New Berlin) has introduced a bill making the new Senatorial districts effective immediately while keeping Assembly districts in place until November 2012.

This is the wrong way to address the concerns expressed in my post.

There is nothing wrong with allowing elected representatives to serve until their current terms expire. Nor do I think it is wrong to defer electing representatives in new districts in which there is now no incumbent legislator because the new lines have "paired" two or more incumbents in a single district. While it might seem important to hold a special election immediately to fill the resulting "vacancy," it won't work without also holding elections in, at least, all of the districts in which two incumbents now reside. Doing the former without the latter would result in a number of legislators exceeding the number reserved in the constitution. Because we don't want redistricting to result in an immediate cascade of elections, practical concerns justify waiting until the next regularly scheduled general election.

A different set of circumstances applies when one is dealing with an extraordinary election - a special election taking place because of the loss of an incumbent or recall taking place between the completion of redistricting. Since there is going to be an election anyway, the practical justification for deferring implementation of the new district is attenuated. The legislative solution would seem to be to specify that any recall or special election occurring after the district lines have been drawn should take place in the new district but that no district shall be deemed to be vacant because no incumbent currently resides within its boundaries.

This is not a one-sided solution. While some districts have become more Republican after redistricting, others have become more Democratic. My proposal would prohibit both parties from taking advantage of the transition period by going after incumbents who represent districts that are about to become more favorable to the opposition. It also avoids the unseemliness of legislators being recalled by people they no longer represent and without the participation of people that they now do represent.

Friday, October 28, 2011

Who gets to recall?

We've heard a lot of misplaced criticism about proposals to hold recall elections in newly drawn districts. Here's the crux of the problem.

Those legislative districts that existed before this year's redistricting are unconstitutional in the sense that they violate the principle of "one man, one vote." In keeping with that principle, the United States Supreme Court has made clear that legislative districts must be equal (or nearly so) in population. The old districts - drawn following the 2000 census - are no longer equal.

But the courts have recognized that it makes no sense to have district lines continually redrawn to keep the number of voters in each equal. So they have required this to be done only every ten years after the census. They have also recognized that it takes some time after the census to accomplish redistricting so they have permitted a certain passage of time before elections must be conducted in the newly drawn districts. There is even some authority for conducting special elections in old districts (if, for example, a legislator dies, retires or takes a new job) after the new lines have been drawn but before the first election cycle to which they have been made applicable. Whether that authority is correct or could be applied to a series of recall elections is a question that may be litigated some day, but my purpose here is not to comment on whether the recall elections must be held in the new districts (or even whether they can be) but whether they should be.

The newly enacted redistricting law states that it, as to special or recall elections, it "first applies" to "office filled or contested concurrently with the 2012 general elections." That is awkward language. The GAB reads it to mean that any recalls that take place prior to November 6, 2012 must take place in the old districts. There is, however, potential ambiguity in application of the statute to "offices." One might, for example, read the statute to mean that the statute first applies to any recall or special election for an office that is to be filled or contested in the November 2012 general election. If that's so, then any Senator who is up for reelection in November 2012 or thereafter would be subject to recall in the new district. Nevertheless, I should note, and the GAB relied in part upon, the fact that Governor Walker ordered in September that a special election in the 95th District take place in the old district.

But if the redistricting bill was written to apply for the first time to the November 2012 elections that doesn't mean that it cannot or should not be changed. To be sure, as long as this is what the law says, the old district lines should be used absent a finding that it would be unconstitutional to do so (see above), but we're interested here in what ought to be rather than what currently is. The legislature and Governor can change the law if they want to.

We can readily dismiss Mike Tate's complaint that this would amount to "changing the rules." So what? Redistricting always changes the rules. Changing the rules in this way is, in fact, constitutionally required - at least for the November 12 election cycle and thereafter. Changing them sooner is arguably more faithful to the constitutional guarantee of "one man, one vote" and, even if a court would not require it, it may well be a good thing to do. More on this later.

Blogger Tom Foley says that it shouldn't be done because there is a challenge to the current redistricting plan pending in federal court relying on a three judge panel's refusal to dismiss the case last Friday. But this doesn't get us far. The decision in Baldus v. Brennan was in response to a motion to dismiss the complaint. Without getting into procedural niceties, it does not tell us whether the challenge is strong or weak - only that it might prevail if the plaintiffs can prove their allegations. The survival of a motion to dismiss alone provides no basis for holding the recalls in the old districts.

For the Baldus case to be relevant, the plaintiffs would have to show that they have a reasonable probability for success on the merits. That hasn't yet happened and for reasons I'll get to when I post on that case, they are unlikely to be able to do so.

So the question becomes one of policy. Is it right or wrong to use the new districts? Is the question one of anything other than who is able to exercise their political will?

The answer comes to us - albeit unintentionally - from Jay Bullock (who I understand met my daughter-in-law recently). Jay thinks it wrong that the Republicans are trying to prevent the Democrats from flipping districts in 2011 so that the winners will have the advantage of incumbency in 2014. This, I'm guessing he'd say, frustrates the will of the people. He's wrong for at least two reasons.

First, the exercise of popular sovereignty that Jay wants to defend would be undertaken in a district that is no longer in compliance with the principle of one man, one vote. We allow the incumbent to continue to represent the district - i.e., we don't require that all legislators immediately face reelection - for practical reasons. But that doesn't mean that there is a right to that continuity or that it would be wrong to move up the effective date for the new districts.

Second, when there is an interim election, there may be - if not actionable equal protection problems - a peculiar bit of unfairness at work in permitting recalls in the old districts. The new districts are, the GAB tells us, "in effect" in the sense that each legislator now represents the constituents in the newly formed districts (and, thus, can use state funds to communicate with are represent them). The "new" residents in an incumbent's district has no other representative. He or she is no longer a constituent of his or her old state Senator and one could not expect that old Senator to be responsive in the way that politicians are responsive to their constituents.

So let's use an example. Senator Leah Vukmir now represents the people of her newly drawn district. Why should only some of her constituents get to vote on whether she will be recalled? Why should people that she no longer represents get to vote on that question. We allow her to continue to serve without facing the voters until 2014as a pragmatic matter but it is not "fairer" to do so and, in fact, may be unfair. If we are going to hold a new election, the defense from pragmatism is weakened if not eliminated altogether.

Wednesday, October 26, 2011

The legislature and legal fees

One of the bills being considered in the legislature's special session is AB 12. It would place certain limits on the ability of state courts to award attorneys' fees in cases in which some other law, say, a consumer protection statute or the open meetings law, provides for an award of fees. It specifies factors that a court ought to consider in approving a fee request and that part of the law is a good development and ought to be uncontroversial.

