Look, we sued the Pope !

Lawyers for the Vatican have called the lawsuit against Pope Benedict and the Holy See a "publicity stunt." I wouldn't go so far as to say that - it has a chance of surviving a motion to dismiss and there may be, embedded in its fifty four pages, a theory that might get to the jury. But there is a sense in which that a publicity stunt is precisely what it is and there may be some larger lessons here about the American liability system.

The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.

There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.

Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.

There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.

But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.

And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.

There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.

Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."

This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.

Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.

Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.


Cross posted at Point of Law

Judge Crabb's Establishment Clause Ambition

I am not going to go ballistic over Judge Barbara Crabb's decision that the National Day of Prayer - an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic - violates the Establishment Clause.
She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn't always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb's decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don't think she handled them in the right way.
It would be hard for me to conclude otherwise. I have argued - here and here - that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things - teach sex education, values clarification or promote patriotism - that could cause religious dissidents to "feel like outsiders." The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.

My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.

But there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional - notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted - particularly if they are have a long pedigree.

The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb's position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.

Cross posted at the Marquette University Law School Faculty Blog

Shark in San Diego

Earlier this week, I had the pleasure of making a quick visit to the University of San Diego Law School to engage in a debate on the case of Christian Legal Society v. Martinez, set for argument before the United States Supreme Court on Monday. The event was made possible by a grant from the Templeton Foundation and sponsored by the USD chapters of the Federalist Society, Christian Legal Society and PrideLaw.

I was on the ground for less than 24 hours, but San Diego is beautiful (although I think I picked the one day in the last ten years when the weather in Milwaukee in April was just as nice) and the USD campus is exquisite. My opponent (Professor Shaun Martin), the moderator (Dean Michael Kelley) and the student hosts were gracious. The lunch at La Gran Terraza was very good. What about the debate?

The case involves the refusal of Hastings College of Law (a public school that is part of the University of California system) to recognize the Christian Legal Society as a student organization because, although its events are open to everyone, voting members must affirm a statement of creedal Christianity and resolve to strive to live in accordance with certain moral standards, including to refrain from sexual conduct outside of marriage between one man and one woman.

No way, says Hastings. This constitutes discrimination on the basis of religion and sexual orientation and violates the Law School's unwritten policy which requires (or, so Hastings says, although it has heretofore not insisted) that all student organizations take all comers without regard to whether those comers support the organization's beliefs or ideals. The CLS can exist. Hastings might even allow it to use University facilities. (It has said that it will but there is some dispute over whether it has kept that promise.) But it can't be a recognized student organization.

Two things are clear. The CLS has an associational right to exclude those who don't buy into its mission. Hastings has no obligation to subsidize its speech or the exercise of its associational right.

But there is a complication.

In deciding to recognize student organizations who engage in expressive conduct, Hastings has created what has come to be known as a limited purpose public forum. Case law says that, when such a forum is created, participants may not be excluded on the basis of the viewpoint expressed, including, the Supreme Court has made clear, religious viewpoints.

Hastings says that they have not engaged in viewpoint discrimination. No organization can exclude anyone. Cats must live with dogs, Democrats must admit Republicans, the Sierra Club must welcome global warming deniers and the gay & lesbian student organization must allow its message to be voted on by congregants of the Westboro Baptist Church. They say that the educational purpose of their forum requires, not only diversity among groups, but within groups.

I don't believe the latter. Hastings student groups often have charters that require voting members to adhere to the ideals of organizations. (One, La Raza, even had racial requirements.) Although the parties have stipulated that this is Hastings policy, it seems clearly to have been an expedience contrived for litigation, suggesting that it is hardly essential to the law school's educational mission.

The former is belied by the fact that the policy discriminates against groups organized to advance a particular point of view (one might call them "creedal groups"). It seems weak tea to say that Hastings permits student groups to express all manners of views but won't allow them to exercise associational freedom in the task of advancing those viewpoints.

The right of free association has been found to be implicit in, and essential to, the right to speak. The freedom of associate has also been found to include the freedom to exclude those who do not share or, in the judgment of the group, would impair the group's expressive measure. The CLS does not seek to exclude on the basis of status (they will admit gay and lesbian students who affirm their statement of beliefs) but on the basis of belief and in a way which is intended to further its expressive activities.

In the end, it seems to me that Hastings policy will burden the expression of unpopular views whose message can be silenced by the requirement that they admit into their organization those who would silence it. It will, I think, result in a more narrow than broader range of discourse. It tells religious organizations that they must become debating societies - effectively excluding them from the university's forum.

Professor Martin argued ably against this view. The one thing that he and I agreed on is this is likely a 5-4 case. You can guess who the swing vote will be.

Cross posted at the Marquette University Law School Faculty Blog

Forget about that local democracy bit

One of the insights of Public Choice theory (a way of viewing political actors as self interested agents) is that intensely interested parties may often be able to exercise disproportionate influence over public policy to benefit their own interests at the expense of the common good. This proposal to vest greater control over local school districts and school boards with the state Superintendent of Public Instruction strikes me as a prime example.

I have no idea whether placing MPS under the responsibility of the Mayor would have helped whatever one agrees are completely unacceptable outcomes. The idea was to place responsibility for the schools with a public official to whom more people pay attention and whose election and re-election is more salient, i.e., more people pay attention. School board races attract few voters and tend to be denominated by those who are self interested in the status quo or in particular proposals fro reform. This results in a weaker demand for acountability on the part of the general public. If the mayor had to run for reelection based, in part, on the performance of the schools, it is more likely that something would get done.

One of the arguments against the takeover, however, is that it would diminish the voters' direct control over the schools. Better, the opponents said, to place responsibility for the schools in the hands of officials who must run for relection based on the performance of the schools and nothing else. This, opponents said, would maximize local control - and, in particular, control on the part of the community most affected by MPS - over the schools.

