Shark and Shepherd

John Doe skirts the edges

2012-01-27T14:15:00.002-06:00

A couple of things about the charges emerging from the John Doe yesterday.

First, it is harder to make the type of legal objections (due process, fair notice, vagueness) to allegations grounded in fundraising activity. The statutory prohibition of fundraising is clear and the line between fundraising as political work and other activities such as developing policy or engaging in certain forms of outreach and advocacy. The one thing that Wink and Rindfleisch should have been clear on is not raising political money on government time.

Second, as with the caucus scandal, I continue to dislike dealing with this type as a criminal matter. I understand the theory - you don't want to give incumbents the advantage of having people campaign on taxpayer time. But it seems to me that to ask political appointees to stop being political is like expecting a dog to give up a bone. Of all the advantages that incumbents have, a few political appointees doing political work from the office would seem to be pretty far down the list.Even if criminal charges are appropriate, charging these things as felonies and exposing people to a potential of fourteen years in prison strikes me as overkill.

More fundamentally, it leads to the threat of partisan use of the prosecutorial process. If you spend eighteen months scouring through the activities of any elected official with substantial appointed staff, you are probably going to find a few Winks and Rindfleischs. Who gets tagged with scandal is largely a function of whose opponents are willing to invest (public) resources to find one.

What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny?

Third, the timing (and, to a lesser degree, the composition) of the the complaints have a partisan tinge. There could be an explanation for the fact that the DA spend eighteen months to produce what really are two relatively simple complaints, but the timing - on the eve of a recall election - prompts one to raise the question. What took so long? Why now?

I also find it odd that the complaint goes to substantial length to suggest that the candidate that Rindfleisch raised money for - Brett Davis and not Scott Walker - was "preferred" by certain people in Walker's campaign. Why does that matter? The implication that some will draw is that she was doing this "for" Walker. While I may be overly sensitive, it is, strictly speaking, unnecessary to support the charges - if she was obtaining a dishonest advantage for Davis it doesn't matter who else supported Davis - and one would ordinarily not place extraneous matter in a criminal complaint.

If an implication was intended (or if others draw it), was it fair? If the DA could link Walker to this activity, he would have charged him. If, as apparently is the case, he cannot, then perhaps he should stick to knitting. This would have been particularly prudent given the outsized resources devoted to a John Doe that has thus far produced very little, the foregoing questions about timing and the extraordinary leakiness of the entire operation. Why appear to be partisan when you don't need to?

Fourth, as suggested by the last point, there is still nothing that implicates the Governor in anything. Walker's only appearance in this complaint is to tell his people to cut out anything that might look like political activity. To be sure, partisans are going to use that to suggest that he "just didn't want to get caught" or that he "knew" what was going on, but here's the bottom line. After eighteen months and God knows how many tax dollars, we have precisely no wrongdoing by Governor Walker - only two people who worked for him.

Fifth, as scandals go, this is small ball. If Wink and Rindfleisch raised money on county time in county facilities, they acted foolishly but there are a lot of fools in the politics. It is not clear from a perusal of the complaint, for example, whether they spend more time fundraising than a lefty blogger spent "weblogging" or reading blogs or doing whatever it was he was doing instead of his job.

Sixth, the allegations regarding a "secret e-mail" system are interesting although a bit of a misnomer. Apparently certain people were using laptops for political work and the accessing the internet through means other than the county's ISP provider to communicate with each other. According to the complaint, some of these communications were related to county business.
I wonder how many public officials use this or other tactics in an attempt to engage in communications that won't be subject to open records requests. How many of these officials do these things in an attempt to comply with the law, i.e., to keep political and government business separate?I also wonder how many even stop to think about whether there are other reasons not to do it?

Finally, while I don't think it's necessarily illegal to create such a system, I also don't think that the records created on it - if they relate to official business - are immune from open records requests.

Perpetual recalls as constitutional amendment

2012-01-24T08:49:00.001-06:00

Wisconsin used to elect governors to two year terms. We amended our constitution in x to extend the gubernatorial term to four years, presumably because we think it takes at least that long to give an administration a fair shot at implementing its vision of state government.

But I guess we're going to back to two. Bill Kraus (who people have finally stopped calling a Republican) wonders if this season's recalls will be followed by a return to sanity:

Will, when this is all over, the combatants come to their senses and take a pass on the use of recalls to protest misguided (subjective) votes and procedures instead of high crimes and misdemeanors as reasons for impeachments and recalls, and revert to the more traditional representative government remedy for incumbents’ bad policies and votes--the next election?

Not a chance.

I don't think that the Democrats and public employee unions will remove Scott Walker from office, but, if they do, they can expect the threat - and perhaps the fact - of recall to become the new normal.

The problem is this: There is no argument for recalling Governor Walker other than a dislike for his policies. He hasn't committed a high crime or misdemeanor. He has used the power that voters gave him and angered the party of government. he has been no less peremptory and partisan than Jim Doyle. Notwithstanding what appears to be a year and a half long proctological examination by the Milwaukee County District Attorney, we have yet to see any allegation of wrongdoing by the Governor. (And, no, even the charges that Dan Bice's scofflaw sources think are coming won't amount to that unless he himself is involved. Give me eighteen months and I can find campaigning by political appointees in any one's administration.)

While one might think that the Democrats' success in collecting lots of signatures is indicative of a belief that this is special, I'm not so sure. Given the right policy decision by a Democratic (i.e., one that outrages the conservative base), I think that Republicans could do the same thing. Look at the way that they matched unprecedented Democratic turnout efforts in the Supreme Court and summer recall elections. The public employee unions are good at this type of organization, but technology has not only made this type of mobilization easier, it has also leveled the playing field.

I don't see it happening immediately if a Democrat unseats Walker and a sufficiently conservative Democrat (think Tim Cullen) might avoid it altogether because he or she won't do anything that arouses opposition (and satisfies the left), Even someone further to the left who will rally the Republican base in opposition (think Kathleen Falk) is unlikely to face recall in what will essentially be a two year term.

But imagine a new Democrat elected in 2014 who, like Scott Walker, attempts to implement significant and substantive policy changes. Don't think for a moment that recall will be off the table.

Escalation is a game that everyone plays.

If you don't want perpetual recalls, vote for Walker.

Or support a return to two year terms.

On the John Doe: Curb Your Enthusiasm

2012-01-23T18:27:00.002-06:00

A couple of things to keep in mind regarding Dan Bice's story concerning coming charges against people who worked for Scott Walker.

First, these "sources" are probably breaking the law by talking to Bice. John Doe proceediings operate under orders of nondisclosure directed ti witnesses and lawyers. In other words, anyone in a position to know these things is under a duty not to disclose them. While you can imagine more benign explanations, Bice's sources are either speculating or violating their legal obligations. Whether or not the former are wrong or the latter lack credibility, only time will tell.

In the meantime, if John Chisolm is not beside himself, he should be. If these "sources" truly know what they clain to know, it is highly likely that they are in his office.

Second, assuming that the charges here are a variation on the "caucus scandal' cases invovling Republicans like Scott Jensen and Steve Foti or Democrat Chuck Chvala and Brian Burke, the legal validity of those charges is uncertain. In other words, it is not clear that doing political work from government offices is a crime.

Indeed, in the Chvala and Jensen cases, the Wisconsin Supreme Court split 2-2 on whether the prosecutions could go forward. The political activities in question were clearly contrary to the legislature's rules (although not its bipartisan conduct), but the Justices split on whether it could be criminally prosecuted. Justices Wilcox, Prosser and Butler did not participate. Justices Crooks and Roggensack apparently would have found that the prosecutions were unconstitutional for due process, fair notice and vagueness concerns. Chief Justice Abrahamsons and Justice Bradley would have allowed them to go forward.Because the court of appeals had held for the state, the decision below remained standing and both prosecutions went forward.

Of course, we don't know what will be charged (or if it will be charged) but, even when we do, we may not know whethter it's really a crime.

Newt's Love Life

2012-01-23T09:15:00.000-06:00

There is an argument that the circumstances regarding Newt Gingrich's marital history is relevant My own view is that, in terms of assessing character, other people's marriage circumstances are almost always nonjusticiable. Relationships are normally complex and we almost never can know enough about someone else's life to assign "blame" (or even to know whether there is "blame") for martial woes. This is not moral relativism. It's a moral humility that recognizes that this is an area of life that outsiders can't really know enough about to judge.

Still, family break-up is an enormous problem for children and, in particular, children of low income parents who often lack the resources and social capital to handle the consequences. Some conclude that the "bad example" offered by Gingrich (who, you have to admit, has a tough history) is appropriately counted against his candidacy.

A good argument for that point of view. alneit from a Catholic perspective, is offered by Ramesh Ponneru. But the argument - as Ramesh recognizes - goes only so far. It suggests that Newt's marital past is a negative factor, but not a dispositive one.

Here's an historical question and a thought experiment. First, the historical question. Which of the following group of Presidents was stronger: Teddy R., Harding, FDR, Ike, JFK, LBJ, Reagan and Clinton or Taft, Coolidge, Nixon, Carter and the Bushes, There are, I think, good and bad in both groups but most people on both sides of the aisle would probably chose the first. I think you know what divides them.

Here's the thought experiment. Imagine that you are a committed supporter of Barack Obama (perhaps you are) and believe that his re-election is critical to the future of the country. In a tearful press conference, Michelle Obama announces that her husband has has an affair and proposed that she allow him to continue on with his mistress. She refused and he has decided to divorce her and marry the other woman.

Are you going to vote Republican?

The answer, for most liberals that I know is "of course, not" and I don't blame them. As much as they might disapprove of the President's conduct, the fate of their country (as they see it) trumps whatever judgment they might form (if they can form a judgment) about his behavior as a husband.

But what about that cardinal sin of a morally agnostic society, hypocrisy? Aren't the Republicans the party of family values? I have at least two problems with that. First, are we now to presume that the Democrats oppose family values? I know that they get accused of that, but I haven't heard them accept the criticism. Second, there is a difference between fostering an ideal and recognizing that it cannot always be achieved. This is one of the reasons that concern about marital dissolution and its impact on kids (for what it's worth, the children of Gingrich's first marriage were older at the time of his first divorce and he had no children with his second wife) does not imply the prohibition of divorce. The promotion of an ideal does not require us to ignore human fallibility or the nature or real world relationships.

Interestingly, the Marianne Gingrich story seems to have had no impact in deep red South Carolina where Gingrich handily carried both evangelicals (itself a nice trick for a Catholic) and married women.

I am not a fan of Newt Gingrich and I'm not supporting him for the nomination. He is a man with enormous gifts and enormous flaws (these things often go together). He's got more problems than serial monogamy, But if the choice is between Newt and Barack Obama, the public good requires, in my view, voting for Newt.

PolitiFact Flubs on Falk

2012-01-20T16:02:00.001-06:00

Further to the quirkiness of PolitiFact, this rating of Kathleen Falk's statement that she saved Dane County about ten million dollars by agreeing to wage and benefit "reductions" is bizarre.

The union agreed to trade off higher co-pays and deductibles for protection against the need for higher pension reductions. That is trading one benefit for another.

The union also traded pay reductions for increased personal leave. Unless you think that the county gets nothing for a day of work from a unionized employee, then reducing work in return for reducing pay entails a cost. The same can be said for trading pay reduction for the ability to bank additional sick pay or a commitment to make no layoffs.

These may or may not have been good ideas but they were not "reductions" that "saved" ten million dollars. They were paid for at a real cost to taxpayers.

Perhaps a false rating would not be in order. There were reductions in wages and benefits even if they cost the taxpayers in other ways. In response to an earlier version of this post, my colleague at WILL, Tom Kamenick (calling out the boss ! - good for him) argues that we'd say that layoffs "saved" money. That thought had occurred to me and it doesn't surprise me that Tom would be smart and candid enough to point it out.

He has a point but a politician who had laid off employees would have to justify the cost associated with they layoffs and we wouldn't say that employees wages and benefits were "reduced."

Falk offered this in response to a claim that Walker's reform saved taxpayers money. She claimed that her "reductions" were an example of her doing the same thing through negotiation. As PolitiFact points out, she was trying to argue that she could do the same thing as Walker in a way that public employee unions would like.

But it wasn't the same thing. Walker reduced state expenditures by a lot in exchange for more modest service reductions. Falk seems to have given up as much as she gained. Maybe that's a good thing but, by failing to point out the ways in which the agreements cost the taxpayers money would seem to be, in PolitiFact's terms, either an accurate statement that "leaves out important details or takes things out of context" ("half true") or a statement that "contains some element of truth, but ignores critical facts that would give a different impression." (mostly false).

Silly Job Narratives

2012-01-20T14:56:00.002-06:00

Wisconsin had robust job growth in the first six months of last year and suffered a decline in jobs during the last six months. The net has been an increases in both private (13500) and total nonfarm (3200) employment during 2011. Compared to a total work force of 2.74 million in the state, it's safe to say that employment has remained flat.

So what do we make of this?

Partisans on the left want to say that Scott Walker's budget is to blame for the decline in employment over the past six months. This argument will become increasingly important to them as it becomes clear that their earlier claims that the Walker budget would devastate public services turn out to be hysterical.The argument is that it "sucks demand" out of the economy.

If you give this claim more than superficial attention, it proves too much, doesn't it. It suggests that government creates demand that would otherwise not exist by spending money. How can that be?

In the national context, classic Keynesian stimulus has said that we can "inject" money into the economy by borrowing it during recessionary periods. Whatever the merits of this, the analysis is different on the state level. The state can't borrow money to finance current operations so it's choices are limited to shifting money from the pockets of taxpayers to the recipients of government spending. It can neither inject money into or "suck it out of" the economy. All it can do is move money from one pocket to another. (This criticism is not entirely inapt to national economic policy as well but it's not as simple.)

So, for Walker's budget to be blamed for sluggish job growth, the argument has to be that the money will be more productively spent by those to whom the government will give it than by the taxpayers, e.g., that it is better to let public employees pay little or nothing for their health insurance than it is for homeowners to pay lower property taxes.

If Democrats want to make that argument to recall Scott Walker then God bless them.

Of course the fact that this claim would be a political nonstarter doesn't disprove it. Maybe its true but it's not self evident. The job numbers don't prove it because there are far more substantial items affecting the state's economy than the state budget and the impact on the recipients of state funds and the taxpayers may be timed differently, i.e., state workers see an immediate reduction in take home pay but taxpayers don't see lower property tax bills until December. It is also not clear that the most productive uses of funds will have an impact at the same time as less productive uses. If, for example, it is better to encourage investment than current consumption, the benefits may take longer to realize. We may have to accept a sluggish short term for a more robust long term. (This is one of the criticisms of the argument that "austerity"doesn't work. It might well work depending on how it is executed.)

My own sense - formed after years as both a Democrat (I was once chair of the North Shore Democrats) and a Republican is that our expectation that the government can "create" jobs or fine tune the economy are overstated. Neither the President nor the Governor sits in the basement mouse clicking and turning dials to run the economy. We should assess public policy more modestly and ask whether it has or has not provided a needed public service at the lowest possible cost. If a train makes sense, build it. If schools are underfunded, increase their funding. But do neither of these things because we think that spending the money will create jobs without regard to whether the expenditures make sense, i.e., are superior uses of the money.

On that basis, the Walker reforms look pretty good.

This was no peppercorn

2012-01-18T10:25:00.000-06:00

In Sunday's Milwaukee Journal Sentinel, community columnist Chuck Baynton, who is a physician and a self-described "peace activist" (normally a synonym for "left wing" activist), tries to play the lawyer's game of hypotheticals to show that Justice Michael Gableman's arrangement with Michael Best was a gift.

He plays it like a guy who went to medical school.

But, in fairness to Dr. Baynton, he's not the only one. Others ahve done the same thing, essentially arguing that Gableman should be subject to professional discipline - (and perhaps even criminal charges under chapter 19) - because the deal that he cut with Michael Best was "too good." The firm didn't, in the view of these two, get "enough" for its services to be something other than a gift.

Think about that for a minute. The argument is that people's careers should be ruined because of a subjective after the fact determination that the deal was just wasn't good enough for the firm.
Dr. Baynton supports this with the reductio ad absurdum suggesting that we'd call it a gift if Michael Best worked for a dollar or a Megabucks ticket. Maybe we would.

Although there is a presumption in the law against requiring that consideration necessary to support a contract to be more than illusory (hence the famous reference to a "peppercorn" being sufficient), we might want to interpret the Judicial Code and Chapter 19 a bit differently. (In fact, I suggested that in one of the first posts I wrote about this.) Perhaps there are some forms of consideration too obviously insubstantial to support the provision of services to a judge or other public official. Maybe a dollar or a Megabucks ticket would fall into that category.

But that's not this case.

This case involved a contingency arrangement in which a lawyer agreed to accept fees only if he won and, even then, only those fees that might be awarded to him on application to the state claims board.
How do we tell if that could be adequate consideration?

Well, one thing we might do is look to see if lawyers ever enter into such arrangements in other contexts where there is no suggestion of a gift. When we do that, we see arrangements that look an awful lot like this. Lawyers in civil rights and class actions cases do it all the time. They agree to accept fees only if they win and, even then, to limit themselves to whatever fees might be awarded on application to a tribunal, usually the court that decides the case.

That is this case.

In almost a month of public discussion of this matter, I have only heard two responses to this. The first is a non sequitur. It says that those arrangements are different because they almost always involve representation of a plaintiff.

But that doesn't tell us why the client's position in the caption ought to matter. These contracts are almost always with the plaintiff because the governing law generally permits - at least in the great run of cases - only plaintiffs to recover. Not true here. The governing statute expressly permits awards to prevailing respondents (the equivalent of a defendant in an ethics case).

A better - but still insufficient argument - focuses on the likelihood of fees being awarded. Note that this argument can't rest on the fact that fees are awarded only if the client (Justice Gableman) prevails. That's true of all contingency arrangements.

Instead, one must argue that it should have been clear to Justice Gableman and Michael Best that it was improbable that the state claims board would award fees even if he won.