The more challenging issue is AB 12's cap on an award of fees at three times compensatory damages. The cap would be presumptive in cases in which compensatory damages are combined with some other form of relief (say an injunction or declaratory judgment) and mandatory in cases where only compensatory relief is to be granted.

The poster child for the bill was a case involving a dealership in Racine. The issue was whether the plaintiff had authorized $ 5000 in repairs. The plaintiff claimed that he did not, thinking that the work was covered under warranty. The dealership said that he did and made some legal arguments regarding whether the plaintiff could recover even if the repairs were not authorized. The dealership won at the trial court on these legal arguments but the case was reversed by the Court of Appeals. Shortly before trial, the dealership settled for a payment of $12500 in damages and interest and over $ 150,000 in attorneys' fees plus a bit over $5000 in costs.

That's a pretty unreasonable and wasteful outcome. Part of the reason for it was the parties' insistence on litigating a legal issue through the Court of Appeals, but even that shouldn't explain such a ridiculous result. I can't say it who it was but someone (or someones) did not cover themselves in glory here. (For my conservative friends, you ought to wonder why the dealer agreed to pay the fees in that amount. Not a good sign.)

Still it makes sense that a litigant's behavior be disciplined by economic reality. Requiring some connection between the amount at issue and fees is a good idea and, even prior to AB 12, courts making awards of fees under the Consumer Protection Act were to consider it. This bill tightens that up.

Still, in may go just a bit too far. I can imagine circumstances in which fees in excess of three times compensatories might be warranted either because of the litigation behavior of one side or the need to resolve some uncertain point of law. I always tell clients that once you have commenced litigation, you lose a great deal of control. It is a thing that goes of itself and you can't command the extent to which the other side might make you work.

I'd make the "three times compensatory" rule only presumptive in all cases, including those in which only compensatory relief is sought. I think we can trust our circuit court judges to handle that properly.

Thumbs down, however, for Rep. Gary Hebl (D-Sun Prairie) for suggesting that the bill was occasioned by the dealer's campaign constributions to Republicans. This is just ad hominem garbage. The issue is a real one and the bill won't save the dealer one penny.

A friend of mine takes great umbrage at another bill that will limit prejudgment interest in only certain types of cases. I can't get excited about it but I also can't see any reason to have a different rate in different types of cases.

State liability rules and jobs

In today's Milwaukee Journal Sentinel, Henry Greenspan criticizes a Wisconsin bill that would provide manufacturers of drugs and medical devices with an "FDA defense." If the FDA approves sale of the device, the manufacturer cannot be held liable in a civil suit.

I think that reasonable people can differ on the bill but a few of the claims made by Mr. Greenspan are substantially off the mark. First, he claims that a similar law in Michigan has contributed to the decline of the pharmaceutical industry there because a robust liability system creates more accountable and better companies.

The latter assertion is debateable - at least among the range of policy choices that are actually in play in the United States. But even if true, Michigan's law could not have had the slightest impact on Michigan manufacturers. Let me explain.

For over ten years, I advised a Wisconsin manufacturing firm (not drugs and medical devices but I don't think that matters) on issues of product design and liability. When a new product or modification was in development, we'd talk about whether it might create liability issues. I never gave advice based upon the particulars of Wisconsin law.

Why not, you ask?

Because we were a national firm. Given that Wisconsin is an average sized state, we could expect about 2% of our sales to be here. (Maybe a little better because we were based here but,then again, so was our principal national competitor for much of that period.) If there was an accident in one of the other 49 states where we sold 98% of our stuff, it would be governed by the law of that state. So even if Wisconsin had passed a law strongly favorable to manufacturers (and it hasn't), we could not base our decisionmaking on the law in Wisconsin.

Given that very few, if any, pharmaceutical companies manufacture for local distribution, I suspect that the same dynamic was at work there. A change in Michigan law was unlikely to make the manufacturers any more or less accountable - although it might affect the willingness of both Michigan and non-Michigan firms to sell into Michigan and pricing to Michigan customers.

Astute readers will ask whether this means that the bill pending in Wisconsin is unlikely to create jobs here for the same reason. It's a fair question.

Mr. Greenspan also asserts that "physicians agree" that a robust tort system is a good thing. The evidence he cites does not support such a broad statement and my experience sure doesn't. I have yet to discuss the "tort system" with a doctor and get anything other than a diatribe against lawyers.

So is the bill a good idea? Liberals who don't like it might be interested to know that it represents a more European approach to product safety and liability. In Europe, we were less concerned about what would happen in court because liability litigation is pretty rare. We were very concerned about obtaining EU certification.

Is Europe less safe than the US?

"Compassion" for felons may have been misdirected.

Wisconsin is one of a relatively small number of states which restrict consideration of past felony convictions in employment decisions. Put simply, such consideration is forbidden unless the conviction was for a crime substantially related to the circumstances of the job in question.

A bill pending in the Assembly would bring the law here back into line with the law in the overwhelming majority of states and allow employers to consider past felony convictions whether or not related to the circumstances of the job in question.

Eugene Kane is, there's no way around it, playing the race card and sharing Rep. Barbara Toles (D-Milwaukee) assessment that this will be "bad for the community." To be sure, Kane won't directly accuse the bill's sponsors of racism. No, he would never do that but the bill does make it "hard to convince some people - particularly African-Americans - the new GOP-run Legislature isn't filled with a bunch of white politicians who have no problems passing laws that negatively affect African-Americans and Latinos without any thought to the consequences." See, it's not what Gene thinks. It's those other folks.

Let's take a breath. If Wisconsin's law helped convicted felons get jobs then the state would be a Mecca for convicts. It would be a place where released prisioners find it much easier to get work, perhaps even attracting parolees from other states. It may even be that there is evidence that demonstrates this, but I don't think so.

Having practiced law for 30 years and both advised on and litigated hiring decisions, I think the best thing that you could say about existing law is that it has no impact. Anti-discrimination laws tend not to work unless and until there is a broad consensus that discrimination on a forbidden basis is, in fact, wrong. The law then brings those who do not share that consensus into compliance (although the market would do much to accomplish that even in the absence of a law).

But when people don't really believe that a form of discrimination is wrong, the law can do little to stop it. Age discrimination, for example, is illegal. Has been for years. It is also rampant because people don't think it's wrong. Whatever the merits of that belief, it is relatively easy for employers to indulge it - particularily at the hiring stage. Just about any older person who has been forced to seek a non-leadership position can confirm this.

Nor do people believe that it is wrong to take into account a person's past felony conviction regardless of it's "substantial relationship" to the job. The conviction tells them something about a person's character and decision-making. Perhaps you think that others should be untroubled by a child abuser working in a back office or a rapist manning the phones in customer service (I actually had that case) but most folks won't agree.