So now the idea is to move a substantial amount of that control - not merely the few miles from Vliet Street to Water Street - but to Madison. And it appears that some who opposed empowering the Mayor support placing ultimate power over the schools with DPI.

This seems inconsistent until you remember the insights of public choice theory. The election of the State Superintendent of Public Instruction is an extremely low salience (spring in the odd years) race that is marked by an extremely low turnout dominated by those who are self interested in public education. DPI has long had a reputation as a wholly owned subsidiary of the teachers' unions because the teachers' union has a disproportionate influence in the election of the Superintendent.

This is not to cast aspersions on Tony Evers or any other state Superintendent. It is just to note that, in an election dominated by WEAC, candidates whose views (presumably sincerely held) are more favorable to WEAC are likely to win. In fact, I am unaware that a candidate not favored by the teachers' union has ever been elected State Superintendent - at least not in my increasingly lengthy adulthood.

When seen in this way, any inconsistency seems explainable.



So, I think that this is a

The Story Remains the Same

Update: Since writing this post, I have had an opportunity to do a bit more research, heard Father Brundage's comments on Charlie Sykes show and have exchanged e-mails with Father Brundage. I should add the following: Abatement is not equivalent to dismissal and it was unclear in the few days before draft of the letter and Father Murphy's death that, if the matter had been abated, it would not have become active again. (An abated action remains pending.) As a practical matter, nothing was going to happen soon since the situation in August of 1998 was that Father Murphy was too ill for the matter to move forward. Second, whether Father Brundage would or would not have been a hero in this case, he literally has been a hero in other matters of child abuse - to the point of risking his life.

In the first bit of new reporting by the Journal Sentinel,Anyssa Johnson now writes that Father Thomas Brundage actually provided Archbishop Rembert Weakland with a draft of the letter sent several days before Father Murphy's death announcing that the case against him had been abated.

If this is accurate, then it reflects poorly on Father Brundage who said that he would never have agreed to abate the proceedings unless Pope John Paul II ordered him to do so. Not because he did it. As Dad29 points out, he worked for Weakland and had undertaken a vow of obedience.

I am sure that he simply did not recall that he drafted the letter that he now claims not to have seen. But his claim that "he would have" objected to the abatement is simply not true. That may, in one sense, be understandable. Priests don't normally go over the head of their Bishops. It is also true that the matter had not been abated at the time of Father Murphy's death but it apparently was going to be. Perhaps Father Brundage would have objected. It is certainly possible that he would have written a draft of a potential response at the direction of his boss, but objected if he learned that this was actually what the Archbishop decided to do. But, just as it was inappropriate for Archbishop Weakland to attempt to blame his own failures on the Vatican, it was inappropriate for Father Brundage to suggest that he would have been the hero that he was apparently not.

But that does not add a single bit of support to the story line, i.e., idea that the final failure - after many earlier failures - to deal adequately with Father Murphy can somehow be blamed on the Pope. We already knew that Archbishop Weakland, after allowing the case to continue for several months following the meeting in Rome, had decided to end it.

We still have the same story that the documents tell. The Milwaukee archdiocese failed spectacularly in the Murphy case and informed the Vatican only years later - perhaps to avoid bad publicity. The Vatican did suggest alternatives to a criminal trial but that is not the scandal it seems to be because of the difficulty of trying decades old allegations against a someone at death's door. (Indeed, Father Brundage had been unable to depose Murphy due to his poor health.) In any event, the the decision was with the local Bishop - Bishop Fliss had already declined to further consider pastoral alternatives after an inquiry from Archbishop Bertone and Archbishop Weakland himself let the proceeding continue for months after the meeting in Rome. Even the alternative suggested by Archbishop Bertone (declaring Murphy to be unfit for ministry) was based upon Murphy displaying true remorse - something that Brundage says - and the documents indicate - never happened.

Now, in fairness to Weakland, continuing the trial was probably largely symbolic at that point. Murphy's death was imminent. His health did not seem to permit his participation in the case. The real scandal here is the failure of Archbishops Meyer, Cousins and Weakland to act sooner. By the time that the trial was commenced, there was little chance that it ever could have been completed so that Father Murphy would be defrocked before his death.

But symbols matter and Archbishop Weakland made the wrong call - in this and so many other cases.

Father Brundage's failure of memory does, perhaps, contribute to another story line. It will cause more people to believe, as one commenter on this blog says, that "you can't believe anything they say." That is tragic. The story broke on Good Friday. Tomorrow is Easter.

The Story Trumps the Facts

Blogging has been nonexistent as I finished up a law review article. I did have a column in the Milwaukee Journal Sentinel on the clergy abuse scandal in the Catholic Church and whether it justifies elimination of the statute of limitation in civil cases. I don't think and am generally skeptical about the value of large liability awards against the Church for conduct that took place long ago.

The controversy over the handling of the canonical trial against Father Lawrence Murphy by the Congregation for the Doctrine of the Faith, then led by Joseph Cardinal Ratzinger, now Pope Benedict XVI, is an effort to respond to the notion that the Church has reformed and the problem is in the past (albeit with ongoing consequences for many who have been victimized.)

Anyssa Johnson of the Journal Sentinel, for example, begins with this lede:

Top Vatican officials - including the future Pope Benedict XVI - did not defrock a priest who molested as many as 200 deaf boys, even though several American bishops repeatedly warned them that failure to act on the matter could embarrass the church, according to church files newly unearthed as part of a lawsuit.

That sentence is true, but as other have pointed out, highly misleading. The implication is that American bishops behaved responsibly and were frustrated by the recalcitrance of the Vatican, including the future Pope. Precisely the opposite is closer to the truth.

The original story in the New York Times was worse Its headline stated "Vatican Declined to Defrock U.S. Priest Who Abused Boys" and included a claim that the Vatican's "Cardinal Bertone halted the process. Those statements are literally false.