But why would they have thought that? The statute is on the books and clearly permits the payment of fees. The fact that it has only been used - and could only have been used - one time reflects nothing more that ethics complaints against judges are rare, not that this type of arrangement is unusual or that fees were unlikely to be awarded. That they were not fully paid in the only case in which the statute has been - or could be - used doesn't tell us much about what would happen here.
The best thing that this argument has going for it is that it was likely that the legislature would have had to approve a fee award. That does make the recovery of fees improbable. Why would we assume that the state claims board and legislature would not honor the fee request of a sitting Supreme Court justice?

To be sure, there were reasons - including political reasons - for the firm and Justice Gableman not to enter into such an arrangement. If I were in the place of either, I might have chosen not to do it. But it's quite another matter to say that the arrangement was unethical or illegal.

I have yet to read an effective and thorough response that supports the claim of illegality. I have seen references to "smell tests" and "gut checks" and I respect that. But we don't send people to jail or remove elected officials from office for misconduct based on olfactory or gastrointestinal disruptions. I have seen off the cuff ipse dixits from out of state law professors (although Professor Gillers apparently agrees with me that the arrangement was not improper.). But mostly I have seen sneering and snarking - accompanied by legal analysis that is the equivalent of holding up a sign at a football game. I have seen mischaracterization of the arguments that I and others have made and a failure to engage that is more consistent with cheerleading than discourse.

Again, recusal is another matter. More to follow.

Process reflections on recall day

2012-01-17T16:00:00.000-06:00

I was a bit puzzled by last week's announcement by the Government Accountability Board that is has engaged an outside vendor to build a data base of the names and addresses on the recall petitions. The article reports "[b]ecause of the judge's order, the board is purchasing software that can electronically read printed names that appear on the recall petitions and load the names into a database. " The cost of this is said to be $ 100,000 (out of an estimated nine million dollars for the cost of the recall statewide).
Is that right? Did the GAB really contract with this vendor after the judge's order. The GAB has always said that it was going to put the names on line.

If building a data base is not new, what is? Perhaps it is the ability to search the data base. Presumably this data base is searchable, e.g., it can look for duplicates.
Did the GAB have a contract to build a searchable data base prior to Judge Davis' decision? If not, did it have a contract that to build a data base that could be searched through the purchase of an upgrade? If that is so, was the cost of that upgrade in the neighborhood of $ 100,000?
And, it all of that is so, why did the GAB repeatedly say - or at least give the impression - that it lacked the resources to conduct more than a cursory review of the names?

Reflections on recall day

2012-01-17T15:52:00.000-06:00

I have always expected that the recall organizers would meet their mark. Public employee unions are very good at the type of organization that this requires and, it appears, did a good job. Given the value of electronic communication and social media in any such effort and the intensity of feeling on the other side, their success is not surprising.

But it is success and congratulations to them. While I doubt that there are over a million distinct and valid signatures, there should certainly be enough to hold an election. (Not that this should not be verified.)

Whether this translates into electoral success is another matter. Recall organizers did very well in last year's Senate recalls and wound up losing to four of the six targeted Republicans. There is no particularly strong candidate on the Democratic side and the other side is about to start playing.

We are a purple state and I suspect that the results of the recall election will show that. I think the Governor will win but I also suspect a close and hard fought race.

Odd suit against Clarke

2012-01-12T15:15:00.001-06:00

This case strikes me as odd. The Milwaukee County Corporation counsel sues the Sheriff and alleges that deputy sheriffs who have been retained by the Sheriff in opposition to the County's budget and directive that Clarke eliminate certain deputy positions may not be duly sworn law officers. The suit suggests that the actions undertaken by these deputies may be illegal or otherwise subject the County to liability because they "aren't working" for Milwaukee County.

Why the Corp Counsel would argue this is unclear to me. It's one thing to say that the Sheriff should have eliminated these people and, in failing to do, is misusing County funds and even to sue him in order to force him to lay off the requisite number of deputies.

But its quite another thing to jeopardize criminal prosecutions and create the potential for other problems by suggesting that the activities of these officers are ultra vires. I haven't looked at the question but it seems unlikely that this is so.

Beyond that, why would the lawyer for the government of Milwaukee County want to suggest that is is so?

Of venue and forum shopping

2012-01-12T13:05:00.001-06:00

My post on the Marquette University Law School Faculty Blog on Judge Davis' decision ordering the GAB to conduct a more extensive review of recall petitions can be found here.

The decision of the plaintiffs to file in Waukesha County has been derided as "forum shopping" facilitated by a new law that permits a plaintiff to, subject to certain exceptions, choose any county in which to bring suit in an action where the state and its agents are the sole defendants.

This provides an opportunity to comment on the idea of "forum shopping" and the new law governing suits against the state.

First, all lawyers will try to get their case into the best possible forum. For example, the current challenge to redistricting pending in federal court was a blatant exercise in forum shopping. The plaintiffs filed a challenge before the new districts had been passed. They did do by arguing that the old districts - which no one intended to keep - had become unconstitutional in light of the 2010 census. (As old districts always do.)

The purpose was to win the "race to the courthouse door" in an attempt to keep redistricting out of state court (which the US Supreme Court has suggested is the preferred forum). Do I blame the plaintiffs' lawyers for doing this? No. They were employing whatever tools were available to them.

The change in venue laws for actions against the state was a good idea that was poorly executed. It was a good idea because there is no reason to force taxpayers to Madison in order to sue their own government. One does not generally have to go to DC in order to sue the federal government and so it should be here. Looking at it another way, it may not inspire public confidence to require suits against the Company to be brought in the Company Town.

But it was not necessary to allow a plaintiff to pick any county. A better approach would have been to permit the plaintiff to sue in Dane or in any county in which a substantial part of the cause of action arose or the harm was suffered. These can be fuzzy concepts but they work in other contexts.

Because the new law went beyond that in giving the plaintiff an unlimited choice of venue, the law has a curious venue provision in the event of appeal. The losing side in the trial court can pick the district in which the appeal will be heard as long as it is not the district in which the trial court is located.

I am sure that this was intended to discipline plaintiff's unlimited choice of forum but it also enhances the opportunity for gamesmanship - and we see that in the case challenging the GAB's intent to conduct a more limited review of petitions.

Of course, the plaintiffs chose Waukesha because they expected it to be a favorable forum. Having lost, ~~the GAB~~ Democratic groups (Ed.: It was Democratic groups that had attempted to intervene that filed an appeal - not the GAB) that attemted unsuccessfully to intervene have now chosen District IV of the the Court of Appeals which embraces - Dane County. They certainly expect that District IV will be a more favorable forum.

Of course,what you expect in a particular place is not always what you get. Judges are limited by the law in ways that politicians are not. Neither Judge Davis' decision - or whatever a District IV panel might do - was or is foreordained. Lawyers understand that but if you can do something that might improve the odds, it's hard to explain to your client why you shouldn't try..

So lawyers on all sides look to get whatever advantage they can. Railing against Republicans for forum shopping is only going to bring examples of Democrats doing the same thing.

And vice versa.

The changes in the venue law were undertaken in response to some serious objections concerning the old law but may not have been the best way to address them.

Who owns John Lennon

2012-01-10T13:43:00.002-06:00

From the "Blogging Blue" site, two lefty bloggers who attended an Americans for Prosperity event found it odd that Republicans would listen to the Beatles' "Come Together."

Yes, the AFP crowd was humming along to a John Lennon acid trip song, conveniently forgetting that John Lennon was definitely not one of them.

So are they saying that an "acid trip song" would be an appropriate theme for a Democratic event?

Just wondering.

A little common sense about free speech and nonprofits

2012-01-09T09:04:00.000-06:00

Bill Lueders' article on the joint educational campaign of the MacIver Institute and Americans For Prosperity concerning the impact of collective bargaining reform and the current bieennial budget suggests that such communications are unheard of activity for a 501(c)(3). While acknowledging that the communiations don't refer to any candidate or contain any calls to vote for or against a candidate, the article quotes lefty "watchdog" Mike McCabe to the effect that the campaign is political advertising in masquerade. The reason, presumably, is that the communications take a position and disclose facts that place policies adopted by Governor Walker in a good light,. In McCabe's view, that makes it "political."

But is that true? how unprecedented is this? Are there no 501(c)(3)s who, for example, put out communications that are unfavorable to Governor Walker? McCabe and Lueders don't know of any.

But I do. In fact it took me two minutes to find one. The Institute for Wisconsin's Future is a 501(c)(3).
It has put out a report entitled The Price of Extremism: Wisconsin’s economy under the Walker administration. On it's website, it promotes the report under the heading "Walker policies costing Wisconsin jobs."

And then I remembered that Mr. McCabe himself has used his nonprofit's website to attack a candidate for public office in the middle of a campaign.

Now if the MacIver/AFP effort is close to the line, the IWF/WCD efforts must be well across it. They do mention a candidate for office. In fact, in an article discussing the report in the Shepherd Express, IFW's Director Jack Norman says that his 501(c)(3) organization's report " is a good reason to get rid of Walker midterm."

Now, as the President of a 501(c)(3), I wouldn't put stuff like that up on my website or be quoted saying things like that in connection with my group's activities (as opposed to in my individual capacity).

But I also wouldn't say IWF (or even WCD) has crossed any lines.

My point is simply that MacIver, AFP and IWF/WCD are basically doing the same thing.

If you are going to engage in educational (or even litigation) activities in the public interest, you've got to figure out what the public interest entails. There are all sorts of 501(c)(3)s - from the American Enterprise Insititute, Cato and the Institute for Justice to the ACLU, Brookings Institution and Brennan Center -with distinctive perspectives on that question.

Those perspectives may be reflected in the work that they do.The former group, being conservative or libertarian, may take positions that are consistent with certain positions held by Republicans. The latter, being liberal, may take positions that are consistent with certain policies held by Democrats. This doesn't mean that they are engaged in prohibited political activity.

This doesn't mean that these groups - whether on the left or the right - take "marching orders" from political groups or trim their work. If a person spends any significant amount of time thinking about things like law and policy or economics, she is probably going to develop a set of beliefs about these things that influence her work going forward. To be completely "disinterested" in the sense of having no distinctive views is often tantamount to being uninformed.

Now I can anticipate that some people are going to think it significant that MacIver and AFP have spent a lot of money communicating their conclusions and IWF (at least to date ) has not.

But how much money you spend doing something is irrelevant to whether it is or is not prohibited political activity. All political activity is prohibited. All activity within exempt purposes is permitted. (The amount spent can be relevant on lobbying but this isn't lobbying.)

One must, of course, comply with campaign finance regulations but these communications are not subject to Chapter 11.

So maybe the MacIver/AFP effort is not so unusual after all.

One more word on ethics and recusal

2012-01-08T12:55:00.001-06:00

My op-ed on the ethics allegations against Mike Gableman in last Thursday's Journal Sentinel is here.

I want to follow up because the editorial board and I missed each other. I did not know that what I wrote was going to be published as "Another View" or that the topic was recusal and not the ethics issue. All I knew is that they wanted to publish an edited version of a post on Shark and Shepherd. They offered to do the editing but also gave me the opportunity to do it myself. I chose the latter. Because of the difficulty in covering this stuff in 500-600 words, I decided to focus on the ethics question.

This isn't a criticism of the paper. This just came up at the last minute and I probably should have asked what the context was going to be. But since I didn't, I want to say a few things in response to what the paper wrote.

First, it is not true that all nine of the cases in which Gableman participated and MBF had a client came before the Court during the period in which MBF represented the Justice. Some, including the Act 10, arose after the representation had ended.

Second, it continues to astonish me that neither the media nor commentators acknowledge the fact that this type of contingency arrangement is not uncommon. In fact, it is, from time to time, extended to public officials. For example, John Siefert, a Democrat and circuit court judge, appears to have had such an arrangement in an action challenging certain restrictions in the judicial code on speech and campaign activities by sitting judges and judicial candidates. When he won, his lawyers (Jim Bopp and Mike Dean) asked the court to award fees.

I recall representing American Family Insurance in a redlining case in which one of the plaintiffs was then alderman Marvin Pratt. The case was both a civil rights suit and a class action - two areas where contingency arrangements are ubiquitous. I don't know, but I would be surprised if Alderman Pratt's relationship with his lawyers was not similar. I do know that, when the case was settled, there was a negotiated fee award.

Third, in response to this, none of Gableman's critics engage the issue. They continually refer to the somewhat - but not completely - differing nature of a contingency in a personal injury case (which no one seems to thing an injured judge could not enter into) or just say "well, he didn't pay." But, as I and others have pointed out in painstaking detail, that doesn't answer the question of whether the relationship was a gift.
Because lawyers enter into these on a regular basis, it is reasonable to assume that the opportunity to recover fees is adequate consideration for the provision of representation. If that's so, then the arrangement is not a gift by the very terms of the Judicial Code.
While a lawyer who wants fees under sec. 757.99 may have had to get them approved by the legislature, this is also not unheard of . I've represented clients on claims that required such approval and they are considered by the legislature on a regular basis. It's another hoop to jump through, but it hardly precludes recovery in an appropriate case.

All of this, it seems to me bears on the issue of recusal. In a (relatively) recent piece in the Wake Forest Law Review, I argued that recusal in a court like the Wisconsin Supreme Court is different. That court is a law developing court of last resort that acts collegially, i.e., the justices hear cases and vote on the outcome. When a justice steps down, he or she is not replaced.

These facts suggest that aggressive recusal standards are inappropriate. While there are cases in which recusal is proper, it is not correct that a Supreme Court justice should "err" on the side of recusal or step aside whenever some one might think that his or her judgment might be affected.
Having published this view long before this controversy arose, I am fairly confident that it was not developed in order to defend Justice Gableman and I have argued for its applicability to more liberal members of the Court who sat on cases in which significant campaign contributors had an interest.

And keeping that view in mind, I am fairly confident in arguing that Justice Gableman was not required to recuse himself in the Ozanne case just as those justices whose campaigns had been handsomely supported by public employee unions or who stood to lose significant income if Act 10 were to become law (this would be all of them) were not so required.
His relationship with MBF had ended and neither party had any further obligation to the other.

My view is bolstered by the fact that a contrary view would make it very difficult for any sitting justice to obtain counsel. If there were a duty of recusal that "lingered" even after a representation had ended, few good lawyers would want to harm their practice in that way.

GAB must review petitions

2012-01-05T16:29:00.000-06:00

My sources tell me that the plaintiffs have obtained at least partial relief in their suit against the GAB this afternoon. The circuit court has apparently ruled that the GAB does have the power - and the duty - to strike duplicates, illegible signatures and fictitious names.

More to fellow. Guess that suit wasn't frivolous.

Today's "hang Walker" balloon has burst

2012-01-05T15:37:00.000-06:00

For those who are so sure that there is a shoe to waiting to drop on Scott Walker as a result of the eighteen month old John Doe investigation, today had to be disappointing. Word came out this morning that the District Attorney was going to issue charges. A former Walker aide had been arrested. The glee and anticipation on the part of bloggers and touts and even Democratic politicians was palpable.

And what do they get? Charges as a result of an investigation into missing funds that was initiated because the Walker administration asked for it. It was Walker's chief of staff who was concerned that funds from a county sponsored program to benefit veterans might be missing. In other words, we have a former Walker employee charged with stealing money from a Walker administration program as a result of an investigation initiated because the Walker administration dropped a dime.

Talk about corruptus interruptus.

There was speculation this morning on at least on lefty blog concerning "where the money went." To Walker? No, it turns out, that the money is alleged to have spent by Tim Russell on personal needs including a vacation with his domestic partner, Brian Pierick.

Where is Scott Walker in this? In about the same place as any other guy who has an employee who is alleged to have stolen from the shop. My guess is that he feels, if the charges turn out to be true, betrayed and, on behalf of the taxpayers and veterans who benefited from this program, victimized.

The only way that you can turn this into something that reflects poorly on Walker is to make him responsible for anything that someone who works for him does and ignore the facts of the case. If the allegations are true, then a guy who worked for Walker did a bad thing for his own reasons. The bad thing actually hurt something that Walker wanted to do. To put this on Walker is guilt by association. It is, quite literally, to blame the victim.

But I am sure that there are folks out there who are sufficiently clueless or mendacious to do just that.

Santorum's Time

2012-01-04T08:03:00.001-06:00

Rick Santorum is the latest Anybody but Romney. The Bachman, Perry, Cain and Gingrich boomlets are over. Each was tried and found wanting. Can Santorum do any better?

The argument that he can't make it is that he is too socially conservative. The guy is a serious Catholic who gives social issues more than a nod an a wink. To be sure, some of his positions on these issues will be misrepresented or misunderstood (see the comments to my post about Alan Colmes) but Santorum is at odds with elite sensibilities about matters of faith, sexuality and family in a way that most national politicians are not. He will get "Tebowed" (in a different sense) by Saturday Night Live, sneered at by Maureen Dowd and generally portrayed as the second coming of Torquemada. Again, much of it will be unfair but his moment at the top is going to test the proposition that a someone who is seriously religious and fundamentally committed to traditional values can be successful on a national level.

How he handles this criticism is going to be important. To be sure, he needs to point out the differences between what he has said and what he will be accused of saying, but he's also going to have to adopt a reassuring tone that reflects his own commitments without being seen as censorious. Can he do it? We'll see.

But there is more to this guy. He is not out of touch like Bachman, uninformed like Cain, compromised like Gingrich and, shall we say, challenged like Perry. This is a guy that Bono likes. He can be portrayed as many things, but mean is not one of them. Although there are going to be questions about his commitment to limited government, there is nothing about him that will turn off the conservative base and certain things about him that could appeal to independent voters who think that humility, responsibility, constancy and care are important attributes for a President. Whether he can communicate any of that is anyone's guess.

You wonder about new entrants although I suspect that the timing of the primaries precludes that. But there is blood in the water and, if Romney falters at all in New Hampshire (i.e.. does not win by "enough"), we could be in uncharted territory.

Should Alan Colmes be fired?

2012-01-03T21:40:00.001-06:00

I, thank God, have never lost a child. I can imagine nothing worse. I can imagine nothing worse, in part, because I have one (and three grandsons) and because I am married to someone who did lose two children - one a stillborn and one at six months. Her pain is not mine, but I have learned from it.