This isn't to say that others are unwilling to give convicted felons a second chance but this is where the perfidious nature of current law comes into play.

It may well hurt the job prospects of convicted felons.

How can that be? Consider this. Providing a convicted felon with a second chance is almost always going to be a risky proposition. It is going to require that the employer live with a higher than normal chance of a bad outcome. If the employer can rectify a mistaken decision to provide that second chance, i.e., by firing the person in question if things go badly, the chance may still be worth taking.

But if the law makes that convicted individual part of a protected class, the cost of taking a risk that doesn't pan out becomes higher. Now the employer can fire someone who hasn't worked out at the price of having to convince someone else that it wasn't done "because of" that person's membership in the protected class (i.e., convicted felons). At best, this will entail additional costs and, at worst, the employer runs the risk that his or her judgment will be second guessed.

Under those circumstances, perfectly rational and good hearted people will be (quite rightly) more reluctant to provide risky persons with a second chance. It is much easier to find a reason to avoid hiring them in the first place than it is to assume the risk of having to justify firing them to people who were not there, who don't understand the employer's business and who may be pre-disposed to find against them.

Photo ID will stand

The League of Women Voters has finally filed their lawsuit challenging Wisconsin's new voter identification law. One thing jumps out immediately. There are no plaintiffs alleging that the law disenfranchises them. One normally tries to get someone impacted by the law. That didn't happen here. I suspect that the problem is that there is no one who can't get the requisite photo identification although one would have expected to see plaintiffs alleging that obtaining this identification is "unduly burdensome." There is at least an atmospheric problem from the start.

Before the lawsuit was filed, I debated the merits with LWV's counsel, Lester Pines, on, I kid you not, the Voice of Russia. I don't have a link for that but I did discuss the case Monday afternoon on Ben Merens' show.

I think the case is a clever way around federal precedent that would leave a claim based on the federal constitution dead in the water. In Crawford County v. Marion Election Board, the United States Supremee Court rejected a facial challenge to Indiana's photo ID law. Lester and his client have instead relied on Article III of the Wisconsin, sec. 1 of the Wisconsin Constitution which extends suffrage to United States citizens who are 18 years of age or older and who reside in an election district in the state. Article III, section 2 identifies laws that may be enacted to implement this right of suffrage including, defining residency, providing for registration and absentee voting and excluding from the right of suffrage, subject to certain restrictions, those convicted of a felony or adjudicated to be wholly or partially incompetent.

The argument is that the law "excludes" from the right of suffrage those who lack photo identification complying with the law. Since Article III, sec. 2 doesn't expressly authorize that, it can't be done.

As I said, it's clever but it won't work. Here's why.

First, it is unclear that Article III, sec. 2 exhausts the reasonable regulations on exercise of the franchise. Unlike the United States Congress (in theory if not always under recent practice), the Wisconsin legislature has plenary powers. It does not need express authorization in the state constitution in order to be able to do something and, in fact, there are all sorts of regulations on the exercise of the franchise, i.e., limited hours during which a polling place is open and limitation of the number of places in which a ballot may be cast, restriction on ballot access and on primaries that are not, strictly speaking, "authorized" by Article III, sec. 2.

But perhaps these can be fairly inferred from the nature of voting and the plaintiffs will argue that the description of certain forms of regulation in Article III, sec. 2 implies the proscription of those that have not been described. They may even invoke time honored maxim of construction, expressio unius est exclusio alterius ("("the express mention of one thing excludes all others").

Of course, the problem with maxims of construction is that there is always another one that contradicts it. We needn't linger long over this because the identification requirement is fairly inferable from the identification of things that the state is clearly permitted to do. It is a way of ensuring that the person who is casting a vote actually is the United States citizen over the age of 18 who resides in the district and is, therefore, entitled to vote.

To be sure, there is no requirement that the state enact this means of verification, but neither can Article III be read to prohibit it. The law doesn't disenfrancise those without a photo id anymore than other laws disenfranchise those who find it difficult to register, obtain an absentee ballot or make it to the polls. Rather, it enforces (as the caption of sec. 2 has it, "implements") those laws and regulations that the legislature is empowered to enact.

At this point, the plaintiffs will argue that photo id is "too burdensome" and "not necessary" but that's thin gruel for a constitutional challenge. It goes to the whether photo identification is good policy and courts aren't going to address that. These arguments might work if the burdens imposed were tantamount to a denial of due process but the decision of the United States Supreme Court in Crawford makes that hard to argue - even in an action brought under the state constitution.

Sunday, October 23, 2011

Sunday Songs for the Occupation

Let's start by being generous. While I think that equation of the Occupants and Tea Partiers require one to elide two opposing ideological views, they are surely a response to the failure of elites - something which, in my view, counsels against the Obaman view of the world. But the elders screwed up and that should be acknowledged.

But here's the problem. The Occupants are seduced by a tired sensibility and dead ideology. It can be attractive. Here's the Last Internationale (we can only hope) singing of the plight of underemployed MFAs and Fiscal Analysts III oppressed in FitzWalkerStan. Pretty voice. Hackneyed lyrics.

And, of course, that way of thinking has what I think it's fair to say is a troubling history. I recorded this at the daily sing along in the Capitol Rotunda.

But at the end of the day, the Occupants know that and this is more about atmospherics.

Thursday, October 20, 2011

It was just a call for help

Well there was a brief, small protest around the corner from my office this noon. By small, I mean about 20 protesters and by brief, I mean that it lasted only a bit longer than it took me to leave my office in the 200 block of East Mason walk a block and a half to the Cousins at Water & Wells and order a sandwich. I believe the demand was to "Arrest Wall Street" accompanied (at least while I was there) by simultaneous fist raising and turning of the head to the street that evoked - I'm sorry - a bad old movie about Zombies. There was something weirdly lifeless about it. Maybe it was too cold. Perhaps it just happened when I was there.

One of the things I didn't quite get was why I heard so many police squads (I counted four) arrive so quickly before I left my building. As I passed by, the cops were standing around and watching. Certainly this pathetic little protest didn't require that.

But it has since been reported that some jamoke came into the M & I/BMO Harris branch which was the target of the protest and screamed about a hostile takeover. I guess the Occupants wanted bank employees to have a more sophisticated sense of "hostile" rooted in an 80s "Michael Douglas in Wall Street" kind of sensibility. Unfortunately, at least one teller did not and chose not to ponder whether they were in actual or nerely metaphorical danger. Thus the cops.