There is no evidence that then-Cardinal Ratzinger was involved, no evidence that it was the Vatican who "did not defrock" Father Murphy and no evidence, in fact, that the proceeding against him ever stopped. He wasn't defrocked because three Milwaukee archbishops failed to act over a period of over 35 years and, when one belatedly began proceedings because he feared a scandal, Father Murphy, now old and infirm, died before they could be completed.

What appears to have happened is that, in July of 1996, Archbishop Weakland - very belatedly - wrote to then Cardinal Ratzinger and asked for advice on how to proceed with allegations of solicitation in the confessional. He did not receive for a response, but that didn't really hold the things up. He began proceedings against Father Murphy in December of 1996. In February of 1997, a problem arose because the Vicar General and judge in the matter, Thomas Brundage, concluded that the solicitation allegations were barred by the statute of limitations. They needed a waiver and couldn't proceed until they got one.

On March 10, 1997, Archbishop Weakland wrote to Gilbeto Cardinal Augustino asking for a waiver. Cardinal Augustino's office did not have the authority to grant that waiver but the CFD did and, on March 24, it did so.

The matter went forward, not in spite of Cardinal Ratzinger's office, but because of it. It became necessary to employ some procedural maneuvering. Canon law apparently required that the case be brought in the Diocese of Superior because that is where Father Murphy was living. A decision was made to dismiss the case in Milwaukee and then reinstate it in Superior under the auspices of the Bishop there, Raphael Fliss.

In early 1998,Father Murphy then wrote to the then Cardinal Ratzinger asking him to stop the proceeding and allowing him to die as a priest. Cardinal Ratzinger did not respond. We have no evidence that he even read the letter. Most importantly, the Vatican never stopped the proceeding.

What did happen is that another official in the CDF wrote to Archbishop Fliss and suggested that he consider a pastoral response. Fliss ultimately responded, saying that pastoral responses had been exhausted.

This apparently led to a meeting in Rome, not with Cardinal Ratzinger, but with Archbishop Bertone. Based upon a summary of the meeting and what seems to be an extremely rough machine translation of the minutes from English into Italian, the Wisconsin clerics were, again, urged to consider alternatives due to the complexities of a canon trial and the age of the allegations, including precluding or restricting his celebration of the Eucharist and having him declared unfit for ministry (although it is unclear that he was any longer engaged in any such activities). This was apparently contingent on Father Murphy's sincere repentance. One Vatican official said that "the priest must give clear signs of repentance [something that everyone who actually spoke to Murphy say that he never did], otherwise he must be applied to trial."

Ms. Johnson, in an article today, writes that "[t]hough none of the records includes a direct order from the Vatican to halt the trial, they suggest Weakland felt he had no choice." I don't see why she thinks so. In fact, it does not appear that the Wisconsin officials had any obligation to follow the suggestions of the CFD officials and that, in fact, those suggestions conditioned abatement of the trial on Father Murphy's repentance - something that never happened.

So, not surprisingly perhaps, the trial was no abated. In fact - after the meeting - the judge in the trial scheduled Father Murphy's deposition, although it was postponed due to Father Murphy's poor health.

Later, in August, Archbishop Weakland wrote to Archbishop Bertone saying that he had instructed his Vicar General to abate the proceedings. This is curious for at least two reasons. First, it is not clear that Weakland had any authority to abate the proceeding because it was taking place under the auspices of Bishop Fless. Second, there is no evidence that the proceeding was abated. The judge in the case has said that he was never told to stop and believed the matter was still pending two days later when Father Murphy died.

There is a scandal here, but it's a local one, involving three Archbishops of Milwaukee - two of whom are dead and one of whom has retired in disgrace. Archbishop Meyer apparently told Father Murphy to repent and sin no more, leaving him in place. Archbishop Cousins removed Father Murphy and did not reassign him but allowed him to remain a priest and go to live with his mother in Boulder Junction on the condition that he have no contact with deaf persons. Archbishop Weakland was informed, in 1980, that Father Murphy was, in fact, having contact with deaf persons and was engaged in ministry in the Diocese of Superior. He did not act on Father Murphy's disobedience nor does it seem that he informed Superior's Bishop Fless of the reason that Father Murphy had been banished from Milwaukee.

This clearly seems to be a case where the reporting has been cast to fit a particular narrative. But that narrative is, at best, extremely incomplete and misleading. There are a number of potential reasons for this. The preferred narrative is a bigger story. The Church's response to allegations of abuse has often been feckless and sometimes dishonest. The scandal is used to fight battles within the Church. It is also used by our increasingly vocal evangelical atheists to ridicule ideas that they do not share. Finally, America has a long tradition of anti-Catholic bias that has been absorbed and continued, in somewhat different form, by certain elements of the secular left.

Cardinal Bertone certainly showed more concern over the difficulty of a trial and, perhaps, more sympathy for Father Murphy's circumstances than he ought to have shown. But even that, in this whole sorry state of affairs, is not the heart of the scandal.

More Developments at the Wisconsin Supreme Court

I have to say that I was surprised by Justice Gableman's decision to file a motion asking Justice Pat Crooks to recuse himself from his pending disciplinary case. I understand the rationale. Justice Crooks did make remarks pertaining to some of the issues in the disciplinary proceeding in the course of his writings in Allen v. State. Because he had not had the benefit of full briefing and oral argument, these comments might raise concern that he had prejudged the issue. His reference to the comments of Justice Gableman's attorney and Justice Gableman's failure to repudiate them might be seen as importing an extraneous matter into the disciplinary proceeding. What Jim Bopp said in the course of that proceeding and whether or not Justice Gableman denounces his comments has nothing to do with the issues in that proceeding which are limited to whether the Reuben Mitchell ad violated SCR 60.06(3)(c).