So I feel quite comfortable in saying that Alan Colmes' shot at Rick and Karen Santorum's behavior in the wake of the death of their son, Gabriel,at two hours after birth is one of the most reprehensible and insensitive things I have ever seen a "responsible" public commentator do.

I hope that it is more insensitive than reprehensible. I hope that Alan Colmes is just too insensate, too stupid and too wrapped up in his little Manhattan cocoon to know how awful his remarks were. I hope his problem is that his head is empty and not that his heart is poisoned.

But I'm skeptical. His statement that the Santorums brought the child home to "play with" suggests an intentional mean spiritedness. The description suggests a frivolity and denial that is not a fair characterization of what happened.

I'm skeptical because Rich Lowry tried to set him straight and Colmes persisted.

It is not hard to understand why the Santorums did what they did (even if many of us think we would have chosen differently.) One of the ongoing hurts for those who have lost a child in infancy is the way in which the child is forgotten - someone who is there but was not. Senator Santorum and his family were trying to avert that. They were trying to create a sense that Gabriel was part of their family, albeit one who would not be with them n the years to come.

But beyond that, the way in which someone deals with the unbearable is private and not to be cheaply questioned by those who were not there. Colmes has profoundly insulted those who have been there.

So here's a thought experiment. If you lose your job by coming too close to making a remark that might be interpreted as insensitive to a racial or ethnic group, why shouldn't Colmes lose his job over this? My own sense is that Colmes' remarks reflect a certain disdain for the conventionally religious.

I'm not calling for that because 1) who cares what I think and 2) I dislike firing people because they made one stupid remark. But this is as bad as I've seen.

Colmes thinks the episode bears on Santorum's qualification to be President. It doesn't. But it did, it would cut in his favor. It would show that Santorum has a respect for life and for his family that speaks well of his character.

Colmes has apparently apologized to Santorum who has accepted his apology. I think this should end the matter.

So to answer the question at the beginning, my answer is "no." But it was, as they say, a teaching moment.

Charges against Gableman remain a stretch

2012-01-02T11:42:00.000-06:00

Sunday's article by Patrick Marley makes an effort to respond to the arguments that I and others have made that the relationship between Justice Michael Gableman and Michael Best was neither unethical nor unlawful.

Let's review the bidding. It is pretty clear that the relationship between Justice Gableman and the law frim did not result in favorable treatment of Michael Best's clients. Gableman's votes in those cases did not differ materially from those of other members of the conservative majority.

But that doesn't close the issue with respect to either the state or judicial ethics code. My argument - and that of Gableman's lawyer (Viet Dinh who is a quite accomplished and nationally respected lawyer) - has been that the arrangement is supported by consideration and, in fact, bears significant resemblance to arrangements that lawyers and clients make every day. While Marley and those he quotes have chosen to focus on the contingency arrangements in personal injury cases, a better analogy is the agreement of lawyers in cases involving civil rights claims, class actions or other "fee shifting" statutes to limit themselves to whatever fees a court or other tribunal might award.

In such cases, a lawyer must prevail, persuade the court to award fees and then justify the amount of the fee request. A lawyer will often be compensated at a lower rate and for fewer hours than would be the case in a purely private arrangement. In such arrangements, there is not, as one of Marley's sources - a lawyer named Paul Gossens - says of personal injury contingencies, a guarantee of "X number of dollars if you prevail...." Mr. Gossens is wrong. The universe of contingency arrangements is larger than that.
So, in response, Marley's sources want to say that the probability of Michael Best obtaining a fee was "clearly" below some threshold below which such an arrangement must be a gift. In setting forth my argument, I anticipated that objection. Normally, we don't look behind the fact of consideration to ask whether it was "enough" or whether one side could have gotten a better deal.
Beyond determining that the potential for a fee award is real, I don't know that an extended analysis of the likelihood of recovery is warranted (or, as noted below, even possible). Lawyers often take cases in which the potential for actually recovering a fee is remote. Sometime they do it out of optimism. Often, they do it because they believe that the case presents issues that ought to be heard or interesting questions that the lawyer would like to work on.

Some (but not all) of the professors quoted in the article are apparently certain that they know that this was "too contingent" for any lawyer to take. I am not sure how they arrive at that certainty. I am unaware of any standard for them to apply other than personal judgment. Sometimes that's all we have, but we ought to be reluctant to brand others as unethical and criminal because their judgment differed from ours.
It seems to me, then, that critics of the arrangement have to argue that the possibility of fees was illusory - something that would never really happen. In my original post, I suggested that we wouldn't have much precedent with how the contingency models works in the world of judicial complaints because there are so few complaints. Sure enough, the article reports that there have only been twenty four in forty years and only one in which the judge prevails and could have asked for fees.
The Journal Sentinel article makes much of this case - a 24 year old case in which a Racine County Circuit judge was only able to recover a portion of his fees. What would have happened in a far more prominent case involving a Supreme Court justice may have been quite different. Even were it necessary for the legislature to approve fees, it is not unusual for the legislature to approve claims against the state. The fact is that we have very little precedent from which to form a judgment.
While we can accept that it would have been tougher to get fees than in a traditional personal injury case, that doesn't mean that the possibility of recovering them was nonexistent or so insubstantial that it must be ignored for purposes of applying the state or judicial code. I assume that Professor Gillers, one of the law professors quoted in the article, must agree because he does not believe that the arrangement was improper.
My position is bolstered, I think, by the fact that we are not dealing with discounted car rental rates but the provision of legal counsel in a case of substantial public importance. This raises due process implications and I would suggest that we be reluctant to interpret general ethical standards in a way that makes it harder - perhaps even impossible - for people to get competent counsel. In fact, although it is not necessary to resolve the case, I would want to think a lot more before I announced that a public official cannot be represented on a pro bono basis.

It is not clear to me that there was an alternative arrangement under which Justice Gableman could have obtained counsel. He did not have the money. Although both the Judicial Code and Chapter 19 make an exception for campaign contributions, contributions to defray the costs of a defense against ethical charges are not that and would presumably themselves be indicted (with far more justification) as impermissible "gifts."
In any event, the standards for determining criminal or ethical violations ought to be clear. The gratuitous and subjective off the cuff judgments offered by Marley's sources - to the effect that, based on one case almost a quarter of a century ago, the prospect of fees are too remote - don't cut it.
Of course, an arrangement need not be unethical to warrant recusal. And, conversely, not all arrangements that might lead to some judges or lawyers to call for recusal are unethical. That's an issue I'll return to in my next post on the matter.

Where can you find a decent gulag nowdays?

2011-12-28T10:53:00.000-06:00

Speaking of The Nation. It's grown nostalgic for the Soviet Union. I mean, after all, where is the front without the communists?

Got equality 'cuz you want it?

2011-12-28T09:56:00.000-06:00

I don't always read the work of other "community columnists" in the Journal Sentinel. I should do better with that, but I did note with interest today's contribution by George Wagner because it plays off a theme - perhaps the only theme - that might result in President Obama's reelection.
Income inequality.

Mr. Wagner goes after the unequal distribution of income with about as nuance and appreciation for economics as does the President. "We" want incomes to be more equal so all that "we" must do is pass a law to make it so. All we need to is tax away what the awful one percenters don't need or, perhaps more accurately, whatever amount it is that "we" want.

It is not my intent to make a brief for the fireside equities of millionaires and billionaires. There is a case to be made but no one really wants to hear it. We live in coarse times in which the notion that someone has a right to keep what they earn is regarded as antiquated and insufficiently sophisticated. Because fortunes can't be accumulated without some publicly provided infrastructure and the rule of law enforced by the state, there is no such thing as property rights free from the claim of the state.

If the logic of that eludes you, you're not the first.

But, in fairness, no one (at least not since FDR) proposes to take it all and what could be the harm of evening things out a bit?

Within certain ranges, the answer, I suppose, is not all that much. We do it today. One of the most startling things about the Democratic calls for the rich to pay their "fair share" in taxes, by most measures they already do. Top income earners pay a higher share of both federal income tax than their share of the national income and, Warren Buffett notwithstanding, they pay, as a group, a higher percentage of their income in taxes than the less well to do.
So the issue is not whether our tax system should be progressive and redistributive, but whether it should be more progressive and redistributive.

Mr. Wagner thinks so but his argument assumes that wealth is simply "there" - something that can be allocated in any way that we want it to. It's not. Higher tax rates affect economic behavior. They create disincentives and distortions in the allocation of resources and effort which, as rates increase, shift from the most productive use to the most tax efficient use. While higher tax rates may lead to additional revenue, they may also lead to reduced economic growth.

We've seen this in the past. The confiscatory tax rates of old - 70, 80, 90 % - did not result in revenues that were much higher than the lower rates of the Reagan era.

You can take that observation too far. Higher rates can result in more revenue but there is a strong case to be made that lower rates on a broader base lead to more equitable and productive results.

Don't believe me? Yesterday I read an article in The Nation (yes I do) that commended a new form of class based progressivism drawing upon lessons from the UK. The point was that, since the rich will always find ways to avoid redistributive taxes, the better path is to control incomes, i.e.. prevent those high earners from getting the money in the first place.

This would, of course, be economic suicide and far worse than moderately progressive taxation, but you get the point. The rich are not necessarily the middle class' oyster.
In any event, the rosy scenario that Mr. Wagner envisions is befouled by the math. You could
double their current tax bills without coming close to eliminating the federal budget deficit or generating more than several hundred dollars per head to redistribute to everyone else.

Still, I give Mr. Wagner credit for moving the debate. My next Journal Sentinel column will be on the came topic.

Best wishes for Rep. Grigsby

2011-12-27T16:53:00.000-06:00

I don't know Tamara Grigsby. I met her once at WMCS. She seemed bright and gracious. Obviously we don't agree on politics, but even wing nut prayers can't hurt.

Music for a Chrstmas Week Thursday

2011-12-22T21:43:00.001-06:00

Sonny Boy Williamson (more accurately Sonny Boy II) lived in Milwaukee and recorded this Christmas classic.

It's hard to find a more poignant contemporart holiday song than Bing Crosby's World War II era "I'll Be Home for Christmas."

Music for a Christmas Week Wednesday

2011-12-21T15:50:00.000-06:00

I like more contemporary - or at least new - renditions of traditional Christmas carols. So if we can stop name calling long enough, here is one I like.

This one gets mixed reactions. I have never been able to decide whether Patti Smith is a poet or pretentious poseur. Probably - like the rest of us - a bit of both.

Michael Gableman and his lawyer

2011-12-20T19:30:00.000-06:00

Is the arrangementunusual? Any case brought by the Judicial Commission is a bit unusual, sowe can't look at a large universe of judicial discipline cases. But consideringcases of all types, the fee arrangement here really isn't uncommon. Becausestate law provides for the prevailing party to recover fees, this was whatlawyers often call a "fee generating case," i.e., a case in which thelaw provides for payment of fees to the prevailing party or there is the potential for a monetary recovery fromwhich fees can be paid. These arrangements allow lawyers to take a case in whichthe client could not otherwise afford to hire them.

We are all familiar with the typical contingency arrangementin personal injury cases. A lawyer provides services (clearly a thing of value)but is not paid unless there is a recovery. The lawyer agrees to do thisbecause, if she does not, the client will be unable to afford to retain her.She makes an economic decision - it is better to have the opportunity to earn afee than not. (This is one reason that a personal injury lawyer may not takeyour case if it is too weak or too small.)

We are less familiar with contingency arrangements underwhich the fee is paid not out of a recovery but because there is a statute thatawards fees to a prevailing party. But they are also fairly common. They are,in fact, the bread and butter of lawyers who specialize in civil rights casesand class actions. The economic calculusis the same. The lawyer decides that a shot at fees (even if it means working acase "on the come") is better than no shot at all.

This latter arrangement was apparently the bargain betweenJustice Gableman and Michael Best. To say that contingency fee arrangementsinvolving defendants are rare does not get us far because there are relativelyfew statutes permitting the award of attorney fees to a defendant.[i]But there was one in this case.[ii]

In a complaint filed today with the Judicial Commission,Mike McCabe and the Wisconsin Democracy Campaign say that the arrangement isunusual because the award of attorney fees in a case like this isdiscretionary. Because the controlling law, Wis. Stat. § 757.99, says that fees"may be" awarded, WCD’s McCabe – who is not a lawyer – says that agreementof a lawyer to accept only what might be awarded is unusual - even"unheard of."

That’s not true. The awardof fees in civil rights cases is also discretionary. 42 U.S.C. §1988(a) provides that a "court, inits discretion, may allow the prevailing party, other than the UnitedStates, a reasonable attorney’s fee as part of the costs ...." Yet no oneregards the agreement of a civil rights lawyer to limit herself to whateverfees a court might award as giving a gift or thing of value or otherwiseentering into an unusual arrangement.

WCD's complaint also argues that sec. 757.99's reference tothe "reimbursement" of fees means that Justice Gableman would haveactually had to pay them or at least be obligated to pay them in order torecover. I am not aware that the statute has ever been construed that way andone could make the similar arguments with other fee shifting statutes. Whilethey tend not to use terms like “reimbursement,” one could argue that, if thereis no obligation to pay in the absence of an award, there are no fees. Butthese laws are not construed in that way and I doubt that the use of the term"reimbursement" would require a different result here.

In any event, that was not the interpretation of JusticeGableman and Michael Best. They seem to have believed that the he could bereimbursed for fees that were contingent upon an award. If they were wrong,that argument would go to the merits of a fee application that was never madeand not to whether an arrangement of this type is unusual.

But, even if it iscommon, was it unethical? I don't think so. SCR 60.05(4)(e) prohibitsjudges from taking a gift subject to certain exceptions. Before evenconsidering the applicability of the exceptions, it is necessary to determinewhether the arrangement with Michael Best was a gift. SCR 60.01(7) defines a gift as "thepayment or receipt of anything of value without valuable consideration."

But there was valuable consideration here. It was JusticeGableman's agreement to retain Michael Best in a potentially fee generatingcase. Whether or not you think that is "enough" consideration towarrant spending time on the case in the mere hope of recovery is immaterial.Every first year law student learns that courts do not examine whether theconsideration underlying a contract is "enough" for whatever ispromised in return. We all learn that a mere "peppercorn" will do.

While we may not wish to interpret SCR 60 in the same way -it is possible that there could be sweetheart deals that are tantamount togifts even though there is some form of consideration - this doesn't seem likea particularly inviting case to do so. Lawyers generally do regard theopportunity to be retained in fee generating cases as valuable. This is is oneof the reason that they advertise so heavily to get cases in which they willonly be paid if they win. Don't believe me? Consider David Gruber and the LawOffices of Hupy & Abraham. TV time ain't cheap.

Even were that not the case, a lawyer's obligation toconsider the need for provision of legalservices to those who could otherwise not afford it militates against an overlyexpansive interpretation of the term "gift." As noted above,disciplinary proceedings against a sitting justice who lacked adequaterepresentation would not serve the public interest.[iii]

State ethics law governing "state publicofficials" doesn't change the analysis. Sec. 19.45(2) prohibits statepublic officials from using their position to obtain a thing of value and sec.19.45(3) prohibits a state public official from accepting a thing of value ifit could reasonably be expected to influence him or be seen as a reward forthis past conduct.

Assuming that this provision applies, receiving a thing of value for consideration - particularlypursuant to a fairly common arrangement between lawyers and clients - does notfall within the proscriptions of ss. 19.45(2) or (3). A common arrangement thatlawyers and clients typically enter into does not suggest undue influence(19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bringall sorts of standard business relationships and transactions within the scopeof the chapter 19 and its preface makes clear that this was not thelegislature's intention.

This is not to say that there aren't issues raised bylawyers representing judges. But those issues are better addressed throughrecusal to which I turn next.

Will it - or did it -require Justice Gableman to recuse himself? This is a completely differentquestion. A lawyer-client relationship between an attorney and a judge maycreate an appearance or risk of bias when the lawyer appears before the judge.This may lead to a duty on the part of the judge to recuse. In some instances,that might apply to members of that lawyer's firm. We all talked about thiswith respect to whether Justice Prosser should sit in a case in which JimTroupis was involved after Jim had represented the judge with respect to therecount of last spring's Supreme Court election.[iv]

In today's Milwaukee Journal Sentinel, I am quoted aslisting the factors that would inform a decision to recuse or not anddescribing the process as a judgment call. The quote is accurate.

That is the law. There are no clear or objective guidelinesfor the resolution of these questions. The determination of whether to recuseand how long to do so is committed almost entirely to the Justice who mustweight a variety of factors including his or her ability to remain impartial,the extent to which a reasonable person might question his impartiality and thepublic interest in having a matter considered by the full court. Thatdetermination - in matters before the Wisconsin Supreme Court - is final andsubject only to correction only in unusual and extraordinary cases by theUnited States Supreme Court.[v]

The article then refers to the opinion of two lawprofessors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers,who said they "believed" that Gableman should have recused himself. "Believed"is the operative word. Their conclusions reflect the way in which thoseprofessors thought - at least during the few seconds it took them to respond toa reporter's inquiry - they would have reacted. They may be right but I doubtthat they knew all of the facts or spent the type of time on the question thatan actual judge does.

In the paper's coverage, Professors Gillers and Geyh seem to be heavily influenced by thefact that Justice Gableman did not pay by the hour.. But is it really correct that judges may notretain counsel on a contingency fee basis? What if a justice or member of herfamily was in a car wreck? Do Professors Gillers and Geyh believe that a judgemay hire counsel on a contingency basis, but that the lawyer is (indefinitely?)barred from appearing before the judge if the case is lost? What if, as was thecase here, the matter involves important constitutional questions? What if, asI assume was the case here, a judge lacks the financial resources to hirecompetent counsel?

The idea must be that Justice Gableman owes Michael Best a"debt of gratitude" because they agreed to represent him on acontingency basis. But this certainly doesn't comport with our commonunderstanding of what constitutes a gift. If I hire Bill Cannon to represent mein a medical malpractice case and he doesn't get paid because he loses the case,I don't think that he gave me a gift or that I owe him anything. If I retainWalt Kelly to represent me in a civil rights case after the police beat me upand he doesn't get paid because the case gets tossed on summary judgment, Idon't owe him a debt of gratitude for working for "free."