So this brought to mind attempts to equate the Occupy Protesters with more recent demonstrations of a grander provenance. Are they like the tea partiers? Local libertarian Nick Schweitzer thinks so but I can't see it. Nick focuses on the one thing that the groups have in common - oppostion to bank bailouts and then argues that they differ only in who they are angry with. The Tea Partiers disliked the government for passing out the cash and the Occupants are miffed at the corporations for taking it.

That'd be more impressive if the two groups weren't drawing diametrically opposed conclusions out of this anger. The tea partiers want the government to stop passing out dough and acting like the National Cruise Director. The Occupants want it to give even more - only to different people. The tea partiers response to government absolution of the irresponsible is to call for responsibility. The Occupants response is for absolution across the board. The one group wants more limited government. The other is rigrorously statist.

It is sort of hard to reconcile calls for limited government with demands for across the board debt forgiveness, a guaranteed living wage without regard to, you know, work, free college education in whatever you want, etc. One the Occupants hang-ups if corporate personhood because, as we all know, the development of a limited liability vehicle to facilitate the aggregation of capital and placing it at risk has just destroyed the country in those dark, cold years since the early nineteenth century. The problem they have with "corporate personhood" is that they believe - largely incorrectly - that it renders corporations immune from state control.

The two groups can't find common group because, at the end of the day, there isn't any.

But Nick tries to make a case. Nicholas Kristof, in Sunday's New York Times, just waves at one. He claims that his interviews with OWS protestors "rhyme with my interviews in Tahrir earlier this year." That is a rather startling assertion. Kristof would never - could never - explicitly equate protests about bank bailouts and the fact that a fairly small number of people make too much money with an uprising against a police state. We'd all laugh at that so he uses some meaningless phrase like one thing "rhyming" with another. It's a variant of a fairly common Times trick in which people like Framk Rich and Paul Krugman catch "whiffs" of something (usually racism) which they can't actually demonstrate to be there.

Even that vaguery requires cover so Kritsof immediately quotes Al Gore as calling the protests a "primal scream." Of course, a scream communicates nothing but distress so this permits it to "rhyme" with just about anything.

Kristof wants the 2012 election to be about inequality but to what end? Even if one is disturbed about concentrations of wealth, it is "simple math" that no feasible tax increases on the rich are going to do much to balance the budget or improve the lot of the middle class. There is not an insubstantial prospect that they would actually make things worse.

There is a problem with crony capitalism, but the Obama administration and Democrats are hardly in a position to raise it. It's what they do. Socialism is in the sense of the government owning the means of production has gotten a bad name because it turns out to be a complete and utter failure. So the left today advocates running the economy through the government through a system of regulation, subsidy and taxation. It is more about control than simple command.

When you're picking - or trying to create - winners and losers in this way, crony capitalism becomes the order of the day. To be sure, they call it things like "industrial policy," "green jobs initiatives," "public-private partnerships" and "stimulus." Nut, however well intentioned, the bottom line is the the disbursement and withholding of favor. Say what you will about advocates of limited government and free markets but they tend not to want to engage in the kind of market interventions on which crony capitalism thrives.

Kristof refers to Robert Frank's book The Darwin Economy which I've started to read. More on that to come.

Wednesday, October 19, 2011

The ideology of restricting political speech

Mike McCabe of the Wisconsin Democracy Campaign links to an interesting article by Michael Lind. The article is interesting for things other than what McCabe cites it for but McCabe's piece is also instructive in that it highlights the "bait and switch" involved in the advocacy of restrictions of campaign speech.

First, let's clear the underbrush. McCabe began by repeating the mistaken mantra that the Supreme Court decided that "money is speech." It did not. What it recognizes is that the right to speak becomes meaningless if one (or those with whom one is associated with) don't have the right to combine resources or use what resources they do have in order to be heard. To say that I have the right to go down to the corner of Wisconsin and Water and holler, but I can't do anything to publish my views to others would be a rather empty guarantee. McCabe writes that "when money is speech, speech ceases to be free." I can't even guess at what this means. Speech - at least if you want it to be heard - is never free. But more on this in a moment.

Much of what we hear from WCD and like minded groups is that are legislators are "bought and paid for" but there is little evidence of that. People who wish to promote the candidacy of sympathetic politicians are far more likely to seek out those who are already supportive of the contributors agenda rather than to try and corrupt those who are not. This is particularly so in the case of independent expenditures (which is what really rankles reformers these) days where, as Larry Lessig (himself a proponent of restrictions) notes there can be no "pro" connecting the "quid" and the "quo."

This is one of the reasons the United States Supreme Court has protected independent speakers in cases like Wisconsin Right to Life and Citizens United. But sophisticated proponents of restriction trot out another argument. They say that the problem is not that our politicians are corrupted, but that the process by which they are selected is distorted. People or groups with the money and motivation to make outsized contributions can exert more influence.

Thus Rick Hasen of Loyola Law School famously (at least in the campaign finance world; trust me) calls for regulation that would bring us closely to what he calls "barometric equality," i.e., the idea that financial support for a candidate more closely mirror that candidate's degree of support within the electorate.

There are numerous problems with that concept and implementing it would (or at least should) scare the bejesus out of civil libertarians, but McCabe's piece is a fairly stark example of the genre. He argues that Democrats are not effectively the party of the working people because they have thrown in their lot with "big money" or at least have failed to eradicate the use of money in politics. This presumably impairs the sort of unfettered populism and "People's Democracy" that would follow in a system that achieved barometric equality.

And there's the bait and switch. We begin by discussing corruption in a more traditional sense and then segue into talking about barriers to economic populism.

Two points. Putting aside the fact that "barometric equality" is a vexed and, frankly, illusory concept, it is not clear that a system that achieved it would be more legitimate or more consistent with our founding ideas. There all sorts of "unfair" or "illegitimate" advantages in politics - celebrity, incumbency and demagoguery.

Madison, in particular, was concerned about the threats of faction to sound republican government. In Federalist No. 10, he wrote that "[t]he diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government." (Not all may agree but the track record of societies that have failed to do so is not good.) He gave a particularily apt example: "The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.'

Of course, Madison did not express a view on modern campaign finance laws but his solution to the problem of faction - which he thought could not be avoided - was limited and divided government in which no faction would be likely to become ascendant. There are many modern lessons in that but the old notion that the remedy for bad speech is more speech is among them/

Second point. Achieving this radically egalitarian democracy would seem to require nothing short of totalitarianism. We do regulate campaign contributions but that is not enough so we have to regulate independent expenditures - something the Supreme Court has severely limited. But even if it hadn't, independent expenditures would inevitably be replaced - particularly in the digital age - by partisan media outlets.

In attempting to restrict the flow of information in service of a largely discredited ideology, Mr. McCabe and WCD are, essentially, Luddites.