It would, I think, have been more judicious for Justice Crooks to refrain from - or temper - these comments. Justice Crooks declined to reach the merits of the recusal motion, so one might reasonably ask why it was necessary to comment at all on the merits - particularly given the pending disciplinary matter.

But do they reflect actual bias - or create an appearance of bias - such that he must recuse himself? The comments were not extensive and to identify a matter as "troubling" is not necessarily to prejudge it. Attorney Bopp's comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal. Although I do not feel that the recusal motions were particularly strong, the appearance of bias could stem from any number of sources. .

Some may perceive a bit of an atmospheric problem here. Justice Gableman is fighting off recusal motions in criminal cases and may be now be seen to be arguing for an aggressive recusal standard in asking Justice Crooks to step down. Of course, there is an answer to that. In Allen, the writings of Justices Roggensack, Prosser and Ziegler emphasized that recusal - at least constitutionally mandated recusal - must be based on bias for or against a particular party (save for bias based on an immutable category such as race). Justice Gableman is alleging that type of bias here. The Allen motion did not. As I argue in an upcoming paper, there is good reason to limit Caperton recusal to that more narrow form of bias.

Of course, given the outcome in Allen, this is likely to be Justice Crooks' decision without review by the full Court. Apart from the merits, it would seem to create real institutional problems if the three Justices who felt there was not power to recuse a peer Justice in Allen were to conclude that there is here and then order Justice Crooks' recusal. I don't see anyway that happens.

We can speculate about the strategic considerations behind the motion as well. Conventional wisdom is that you seek recusal only when you are pretty sure that the judge will step down or when you feel that you have little chance of getting him or her to vote with you. This is reflected in the advice of Ralph Waldo Emerson (“When you strike at a king, you must kill him”)or, if you prefer (and I do), The Wire's Omar White. ("Ayo. Bey. You come at the king, you best miss.")

Is this a gambit to avoid a deadlocked court? Deadlocked over what? The three judge panel recommended dismissal of the complaint against Justice Gableman but on different grounds. Two judges wanted to construe the canon narrowly to impose a mandatory prohibition only on literally false statements and would not extend it to meanings that are (however strongly) implied. Judge Fine did not read the rule in that way, concluding that the message communicated by the ad was false but expressed the view that a prohibition of false statements in political campaigns is unconstitutional. In his view, the only judges of campaign discourse are the voters. (It should be noted that the two judges who would construe the statute narrowly did so to avoid constitutional concerns.)

Resolution of these issues have ramifications beyond the question of discipline. Not only does 60.06(3)(c) prohibit false statements in judicial campaigns, but sec. 12.o5 of the statutes prohibits false statements "affecting an election" in general.

To make this even more interesting, any decision that construes the canon to apply to the Mitchell ad and finds that application to be constitutional raises a federal question. Could this matter ultimately wind up in the United States Supreme Court?

Only Justice Crooks knows what he will do. My strong suspicion is that he stays on the case although I am not sure that I would want to blame any of the justices who seized an opportunity to remove themselves from this.

Bonus: Commenting on the motion, former Justice William Bablitch says that the recusal motion is "not a good way to win friends and influence people," and that "[i]t exacerbates an already tenuous group of relationships."

I can't disagree, but there is a certain irony here. Justice Bablitch's support of a candidate challenging one of his colleagues, Chief Justice Shirley Abramhamson (support that was joined by three other members of the Court), probably made for a few frosty decision conferences as well. The fact of "tenuous relationships" on the Court is not new.

Cross posted at the Marquette University Law School Faculty Blog

L'Affaire ASA: Not What It Seemed To Be

During the 2009 Milwaukee school board elections, there was a dust-up over the activities of a group called Advocates for Student Achievement.The group encouraged people to run for the school board and formed a PAC that supported certain candidates. ASA was perceived to be a threat to the teachers' union and a public employee union front called Citizens Action filed a complaint claiming that it had violated campaign finance laws. This week, ASA agreed to pay $5000 to resolve a civil complaint filed by the District Attorney's office.

I paid little attention at the time but a few weeks ago, I was asked to consult with the ASA board on the matter. Essentially, I took an independent look at the case, advised on the impact of Citizens United on the case and attended one meeting with John Chisolm and Bruce Landgraf, along with ASA's counsel of record, Mike Maistelman. I did not negotiate the settlement or advise the group whether or not to accept it. (I express no opinion on that.) I acted on a pro bono basis and received absolutely nothing for whatever service I provided.

I don't intend to criticize the DA's office. It seems to be hearing different things from different people and some of it may not have withstood the scrutiny of trial. District Attorney Chisolm and Assistant District Attorney Landgraf should be commended for realizing that this was not a criminal matter and that the folks associated with ASA were well meaning. There were powerful political incentives for them to go another way. But, notwithstanding my somewhat different view of the case, I do believe that they played it straight.

Some of its case was impacted by Citizens United and the people involved with ASA - who were not political pros - did not handle this type of thing (the combination of a 501(c)(4) with a PAC) in the way that pros do. They had some bookkeeping snafus and may have slightly exceeded the contribution limits.

My remarks here are not intended to be "on behalf" of ASA. While I would not, given the fact that we did have an attorney-client relationship, disclose confidential communications or say anything that they objected to, these views are my own.

Whatever mistakes the ASA people made, the more serious threat to public participation has been presented by its critics. In particular, the horror over ASA exhibited by local bloggers and that august organ to the 1-900 community, the Shepherd Express, is misplaced. A close look at ASA shows that the matter was much ado about very little and the full court press against ASA by Citizens Action and the Crazy Shepherd was nothing but an assault on unwanted public participation in school board elections. The folks at ASA should have been more sophisticated. Lou Fortis, Lisa Kaiser and all of the usual suspects should be ashamed of themselves.