The bottom line is that these issues are not easy and notproperly the stuff of sound bites and partisan attacks.

Today's article report that Justice Gableman sat on somecases involving Michael Best during a period that included (but was notcoterminous with) the period in which he was represented by Michael Best.Should he have recused himself during that period?

Perhaps. I'd want to know precisely when these cases arose,who the actual lawyers were and the public interest in each. The three cases thatthe article refers to, for example, were argued and submitted to the courtafter Michael Best's representation of Justice Gableman had ended[vi]- although one had also been argued earlier and then set for additionalbriefing and reargument.

It does appear, however, that there were other cases inwhich Michael Best was involved and in which Justice Gableman participatedduring the period in which he was being represented by the firm. Even if I – orProfessors Gillers or Geyh – might have decided to stand down during thisperiod does not mean that someone else might reach a different conclusion.

The one thing I can say is that Michael Best'srepresentation of Justice Gableman does not seem to have much of an impact onhis voting which was pretty much split down the middle.[vii]Although the recusal issue goes beyond the issue of actual bias, if, as someintemperate bloggers have charged, Michael Best thought it was "buying aJustice" (and it didn't; it thought it was acting in the public interest),then it got a raw deal.

There is an ethicsissue to be raised that does not involve Justice Gableman. SCR20:1.6 prohibits a lawyer from disclosing information "relating to therepresentation of a client” without authorization. From press reports and other sources, it appears that the firm disclosed Justice Gableman's fee arrangement to other members of thecourt and to the press. Did Justice Gableman authorize the disclosure? If not, was there a legal justification to do so?

I am not accusing anyone of anything and myexperience with large law firms is that they do not act rashly. There may wellbe an explanation and we ought to be willing to hear it if and when the propertime comes.

But, as a member of the bar, I am naturally curious aboutthis type of disclosure of a client confidence. I think it is important toraise it because the public ought to be confident that lawyers will respect theconfidentiality of their matters.

Why was it OK to disclose a confidential fee arrangement?

[i] Itis possible for a defendant in an action brought under the federal civil rightslaw to recover fees but there are additional requirements imposed by case law(essentially that the position of plaintiff have been frivolous) that makes ithard to do.

[ii] Itwould be unfair to Michael Best, however, not to point out that it may alsohave been motivated by altruism and consideration of the public interest. Therewere important constitutional issues raised in the Gableman disciplinary matterand it would have been contrary to the public interest for a sitting SupremeCourt justice to lack adequate representation. (As noted below, it is apparentthat what Michael Best has not gotten was favorable treatment for its clients.)

[iii]UnlessMichael Gableman is independently wealthy, he could not afford to hire MichaelBest & Friedrich by the hour on a justice's salary. Anyone who thinksotherwise has never seen a bill from a large law firm. However, matters ascomplex and important as those presented in his disciplinary matter requiredretention of counsel of comparable talent. Lawyers like that don't come cheap.

[iv] Byway of full disclosure, I was also involved in that case although not therecount. Jim Troupis withdrew, Justice Prosser recused himself and I argued thecase which is pending.

[v]Thereason that I say federal review would be limited is because the opinion inthe controlling case, Caperton v MasseyCoal Co., repeatedly stated that a federal constitutional duty to recuse onlyarises in "unusual," "rare" and "special"circumstances.

[vi]The cases are Metropolitan Milwaukee Ass’n of Commerce v. City of Milwaukee(argued October 1, 2010); Metropolitan Associates v. City of Milwaukee (arguedOctober 7, 2010) and State ex rel. Ozanne v. Fitzgerald (argued June 6, 2011)

[vii] Apparently,Gableman voted for Michael Best's position five times and against it fourtimes. The three other "conservative" justices, Prosser, Roggensackand Ziegler, broke 4-5, 4-4 and 4-4. That difference is not statisticallysignificant. The "liberal" wing - Chief Justice Abrahamson andJustice Bradley and Crooks (to whom the liberal label should be appliedlightly) - all went 1-8. This suggests that the outcomes were a matter ofphilosophy and not some external bias.

What can the GAB do?

2011-12-18T21:13:00.000-06:00

I think that there has been a persistent and fundamental misstatement of the law with respect to the Government Accountability Board's review of recall petitions. For example, in an editorial in Saturday, the Journal Sentinel editorial board writes as follows:

The GAB won't do their bidding by striking duplicate or phony names from recall petitions. GAB chief Kevin Kennedy says the agency can't do that under state law. It's up to the folks who want to challenge the petitions - presumably Republicans - to point out such problems, Kennedy says.

Blogger Jay Bullock also offers a legal opinion to the effect that the Board is not empowered to strike duplicate or otherwise obviously invalid signatures. Commenters to this blog and other have suggested that, in refusing to do much of anything to vet the signatures, GAB is just "following the law."

I don't think these statements are true. Here's why.

Sec. 9.10 of the statutes governs recall and requires that "[w]ithin 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition." It is simply not the case that the GAB must ignore duplicate signatures of accept signatures that are facially invalid because the name or address is illegible or obviously phony. Indeed, the requirement that the petitions be "carefully examined" suggests that the agency may not do this.
Not surprisingly, then, I don't think that GAB Executive Director Kevin Kennedy has never said that the GAB can't strike duplicate or phony names, only that it won't or is unable to get the job done. This doesn't amount to a lack of legal authority, but a claim of a lack of legal obligation, i.e. that an assertion that the duty of "careful examination" of the petitions does not require that it do these things.
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Whether he is right or not is one of the issues presented by litigation brought against the GAB last week. But the claim that the GAB does not have to root out duplicate signatures and other facially phony or illegible signatures is a different proposition than a claim that in may not do so.

The view that the GAB has no power to conduct a more rigorous review of the petitions is said to be supported by reference to a challenge process in which challengers to signatures have the burden of proof. But the fact that opponents of recall may challenge signatures does not obviate GAB of its burden to conduct a careful examination or limit its ability to strike facially invalid signatures.

This places the Journal Sentinel editorial board's claim that the GAB won't do the Republicans "bidding by striking duplicate and phony names." The Republicans "bidding" is that the GAB undertake a careful examination of the petition sufficient to determine that it actually has the requisite number of signatures.
I do think that there are some limitations on the GAB's review. It is not required to go beyond the face of the petition, i.e., it does not have to verify addresses or conduct research to determine if an apparently real person "actually" exists or "really' signed the petition. This may, in fact, limit its ability to exclude odd names from apparently valid addresses. Excluding those names may fall on challengers.
But duplicate signatures or those that are obviously false ("Santa Claus, One North Pole Way, Ashwaubenon") are not facially valid.I would also argue that the GAB should not count signatures for which the name or address are illegible. I say that because, for those signatures, there is no way to determine their facial validity.

Will GAB remove these names? It's hard to know but, so far, the indications are that it may not (although some "may" be flagged.) At this point, it is hard to know what GAB intends to do. It's executive director has even been quoted as saying that"the law doesn't require the GAB to read the actual names listed on the petitions." How he reconciles that with the duty of careful examination is unclear.

He has also announced that these things will not be a problem. He may be right. I suspect that is likely to be the case. But there is, of course, no way to know that today and we can't assume the problem away. We surely would not want a referee to announce that he doesn't think the Bears will commit a lot of penalties.

Relying on recall opponents to do what the GAB won't is problematic. As things stand now, recall opponents will have ten days to vet hundreds of thousands of signatures. That is impossible. While that period can and should be extended by court order, I also imagine that recall proponents will do everything that they can to limit the length of any extension.

I and others have called on the Democrats - who claim to have lots and lots of signatures - to allow the process to begin. In response, the only real argument that I have seen is that "they don't have to" and should not give up a tactical advantage - as if recalling a Governor was some kind of game.

To be sure, some recall supporters have said that the Republicans will just raise spurious challenges but, if the challenges are spurious, they won't succeed. In any event, that argument proves too much. It would justify permitted no review of the petitions.

Others have said that there is "no fraud" with one blogger linking to my argument that there was no fraud in the state supreme court election. But, of course, the reason that I said there was no fraud was that it was, under the circumstances readily detectable and was not detected. I never said that the other side has no right to look.

In this case, a combination of the GAB's preannounced passivity, the volume of signatures necessarily involved in a statewide recall and short statutory review periods may operate to deny one side a meaningful look. That's not OK.

My assumption has always been that public employee unions can get enough signatures to force a recall. They are very powerful - well funded and good at political combat. But the fact that I think that they can and probably will get enough signatures does not mean that it is not is not necessary to verify that they have, in fact, done so.

Michal Gableman and his lawyers, part 1

2011-12-16T08:30:00.000-06:00

A couple of things about the dust-up regarding Michael Best's representation of Justice Michael Gableman in ethics proceedings stemming from the Reuben Mitchell case. We've seen a ripple of uninformed commentary. I think the issue is worth discussing but it's not the scandal that some people seem to think it is.

Is the arrangment unusual? Any case brought by the Judicial Commission is a bit unusual, so we can't look at a large universe of judicial discipline cases. But considering cases of all types, the fee arrangement here really isn't uncommon. Because state law provides for the prevailing party to recover fees, this was what lawyers often call a "fee generating case," i.e., a case in which the law provides for payment of fees to the prevailing party or there is the potential for a monetary recovery from which fees can be paid. These arrangements allow lawyers to take a case in which the client could not otherwise afford to hire them.

We are all familiar with the typical contingency arrangement in personal injury cases. A lawyer provides services (clearly a thing of value) but is not paid unless there is a recovery. The lawyer agrees to do this because, if she does not, the client will be unable to afford to retain her. She makes an economic decision - it is better to have the opportunity to earn a fee than not. (This is one reason that a personal injury lawyer may not take your case if it is too weak or too small.)

We are less familiar with contingency arrangements under which the fee is paid not out of a recovery but because there is a statute that awards fees to a prevailing party. But they are also fairly common. They are, in fact, the bread and butter of lawyers who specialize in civil rights cases. The economic calculus is the same. The lawyer decides that a shot at fees (even if it means working a case "on the come") is better than no shot at all.

This latter arrangement was apparently the bargain between Justice Gableman and Michael Best. To say that contingency fee arrangements involving defendants are rare does not get us far because there are relatively few statutes permitting the award of attorneys fees to a defendant.* But there was one in this case.

It would be unfair to Michael Best, however, not to point out that it may also have been motivated by altruism and consideration of the public interest. There were important constitutional issues raised in the Gableman disciplinary matter and it would have been contrary to the public interest for a sitting supreme court justice to lack adequate representation. (As noted below, it is apparent that what Michael Best has not gotten was favorable treatment for its clients.)

But, even it it is common, was it unethical? I don't think so. SCR 60.05(4)(e) prohibits judges from taking a gift subject to certain exceptions. Before even considering the applicability of the exceptions, it is necessary to determine whether the arrangement with Michael Best was a gift. SCR 60.01(7) defines a gift as "the payment or receipt of anything of value without valuable consideration."

But there was valuable consideration here. It was Justice Gableman's agreement to retain Michael Best in a potentially fee generating case. Whether or not you think that is "enough" consideration to warrant spending time on the case in the mere hope of recovery is immaterial. Every first year law student learns that courts do not examine whether the consideration underlying a contract is "enough" for the whatever is promised in return. We all learn that a mere "peppercorn" will do.

While we may not wish to interpret SCR 60 in the same way - it is possible that there could be sweetheart deals that are tantamount to gifts even though there is some form of consideration - this doesn't seem like a particularly inviting case to do so. Lawyers generally do regard the opportunity to be retained in fee generating cases as valuable. This is is one of the reason that they advertise so heavily to get cases in which they will only be paid if they win. Don't believe me? Consider David Gruber and the Law Offices of Hupy & Abraham. TV time ain't cheap.

Even were that not the case, a lawyer's obligation to consider the need for provision of legal services to those who could otherwise not afford it militates against an overly expansive interpretation of the term "gift." As noted above, disciplinary proceedings against a sitting justice who lacked adequate representation would not serve the public interest.**

State ethics law governing "state public officials" doesn't change the analysis. Sec. 19.45(2) prohibits state public officials from using their position to obtain a thing of value and sec. 19.45(3) prohibits a state public official from accepting a thing of value if it could reasonably be expected to influence him or be seen as a reward for this past conduct.

There is some uncertainty as to whether sec. 19.45 even applies to justices and judges. On the one hand, its strictures apply only to "state public officials" which is elaborately defined in a way that seems to exclude them. On the other, there is a provison authorized the creation of a judicial cose which states judges and justices should comply with "this subchapter." I could go on, but let's assume - as most people seem to - that it applies.

Receiving a thing of value for consideration - particularly pursuant to a fairly common arrangement between lawyers and clients - does not fall within the proscriptions of ss. 19.45(2) or (3). A common arrangement that lawyers and clients typically enter into does not suggest undue influence (19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bring all sorts of standard business relationships and transactions within the scope of the chapter 19 and its preface makes clear that this was not the legislature's intention.

This is not to say that there aren't issues raised by lawyers representing judges. But those issue are better addressed through recusal to which I turn next.

Will it - or did it - require Justive Gableman to recuse himself? This is a completely different question. A lawyer-client relationship between an attorney and a judge may create an appearance or risk of bias when the lawyer appears before the judge. This may lead to a duty on the part of the judge to recuse himself. In some instances, that might apply to members of that lawyer's firm. We all talked about this with respect to whether Justice Prosser should sit in a case in which Jim Troupis was involved after Jim had represented the judge with respect to the recount of last spring's Supreme Court election.***

In today's Milwaukee Journal Sentinel, I am quoted as listing the factors that would inform a decision to recuse or not and describing the process as a judgment call. The quote is accurate.

That is the law. There are no clear or objective guidelines for the resolution of these questions. The determination of whether to recuse and how long to do so is committed almost entirely to the Justice who must weight a variety of factors including his or her ability to remain impartial, the extent to which a reasonable person might question his impartiality and the public interest in having a matter considered by the full court. That determination - in matters before the Wisconsin Supreme Court - is final and subject only to correction only in unusual and extraordinary cases by the United States Supreme Court.****

The article then refers to the opinion of two law professors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers, who said they "believed" that Gableman should have recused himself.

"Believed" is the operative word. Their conclusions reflect the way in which those professors thought - at least during the few seconds it took them to respond to a reporter's inquiry - they would have reacted. They may be right but I doubt that they knew all of the facts or spent the type of time on the question that an actual judge does.

I think is is overly simple to argue that the duty to recuse should be interpreted aggressively and that a justice (as opposed to a lower court judge) should err on the side of recusal. There are reasons that an elected justice on a law developing court of last resort (that would be the Wisconsin Supreme Court) ought to be careful about recusal.. This is particularly so in Wisconsin, where recusal by a Supreme Court Justice results in less than a full court hearing important cases. Recusal may be unavoidable but the extent to which it frustrates the public's choice of justices to hear these cases is entitled to weight. (I have written about these issues here.)

In addition, an expansive duty to recuse stemming from a lawyer's representation of a justice would make it hard for that justice to obtain counsel. Any lawyer who is good enough to represent a justice in a difficult matter will also be considered good enough to be retained by many others for matters before the Court. If a lawyer, by taking a case, will disable himself and his partners from accepting matters before the Court for a lengthy period of time, many lawyers and firms won't accept such representation.

I don't know how much the nature of the fee arrangement should matter. In the paper's coverage, law Professors Gillers and Geyh seem to be heavily influenced by the fact that Justice Gableman did not pay by the hour.. But is it really correct that that judges may not retain counsel on a contingency fee basis? What if a justice or member of her family was in a car wreck? Do Professors Gillers and Geyh believe that a judge may hire counsel on a contingency basis, but that the lawyer is (indefinitely?) barred from appearing before the judge if the case is lost? What if, as was the case here, the matter involves important constitutional questions? What if, as I assume was the case here, a judge lacks the financial resources to hire competent counsel?

The idea must be that Justice Gableman owes Michael Best a "debt of gratitude" because they agreed to represent him on a contingency basis. But this certainly doesn't comport with our common understanding of what constitutes a gift. If I hire Bill Cannon to represent me in a medical malpractice case and he doesn't get paid because he loses the case, I don't think that he gave me a gift or that I owe him anything. If I retain Walt Kelly to represent me in a civil rights case after the police beat me up and he doesn't get paid because the case gets tossed on summary judgment, I don't owe him a debt of gratitude for working for "free."

The bottom line is that these issues are not easy and not properly the stuff of sound bites and partisan attacks.

Today's article report that Justice Gableman sat on some cases involving Michael Best during a period that included (but was not coterminous with) the period in which he was represented by Michael Best. Should he have recused himself during that period?

Perhaps. I'd want to know precisely when these cases arose, who the actual lawyers were and the public interest in each. The three cases***** that the article refers to, for example, were argued and submitted to the court after Michael Best's representation of Justice Gableman had ended.

I'd also want to be careful about doing what Professors Gillers and Geyh seem to have done - deliver snap and impressionistic judgments. I have never been a judge but I have been a referee in attorney discipline cases and the one thing I have learned is that my inital impression might change.

The one thing I can say is that Michael Best's representation of Justice Gableman does not seem to have much of an impact on his voting which was pretty much split down the middle.******
If, as some intemperate bloggers have charged, Michael Best thought it was "buying a Justice" (and it didn't; it thought it was acting in the public interest), then it got a raw deal.

There is an ethics issue to be raised that does not involve Justice Gableman. To the contrary, it involves Michael Best and its General Counsel, Jonathan Margolies. SCR 20:1.6 prohibits a lawyer from disclosing information "relating to the representation of a client"without authorization. While there are certain exceptions, none seem to apply.

From press reports and other sources, it appears that Mr. Margolies disclosed Justice Gableman's fee arrangement to other members of the court and to the press. Did Justice Gableman authorize the disclosure? If not, how does Mr. Margolies justify it?

I do understand the motivation. Michael Best was worried that earlier statements by one of its partners might be seen as incomplete. Perhaps if Justice Gableman had authorized the earlier disclosure, a clarification would be in order. But that's not clear. It would depend on what he authorized the firm to say.

If it was not authorized, Mr. Margolies clarification of an earlier disclosure would not seem to be permitted. A lawyer cannot bootstrap himself into disclosure of confidential matters.