But the Lind article is interesting for other reasons. More to come.

Tuesday, October 18, 2011

Through the UW's Looking Glass

One of the most astonishing things at yesterday's hearing before the Assembly Committee on Colleges and Universities was the disgusting behavior of Rep. Mark Pocan (D-Madison). I have heard that Pocan is not a bad guy outside the white lines, but I am hard pressed to think of an example of more boorish and uncivil behavior by a state official at a public hearing. Pocan deliberately decided to insult and talk over the mild mannered Roger Clegg throwing out a series of questions that seem to reflect a misunderstanding of CEO's study or Pocan's belief that CEO should have done a different study directed to a different question. Pocan acted like a shrill and sneering adolescent. He embarrassed himself and his constituents.

I was also - to use his own words - "disturbed" but not surprised by the testimony of UW Provost Paul DeLuca. I was disturbed by its utter lack of candor but not surprised since the current state of the law almost demands dissembling from university officials.

The UW claims to have a holistic admissions process that considers (apparently on the basis of a seven to ten minute review) a number of factors other than past academic performance as reflected in grades and test scores. Undoubtedly it does and what the CEO results suggest is that the most robust of these holistic factors is the race of the applicant. At minimum, it demonstrates not only that UW uses race in admissions (something the school admits) but it uses it hard.

A candid response to that by the Provost would have been to admit it is so and then defend the university's practices. But, while he did defend the use of race, he declined to admit how important it is.

I would suggest that there is a reason for that rooted in current legal doctrine. The United States Supreme Court has traditionally been divided on the use of race in university admissions. We've had 4-4 splits with - more or less - one side saying that race ought not to be used and the other side saying that it may be. The splits have been resolved - first by Justice Lewis Powell and then by Sandra Day O'Connor - jurists whou tend to prefer fuzzy compromise to clarity often because they saw it as more "pragmatic" and "unifying."

The result has been doctrine that essentially says that race may be used as a thumb on the scale. It can't be dispositive and you can't have quotas, but you can treat applicants differently based on the color of their skin as long as you don't go too far. This has encouraged opacity rather than transparency in university admissions. If you are too candid in describing the process, you may run afoul of the less certain aspects of Gratz and Grutter.

The CEO study is an attempt to look behind the curtain. That apparently disturbs Provost DeLuca and moves Rep. Pocan to something akin to a bout of distemper.

Monday, October 17, 2011

Who stole your future?

Charles Krauthammer explains the President's re-election campaign. I make much the same point in my next Culture Con column in WI Interest while challenging conservatives to arrive at thoughtful responses.

Krauthammer points out that one of the consequences of this is the "Occupy Somewhere" movement - an effort that has provided, if nothing else, comic relief. As I've written before, much of it is so silly and stereotypical as to be something of an unfair target.

But in today's paper, we see a group from One Wisconsin Now (one is Scot Ross, no?) holding a banner decrying high levels of student loans. They may have a point but not the one they think they have.

Having spent a bit of time around higher education the past few years, I am concerned about student loans. Every year Marquette University Law School has a public interest law auction in which students seem to throw around silly amounts of money to bowl with or have a dinner made for them by a faculty member. I don't know that these students were throwing around borrowed money but you do worry about it.

There's more than that. University tuition has increased by amounts far greater than the rate of inflation and universities have become increasingly opulent and populated by functionaries with obscure titles and uncertain responsibilities which - whatever they are - don't seem to have much to do with teaching.

It is hard not to believe that government subsidized and guaranteed student loans have something to do with it. Throwing more money at higher education might make it more accessible but it may also increase its costs.

The absence of any form of underwriting and little controls on what a student does with the money seems almost guaranteed to lead to just the situation that our Occupiers complain of. Unless you are stone brilliant and attending a prestigious university, borrowing $150000 for graduate work in cultural anthropology or comparative literature is an exercise in consumption. It will not result in a job that permits you to comfortably repay the money. Borrowing $ 200,000 to attend the Thomas Jefferson Law School (or, for that matter, if you are not a good student, Marquette) is probably not going to work out for you from a financial perspective. It may still be worth doing but you have to see it as a life style choice that is probably going to have you living like a student for much of your post-graduate life.

In other words, this is a classic example of a well intentioned program leading to unintended results. But it's not corporations who "stole your future," it's a government that bid up the price of higher education and enabled what now seems like a very poor choice. It's the universities who are notoriously deceitful about these matters.

Today's Post on the Brewer game

How about those Packers!

Saturday, October 15, 2011

The Faith of Economists

There was an interesting exchange this past week between economists Paul Krugman and Russ Roberts. It's instructive on two levels. First, as many folks have noted, Krugman uses his Nobel Prize and more serious work as cover for vulgar Keynesianism and a steadfast refusal to acknowledge that his views do not reflect "settled" economic science in the Times.

Roberts deconstructs Krugman's recent effort to - I'm not making this up - defend his belief in Keynesian economics notwithstanding the lack of evidence that Keynesian economics works. (Apparently, some "correspondents" had written asking "Paul, why are you so sure of yourself when there is no evidence that your ideas have actually worked ?")

As Roberts points out, Krugman does this by noting that there is evidence for some of the assumptions underlying the Keynesian view and evidence that monetary policy will work which Krugman asserts must mean that fiscal policy will work - a proposition that is not self evident. Even I know that there are critiques of Keynesian fiscal stimulus that might not apply to monetary contractions and expansions, e.g., the idea that the public is aware that stimulus must ultimately be paid for. Roberts points out that Krugman cites studies that support his views and ignores those that don't (observing in a later response to Roberts that "everyone" agrees with his assessment of certain studies - a facially unlikely assertion.)

None of this is new. Krugman's writing in the Times is routinely savaged in the economic blogs - often by citing his own work against him. Roberts goes on, however, to make a second point. He says that, given that the evidence for Keynesian theory is mixed and inconclusive, most economists choose to support it or opposed based on pre-existing ideological views.

Krugman takes umbrage at this, saying "he's just trying to figure this out." He argues that, while conservatives believe in small government as an end in itself, liberals don't believe that big government is instrinsically good.

I think Krugman misses the point. Conservatives are generally motivated by epistemological modesty. We tend to distrust the ability of the government to solve problems from the top down. Liberals tend to want to make the world anew by applying the expertise of people like - well, like Paul Krugman; Ivy Leaguers with some kind of training in symbolic analysis. (Yeah, I know I fall into that category too which ought to give my liberal readers pause.)

Krugman, of course, is familiar with the history of the progressive movement and the Hayekian critique of it, but he can't let that get in the way of dismissing his opponents as misbegotten.