ASA was formed to encourage people to run for school board. In what it referred to as "phase one" of its activities, it offered information to anyone who wanted to run. It turned down no one. It commissioned some issue papers written by lefty blogger Mike Mathias and made them available to anyone who wanted them, posting them on the group's website. There is nothing even arguably wrong with that.

Three of the people who went through the ASA process decided to run. ASA ultimately decided to support them (even though certain of its principals had major substantive differences with at least one of the candidates) and contributed the maximum amount to each through its PAC. There is nothing wrong with that.

However, ASA continued to run what appears to have been a "support group" session for the three on Saturday mornings lead by a person who had previously run for the school board. (They also invited a non-ASA endorsed candidate - Mike Mathias - but he did not participate.) This, in and of itself, would not have been a problem. The group leader was a volunteer and received no money - but ASA's PAC did pay something between $100 and $200 for coffee and donuts at these meetings. If this is regarded as a "contribution" to the campaign of the three (not a self evident proposition), then the ASA PAC would have exceeded the contribution limit for each by something less than $ 100.00 each.

The Shepherd Express is still saying that ASA "commissioned a $12,000 poll to discredit opposing candidates." It repeats Citizen Action's allegation that the poll results were supplied to the favored candidates and couldn't be accessed by the opponents of those candidates.

Here is the truth. ASA did commission a poll but did it independently without the input of any of the candidates. While there have been accusations that this was a push poll that was being used to discredit opposing candidates, I have read the survey instrument. It think I know what a push poll is. It wasn't a push poll.

But even if it was, after Citizens United, independent push polls are constitutionally protected. They constitute express advocacy.

The other allegation is that the poll - because the results were provided to the candidates - constituted an in-kind contribution. Wisconsin law, GAB 1.65(2) does provide that "transfer to a candidate or committee of the results of a poll or survey, other than by a sale, is an in-kind contribution." But there are a few problems.

The topline results were provided to the three candidates. But 48 hours later, they were released to the world. Now, you could argue that the rule makes any poll made available to any candidate an in-kind contribution, but that is an absurd construction. By that reasoning, ASA would also have made a contribution to the opponents of the three because they had access to the topline results as well. It would also seem completely incompatible with the Supreme Court's doctrine on independent advocacy. Commissioning and publishing poll results is constitutionally protected speech.

It might be different if there had been results that were shared with the three candidates but not with the world. It might be different had the three candidates participated in the formulation of the poll. But it appears that neither is the case. Unless one thinks it's legally significant that the poll was "leaked" to the three two days before it was shared with the world (one of those legal propositions too silly to waste time on), the poll would support no violations.

Finally, there were a number of things done "by ASA" that constituted express advocacy (although not much), advice or fundraising. But, as Citizens United has told us, ASA was free to engage in express advocacy. Second, although these volunteers may have given advice to candidates, that isn't an in-kind contribution either. I have given (solicited and unsolicited) to candidates. Was that a campaign contribution ? Third, the fundraising consisted of communications by volunteers who identified themselves as associated with ASA. It appears that no corporate funds were used so there could be no in-kind contribution. What was important is that the funds - if they were to be contributed to a candidate - be properly channeled through a PAC. They were. If volunteer activities by persons associated with a corporation or union are going to be considered in-kind contributions, then WEAC is going to need its own wing at Taycheedah and Waupun.

Now, to be sure, professionals would have been more careful to distinguish between who was doing what. Although ASA has been characterized as a dark conservative conspiracy, it appears that all but one of the board members voted for President Obama (this was a great disappointment to me - such nice and intelligent people - but let a thousand flowers bloom). These were people who received nothing for themselves and who were trying to do what they thought was good for the community. That they have had their reputations dragged through the mud by a partisan group and a notoriously irresponsible tabloid is a shame.

Shark in WI Interest

My latest Culture Con column is out in the WI Interest. I should also point out that there is a nice article on my boss. Read that after you've read mine.

Ten Questions On Health Care

Nancy Pelosi says that we are on the doorstep of history. Perhaps. History is a an uncertain host. As Mark Steyn said, last week we are on the front porch of history. But, back in December, we were at the garden gate of history. Then Scott Brown was elected, and we backed down the front drive of history, reversing over the neighbor's dog of history.

But as we wait for the passage of ObamaCare, here are a few thoughts. We all know the old saw about legislation and sausage making, but if this reform package is indeed the historic act of compassion and cost control that it is said to be, how do we answer these questions?

1. Why is it necessary to dissemble about its costs? The CBO score is a pastiche of odd inclusions (savings on student loans?), omissions and unlikely assumptions. As the public opinion polls reflect, it is fooling no one but the Democrats, certain elements of the mainstream media and Paul Krugman. (In fairness, the dissembling largely consists of treating the CBO score as something more valuable than it is, see, e.g,. Nancy Pelosi. ("I love the numbers. They're so precise.")

2. Why not pay for it? This question is a subpart of the first. The bill is going to cost quite a bit of money and it is not close to being paid for. If this is such a wonderful thing, then its proponents should not fear an honest assessment of what it will take to fund.

3. Why support it with a series of red herrings and dubious assertions? The post-partisan - no post-political - President Obama has decided to double down on blaming problems with the health care system on the insurance companies. This is silly. Insurance company profit is a tiny sliver of the cost of health care. The inability to get someone else to pay for the cost of treating your pre-existing condition is a problem that requires a solution, but it is not the fault of insurance companies. Covering a pre-existing condition is not insurance.

Most people get insurance through their employers and, by law, most who do have coverage for pre-existing conditions. (Most of those folks, moreover, aren't covered by an "insurance company" at all.)

We could go on. It is highly unlikely that extending coverage to uninsured persons will reduce the cost of their care. It is probable that additional preventive care will increase, rather than decrease, spending on health care, etc.

The bill might still be a good idea. But, if it is, why support it with bad arguments?