Let me clear. I am not accusing anyone of anything and my experience with large law firms is that they do not act rashly. There may well be an explanation and we ought to be willing to hear it if and when the proper time comes.

But, as a member of the bar, I am naturally curious about this type of disclosure of a client confidence. I think it is important to raise it because the public ought to be confident that lawyers will respect the confidentiality of their matters.Why was it OK to disclose a confidential fee arrangement?

*It is possible for a defendant in an action brought under the federal civil rights law to recover fees but there are additional requirements imposed by case law (essentially that the position of plaintiff have been frivolous that makes it hard to do.

** Unless Michael Gableman is independently weatlthy, he could not afford to hire Michael Best & Friedrich by the hour on a justice's salary. Anyone who thinks otherwise has never seen a bill from a large law firm. However, matters as complex and important as those presented in his disciplinary matter required retention of counsel of comparable talent. Lawyers like that don't come cheap.

***By way of full disclosure, I was also involved in that case although not the recount. Jim Troupis withdrew, Justice Prosser recused himself and I argued the case which is pending.

****The reason that I say federal review would be linited is because the opinion in the controlling case, Caperton v Massey Coal Co., repeatededly stated that a federal constitutional duty to recuse ony arose in "unusual," "rare" and "special" circumstances.

***** Apparently, Gableman voted for Michael Best's position five times and against it four times. The three other "conservative" justices, Prosser, Roggensack and Ziegler, broke 4-5, 4-4 and 4-4. As I That difference is not statistically significant. The "liberal" wing - Chief Justice Abrahamson and Justice Bradley and Crooks (to whom the liberal label should be applied lightly) - all went 1-8. This suggests that the outcomes were a matter of philosophy and not some external bias.

Beyond PolitiFact

2011-12-15T13:18:00.000-06:00

Milwaukee Magazine's Erick Gunn ruminates on the inconsistency of PolitiFact and other fact checking organizations. His point of departure is the apparent inconsistency between its rating of statements that Paul Ryan's "Roadmap" would end Medicare ("pants on fire" said PolitiFact) and Tommy Thompson's claim to have ended welfare (rated as "true.)

I am sympathetic. "PolitiFact" was developed by the St. Petersburg Times and is operated in partnership with other media outlets including the Milwaukee Journal Sentinel. It's innovation - if that's what it is - is a "Truth-O-Meter" resembling what the Weekly Standard's Mark Hemingway calls an "old school instrument gauge" complete with red, yellow and green lights as well as flames for those statement rated "pants on fire."

I think it's crazy to say that Ryan's plan ends Medicare (the ad showing a Ryan-like figure pushing grandma off the cliff was reprehensible misrepresentation on a par with the worst of our political advertising) and an overstatement to say that welfare reform "ended" welfare. So while I don't agree that the degree of accuracy of the statements is the same, I do think that the characterizations of them represented by PolitiFact's cute little graphics are further apart than they ought to be.

Gunn refers to Hemingway's recent fiscing of "fact checking" in the Weekly Standard. I just got my copy on dead tree and read it. Hemingway makes a convincing case that media fact checking succumbs to the lack of ideological diversity in the traditional media and an unwillingness to treat as opinions those things that are opinion and to allow for the complexity of issues and the limitations of human language and every day discourse. Its simplistic set of conclusions - reflected in PolitiFact as "pants on fire," etc. - themselves require distortion

I have been concerned about this for awhile but was moved to write by PolitiFact's contorted treatment of a statement by Media Trackers that was clearly "true" as "false."

Hemingway cites a University of Minnesota study that provides overwhelming evidence that PolitiFact has a pro-Democratic bias. My impression is that the local operation is more even handed but my problem is independent of any claim of bias. It's one thing to vet a statement and let readers know about it's strengths and weaknesses. It's quite another to reduce that analysis to a simple set of conclusions.

The former might be useful. The latter is not. Doing the former does not require the PolitiFact brand. The Journal Sentinel - assuming it has the reporters - could avoid paying whatever skim it owes to the guys in St. Petersburg.

I understand that railing against the simple mindedness of PolitiFact is like holding back the wind. We like simple little graphics. But I think the problem is deeper than that.

While the customary thing is to rail against the "unwashed" who supposedly want simple answers and others to think for them, I think that PolitiFact is most misused by opinion leaders who are fully aware of its limitations. It is a source of "gotchas" that is I(back to bias) distorted by the ideological proclivities of the journalists who write it - a distortion that is reflected not only in the analysis of particular questions but in the selection of which questions to analyze.

I'd prefer the paper limit itself to straight reporting. As Hemingway points out that wouldn't solve the problems with "fact checking," but it would make them more manageable.

As for PolitFact's rating system, I rate it "Useless."

Show them

2011-12-15T12:26:00.001-06:00

Just as I was worried about the difficulties inherent in validating hundreds of thousands recall signatures, Mike Tate and the Democratic Party unwittingly offer a solution.

Mr. Tate claims to have 507,000 signatures. Good work. Let's start to vet them.

If these signatures are almost all valid. If there is nothing to see here, then why not make them available to the public? Given the GAB's self expressed inability to actually validate the signatures and the recall organizers disavowal of any intention to do so, let's start making copies and get to work.

I don't expect that to happen but what could the justification be for failing to do so. I can think of one. Limit the time available for the opposition, media and regulators to do their due diligence.

I can't think of another. I know we'll hear that the Democrats don't want others raising "frivolous" challenges but we can't know that they are frivolous until we see what they are. That someone may make bad challenges to signatures does not justify failing to produce them or allowing adequate time to make sure that they are valid.

I know we'll hear assertions that the signatures are valid. All the more reason to disclose them.

So let the media and recall opponents get to work.

Or explain why you won't.

No fraud if you won't look

2011-12-15T09:14:00.002-06:00

Nice column by the indispensable Christian Schneider on National Review's Corner. I have often written about or told the story of one polling place in Milwaukee on election day in 2004. At one point, there were eight lawyers at the Washington Park Library. We had two GOP lawyers, two Democrats, three from various Democratic front organizations and an assistant district attorney. It was a legal dream team. Some of the people there were rather high end. I guess it's cost between $ 3000-3500/hr.

There could have been rampant fraud taking place two feet from us and we would have no way of knowing. As Christian points out, there are plenty of indicia that something has happened - people registered from commericial and noncommericial addresses, huge numbers registered from shelters or places that could not accomodate the number of registrants.

These could be clerical errors. In the case of shelters, there could be a large number of voters. Or it could be indicia of fraud. I have always said that there is probably not wholesale fraud, but there may be enough to make a difference in close elections. That, in my view, justifies the same type of reasonable steps that we use to ensure the integrity of other processes.

Oh, cut it out

2011-12-14T16:00:00.000-06:00

From WKOW in Madison, this report of a guy who took it upon himself to call signers of Walker recall petitions looking for an argument. He apparently took the names from a television story about the recall efforts.

This is hardly the worst thing that we have seen in Wisconsin over the past year. But it is still a stupid thing. Kevin Stoll,of Hartland, ought to direct his energies in a more positive way. Send letters to the media and post comments on the line. Organize on behalf of the Governor. But disturbing people in their home because they have publicly expressed disagreement is for losers.

I understand that there were organized campaigns to call and even to boycott supporters of the Governor and the recall of Democratic Senators. I know that there are times when decorum inevitably deteriorates in response to tactics on the other side.

But this is counterproductive and unfair. Although Mr. Stoll says that his calls were not hostile, he should just stop. Now.

We also see a report that of a Brookfield man who hollered at recall circulators and grabbed their video recording device. Also very stupid. Rude and uncivil.

Recall problems

2011-12-14T10:06:00.002-06:00

So what is the GAB going to do in its review of the recall petitions? Apparently - for sixty days and at a cost of $ 650,000.00 - it's going to read the petitions to see if there is something approximating (but only approximating) a name and Wisconsin address. If the name is highly likely to be fictitious, is something like an "X" or if the name or address are illegible, the signature counts because it could be right.

As an undertaking this is not worthless, but it's not worth much. I appreciate the problem. Over half a million signatures are a boatload.

But, as I blogged before, the GAB has done more than decide that it will (or recognize that can) do nothing. It has made itself part of the game by 1) publicizing the spectre of a "false flag" petition operation for which there is no real evidence, 2) combining that with a statement (later qualified) that it's OK to sign more than one petition (although it also "suggested" that people not "sign a second time unless they have good reason to believe the first petition they signed was somehow fraudulent”)*, 3) announcing that it will not weed out duplicate signatures and 4) now announcing that it will ignore obvious red flags as to the validity of a signature and even count as signatures as valid when the validity cannot be tested because there is no legible name or legible address.

In response, at least one major player in the recall effort has produced material saying that it is OK to sign more than once. One Wisconsin Now posted on its website that some one may "sign a recall petition even if you have already signed another recall petition (note, however, that only one signature per person will be counted)." A more accurate statement would be that you can sign more than once only if you reasonably believe that a petition that you did sign has been destroyed. There are anecdotal reports of recall circulators telling people who said they have already signed that "it doesn't matter."

This is a problem for GAB. Having allowed itself to be used in an effort to encourage multiple signatures, it has further raised the potential for fraud by announcing that it can do nothing to ensure the integrity of recall petitions.

I understand the problems that the GAB faces. There is no clear prohibition against multiple signatures although the agency eventually got around to appreciate that certain multiple signings might violate the anti-fraud provisions of Chapter 12. There probably is no good way to review hundreds of thousands of signature.

But all of that underscores the need for careful messaging and care in deciding how to proceed. GAB did not do that just as it did not take care in treating this year's senate recall petitions by the partisan affiliation of the target, arguably conferring (however unintentionally) a significant benefit on the Democrats. When you are the referee, you have to be trusted as well as right and, in accomplishing the former, appearance matters.

I am not one to accuse the GAB or its staff of bias. But this could have been handled better. A better approach would have been to say from the outset that, while it is illegal to falsify or destroy recall petitions, it is also illegal to sign more than one petition with the intent of having one's name counted more than once. (While GAB ultimately said that, this was not the initial message.)

Perhaps the mess we are in was unavoidable given the inherent unwieldiness of the recall process. But we now have a situation where the agency and partisans can plausibly be charged with, intentionally or not, encouraging multiple signatures while the agency simultaneously announces that it can't do anything about it. It is inconceivable that, were the parties' position reversed, the Democrats wouldn't be besides themselves. They were all too willing to call fraud and question the presumption of validity in attacking recall petitions targetting Democratic Senators last spring.

So where are we?

There are two answers to the threat posed by invalid signatures. The first is that few people would do such a thing. In other words, we are to believe that in a world in which political fervor causes legislators to be assaulted, death threats to be made, state senators to openly flout their constitutional duties, doctors to openly behave in a unprofessional manner and recall opponents and proponents to confront each other on the streets, we need not worry about fraudulent behavior - that the responsible agency has announced it will not police.

We already know that it not the casethat "no one would cheat." At least one person has been found who claims to have intentionally signed approximately eighty recall petitions in an admitted effort to "cheat" in order to get "Walker out."**

Are there enough such people to cause a problem? I don't know but here's a sobering thought. Let's assume that there are 5000 people who sign an average of 25 times. That sounds like a lot of people but it's less than 1% of the number needed to recall the governor. Such a scenario would result in 120,000 invalid signatures - over 20% of the total required. While I would think that many signatures from one person would be caught even by the GAB, that's nor clear and there are other scenarios that would be more difficult to detect. The point is that a relatively small number of people can create a significant problem. When recall proponents are telling people that they can sign more than once and when the GAB says it won't look for duplicates, the problem cannot be dismissed out of hand.

The second argument is to suggest that recall opponents will root out the fraud. This is often coupled with an argument that the validity of nominating and recall petitions are normally entrusted to the parties. The latter statement is true, but less telling when we are dealing with as many signatures as we are here. It is not at all clear that opponents will have the time, resources and access to do what the GAB says it cannot.

Having said this, I don't think it is likely that duplicate or dubious signatures will bring the validity of the recall petitions into question. My guess is that the likelihood of this being determinative is small, but that doesn't mean that there is nothing to worry about. We are contemplating the validity of an effort to overturn the 2010 gubernatorial election. That this process not be tainted by concerns about fraud and uncertainty regarding the validity of recall petitions is critical.

* As noted in the text, GAB's statements on duplicates have evolved. Later statement suggested that one "should" sign more than once only "if he or she has a reasonable belief that the first petition signed will not be turned in." In light of the report (referenced above) that someone has signed approximately 80 petitions, Kevin Kennedy said that intentionally signing more than once in order to inflate the number of signatures (or create the appearance of widespread fraud) would itself be fraudulent. Put them together and you've got a fair description of the law but it took us awhile to get there. As noted above, at least one significant recall organization used the lack of clarity to mislead voters into thinking that they had an unqualified "right" to sign more than once and that someone would ensure that their signature "would be" counted only once. The former is not quite true and the latter has been called into question by the GAB's statement of its unwillingness or inability to cull out duplicates.
** While charges were promptly (and rightly) brought against a person who destroyed a petition and an individual who behaved like a boor in confronting recall circulators in Brookfield, this guy - who has clearly done more to harm the process than they have - apparently remains undisturbed.

Shark on Lake Effect

2011-12-13T11:14:00.000-06:00

My with Stephanie Lecci on WUWM's Lake Effect cand be found here. We talked about the Governor's initiatives on collective bargaining and the budget along with the aftermath. I closed by hoping that we can learn to disagree robustly - even sharply - but civilly.

A critique of my appearance can be found here - written by someone called Man MKE at Uppity Wisconsin. The one thing I would point out to our friends at Uppity Wisconsin that the fact that, in economic terms, a union is a cartel is not controversial. A union is a combination of a suppliers of labor who agree to act in concert. The idea is that this will shift the supply curve for labor resulting in some combination of higher wages, lower employment, higher prices and (perhaps) lower profits. Cartelization is the theory behind labor unions and laws authorizing collective bargaining exempts it from law prohibiting agreements in restraint of trade that would otherwise apply.

What I supposedly got wrong is that Scott Walker did not raise taxes because of two small adjustments in the calculation of the homestead earned income credit that, considered alone, raised revenue. But the net impact of Walker's budget was to reduce and not increase taxes. I'll stand by what I said. It is rare that a budget bill will not include things that, standing alone, both increase and decrease revenue. We usually look at the big picture.

I am also apparently wrong in saying that Walker's collective bargaining reform did not save the state money. But here's the thing. You can't argue that there have been 1) devastating cuts that 2) didn't save the state money. We have - by the same measure that the state has used in the past - largely closed a huge budget gap without (as I said) an overall tax increase. Looks like someone saved money somewhere.

I did not say, as Uppity claims, that there were absolutely no reductions in state services. One could hardly expect to close a budget gap of that size without some staffing reductions. But I stand by my statement that those reductions have not been significant. I used the recent DPI survey as an illustration.

Finally, Uppity is upset because it's show skewed right. Really? Three of the five panelist in the opening segment are clearly to the left of center. I am not sure about Mr. Kass and Dave Haynes, who may or may not be more conservative than the average editor on State Street, is known as a fairly straight forward journalist. John Gurda has increasingly given over his column in the Journal Sentinel to paeans to socialism. I'm thinking they did OK.

What I find most interesting in Uppity's response is the reaction to my call for civility. Uppity rejects that call because Republicans "rac[ed] through complex legislation and voting on bills at midnight with constitutionally questionable and very minimal prior notice ...."

Well, no, they didn't. Even if you think that Republicans tried to pass the collective bargaining bill too soon, it wound up being perhaps the most debated bill in the history of the state. (In fact, much of what becomes law in this state is passed "at midnight" and with "very minimal prior notice" as part of the biennial budget. Act 10 was a bit of an exception.) The venom we see has nothing to do with procedure.

Reading Obama in Osawatomie, part 1

2011-12-13T08:40:00.000-06:00

Last week President Obama gave a much vaunted "inequality" speech in Osawatomie, Kansas. It is an awful speech full of the blunt edged demagoguery that is increasingly the President's only rhetorical tool. It is full of misstatements, misunderstandings and irrelevancies. It promises much but delivers little.

So let's undertake a leisurely deconstruction.

Obama suggests that it is heroic for a business to keep its costs higher than they otherwise would be by refusing to produce less expensively overseas:

At a time when the cost of hiring workers in China is rising rapidly, it should mean more CEOs deciding that it’s time to bring jobs back to the United States -- (applause) -- not just because it’s good for business, but because it’s good for the country that made their business and their personal success possible. (Applause.)

Who would disagree with that? Well, I would - and so would most economists. The statement is an illustration of what is so often the difference between conservatives and liberals on economics. The latter focus only on immediate impacts. The former, following Frederic Bastiat, pay attention to what is not so readily seen.

A company that refuses to outsource will "save" American jobs - for a while. Because others will not make the same choice (or foreign competitors will enter the market), the long term result is likely to be a loss of market share or even bankruptcy. Not only the "saved" jobs - but those of other employees - are gone.

This is the justification for tariffs. If everyone who wishes to import foreign goods must, in essence, pay a fine, then the competitive disadvantage outlined above will be eliminated or reduced.

But the impact of a tariff is to raise the cost of goods to American consumers. This will reduce demand - again reducing employment in the protected firm albeit not by as much as outsourcing - but will also reduce American wealth. Consumers forced to pay higher prices will have less money to spend elsewhere. Other jobs will be lost or not created.

Put another way, Americans will lose the increase in wealth created by buying the same goods at a lower cost. Note that this is a dead loss. It is not made up by the increased purchasing power of workers who are not replaced. That increased purchasing power is nothing more than a transfer of funds from consumers to retained workers.

Note that this is true even if the cost advantage is the result of an artificially deflated foreign currency or lower regulatory standards. Either way, the American economy is the net beneficiary of lower costs.

And, of course, neither of these conditions is likely to be sustained over the long run. We once thought that the Japanese were undercutting us with cheap labor. That inevitably changed as Japan became more prosperous. The same thing will happen in places like China and India.

To be sure, outsourcing has a significant (and highly visible) impact on displaced workers. It may be that part of the surplus created by their displacement should be devoted to ameliorating that impact through retraining.