Roberts makes one more point. A priori ideological commitments are not simply biases. They are generally rooted in judgments about the way in which the world works. In the social sciences and law, there is really no such thing as a scholar who -as one of my Marquette colleagues once said - pronounces from the Olympian heights. It is inconceivable that anyone who spends any significant period of time thinking about what social scientists and lawyers think about will not form some judgments about the world.

Not good. Not good at all.

I think that the expectation that the Brewers are likely to win two at Miller Park is misplaced. I would place the likelihood of that happening as a little better than one in five. My former student and research assistant Nathan Petrashek does a nice job of defending Shaun Marcum but the inescapable fact is that his recent outings have been awful. In today's paper, Brewer pitching coach Rick Kranitz talks about Marcum's need to keep the ball down in the strike zone. But that's not a new relevation - that's Marcum's game and he's been unable to do it on a consistent basis for awhile now.

I also worry about Marcum's reaction to the pressure of the playoffs. Tossing his glove up in the air when Paul Goldschmidt hit a grand slam in game three of the NLDS suggests a guy who may not have it together. I hope I'm wrong but I can't give the Brewers more than a 1 in 4 chance of winning on Sunday. Maybe Marcum gets it back or maybe the Brewers win a slugfest - the Cards' bullpen has to fail sooner or later - but the likelihood is that we lose it in six - at home.

But if we can even the series, game seven is not quite even money. You like Gallardo in a big game but I assume that St. Louis will come back with Carpenter who you like just as much. It's great that the Brewers will be at home (and that Gallardo will have full rest), but the combination of Carpenter and Gallardo's 1-8 life time record against St. Louis makes that game a slightly less than even proposition for the Brewers.

But I'll be there for both games if we play 'em and would love to see young Mr. Petrashek explain why I was completely wrong (complete with stats and pitch charts, please). I'll be cheering for Marcum to make his critics (including me) eat their words. But just now I don't see it.

Friday, October 14, 2011

Brewers deal with good and bad

Lot of folks think that the Brewers just needed to win one at St. Louis. Mission accomplished, they're thinking this morning, tonight we play with house money. I disagree. Tonight's game is really important. Here's why.

Shaun Marcum.

I regard tonight's game as a wash. Greinke is a better pitcher than Garcia but he's not as good on the road and Garcia had a 2.55 ERA at home. Let's say we lose. The good news is we come home for two. The bad news is that we have to win them both.

Yovani Gallardo will start one of those games and, notwithstanding his lifetime 1-8 record against St. Louis, I don't see him losing twice to those guys - not at Miller Park.

But doesn't Shaun Marcum have to start one of those games. In his last six starts, Marcum is 1-4. He has pitched 33 1/3 innings and given op 30 runs on 46 hits. That is beyond bad. Given that he is a good pitcher, you have to conclude something is wrong. He's either hurt or his mechanics are fouled up. Unless it's the latter and you are pretty sure you've figured out (and I don't see how you can be), he can't be thrown out there again.

There are, however, no good alternatives. One would be to go to Gallardo on Saturday on three days rest and then bring back Wolf on three days rest. I think you do that only if the Cards win tonight.

If they don't and you've got a game to lose in Milwaukee, maybe you go with Marcum and take him out at the first sign of trouble backing him up with Narveson and Estrada. Another idea would be to go with Estrada or Narveson in the first instance. Roenicke's reluctance to start Narveson because he has not pitched regularly (three starts in the past month) is understandable, but is that a bigger risk than running out Marcum again? (For the curious, Narveson was 1-1 with a 1.13 ERA against the Cards this year.)

Of course, baseball has a way of fooling in you. Games can't be reduced to whomever is starting. I am pretty concerned if we lose tonight but here's a bit of hope. Isn't LaRussa's bullpen set to run out of gas?

Wednesday, October 12, 2011

It's unfair, man.

H/T: Mia Reynolds Reini

Yes. Really.

Right out of college a few years back, my son was doing mortgage restructuring for M & I. He worked with a lot of debtors in Florida who would typically say that the bank should reduce the principal on their loan because their house was now worth half what they paid for it. Chris wondered whether they would agree that the bank could increase the principal if the house had appreciated in value.

It's easy to make fun of the young lady in the picture. Both she and her bank entered into a bad transaction. That she apparently does not understand that the bank is going to lose more than she will is probably a product of frustration rather than ignorance. She is stuck in a bad place and even though she put herself there, it is also a product of market developments that no one expected. It hurts and I can understand why she wants to blame someone else and get someone else to bail her out.

But to say that her plight is the simple product of someone else's greed and can be solved by making that someone else pay is incoherent. A commenter on this blog can't understand why it would be "destructive" to just forgive her debt and let her stay in her house. The comment is illustrative of the problem with many calls for state intervention to achieve "economic justice." It ignores the consequences of intervantion.

The problem with a broad standing debt forgiveness is that it would further seize - if it wouldn't destroy - credit markets. She might be happy until it came time to sell the home or to buy another and credit would be unavailable.

But what about the banks, weren't they bailed out? They sure were although much of that money was paid back. For me, the jury is still out on whether that was a good idea. The best thing would normally be to allow them to take their losses and move on. Maybe the threat of a panic in the fall of 2008 was such that there was no choice. Investors were shocked by the decision to let Lehman Brothers fail but that reaction was itself a product of a bubble and expectations that were themselves largely fed by government policy. Peter Wallison explains some of it (but not all of it) in today's Wall Street Journal.

Having said that, there are solutions for her. In all probablility, she won't have to pay anything in excess of the value of her house because, even in states where deficiency judgments are permitted, she can seek the protection of the bankruptcy courts.

H/T: Dan Sebring

Tuesday, October 11, 2011

The real significance of the protests

Paul Krugman wants to start a narrative of "plutocrats panicking" over the occupation protesters. They could, he implies, change American politics. It's not clear to me that critics of the protesters are doing anymore than beating up an inviting target. The protesters are preternaturally silly and piling on people who still cling to the inanities of the sixties is easy content.

Krugman doesn't know (but hopes) that the protests will change American politics. That seems unlikely right now but, if they do, it will not be for the better. The occupation protests are straight up demagoguery. The protesters are either incoherent (rants about "corporations," "we are the 99%") or call for incredibly stupid and destructive things (guaranteed "living" incomes or debt forgiveness.)

The protests are less about a program than they are about a psychology. They are fueled by the frisson of opposition and manned by the usual suspects. To be sure, there is real economic uncertainty. If you borrowed $100,000 for a degree in Comparative Literature, the prospect of paying it back with your earnings at Noodles is frightening. Unemployment is scary. Underemployment is frustrating and there is too much of both.