4. Why hide the ball on cost controls? It is still unclear to me why the bill is supposed to reduce costs. It certainly does provide a mechanism to aggressively ration care under Medicare and Medicaid by turning them into the Mother of HMOs. But there seems to be a step two that will be required. The President has advocated price controls - an economically illiterate idea - but its apparently out because it couldn't be enacted through reconciliation. Perhaps the idea will be to impose "best practices" (i.e., rationing) on private plans through the manipulation of subsidies and the definition of qualified plans. Whatever the case may be, why not put everything on the table now - as we enact "comprehensive reform." How we are to control costs is not unrelated to - and might rationally affect decisionmaking on - how we provide care.

5. Why enact a bill that is almost certainly unworkable? And not only because it's going to cost a lot more than is claimed and is not paid for. The only way that requirements that preexisting conditions be covered and that not result in higher premiums can possibly work is a coverage mandate. The bill has that, but it seems that the penalty that is to be charged for failing to obtain coverage is substantially less than this coverage would cost. If that's so, then why wouldn't it be rational to wait until you have a significant health issue and buy coverage then? The bill does things - like gutting Medicare Advantage (the Q-Tip vote is going to go ballistic on this, just wait)) and ignoring the doc fix - that no one believes can last. Nancy Pelosi says that after "we kick in this door" there will be more legislation. They'll have to be. If we know that now and we are enacting "comprehensive reform," why not address these matters? The solution might be relevant to how the current bill should be structured.

6. Why deny the bill is what it is? It may not be a "government takeover" of health care in the sense of a single payer system, but it is a massive increase both in government spending on health care and federal management of the health care system. Forever more, the key decisions on health care are going to be made in Washington DC because he who pays the piper calls the tune. The public sees this and that is why it strongly opposes the bill. But if the public is wrong and centralized management of the health care system by politicians and bureaucrats is a good idea, then why not make the case?

7. Why mislead the public about its impact? Many, many people are going to lose the coverage that they have. The distinction between being directly forced to drop it and losing it because of the effects of "reform" is specious and yet the President continues to make this point. The bill is may create a two tiered system of people with relatively robust employer-provided coverage and people on something like Medicaid. You can say that we have that now but it seems likely that one of the prices for expanding coverage may be to weaken coverage for some who already have it. Will 85% of the public still be happy with their health care? By increasing the marginal cost of labor, it may increase unemployment. Is that worth it? We can't decide if we don't acknowledge the trade-offs.

8. Why freeze out the Republicans? There was nothing bipartisan about putting this together. We started with the Obama plan and then tweaked it to get enough Democrat votes to pass it. No Republican amendments or alternatives need apply.

9. Why ignore public sentiment? Here is what the Democrats are telling the public: You don't know what you're talking about it. We know better than you what is good for you. Rather than take his case to the public, the President is taking it to a handful of obscure Congressman and offering Obama knows what. That's fine when your proposal isn't down by double digits in most polls.

10. Why pass a bill with real constitutional problems? It is far from clear that challenges to the mandate or, depending on what they do today, the method of the bill's enactment will succeed, but there are very substantial issues. Both could readily be avoided. If we are going to do more than have a quick look around history's foyer, shouldn't they have been?

What changed?

We should now expect to hear that there have been very substantial changes in the Senate health care bill. The CBO score apparently says that we can expand coverage and government subsidies to health care at, roughly, the cost and "deficit reduction" associated with the Senate bill. But we know that result was possible only with all sorts of assumptions - double counting of Medicare costs, assuming that a doc fix that we all know will happen won't, frontloaded tax increases, assuming savings that are far from certain (or even likely to happen) that have been fueled withering criticism.

Either those criticisms remain valid or there have been some significant changes. Spending has been cut. Taxes have been increased.

I can't wait to find out.

Obama is striking out

The President's performance on Fox News, happening now, is atrocious. He's interrupting, imperious and evasive. This is really going to hurt him. The right is going to have a field day with the clips. He seems to have believed his own propaganda about Fox and is way too combative. His answer on Medicare cuts is close to incomprehensible.

The Presidential Brackets

The President's selections are pretty chalk but, where he departs, he's giving some swing state love.

To us.

And I have to give credit where it's due. He has both Wisconsin and Marquette in the Sweet Sixteen. The former is just following the seeds, but the latter is his most significant departure from chalk. I agree. I think there's even a small chance that Marquette makes it to the Elite Eight.

But I also like UTEP in the Sixteen. Other potential upsets are A & M over Duke and, if you really want a Cinderella run, how about Utah State or even Siena into the Elite Eight? Not going to happen but, if A & M falters, we just know Duke is going to disappoint ....

My Final Four? Kansas, Pitt, Kentucky and Villanova. I agree with the President. Kansas beats Kentucky on Monday night.

More Fluff on "Transit"

Yesterday's Journal Sentinel featured a column by "our" Transit Advisory Committee. The Committee, apparently an organ formed by the Milwaukee County Board of Supervisors to advocate for addition spending on buses and the creation of a regional transit authority claims to "represent a broad cross-section of people in the county affected by transit, which is to say, everyone."

It's hard to imagine a less representative group of people. The group is dominated by people with ties to County government or the transit system. Even the percentage who say they are transit riders (a majority) is unrepresentative because the fact of the matter is that, in southeastern Wisconsin, most people rarely see the inside of a bus.

This isn't to say that buses aren't necessary. It's not even to say that they should not be subsidized. But the column is typical of the approach taken by "transit advocates." There isn't even a pass at establishing that a relationship between the costs of the system and the services it provides.

We see the same thing - repeatedly - from rail advocates. Folks like me - who might be persuadable but are skeptical - have to go a long way to get credible information on such matters.