It may also be that certain industries that are strategically significant should be protected for military reasons. But that's an argument that is susceptible to all sorts of mischievous uses.

But Obama's suggestion about what is "good for the country" has it backwards.

Seventh Circuit's decision was not hard

2011-12-12T16:20:00.005-06:00

The decision of the Seventh Circuit in Wisconsin Right to Life v. Barland, written by the Hon. Diane Sykes, is well done and clearly correct. It is not groundbreaking in light of the previous decisions of the United States Supreme Court in WRTL v. FEC, FEC v. Davis v. FEC and Citizens United v. FEC.

Those cases make clear that the only justification for restricting support for political speech is the risk of actual or apparent corruption. They also made clear that this justification is not served by restrictions on support for independent expenditures.

In so holding, the Supreme Court rejected the idea that the state may restrict support for political speech by a desire to "level the playing field."

I think that the prior US Supreme Court decisions have it right but, whether or not you agree, the Seventh Circuit was bound to follow the implications of those holdings, That made Wisconsin Right to Life v. Barland an easy case.

So congratulations again to Barbara Lyons, Sue Armacost and the good people at Wisconsin Right to Life, along with their lawyers, James Bopp, and my friend, Mike Dean.

This case does not address the aggregate limit on contributions to candidates. That is a somewhat different case although it may ultimately be resolved on the same rationale.

Recall the Heisman!

2011-12-10T09:20:00.001-06:00

I share the disappointment of my fellow Wisconsinites that Montee Ball lost the vote for the Heisman Trophy. Here is my question: Will our friends in Madison start collecting signatures to recall Robert Griffin III?

Misreading the Journal Sentinel on traffic stops

2011-12-05T13:52:00.001-06:00

Both the authors of the Milwaukee Journal Sentinel's article on the percentage of African American and Hispanics stopped by the police and blogging lawyer Ed Garvey make a common error of interpretation.

The Journal Sentinel authors cite the fact that blacks and Hispanics who were searched were no more likely to have contraband than whites who were searched (22% in both cases) as argument against the notion that more frequent stops (and searches) of blacks and Hispanics can be justified on non-discriminatory grounds. They write:

After the stop, Milwaukee police searched the vehicles of black drivers twice as often as whites, or one search for every 12 stops. But police found contraband items in searches involving black drivers at almost the same rate as whites - about 22% of the time.

Garvey, as is his wont, announces that the case is closed.

The first question is whether the black and Hispanic drivers had more contraband. In other words, is there some justification in stopping more Hispanics and blacks. They did not! So, no, there is not.

Both Garvey and the paper have it exactly wrong. The fact that blacks and Hispanics who were stopped and searched were just as likely as whites who were stopped and searched to have contraband suggests (even if it does not definitively prove) that the stops and searches were not racially motivated.

Here's why. If the Milwaukee police department were engaged in racial discrimination, i.e., stopping persons for "driving while black and brown" then would expect those searches to yield fewer arrests and seizures than the stops and searches of white drivers who have presumably not been selected for discriminatory reasons. Having stopped blacks and Hispanics for no reason but that they were blacks would be expected to yield fewer seizures of contraband among the population subjected to discrimination because there was no good reason to stop them.

The fact that this was not so - that the likelihood of finding contraband in the cars of black and Hispanic detainees was equal to that of finding it the cars of white detainees - suggests that the criteria used for detention was not discriminatory.

Remember these statistics do not show that blacks and Hispanics in general are no more likely than whites to have contraband in their vehicle. That data might support an inference of discrimination. The comparison here involves only those who were stopped and searched.

This is a fairly common misinterpretation of statistics comparing outcomes among different racial groups. To put it in another context, assume that the UW was discriminating against black applicants. One would expect those blacks who are admitted to have higher credentials than the average white admittee. If the credentials for both groups are the same, an inference of even handed treatment is supported.

I expect the sloppiness from Garvey. The paper should have dug a bit deeper.

Who "screwed up" lighting of the Capitol Christmas Tree?

2011-12-05T08:57:00.001-06:00

Senator Robert Jauch was upset about Gov. Walker's decision to move lighting of the state Christmas tree to the morning (as opposed to a noon ceremony). Although Walker denies it, Jauch claims that the change was designed to avoid protesters and then blames the Governor for ruining the tree lighting.
"It's normally a joyous occasion," Jauch said. "He has screwed up one of the finest traditions in the state Capitol."

A small group of yahoos did decide to use the tree lighting as a vehicle for protest. If Walker was trying to avoid providing a background for political theater, who can blame him. If the result was to "screw up" the ceremony, the perpetrators would seem to be those, apparently including Senator Jauch, who can't put politics aside long enough to light a Christmas tree.

More odd PolitiFact heads

2011-12-01T16:13:00.001-06:00

I think that many of the PolitiFact articles checking claims made by public officials, politicians and others are very good. On the whole, I think they constitute a worthwhile contribution to public discourse - if you read the articles.

But if all you do is glance at the "Truth-O-Meter," PolitiFact can be highly misleading and obscure more than enlighten. The text of the articles is often measured and insightful but I can find no rhyme or reason as to how it chooses which cute little graphic to run as part of the article.

A case in point is last week's column on a report by Media Trackers that recall petition circulators are not certified and that there is no privacy protection for those who sign petitions. Both statements are true as PolitiFact concedes.

Yet it rates the Media Trackers story "mostly false." How can that be?

PolitiFact jumps on one line in the MediaTrackers' story saying that these facts have "been discovered." PolitiFact then reads this to mean "newly discovered" or "newly developed" and rates the story mostly false. That strikes me as idiosyncratic at best and unfair at worst.

The thrust of the Media Trackers article is that persons who sign recall petitions are making their name and address a matter of public record. That is true and the fact that it has always been true doesn't make it false. It's not at all clear that most people know that and it seems like a reasonable thing to report.

While it may not have been "discovered" in thes sense that it has always been true and some people have known it doesn't undercut the gist of the story. To make the "truth" or "falsity" of the story turn mostly on the use of that term is to pick a nit. This is particularly so combined with the head which makes no reference to any claim of novelty only Media Trackers report that signers are "at risk."

Someone who merely scans the headline and Truth-O-Meter might - in fact would if they knew nothing else - conclude that Media Trackers falsely reported that signers of recall petitions are at risk that there names might be accessed and misused. But that's not false.

How concerned a signer should be about this is another matter. I get enough nasty mail and e-mails that my wife sometimes thinks we should be "unlisted." That is a quaint relic of our past. No one is unlisted anymore.

But, in Wisconsin's current environment, we have seen partisans - generally if not entirely on the left - use public record of political support to harass their opponents. No one should do that to people who sign recall petitions but Media Trackers is not wrong to point out that they could.

Recall concerns

2011-11-30T12:55:00.001-06:00

Here is why opponents of the Walker recall might be reasonably concerned about the interaction of 1) the GAB's statement that it is not only "not illegal" to sign more than one recall petition but that voters should do it if they fear a petition might not be turned in, 2) the left's hyping of a so far undetected plot to circulate and destroy false recall petitions and 3) the decision of at least some recall organizers to tell people that they may - and arguably encourage them to - sign more than one petition.

Everyone agrees that the administrative burdens presented by a gubernatorial recall are unprecedented. Determining the validity of over 500,000 signatures and ensuring that there are no duplicates is so difficult that the GAB has pretty much thrown in the towel. Aside from a cursory review for obvious inefficiencies, it intends to presume the validity of the signatures. This, it says, reflects an expectation that those who submit the signatures won't turn in duplicates or invalid signatures and the belief that recall opponents will be able to ferret out anything untoward.

That's how it usually works but there are a few problems here. First, the volume that makes it difficult for the GAB to vet over a half million signatures also applies to the ability of recall opponents to do so. Second, it is, I think, somewhat unusual for recall organizers to explicitly tell (some would say encourage) people to sign petitions more than once. This makes it likely that duplicates could be a problem.

This is so even if it is legal to sign a petition more than once. Contrary to some media reports and blogger claims, state law does not expressly permit this, it simply does not expressly prohibit it. I suppose that one might argue that signing a petition more than once is fraud in connection with a recall petition. Personally, I would not wish to see people prosecuted for that because I believe that criminal statutes ought to be construed narrowly and fraud is, moreover, a matter of intent. But the matter may not be as clear as GAB says.

A closer question might be presented with respect to recall organizers who submit petitions knowing, or with no regard for, whether they contain duplicates. State law is quite clear on the number of individual voters who must sign recall petitions. Arguably, submission of petitions constitutes a representation that the requisite number has been obtained. But if one tells people that they may sign more than once and then does nothing to eliminate duplicates (particularly knowing that the GAB won't do so), has one made a false statement with respect to a recall petition? What if the actual number of individual electors signing is less than the requisite amount?

Again, I don't think that prosecuting people who have not knowingly submitted duplicates in an effort to create a false impression that the requisite number of signatures is a good idea, but we are dealing with a confluence of factors that potentially affects the integrity of the process.

Recall proponents, as near as I can tell, defend their behavior because a couple of guys on Facebook (who could have been anybody or nobody) said they were going to collect recall petitions and destroy them. The GAB, while acknowledging that it had no evidence that anyone was really planning to do this, issued a much publicized warning against recall fraud that appears to have been used by some as a justification to tell folks that they may -and perhaps should - sign early and often.

Some lefty bloggers are using three incidents in which they claim someone "destroyed a petition" but none of these instances involved the circulation of false petitions. To the contrary, they involved two individuals who grabbed a petition from actual recall organizers and either ripped them up and one who seems to have either tore or poked a hole in the page. This type of thing is alleged to have happened before (including by Democrats) but would not seem to constitute an existential threat to the recall effort that would justify deliberately seeking - or providing - multiple signatures.

At this point, it would seem that duplicate signatures are a far more serious problem than destroyed signatures. It is, of course, possible that there are "false flag" circulators. Just as I am unwilling to assume that "no one" would engage in fraud when it comes to voter registration and voting, I am not going to assume it away here. Whether that justifies what some might reasonably see as the encouragement of multiple signatures is another matter.

Will this turn into a significant problem? It is quite possible that recall opponents will be able to vet the submitted signatures for duplicates. Perhaps the number of signatures will be sufficiently in excess of the required amount to make duplicates immaterial. Nevertheless, there is something that is unseemly about telling people they may sign more than once when neither the organizers or the reviewing government agency intend to do anything to eliminate duplicates.

If the recall was going the other way, i.e, if the Republicans were attempting to recall a Democratic governor, can anyone doubt that folks on the left would have the same concerns?

More on the Taylor Property

2011-11-30T11:20:00.001-06:00

I am quoted in a Channel Four story on the questions regarding the number of voters registered at an property owned by Senator Lena Taylor. Of course - as is always and necessarily the case with televison newcasts - what could be included in the broadcast is only part of a longer interview. It is my view that the matter needs to be investigated.

In my opinion, the best reading of the law is that a person, to properly register from that address, must have sheltered there for at least ten days prior to the election or, arguably, to have once established a domicile there and not yet acquired a new one. Given the capacity of the building and the large number of registrants and voters from that address, it is reasonable to question whether this was in fact the case. This is particularly so in light of Senator Taylor's reported statement that her mother allowed the address to be used for voting purposes for people who "come and go" and the large number of voters who were "vouched for" by the elder Taylor.

This is not to say - and I emphasized during the interview and on this blog - that anything untoward occurred. We don't know that yet. It is possible that there is a benign explanation for what appears to be an unusually high number of voters at the address. Nor do I think we should rush to suggest that anyone involved acted with malicious intent. We only know that there are reasons to ask questions. Further detail on how I think the answers to those questions should be evaluated can be found here.

On the other hand, the incident can be seen as an example of why voter registration and practice needed to be tightened.

Some lessons from PolitiFact on staffing reductions

2011-11-29T20:23:00.000-06:00

Two things struck me about PolitiFact's evaluation of claims by Governor Walker and WEAC on the impact of the Walker budget and collective bargaining reforms.

First, is the willingness of WEAC to attribute retirements to collective bargaining reform. Continuing to work would not diminish the retirement benefits of any teacher or other public employee. The only reason that one might decide to retire as a result of reform is a judgment that having one's take home income reduced by approximately 5.8% makes continued work no longer worth it.

I am prepared to believe that may happen in some - albeit perhaps not many - cases. Part of the reason that it may, of course, is the generous retirement compensation and early eligibility that has become so problematic. Still, I am glad to see our friends on the left finally come to recognize the impact of changes in marginal returns on incentives. For just as another 5.8% to the pension might cause some people to prefer retirement, an additional - let's say 5.8% added to the marginal tax rate - might cause some people to prefer leisure to work.

Second, the biggest problem with the WEAC ad is one that the Journal Sentinel misses. The paper argues that it was false to claim that nearly 4000 "educators" lost their jobs as a result of reform because some of these persons held administrative or support positions, some retirements and other staff reductions might have other causes and it could be wrong to assume that district who did not respond the the survey had the same experience as those that did. Fair enough.

But here's a more fundamental problem.

There was a net staffing reduction of approximately 3400 in responding districts. Roughly half that reduction comes from one district - Milwaukee - where the Governor's reforms were not implemented. Although one might say that these reductions were still attributable - at least to some degree - to reductions in state aid, they also seem to have had a lot to do with the districts' inability to use the Governors' tools for dealing with aid reductions. Those layoff are on the MTEA and other unions, not the need to balance the budget.

Recall challenge may have legs

2011-11-28T21:18:00.001-06:00

In yesterday's Journal Sentinel article on the challenge to holding recalls in old Senate districts, Loyola Law Professor Justin Leavitt is quoted as saying that a recent summary affirmance of a district court decision in Mississippi by the Supreme Court "mirrors" what happened in Wisconsin such that the challenge is likely to fail.

Maybe not.

As I argued here and here, courts have not required immediate redistricting after completion of a decennial census. This reflects a pragmatic judgment that state legislatures ought to have some time to complete a difficult task. In that sense, the recent affirmance in Mississippi State Conference of NAACP v. Barbour is not surprising.

But, as I also argued (albeit in posts written before the Mississippi State Conference decision), it is not clear that the same pragmatic concern applies to recalls held after redistricting occurs. That is not what happened in Mississippi and thus it is unclear what impact the case will have here. Because it was a summary affirmance (i.e., the Court issued no opinion and did not explain its rationale), the issue is unresolved.

Statute of Limitations (and this blog) balance competing goods

2011-11-28T20:38:00.001-06:00

My column in Friday's Journal Sentinel and blogging social worker Chris Liebenthal's response were featured on WisOpinion.
I think Liebenthal's criticisms were anticipated and responded to in the column. He fails to acknowledge that I defended the current - very long - limitations period for such victims precisely because it can take a long time to bring an action.

But a long period within which to bring suit doesn't mean that there should be no cut off point. He does nothing to refute my point that testing the veracity of allegations about things that happened over twenty years ago is difficult (which is one of the reasons limitations periods are usually a fraction of what they are in child sex abuse cases) and doesn't address the inefficiencies inherent in imposing liabilities - often vicarious - on organizations for actions that happened on the watch of those who are long gone. He doesn't acknowledge that "flashbacks" and "recovered memories" can be wrong. On the merits of the question called, her offers little.

But there is this to say.

Mr. Liebenthal (in a parenthetical) totally misses the point of this blog's title.

He writes that the "shark" "is supposed to represent his skills as a lawyer"* and "[t]he shepherd is supposed to involve his alleged Christian values."*

Completely wrong.

As my reference to Private Joker in Full Metal Jacket makes painfully obvious, the shark and shepherd refer to competing tendencies to competition and cooperation, aggression and conciliation, charity and holding others accountable - in the same person. We are all varying degrees of shark and shepherd and both characters have their own strengths and weaknesses.

Liebenthal's lack of subtlety is reflected in his assumption that someone who thinks that permitting actions to be brought 20-30 years after the fact is a reasonable policy is "a lousy Christian and even worse human being." This equation of his preferred resolution of the tradeoff between finality and fairness to the accused on the one hand and permitting potentially meritorious claims on the other to whether someone is a good person reflects his own inability to appreciate the paradoxical nature of life and the fact that so much of our policy differences are about resolving competing goods.

We can agree that it is good to allow people to recover from people who wronged them. But it is also good to prevent people who did no harm from being held liable. Liebenthal's sense of moral self righteousness reflects an inability to recognize the shark and shepherd in his own soul.

But here's a question for Mr. Liebenthal. School districts and other public entities have a variety of legal protections against claims of child sex abuse including a $ 50,000 damages cap and qualified immunity. Does he support repealing them forthwith? Will he publicly urge Sen. Lassa and Rep. Pasch to introduce legislation repealing these obstacles to bring school districts and other public agencies who have sheltered sex offenders (who are no more likely to be found in the church than in the schools) forthwith? If he doesn't, can I say that he's a lousy human being?

*Gracious to the end, Liebenthal takes a shot at both my legal abilities and moral character. On the former, while, of course, deeply wounded by the judgment of an over the top political activist who has repeatedly embarrassed himself with his intemperate blogging and professional misconduct. I'll take solace in my professional reputation, resume and the fact that I have to turn away work. As to the latter, I make no claim of moral superiority (and certainly not over my political opponents) and do not even say that I am a good Catholic or good Christian. I try. I can do better.

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A framework for evaluating the Taylor story

2011-11-22T21:35:00.001-06:00

We have had a series of reports about potential voting irregularities in the past week. Part of the desideratum of those who oppose vigilance on fraud is that it can't happen and has never been proven. That view is wrong but one might point out that jumping all over reports of things that raise the appearance of impropriety and then arguing that impropriety never occurs is a little dicey.

So let's review where we are. The more important story is the report that 36 people are registered to vote from a property owned by Sen. Lena Taylor at which many fewer than 36 people could legally reside.

This does not, in and of itself, establish that anything untoward was going on here. Maybe there was a great deal of turnover at the property. It may well be that no one who voted from that address was not residing (in the legal sense) at that address.

But that's the question, isn't it? I take from media reports that Sen. Taylor's mother vouched (as the law used to permit) that a number of voters resided at the property. In the terms of prior law (since repealed by the photo ID law), she was a corroborator and signed a statement affirming that the registrant was who he or she claimed to be and resided where he or she claimed to reside.