But the protesters have no solution. The "movement" largely reduces to a claim that other people have something that I want and should be made to give it to me. It's easy to rail about a few people who are very wealthy but the notion that the nation's economic problems can be solved by taking their stuff away doesn't bear the slightest scrutiny. You can't balance the budget that way. You can't solve sluggish economic demand. Maybe the world would be a better place if Steve Jobs and Bill Gates couldn't become filthy rich by revolutionizing the way we live amd work, but I don't think so.

There is a reasonable critique of government bailouts and the overheated financial industry but it's a complicated one that can't be reduced to narratives about greed (although greed is certainly part of the story)or unfettered capitalism.

I think that the occupation protests will wither away but expect continued emphasis on the class warfare theme by the Democrats and their allies. Without an unexpected economic turnabout, the President can't run for re-election based on his record. He needs a scapegoat - someone to blame and some body to fear.

Saturday, October 08, 2011

It was so much fun because it was so tough

If you're reading the post, you saw it but last night's Brewers' game may be one of the most tense sporting events that I have ever attended. That was a test of will. Arizona seemed on the brink all night but Gallardo, Rodriguez and Axford just refused to lose. There was never an easy moment.

Of course, it's a big thing to win a postseason series but, last night, there was a bit of - not so much relief - but the sense of having recovered something that seemed to be lost. "Is this the best day ever?," a woman asked as we left Miller Park. Of course it wasn't. Not for us and (I hope) not for her. But, at just that moment, it kind of felt like it.

The series against the Cardinals will be a test of the old adage that pitching wins championships. St. Louis has a better line up from top to bottom, but their pitching (with the exception of Chris Carpenter) isn't close. If Marcum can return to form (and he really pitched at about his season average over the past ten starts), the Brewers win in six.

Friday, October 07, 2011

Are you ready for some football?

I'd understand the banishment of Hank Williams, Jr. if there was some even handedness in the exile of celebrities. Keith Olberman remained on NBC football telecasts long after he has said some of the most stupid and offensive things to be heard outside Pacifica and Air American. Janeane Garafolo, Bill Maher, Kanye West. All of these people remained in polite society. I could go on.

The other thing I dislike about the affair is the inability of the chattering mob to think critically. Williams was not comparing Obama to Hitler. He was just trying to suggest two diametrically opposed figures whose cooperation seemed to him as unlikely as between the President and Speaker of the House.

Of course, the analogy was stupid. While we thing that the divide between Democrats and Republicans is enormous, it's nothing like the existential divide between the Nazis and the Jews. But Williams is a singer not a scholar and artists are often only lightly tethered to the real world.

So, yeah, I'm ready for some football. I might really be ready for some football by tomorrow. I am foolishly optimistic about the Packer game. 44-27.

Thursday, October 06, 2011

Game five is uncomfortable

When it comes to predictions, sometimes you eat the bar and sometimes the bar eats you. I wish I would have been wrong about the pitching match-ups in Arizona. While I feel that the Brewers will win today, a realistic assessment of the probablity would have to place their chances at substantially less than even.

There are some good things. Yovanni Gallardo has allowed only three runs in twenty innings against Arizona and, of all the Brewers pitchers, he's the one I like best in a big game. He's mentally tough. I think he'll come out sharp.

But so will Kennedy and, as good as Gallardo is, Kennedy is (at least this year) a better and more consistent pitcher. He allowed 4 runs in game one. He allowed that many only six times in 33 starts this year. He allowed that many back to back only once - actually a three game stretch at the end of June. At best, the game is likely to come down to a bad bounce or a Texas Leaguer. The D'backs gave gotten back into it with the long ball and Gallardo is susceptible to that (27 on the year as opposed to 19 for Kennedy). At worst, he serves up a few more and the Brewers go quietly.

You'd feel better if the last two losses hadn't been so ugly and momentum is certainly with Arizona, but baseball is a funny game. Momentum cuts both ways. Confidence is important. Emotion less so (except in a negative way). The problem here is that the Brewers' offensive streakiness reflects a tendency to panic when things go bad.

Of course, I have been following the Brewers since the beginning and am marinated in failure. I remember the meltdown in the '82 series and their inability to handle the Yankees in that era. The Brewers have had precious few big games in 41 years and they have tended not to go well.

Having got my negativity out of the way, I can go out there today and be of good cheer. I'm hoping that the game stays close and the Brewers get to the D'Backs pen. A couple of runs in the eighth to tie and a run scoring single by Braun in the ninth. 5-4

So says my heart. My brain is not so sure.

Tuesday, October 04, 2011

Let the state defend where it acts

I need a break from the Brewers' off night (not that I'm giving up) and spent some time perusing WisOpinion. There is a link to a site called Badger Democracy and a post by someone named Scott Wittopf regarding SB 117, a modification to Wisconsin's venue statute. It is a topic near and dear to my heart and, while I commend WisOpinion for recognizing its importance and even to Mr. Wittopf for addressing it, he doesn't have it right.

To get the legal jargon aside, "venue" has to do with where, from all the courts which may have jurisdiction over a matter, the action must, at least presumptively, be brought. Under current law, if the state is the sole defendant action in an action, it must be venued in Dane County. Don't like what the GAB or Governor has done ? It's Madison for you.

There are a few problems with this. First, it is not at all clear why an aggrieved taxpayer or citizen should have to go to Madison to challenge an action that affects him in Milwaukee, Superior or Crivitz. This is Mr. Wittkopf's first big mistake. He seems to assume that, if you want to sue a corporation, you must go to the county in which it is headquartered. That isn't true. Putting aside the more esoteric grants of venue, you can always sue in the county in which the cause of action arose or a county in which the corporation does any substantial business. Mr. Wittkopf may not know it, but both Wisconsin and non-Wisconsin corporations get sued away from home every day of the year.

Second, there is an inherent threat to judicial independence associated with venue in Dane County. Dane is a company town dominated by the interests of state government and allied interests. Much of the time, this doesn't much matter. But on hot button issues - like Act 10 or other politically charged issues - Dane County judges find themselves faced with issues on which an overwhelming majority of the people who vote them in or out or office feel intensely and lopsidedly. Under those circumstances, venue might be better placed elsewhere.

This is not to cast aspersions on any Dane County judge. We all do our best. We are all challenged by the circumstances in which we find ourselves.

Don't follow? Let me expand. About 15 years ago, I represented the Wisconsin Trial Judges Association with respect to a challenge to the election of judges on a county wide basis under the Voting Rights Act. The case was brought by the Milwaukee chapter of the NAACP who wanted judges in Milwaukee County to be elected by districts drawn within the County. The idea was that a north side district would be most likely to elect an African American judge.