They Were Not the Ones We've Been Waiting For

I would call Nancy Pelosi's statement the "we have to pass the [health care] bill so that you can find out what is in it ..." qualifies as an unforced error. I assume that she did not mean to say that no one knows what is in the bill but was trying to convey something along the lines of "just wait, you'll like it." (The words immediately following the offending quote were "away from the fog of controversy.")

Putting aside the idea that honest controversy constitutes a "fog," I nevertheless think that what she did not mean to say is more accurate than the meaning that she did intend.

She wants the public to "trust" their leaders to do what is "right." We needn't know now just what that will be.

Not only are there relatively few legislators who know what is in the bill, knowing what is in the bill is of limited help in finding out just what it will do to our health care system. As Charles Kesler writes in the latest issue of the indispensable Claremont Review of Books, the House bill, for example, contains:

scores of places where power is delegated to administrative agencies and special boards, which are charged to fill the gaps in the written legislation by
promulgating thousands,if not tens of thousands of new regulations that will
then be applied to individual cases. Voters sometimes complain that legislators
don't read the laws they enact. Why should they,in this case? You could read
this leviathan until your eyeballs popped out and still not find any "settled,
standing rules" or meaning that is "indifferent,and the same to all parties.

Of course, the administrative state is not a creation of the health care bill, but this is an extraordinary expansion of it in an area that is of great personal interest to and has a direct and immediately discernable impact upon individuals. Are there "death panels" or other mechanisms for rationing care in the bill? Well, there are certainly processes by which such rationing could occur. Just how it will happen is to be determined later.

Speaker Pelosi has made fun of ObamaCare critics who have suggested less ambitious reform ridiculing an "eensy,weensy spider" way of proceeding. Maybe so, but the public is understandably hinky about placing the most effective and advanced health care system in the world (and I mean both of those things) - one that delivers satisfactory care to an overwhelming majority of the population - into the hands of unknown pashas.

In the same speech, Speaker Pelosi gushes about how wonderful things will be. There will be "prevention, prevention, prevention" because its about "diet, not diabetes." I think that the public understands that when the good life is to be provided by the state, liberty, as Kesler puts it, "ceases to be a right and becomes a gift." It turns out that the public is less interested in being saved by Speaker Pelosi and President Obama than was commonly assumed.

Congratulations to Bill Conley

Congratulations to my former partner, Bill Conley, who has been confirmed as a United States District Judge in the Western District of Wisconsin. While Bill and I may have some political differences, he is, as I have said before, a splendid lawyer and was a very good nominee.

Shark on Dead Tree

My latest column in the Milwaukee Journal Sentinel is here. I have a little over 500 words in the daily paper and decided to explain the concerns of Justices Prosser, Roggensack and Ziegler in State v. Allen. Of course, there is much more to say on the matter and I am finishing a law review article (more like 12,ooo words) that tries to do that.

I understand that this may, once again, prompt some to talk smack on the Gableman ad which I have, of course, criticized. (In fact, my criticism was cited by briefs in support of at least some of the recusal motions.) Nor does this necessarily mean that the position of those three justices on the power of the Court to mandate the recusal of a peer justice is consistent with Caperton. I think that's a more difficult question.

What I do maintain is that aggressive recusal requirements - particularly when not based on allegations of bias against a particular person or class of persons defined in a way that is divorced from judicial philosophy - will become unmanageable.

The Paul Ryan Moment

If, to paraphrase Rahm Emmanuel, a good crisis leads to opportunities, one opportunity is for policy wonks to speak truth to the frivolity of politics as usual.
The public may be willing to listen to facts that it would otherwise prefer to ignore.

Thus, we have Paul Ryan's moment. As Robert Samuelson points out, a once obscure Congressman from Janesville, Wisconsin has done "something no one else in Congress or apparently the White House has done: design a specific plan to control long-term government spending and budget deficits." While I don't agree with everything in Ryan's Roadmap 2.0 (you can't eliminate capital gains tax and eliminate both the corporate income tax and tax on dividends), but it is, as the Economist put it "an honest and daring proposal." While his plan, like Obama's, will cut Medicare spending, it does so in order to return the plan to solvency and not to finance a new entitlement. Combined with Ryan's health care plan, it stands a better chance of "bending the cost curve" than Obama's top down approach.

Ryan's performance at the health care summit further burnished his image and saw him seizing Rahm Emmanuel's opportunity. Investor's Business Daily says that his criticisms of the Democrats' health care proposals are still awaiting a response.

Who "Won" at the Health Summit?

I suspect that it was whomever you want to have won it. Few people actually sat and watched it and we can now all pick and choose those soundbites that we like.

There is a sense, however, in which I think it was a mistake for Obama to do it. It inevitably presented him as less than Presidential - as, at best, a first among equals and a rather petulant one at that. I'm not sure that there could have been any other outcome. If you are going to sit around a big table and exchange ideas, one becomes - in some sense - comparable to those you are exchanging them with.

That might not be so bad. We don't like our Presidents to act imperial. But then one ought not to assert Presidential superiority ("there was imbalance because I'm the President," "the election is over'). In that context - around a circle created for dialogue - it comes across as haughty.

And coming across as haughty is not what Obama wants to do. The perception fueling his decline in the polls is that the idea is that his policy proposals are too ambitious and threaten to interfere not only with the part of, say, the provision of health care that we don't like but also the part that we do like. Given that an overwhelming majority of Americans like their health care, that is not a good place to be.

Of course, I don't think that there is anything unfair about this. The problem with ObamaCare is that it overcentralizes the provision of care in a way that threatens to stifle medical innovation and that will create unacknowledged winners and losers. The Senate bill, in particular, is set up to fail. The President's recent proposal falls back on price controls.

Here's the New Nixon.

Some Thoughts on Redistricting

As we head into the fall election cycle, one of the most important consequences of state legislative and gubernatorial races will be the impact on redistricting in 2011.