This is where it becomes legitimate to raise questions. A corroborator must know that what she is corroborating is true. Sen. Taylor's own statements - at least as reported by the media - suggest that her mother may have allowed people who were homeless to "use" the address for voting purposes.

Is that legal? Let's look at the law. Residency for voting purposes is defined in Wis. Stat. sec, 6.10. There is no provision that directly address the residency of homeless persons but two that may be thought to apply.

Sec. 6.10(4) provides that:

The residence of an unmarried person in a transient vocation, a teacher or a student who boards at different places for part of the week, month, or year, if one of the places is the residence of the person's parents, is the place of the parents' residence unless through registration or similar act the person elects to establish a residence elsewhere. If the person has no parents and if the person has not registered elsewhere, the person's residence shall be at the place that the person considered his or her residence in preference to any other for at least 28 consecutive days [formerly ten days] before an election. If this place is within the municipality, the person is entitled to all the privileges and subject to all the duties of other citizens having their residence there, including voting.* (Clarification added.)

Of course, a homeless person is not "in a transient vocation" and there are reasons to believe that the issues presented by someone who is - and, for that reason, a person "in motion" - are different than they would be someone who is homeless.

More helpful, perhaps, is sec. 6.10(7) which provides that:

A guest at a national or a state soldiers' home in this state, a guest at a home for the aged supported by benevolence, or a patient of any county home or other charitable institution, resides in the municipality where the home is located and within the ward where the guest or patient sleeps, unless before becoming a guest or patient at the home the guest or patient elects to maintain his or her prior residence as his or her voting residence.

We normally would not regard a homeless person as a "patient" but perhaps we could use this section to argue that a homeless person resides where he or she shelters.

This is the position that the GAB takes. It also permits homeless persons to use "nontraditional" addresses such a a park or street corner that he or she frequents. It is also possible for a homeless person to use his or her last domicile if he or she has not acquired a new one and intends to return to the old one. That approach is consistent with the outcome of litigation in other states.
But this requires some connection with the address. The GAB, for example, permits an address to be used "where a homeless individual may spend time or return to when absent." It says that a homeless person who has "established a residence, ... may continue to claim that residence as a voting address, even if they no longer physically reside at that location, if they have intent to return." (emphasis supplied) This does not mean that one can simply "use" whatever address one wishes to use.

More fundamentally, under prior law, a corroborator was attesting to an individual's residence. That may mean a number of things. It could mean that the registrant stays in a park that he or she now lists as an address. It may mean that the registrant had established the address as his or her domicile and has not acquired a new one. It may mean that the address is a shelter where the registrant stays. But it does not mean that "I am simply permitting a registrant to use my address because he or she says there is no other."

There is no proof that this is what happened at the Taylor building. But the large number of active registrations there does warrant further inquiry - particularly in light of the fact that a number of the persons voting from that location seem to have used other addresses in relatively contemporaneous court documents. It was not wrong for Media Trackers to raise the issue and not unreasonable to expect an elected official to offer an adequate explanation of what went on.

* As our friend Mr. Foley points out, the version of 6.10(4) in effect at the time of last April's election referred to that place that the person considered his or her residence "10 days" (as opposed to 28 days) before an election. I do not mean to suggest otherwise. My concern here is how to determine whether persons resided at the Taylor building and not whether they were resident there for a sufficiently long period of time. The part of the law defining what constitutes the residence of such a person hasn't changed.

While I don't think sec. 6.10(4) is very helpful, I should point out that, in general, the period during which one had to be resident at a place in order to vote from there was 10 days prior to Act 23 (the voter ID bill). This eighteen day difference could be significant here but I have no reason to think that it is, i.e., the question I'm posing is whether these voters resided at the Taylor property and not whether they resided there "long enough."

Doctors behaving badly

2011-11-21T16:47:00.001-06:00

Tom Foley seems to think that I was playing "fast and loose" with legal terms of art when I suggested - last February - that doctors who passed out sick notes to protesters on the Capitol Square who were not sick were engaged in fraud. He is so sure that he repeats it again and again and again.

In fact, he even suggests that I accused doctors of fraud "even though" there was "no finding of fraud" in a stipulation approved by the Medical Examining Board last week. This suggests that I misrepresented the action of the board. In fact, the post he refers to was written in February and was based on video evidence and press reports (including interviews with the doctors who were writing the notes). I stand by what I wrote (and I'll explain why in a moment) but any suggestion that I misrepresented or ignored a "finding" by the Medical Examining Board is wrong.

Let's review the bidding.

The Medical Examining Board accepted a stipulation (in other words, a settlement) disciplining certain physicians for failure to keep adequate records for those that they gave notes to on the square.
The board did not find, as Foley implies, that the allegations that fake sick notes were written were "baseless." The Chair of the board was quoted as saying that there may be "other issues" but that it was not possible to tell what level of evaluation of the patients was done by the physicians before it. She expressed the view that disciplining the doctors before the board for failure to keep records would be enough to ensure that this would not happen again.

In any event, there was no finding one way or another on fake sick notes because the parties decided not to litigate that. Even if they had, people might well draw different conclusions from whatever facts were presented. So let's proceed to what we know.

I express no opinion on the culpability of any particular doctor. I don't know which doctors wrote fake notes or whether any of the doctors before the board last week did so. Nor do I dismiss the possibility - as unlikely as it might be - that some of the notes written for strangers on the Capitol Square were legitimate, i.e., were written for people who did suffer from a medical condition of sufficient severity that they should not work. There is, moreover, a difference between concluding that some members of a group engaged in certain conduct and which members of the group did it in which cases.
But I have no problem with saying that doctors writing notes stating that persons who were well enough to protest at the Capitol were too ill to come to work were engaged in conduct that fits the legal definition of fraud. I have no problem saying that doctors who wrote notes based on no more than some one's representation that they had called in sick were engaged in conduct that meets the legal definition of fraud.

We usually use the word "fraud" in connection with intentional misrepresentation. (There are circumstances under which one can be liable for negligent or strict liability misrepresentation, but it would be less common to refer to that as "fraud.")

Establishing a claim for intentional misrepresentation requires one to establish that (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment.

Writing a note misrepresenting that people who are both psychologically and physically well enough to stand out in the February cold marching, holding signs and chanting are "sick" and unable to work is a misrepresentation of fact. It seems reasonable to infer (and, in fact, videos taken at the time include admissions) that these notes were intended to be used by the recipient of the note to induce an employer to excuse that person's absence thereby depriving that employer of its contractual right to withhold pay or otherwise enforce contractual rights (by, for example, firing or taking other action with respect to someone who has refused to come to work).

There is video evidence that strongly suggests those things happening. (And it now appears that some of those notes are going to be released.)

There are persons who claim they were given notes without being examined. There is video of at least one doctor basing the length of an "excuse" on how long the patient says she was "sick" and how long "they" were planning "to go" - an apparent reference to her plans to stay out of work "through next Tuesday." There is someone in a lab coat - presumably a doctor - announcing that sick notes are being given to "anyone who needs them" because everyone is "sick of Scott Walker."
There is an example of a "patient" (actually Andrew Breitbart) getting a sick note. When asked whether he would get in trouble if he was "perfectly OK," he is told that he has "Walker pneumonia." (He is given the note without any corroboration of his condition other than his statement that he called in "sick" without even describing what his "illness" may have been.)

There are doctors saying that they are writing excuses for people who "need to be out here"for their mental health or for 'stress." There is another doctor who haltingly says that it is a "socially" OK thing to do because his parents were teachers. Beyond him, we see a line of doctors writing excuses for people who must have come to the Capitol because, hey where else can you get somebody to look at a scratchy throat?

There are persons who say that they, like Breitbart, were given notes without any inquiry as to their condition let alone the type of evaluation you would expect from a physician.
I am hardly the only one who was shocked and dismayed what happened at the Capitol and, in addition to the actions of the Medical Examining Board, some phyicsians have been internally disciplined by the UW.
Now I understand that some of the doctors who wrote the notes seem to think that being upset by the collective bargaining bill is a medical condition that is presumably ameliorated or in some way requires protesting. That doesn't bear scrutiny. While debilitating depression might be a basis for excusing someone from work, that doesn't appear to be the case here. The patients were obviously not "debilitated." That they would prefer - however strongly - protest over work is not the type of medical condition that most all of us - including most doctors - would regard as an illness.

Employers who excuse workers who have doctors' excuses expect that the doctors who write them will adhere to commonly understood meanings of illness and inability to work. They expect those physicians to make medical and not moral or political judgments. They expect physicians to do something other than simply write a note for persons who say they are sick.
And doctors know this. If you don't believe me, ask yourself whether any of these doctors would have written a note stating that Mr. Smith was so upset about a piece of legislation that he could not work and had to protest at the Capitol. And if they had written it, what do you suppose would have happened when Mr. Smith tried to use it.

Having said all of this, I don't think that the doctors should have lost their licenses or been charged with a crime or sued by the employers of those for whom they wrote fake notes. All of that seems disproportionate to me.

But neither do I think we should mince words about what was going on.

Ignoring the obvious for almost 50 years

2011-11-21T15:01:00.001-06:00

One of the worst political writers in America is Frank Rich. He personifies the worst of the self righteous establishment liberal. Coming upon the 48th anniversary of the assassination of John Kennedy, he writes in New York magazine of the "hate" that "killed" Kennedy, arguing that the resentment directed toward Kennedy by (presumably) conservatives is "eerily familiar" to that directed at Obama today. That hate, he implies, comes from the right.

Kennedy was killed by a self avowed communist.

The knots that the left has tied itself into in order to avoid acknowledging this has always been fascinating. For most of the intervening years, it has tended to blame some unspecified "sickness" in American society. Rich wants to blame the right for the murderous act of a man of the left. Nowhere in the entire article does he tell us who Oswalkd was and what he believed.

DPI survey still looks partisan

2011-11-20T07:55:00.001-06:00

Last week, I posted a quick and dirty reading of the DPI/WASD survey on the impact of the biennial budget on school districts. I thought that the survey needs a more thorough vetting but that it seemed to be a polemical document and did not support the claims of disaster that some are making in response to it.

Jay Bullock tries to defend the survey but I am afraid that he totally misses the mark. I have no reason to doubt that a number of districts had some kind of staff reduction. Most did not but it appears that somewhere in the neighborhood of 42% of the surveyed districts did.

But the doesn't tell us much. How deep were the reductions? How do they relate to changes in enrollment? What impact, if any, do they have on the delivery of services. Jay thinks that any reduction in staffing is a catastrophe, writing "[s]o, yes, a lot of districts were able to stave off disaster in this area but, you know, a full third didn't. " (emphasis in original)

Let's take a closer look at these "disasters." As I wrote in my original post, the mean "student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012. " Is that a disaster? Looking at median reductions, doesn't change the picture. For example, in the survey's comparison of districts that were "in" and "out" of contract, we see that the median loss for both groups were 1.2 and 1.0 FTE or, as human beings usually say "person." Is that a disaster?

I criticized DPI for excluding Milwaukee from its analysis of "in" and "out" of contracts districts. The defense for doing so was that Milwaukee is an "outlier" and doesn't affect the median teacher loss or "dramatically" impact the weighted average mean loss.

Well, of course (as I wrote), it wouldn't affect the median loss. You report medians to counteract the impact of outlying results. I would, however, like to see how it affects the mean average loss particularly since the mean average losses are so small.

The failure to show the impact is particularily curious since DPI begins its report by giving the aggregate losses across reponding districts which include reductions in Milwaukee. As the Journal Sentinel reports, almost half or the total staff reductions and 38% of teacher reductions were in Milwaukee. Thus, DPI uses the "outlying" district if it serves their anti-reform agenda and doesn't when it might not.

Beyond that, DPI tries to argue that the "reforms" did not help districts because those districts who were "in contract" were not all that different from those that were "out of" contract. But the survey seems to have counted as "in contract" districts who extended their contract by incorporating the compensation adjustments mandated by the reform bill. It is unlikely that those concessions would have been made in the absence of Act 10. A more meaningful concession would be between those districts who adopted the concessions and those (like Milwaukee) who did not. Jay himself concedes - albeit in a backhanded way - that this would have saved a lot of jobs in Milwaukee.

One of my specialites as a litigator is the cross examination of social science experts and results. A cursory examination suggests that a more complete vetting is in order.

Recall is garden variety politics

2011-11-15T20:45:00.001-06:00

In response to my post yesterday on Governor Walker, Lester Pines complains that the Governor's motivation was political based on the desire to destroy an institution that opposes the Republican Party and, although he doesn't say it, supports the Democrats. For Lester, collective bargaining reform "was motivated by a desire to eliminate the main opponents of the political and social agenda of the Republican Party, not to ensure that state and municipal budgets were balanced."

Two things. First, reforming collective bargaining is intrinsically tied with balancing state and municipal budgets. The contracts that labor unions negotiate cost money. They add cost not only by increasing wages and fringe benefits, but by imposing a panoply of work rules and limitations on the management of the public workforce that increase costs. If you make it harder to fire poor performers, change job duties and manage in a way designed to deliver the most service at the lowest cost, you make it more difficult to balance the budget.

Second, the political motivations for supporting or opposing collective bargaining as we have known it in Wisconsin cut both ways and, in my view, the fire side equities cut in the Governor's favor. To be sure, the Walker reforms will reduce the amount of money that unions have to contribute to the Democrats and spend in ways that promote the Democratic and left liberal agenda.

But why is that so?

It is so because the unions will now have to convince their members to support their political activities. In the past, unions could compel even those who did not wish to belong to unions to financially support their activities. While employees could ask that their fair share payments not include funds used for political activity, this is an enormously ineffective remedy. First, the amounts excluded as "political" are generally oonly a fraction of the amount that might be characterized as such. Second, money is fungible so even money used to support supposedly nonpolitical activities supports an infrastructure upon which political activities can be based. Third, it is enormously beneficial to the unions to require employees to "opt out." This makes it much easier to collect money than it would be if the unions - like every other organization that spends money on politics - had to convince members to choose to send them money and arrange to collect it themselves.

Eliminating these advantages will benefit Republicans and help Democrats just as retaining them would benefit Democrats and hurt Republicans. But there is no intrinsic right for unions to have them and, in fact, I would argue that retaining them is a serious imposition on the prerogatives of dissenting employees and confers an artificial advantage on Democrats.

Jim Rowen complains that Walker did not campaign on collective bargaining reform but it is unclear how that supports a recall. As George Mitchell asks, would Jim have thought it appropriate to recall Governor Doyle for not campaigning on a tax increase? Do we want a principle that says that public officials cannot implement any policy that they did not mention during their campaign?

I understand that Lester and Jim don't support the Governor and wish he was gone. Some of us had similar feelings about Governor Doyle (whose record of rewarding campaign supporters was every bit the equal - I would say much more blatant - than Walker's). Somehow we avoided an eternal campaign. But if recalls are going to become just another arrow in the political quiver, the Democrats may be sorry that they started this. Once a restraint on political combat is cast aside, it is almost impossible to go back.

Was the DPI survey a half baked hatchet job?

2011-11-15T12:21:00.001-06:00

I can't be sure but it may well have been.

One of the things that you learn as a lawyer is that a patina of reasonableness and respectability does not always withstand scrutiny. The DPI's Budget Survey Analysis reads like a document that might - at the least - list badly after closer examination. The survey reads like a piece of advocacy and presents as an established fact (lower clase sizes increase student performance) something that is, in fact, controverted and more complicated than the survey allows (reducing class size precludes other uses of resources).

Of course, I come to the question with a perspective. The risk of that is confirmation bias. The advantage is to insist that questions be asked and this survey seems to need a lot of work.
One issue is the need for a baseline. I would not argue - and I don't think the Governor has argued - that the greater flexibility achieved by collective bargaining reform obviates the need for all service reductions. The state's fiscal problems were too severe for that. The real question to ask is how much worse they might have been and whether, under the circumstances, they are tolerable. To that end, the Governor's comparison of these reductions with those that took place in earlier years is instructive.

DPI recognizes this and attempts to compare job reductions in 2009 and 2010-11 with those reflected in the survey. Larger losses in 2012 are shown. But, curiously, this part of the report comes right after a section that claims that some of the districts used remaining stimulus dollars to avoid cuts in 2012. Fair enough, but why not address the extend to which stimulus dollars avoided staff reductions in the prior years, pushing them into 2012?

But, more importantly, how severe were these staff reductions?Most of the survey is unconcerned with that, focusing on the breadth of reductions, i.e.. what percentage of districts reduced teaching staff. The answer seems to be less than half - about 42% and only 22% of those who experience increased enrollment. But is that the most important question? Don't we want to know the magnitude of staff reductions?

The bottom line: The student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012.

No. That is not a typo. It comes p. 15 of the DPI's analysis. The Governor of the state of Wisconsin largely closed a longstanding structural deficit without raising taxes and the student/teacher ration went up by a quarter of a body, i.e., by less than 2%.

Recall him now!

Another issue is the need to distinguish between those districts that utilized the reforms and those that did not. The DPI says that is has done that but there is reason to be skeptical. As the Journal Sentinel points out, a huge percentage of reduction in force came in Milwaukee. The DPI uses this to maximize the extent of the cuts when it chooses to present statistics on the number of students who attend a district in which something has happened.

But, when it attempts to show that it "didn't matter" whether or not a district extended its contract to avoid the reforms with respect to the loss of teacher positions, it excludes Milwaukee noting that Milwaukee was an "outlier" - in other word it did matter in Milwaukee. That looks bad. While DPI says that texcluding Milwaukee does not change the median job loss (of course it wouldn't) or dramatically change the mean (but it would be nice to see the number), this reflects the approach of an advocate and not an evaluator.

In addition, the argument that it doesn't matter whether one can reduce certain costs and more efficiently manage resources is counterintuitive.This is an area which would seem to be in need of more robust analysis. How exactly did DPI choose between "in contract" and "out of contract" districts? Is a simple measure of force reduction an adequate way of evaluating whether collective bargaining reform helped districts to cope with reductions in state aid?