The trial judges mostly hated the idea. As one judge from the North Shore told me, he was charged to hear cases from throughout the county. But if he decided that an inner city defendant defendant was entitled to a break, it might not sit well with his neighbors. If he has to hear cases from throughout the county, he ought to be elected by voters throughout the county.

The issue here is different but informed by the same insight. State actions affect people throughout the state. Why shouldn't those actions be subject to judicial review throughout the state? To be sure, there can be parochial interests in any particular county, but those interests are not - in the run of cases in which this matters - any more parochial than those of the voters of Dane County.

While some federal actions need to be heard in DC, the Wisconsin rule is not the rule in federal courts. You can challenge federal actions across the country and it seems to have worked relatively well. The need for that flexibility is behind SB 117,I'm not sure that I would have given an untrammeled choice of venue to the plaintiff or appellant, but this is a move in the right direction.

It's not over for the Brewers

A cautionary note. The Brewers are to face Diamondback pitchers Josh Collmenter and Joe Saunders in Arizona. Collmenter pitched twice against Milwaukee, allowing no runs and six hits in 14 innings. Saunders started once against Milwaukee, allowing only two runs and five hits in seven innings. As for the Brewers starters, Shaun Marcum allowed four hits and four runs to Arizona in one outing and Randy Wolf lost both his starts giving up nine runs and eighteen hits in a little over 14 innings - although his second start (in Arizona) was pretty strong.

And, of course, if we go to a game five, the Brewers will have to face Cy Young candidate Ian Kennedy again.

Of course, one or two starts don't mean all that much but you get the point. Let's hope the Beasts get to Collmenter early and often.

Reaction Coming to Milwaukee ...

... in the form of the "OccupyMilwaukee" movement, a local offshoot of the "Occupy Wall Street" protests in New York. For me, the whole thing - like the protests in Madison - are fraught with nostalgia. They remind one of a more innocent time when the economy could be seen as a struggle between oligopolies and unions (themselves a form of countervailing oligopoly) and one could still believe that socialism might work. We've learned a lot since then. All of the old cliches - "the whole world is watching" - and the art work modeled after mid century Soviet propaganda posters are back. You almost expect to see Grace Slick motor over from the Scooter store.

The Occupiers claim to represent 99% of us and, as Rich Lowry points out, they would if 99% of us were "stereotypically aging hippies and young kids who could have just left a Phish concert."

The plan is apparently to show up at Chase Bank on October 15 (it'll be closed) and demand stuff while beating bongos and just generally getting in the way. Should work wonders.

The "demands" are diffuse involving variations on the theme of someone else giving stuff to the protesters. "Pay us back," they say. If they are talking about TARP money, Chase already has but I want to focus on the "us" part. The occupiers don't exactly look like the taxpayers that comprised the Tea Parties.

One set of demands, posted by a gentleman named Lloyd Hart, calls for the forgiveness of all debt. (H/T: Daniel Foster) He thinks this will create jobs. That this guy probably went to or attended college is a telling indictment of higher education.

Monday, October 03, 2011

Slashing or Satiating?

The next time you hear about underfunding public education or the things that could be accomplished if we just spent more, keep this chart in mind.

H/T: Mark Perry. Perry quotes from former Viking and Giant quarterback Fran Tarkenton's article contrasting the NFL and teachers' unions in today's Wall Street Journal.

Tarkenton was one of the most exciting players of his day.

Let's hold off on the socialism thing

As a member of both the Milwaukee County and State Historical Societies, I really appreciate John Gurda's historical work. He is very much a local treasure. I've noted that his columns in the Journal Sentinel have become increasingly political. Yesterday's piece was completely political with virtually no historical insight. Nothing wrong with being political, but, in his case, the politics are misguided.

I don't write my own heads for the Journal Sentinel and I assume that John doesn't either, but the head for yesterday's column combined with its content is breathtaking. "A bipolar nation rejects reason," it says. What is the reasonable proposition that it has rejected? It turns out to be a "reassessment of American capitalism."

That doesn't surprise me. Gurda seems (somewhat anachronistically) charmed by Milwaukee's sewer socialists. But I think the notion that it is a rejection of "reason" to decline to depart from an economic system that has created what remains the most prosperous nation on earth is just a tad beyond the pale.

Yet I think that this is increasingly what we are going to see in the coming political season. Having failed to solve the economic downturn and getting owned at the polls in 2010, the left is going to double down on the Grapes of Wrath thing.

One of the arguments made in support of such an argument has to do with the "disappearing" middle class. It is always easier to make such an argument in an economic downturn, but it is usually combined with an argument that middle class income has been stagnant for a long time and there are certainly statistics that can be used to support such a claim.

But I've long had a problem with that. I've been around for awhile. I remember how the working class lived in 1966 because my family was smack dab in the middle of it. Many of them still are. And, I have to tell you, people today live a lot better than they did in 1966. They drive better cars and live in bigger houses. They enjoy better health care and are far more likely to have things - color TVs, a second car, air conditioning - that were considered a luxury back then. They have all sorts of gadgets that were unheard of at the time and, contrary to Gurda's implication that college has become unaffordable, there are a heck of a lot more people going to college today. I never flew on a plane until I was 22 and didn't really know many people who had. You won't find many middle class people for which that is true today.

All of this stuff can be verified empirically. So what gives? There are a variety of answers including flaws in the way that income growth over time is measured (e.g., overstatement of inflation and failure to measure improvements in quality) and the reduction in taxes on middle and lower income persons. Some of it may be an increased willingness to borrow, but even that begs the question of how persons have been able to borrow.

A fascinating discussion of these issues by University of Chicago economist Bruce Meyer can be found here along with links to some of the work that is discussed. He takes on some conservative shibboleths but deflates the conventional wisdom on the stagnation of the middle class.

And for more, you can follow this exchange between Tyler Cowan and Russ Roberts.

Sweep is great but there's more to come

Doesn't seem right to do politics before noon today. I went to the Brewers games on Saturday and Sunday and gave my Packers tickets to my son (a Hobson's Choice!). I never went to UW (although I got admitted there four times) but I grew up rooting for the Badgers. I remember 1967 and 1968 - the team went 0-19-1. I can recall listening on the radio to the game in 1969 when they finally ending a very long losing streak against Iowa.

The thing about this weekend is that it went beyond the moment; beyond the sweep. I still don't think UW will play for the national championship (I think Michigan State is a huge trap game) but you there are way in the mix. It could happen. The Packers' situation is captured by the idea that we're still a bit uncomfortable with a 26 point win because the defense wasn't as sharp as we want them to be. With their offense, it may not matter.

Can the Brewers beat the Phillies? Will they have to? They look like a team of destiny and I've got tickets on my credenza that say "World Series" and there's a good chance I'll get to use them.