Releasing what seems to be a half baked survey to coincide with the commencement of the petition to recall the Governor seems overtly politicial. There is nothing wrong with that, I suppose. The DPI has always been a highly politicized agency and Tony Evers seems to be doubling down on that after some easing in recent years.

But a great deal more work needs to be done.

Avoiding Hard Questions on Walker

2011-11-15T08:01:00.001-06:00

I spent most of last week in DC. In reviewing the responses to my column opposing the recall of Governor Walker, those opposing my position fell into three camps. First - and, unforunately, largest - were those characterized by unadorned name calling. I am, it turns, out full of s***, un-American, a**-licking, etc. Not a few commentators wanted to say that I am un-Christian and mired in sin for failing to accept the Gospel of the Democratic Party.

But there, thank God, people willing to make an argument and their responses were largely focused on the unfairness of a paycut for public employees (who they claim make less than those in "comparable" positions) and Governor Walker's failure to detail his budget reform proposal during the campaign.

What opponents did not do is challenge the notion that the state had a serious fiscal problem and that the reforms allow services to be provided for less money. No one can question that this at least reduces the needs for service cuts and sometimes eliminates it all together.

And no one did. They either argued as if fiscal questions can be addressed by deciding whether or not a bit of spending or cut is "good" in some absolute sense without regard or whether or how it can be paid for. State employees are paid, on average, far more than the average worker. Studies that purport to show that this is, nevertheless, less than the pay for "comparable" jobs are, I think largely worthless because there often are no "comparable" public sector jobs. Pay is determined by market forces - not by some aggregation of educational background, experience and hours worked - and the former is not readily controlled for in a study.

So a general tax increase to pay higher salaries to public workers is not easy to justify. Some commenters wanted to focus on taxing "the rich" and this will become the Holy Grail of American politics in 2012. The idea will be to avoid hard choices by imposing the cost on someone who is not us and seems to have more than what he or she "needs" already.

This is a temptation in American politics as old as the Constitution itself - famously warned against by Madison in Federalist No. 10. While I depart from some of my conservative colleagues in the belief that, say, repealing the Bush tax cuts for the truly wealthy or even minimizing the spread between the taxation of ordinary income and capital gains might not be disastrous, paying for things by "soaking the rich" is difficult and does not have a great historical pedigree. Wealthy people have the ability to engage in substanital tax avoidance behavior and there is a point at which tax rates become serious disincentives and impediments to capital formation. The problem is even worse at the state level because rich people don't, for the most part, have to live in Wisconsin.

Warren Buffett may have abased our public discourse as much as he informed it. Millions of Americans now believe that rich people pay a lower effective rate than the rest of us (on average and in the vast majority, they do not) and pay something less than their share of national income. (In fact, they pay much more.)

One can certainly wonder about the ballooning incomes of economic "superstars." But it is a mistake to think that fiscal challenges can be paid for by someone else.

Educational reform comes in many forms

2011-11-08T11:49:00.000-06:00

My column in the Milwaukee Journal Sentinel on the Walker recall is here. Along the same lines, I recommend a piece in National Review by Reihan Salam and Tino Sandandaji. ( I would warn those liberal readers tempted to dismuss NR as a place where people preach to the choir to be careful and actually read the magazine.)

Salam and Sandandaji start with an interesting observation. Supporters of teachers' unions and the traditional views of the educational establishment ("money solves all probelems"), such as Paul Krugman, were quick to point out that students in unionized Wisconsin do better on standardized tests that students in non-unionized Texas.

They proceed to blow up the implications of that claim with the following observations:

White students in nonunionized Texas do better than white students in unionized Wisconsin.

Black students in nonunionized Texas do better than black students in unionized Wisconsin.

Hispanic students in nonunionized Texas do better than Hispanic students in unionized Wisconsin.

How can this be?

The answer is simple. Texas has a much higher proportion of black and Hispanic students than Wisconsin. Across the country, white and Asian students (as a group) outperform black and Hispanic students (as a group). So states with lower percentages of the underperforming groups will outperform states with higher percentages such as Texas, notwithstanding the fact that Texas may be doing a better job of educating each group.

This leads to a clarification, a warning and a challenge.

The clarification is that there is nothing "racist" about this observation. It is an incontrovertible fact and does not require that one buy into any sort of theory about innate racial differences. Different ethnic groups have had different experiences resulting in differing levels of social capital. (And, of course, group differences tell us nothing about any particular individuals.)

The warning is that America in the future will look a lot more like Texas. If Texas is doing a better job of educating minority kids (better being distinct from adequate) than we ought to take a look at what Texas is doing.

Finally, the challenge gets us to Scott Walker and collective bargaining reform. The preferred solution of the Educational Establishment is to "fully fund" public education. More money (and more teachers) will solve all. But as Salam and Sanadaji point out, spending on public education - in real terms - has gone through the roof (a 250% increase since 1970) while reading and math scores have remained flat and high school graduation rates have slightly declined. Much of the that money has gone into better pay for teachers and more teachers without impact, (In fact, the authors suggest that hiring more teachers has reduced teacher quality.)

How can we have spent more money with so little too show for it. A major part of the problem is teacher unions who quite naturally (that's what they are there for) privilege the interests of their members over the interests of students. Their objective is consistently to shift money to their members in a way that does not increase the burdens placed on their members. Thus, the consistent call for more money tied to length of service and not performance.

In conferring collective bargaining power in teacher unions, the state creates a cartel. Solving our educational challenges may require eliminating or weakening the cartel.

If you want a permit, take a good class

2011-11-07T14:33:00.000-06:00

But I am not in favor of attempts to minimize training requirements for concealed carry permits. Regardless of what the legislature does, I feel comfortable saying this. If you carry without adequate training including hands on with your fire arm, you are an idiot and far more likely to harm yourself than an attacker. My own concern is that the four hour classes are inadequate to the extent that they lack adequate intruction in handling, maintaining and actually firing a gun. Let Dad29 tell me if I'm wrong.

Much ado about Castle Doctrine

2011-11-07T14:24:00.002-06:00

I don't have strong feelings about the "castle doctrine." The very thing that makes it attractive cuts against its necessity. Under current law, juries are unlikely to second guess the judgment of people who have had to make split second decisions in the face of a home invasion. Prosecutors, knowing this, may be reluctant to bring charges.But this observation, while suggesting that the need for the doctrine is not great, also undercuts the arguments against it. If no one gets convicted for defending themselves in the event of a home invasion, then it is unlikely that a change in the legal standard will allow more people to get away with murder. (The idea that a change in a legal doctrine that few are even aware of will change people's behavior in a time of crisis is too contrived to take seriously).Recognizing this, the Criminal Law section of the state bar association tries to argue that the doctrine will facilitate spousal murder. The argument is not persuasive. In a floor memo authored by Greg O'Meara, the section says that a husband might now shoot his wife and then falsely claim that there was a home invasion. The reasonableness of his decision to use force cannot be examined and he is more likely to evade prosecution. The memo states that "AB 69 requires a jury instruction in every criminal case that the jury should find that, if the crime took place in the defendant’s home, vehicle, or place of business, the actor reasonably believed that he was the victim of an imminent attack with deadly force and that his own use of deadly force was presumptively necessary."But that's not true. The bill requires that presumption only in the event of unlawful or forcible entry. While, its true, as the section's memo points out, that a defendant might argue that he was reasonably mistaken about the fact of an unlawful or forcible entry but, in order for the new law to be outcome determinative, a the jury is going to have to buy the mistake defense first. In other words, for the section's horrible to come true, we need a case where a jury would accept the defendant's story about a nonexistent home invader or whatever is supposed to have caused him to be mistaken will be accepted by the jury (at least so as to create reasonable doubt), but then conclude that the degree of force against this (actually) nonexistent behavior was unreasonable.Such a scenario is possible but implausible. The perpetrator's story is always going to portray the "invader" as hell bent for mayhem or his mistaken reaction to some indication of an invasion as harrowing. If the jury buys it (or can't dismiss it so readily as to dispel reasonable doubt), it's hard to imagine a a case where it would not also conclude that the use of force was reasonable.Consider the notorious murder of Barbara Anderson by her husband Jesse outside a restaurant at Northridge, Anderson falsely claimed that he and his wife were attacked and that he was wounded and she was killed in the attack. In fact, he killed her. The case doesn't involve a home invasion and the law afforded him no presumption of reasonable force, but I think it's still instructive. Anderson needed to sell - at least well enough to raise a reasonable doubt - that there was an attacker. If he had been entitled to use a presumption of reasonable force, it would have done him no good unless the prosecutor, or if he was charged, the jury gave the story sufficient credit to create reasonable doubt..Assume they believe him, i.e., they conclude that there was an attacker. How likely is it that they will be able to conclude that his use of force was unreasonable?A more plausible case is the homeowner who kills an invited guest and then falsely claims that he or she entered unlawfully. But in that case as well, the castle doctrine defense is determinative only in a scenario in which the jury buys the fabricated story of an invasion but would have concluded that the use of force in response to that nonexistent invasion was unreasonable. It strikes me as more plausible because there is likely to be physical evidence of what the victim was or was not doing apart from the perpetrator's lie (which both hypotheticals require us to assume that the jury at least does not disbelieve), but still pretty unlikely.I can't help but think the castle doctrine debate is more about ancillary messages that is opponents and proponents want to send. It's proponents want to make a statement about property rights and self defense. It's opponents want to make a statement about subordinating property rights and the dangers of self defense. But i wonder whether the bill is likely to have a great deal of real world impact.

Smile when you say that

2011-11-01T21:19:00.000-05:00

Wisconsin became the 49th state to permit concealed carry today and Eugene Kane is one frightened fellow. He's going to have to tread lightly because who knows when a casual encounter might lead to gun play? He's worried it's going to be like the OK Corral out there. Given the ways in which people get worked up over what they read in the paper, he is thankful that Journal Sentinel won't allow guns on its premises. I do suppose that anyone who is hell bent on busting a cap in a newspaper columnist will be deterred by the fact that guns aren't allowed on the premises.That's all to be expected. I could have read that column without him having to write it. But the interesting thing is that he refutes himself without appearing to have recognized. Mr. Kane allows how he has traveled to other states that permit concealed carry (that would be everyone other than Illinois) and "most times" (I suspect it's more like all times) doesn't "think about it." This is, he says, because the fact that other people may be carrying does not give him an added sense of security.But, if he doesn't think about it, there is something else that the laws in those states aren't giving him either - a heightened sense of apprehension.And they shouldn't. Kane writes that "[p]ro-gun advocates insist concealed carry laws lead to a decrease in crime, but statistics don't bear that out in any discernible way." That sentence proves more than he wants it to. Some scholars claim that concealed carry reduces crime. Others attack studies that purport to show that criticizing their methodology. So he could be right. We don't know if concealed carry reduces gun crime.But there is precious little evidence that even suggests an. A few years ago, at Marquette, I moderated a debate between John Lott, author of a book called More Guns, Less Crime and an Richard Withers, who used to run a handgun violence center at the Medical College of Wisconsin and is anadvocate of handgun control. They agreed about little. But the one they thing that they agreed upon is that concealed carry cannot be shown to lead to increases in gun crime. I am aware of a few people who argue that there may be a modest negative impact, but it is pretty hard to say that concealed carry has, as Kane would put it, a discernible effect on crime. The spontaneous shootouts that Kane fears don't happen. So he can relax.

More on who gets to recall

2011-10-31T15:07:00.000-05:00

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.

Who gets to recall?

2011-10-28T12:15:00.002-05:00

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.

The legislature and legal fees

2011-10-26T18:20:00.000-05:00

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

2011-10-26T16:05:00.001-05:00

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.

2011-10-26T13:03:00.000-05:00

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

2011-10-26T01:26:00.001-05:00

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 Songs for the Occupation

2011-10-23T11:20:00.004-05:00

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.

It was just a call for help

2011-10-20T12:49:00.004-05:00

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.

The ideology of restricting political speech

2011-10-19T20:22:00.003-05:00

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.

Through the UW's Looking Glass

2011-10-18T07:30:00.003-05:00

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.

Who stole your future?

2011-10-17T10:25:00.001-05:00

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

2011-10-17T08:21:00.001-05:00

How about those Packers!

The Faith of Economists

2011-10-15T23:03:00.000-05:00

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.

2011-10-15T08:29:00.002-05:00

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.

Brewers deal with good and bad

2011-10-14T08:58:00.003-05:00

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?

It's unfair, man.

2011-10-12T08:34:00.002-05:00

H/T: Mia Reynolds Reini

Yes. Really.

2011-10-12T07:47:00.004-05:00

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

The real significance of the protests

2011-10-11T08:36:00.001-05:00

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.

It was so much fun because it was so tough

2011-10-08T10:57:00.000-05:00

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.

Are you ready for some football?

2011-10-07T07:34:00.002-05:00

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.

Game five is uncomfortable

2011-10-06T14:11:00.004-05:00

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.

Let the state defend where it acts

2011-10-04T22:46:00.002-05:00

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

2011-10-04T09:04:00.002-05:00

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 ...

2011-10-04T08:23:00.002-05:00

... 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.

Slashing or Satiating?

2011-10-03T14:13:00.005-05:00

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

2011-10-03T12:13:00.005-05:00

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

2011-10-03T08:27:00.002-05:00

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.

Text sets WRTL free

2011-09-30T08:30:00.001-05:00

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.

Why WRTL cannot be charged.

2011-09-27T10:11:00.007-05:00

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.

One More Time - Slowly

2011-09-25T06:25:00.000-05:00

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.

Dixi.

Wisconsin Institute for Law & Liberty

2011-09-22T08:12:00.000-05:00

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.

He ought to know

2011-09-21T01:48:00.000-05:00

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.

Just so you know

2011-09-20T08:42:00.002-05:00

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

2011-09-20T08:30:00.003-05:00

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

2011-09-20T08:09:00.003-05:00

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.

Poverty and the Fifties

2011-09-19T09:04:00.003-05:00

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.

Can the Brewers blow it?

2011-09-16T09:38:00.002-05:00

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.

Poverty is winning

2011-09-15T14:51:00.003-05:00

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.

Lena's Law

2011-09-14T14:13:00.005-05:00

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

2011-09-14T08:30:00.003-05:00

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

2011-09-14T08:16:00.002-05:00

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.

Murphy's take on the law not quite right

2011-09-08T09:15:00.004-05:00

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.

What Started the Argument - A Correction

2011-08-30T08:34:00.002-05:00

One of the talking points on left-leaning blogs is to cluck about the fact that the disagreement that lead to the confrontation on the state Supreme Court was about when the Court's decision would be issued. It is, they say, somehow indicative of a lack of judicial independence that the majority wanted the decision out quickly because the state wanted it out quickly as revealed by, in addition to submissions to the Court (which the critics ignore), public statements by certain legislators. They cite statements by the dissenting Justices that the Court operates on "court time" and not "legislative time."

The critics are wrong.

It is not at all unusual - in fact it is admirable - for a Court to recognize that a matter before it is time sensitive, i.e., that asserted rights will be lost if a decision is not issued by a certain date or before a certain event. That was the case in Ozanne. If it was not decided by sometime in mid-June, the claim that the circuit court had interfered with the constitutional prerogatives of the legislature would have been mooted. Because of the looming deadline for passage of a new budget, the legislature would have had to take up the collective bargaining reforms for a second time. But the claim in Ozanne was that the reforms had been properly passed and that it was a violation of separation of powers for the circuit court to declare them to be invalid and enjoin their enforcement. In other words, the case had a shelf life.

There is nothing wrong with a court recognizing this and attempting to act promptly so that the rights of the parties will not be lost by the mere passage of time.

Shark on Public TV

2011-08-29T08:19:00.003-05:00

Last Friday, I did a segment on Wisconsin Public Television's "Here and Now" regarding the law suit filed by the Madison teachers union and others raising state constitutional challenges to the collective bargaining bill. You can see it here.

The exchange gets a bit interesting at the end when I upped the ante a bit by referring to the argument that Act 10 interferes with public employees and rights of association as "Orwellian." I chose the word carefully. Mandatory dues or even fair share agreements force dissenters to support activities and political expression with which they disagree. ("Fair share" allocations generally turn out to support a lot of expressive conduct and many dissenters have an objection to collective bargaining per se.) Even forcing dissenters to "opt out" gives unions an enormous advantage over other expressive association.

Under Act 10, public employees remain free to associate for purposes of political expression. But the unions - as a potential vehicle for such association - are going to have to convince those employees that they ought to contribute to such expression and arrange to collect their voluntary contributions just as every other expressive association must.

Experience in other states tell us that vast numbers of public employees will decline to do so. That's not good for the unions but it seems like a vindication of associational and expressive rights which, of course, include the rights not to associate and not to speak.

Public charges and conferences

2011-08-29T02:09:00.000-05:00

Having reviewed the transcripts of interviews with the Chief Justice and Justices Bradley, Prosser and Gableman, it is not surprising that no charges were issued. While the perceptions of the various witnesses differ, they tend to depart on very subjective points in which the witness characterizes the volume of someone's voice or the rapidity with which an action was taken - although there does seem to be disagreement as to whether Justice Bradley's fist was raised. Somewhat differing versions are not unusual in a case like this. What seems clear is that the Justice Bradley got in his face and he placed his hands on the sides of her neck to either push her away or halt her advance. There was no "chokehold."

Neither one of them behaved at his or her best. We all have our moments but it still would be nice if they would a issue a joint public apology. I don't think that's likely.

It is unfortunate that this became public and sad that it has and will continue to be used for political purposes. I hope that the justices can come to see that leadership entails backing away from this type of confrontation and getting to a point at which some measure of collegiality is possible is more important than scoring debating points or gaining strategic advantage.

What I don't see leading to that is making decision conferences public. Judicial decisionmaking requires deliberation aided by frank and open discussion. Althouigh decision conferences end in a vote, it entails an iterative process in which the judge reconsiders his or her preliminary or earlier expressed views. In the end, the rationale for a decision is expressed in a fully considered opinion. Forcing the justices to make their intial thoughts public will tend to short circuit the deliberative process and to inhibit frank discussion. The inability of members of the Court to get along is deep and pervasive problem that can't be solved by the simple expedient of open conferences. Sanitizing those conferences - and that's what making them public will do - wont' make it go away.