Current doctrine requires that legislative districts be equal in size and racial gerrymanders are subject to constitutional and statutory challenge. But partisan gerrymanders are almost impossible to challenge. In a case called Vieth v. Jubelirer, a four justice plurality held that allegations of a partisan gerrymander are nonjusticiable. Justice Kennedy was unwilling to say so, but conceded that he could not yet conceive of a judicially manageable standard. (Perhaps, one day, one will emerge.) While I think that Article IV, sec. 4 of the state constitution may provide a bit more room for a challenge to partisan gerrymanders of the state legislature, I wouldn’t bet the 401(k) on it.

As James Troupis, a Madison lawyer and national expert on redistricting, recently told my Election Law class, partisans can work gerrymandering wonder by “cracking,” “stacking” and “packing” voters. I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan.
If one party controls both houses of the legislature and the governor’s chair, it is possible to materially affect the outcome of congressional and legislative races for the next ten years with little prospect for legal challenge.

If there is split control, it is highly unlikely that the legislature and governor will produce a map. Judges wind up drawing the lines.

Some states have tried to avoid the political nature of redistricting by moving to nonpartisan commissions. One interesting recent example is California.

In 2008, voters narrowly passed Proposition 11 which creates a fourteen person redistricting commission. Anyone can apply. 31,ooo people did. A panel of three state auditors (with some challenges by legislative leaders) must now winnow that number to 60 based on considerations of qualifications, impartiality and diversity. Of that 60, eight people are chosen at random and they select the other six.

The commission is supposed to use traditional nonpartisan districting criteria. There is, of course, no way that the plan would have been enacted by the California legislature which is strongly Democratic (and thus confident that their party would control the process) and, by definition, made up of incumbents who notoriously draw lines to protect themselves. In recent election cycles, incumbent state legislators have had about a 99% reelection rate in California.

UCLA law professor and election law expert Daniel Lowenstein is heading an effort to repeal Proposition 11 with the backing of certain Democratic members of Congress. Professor Lowenstein calls it a “Rube Goldberg” system in which the machinations of interest groups will be hidden and immunized from public accountability. It does seem a rather odd construct.

Of course, there are partisan undertones to Proposition 11 as is almost always the case in redistricting. It’s not surprising that Republicans would support it. It gives them an equal seat at the table that they would be very unlikely to gain as a result of state legislative races. In addition, some experts argue that Republicans tend to benefit from “neutral” redistricting principles, i.e., compactness, contiguity, respect for political boundaries, etc. This is not because Republicans are less interested in gerrymanders, but because – or so the theory goes - certain Democratic voters – in particular, racial minorities – tend to be geographically concentrated. In addition, because turnout in such populations is often lower, creating majority-minority districts to, say, protect a redistrict from challenge under the Voting Rights Act is generally thought to require creation of a supermajority, further packing Democratic voters.

Interesting times are ahead.

Cross posted at Marquette University Law School Faculty Blog

A Hard Rain's Gonna Fall

The Wisconsin Policy Research Institute has issued a study showing that public employee pensions are far more generous than the retirement benefits of private employees. That's not a surprising conclusions. Hitting your "30" or whatever the number is has become a cultural reference for public employment. Government employees can typically retire much earlier at a guaranteed salary with health care benefits. Public employees typically defend these benefits by arguing that they accept lower pay in return for these benefits. We trade income, they say, for security.

Before I get attacked by the usual crowd, I should point out that I was raised by a fire fighter. I understand the arguments in favor of outsized public employee pensions. But, having come from a family where almost everyone worked for the government, I also understand their weaknesses.

It is not clear that the great majority of public employees would make more doing "comparable work" in the private sector. The argument for "enhanced" benefits are most salient for professional employees. Government payrolls are much flatter than private sector payrolls. A lawyer can make a lot more in private practice than in government service - although not all - perhaps not even most - do. An alternative explanation is that the role of public employee unions in electing the officials across the table compromises the bargaining process and providing outsized benefits - which are less visible to the public - is the result.

However you see this, what is becoming increasing clear is that government entities can no longer afford to pay these generous benefits. As Bruce Thompson pointed out in Sunday's Milwaukee Journal Sentinel, the Milwaukee Public Schools are awash in unfunded liabilities to future retirees. Its burden rate is, depending on how you calculate it, three to four time what it is in the private sector. This has - and will continue to - hollow out what can be spent on education.

This is a problem that the city cannot tax its way out of and the state is unlikely to come to the rescue. It's got problems of its own and an often unexamined dynamic of Wisconsin politics is that outstate voters are, at best, indifferent and, at worst, hostile to the City of Milwaukee.

The problem is hardly limited to Milwaukee and Wisconsin. If you want to be depressed, spend some time here.

The problem won't go away by dismissing people like Bruce Thompson as "anti-public education" or Scott Walker as "anti-Milwaukee County" (as if the county was synonymous with its government). Unfunded pension and health care liabilities are a huge threat to effective public education or county government. Ignoring the problem does not solve it.

Shark at Point of Law

Thanks to Walter Olson and the nice people at the Manhattan Institure, I have been asked to blog at Point of Law. My inaugural post, reciting issues familar to readers of Shark and Shepherd and followers of the Wisconsin scene, can be found here.

Two Cheers For the Electoral College

George Soros is funding an effort to undermine the Electoral College. The idea is to enter into a compact with other states in which each state agrees to require their electors to vote for the candidate who has won the national popular vote. The compact would not become effective until states comprising a majority of electoral votes have agreed.

The effort has resulted in the introduction of AB 751 in the Wisconsin legislature.

The proposal may well be unconstitutional under the Compact Clause. It is almost certainly motivated by partisan concerns. It isn't simply that Democrats tend to be more geographically concentrated. That can actually help if Democratic voters are packed in the right states. Thus, while Bush lost the popular election and won the electoral vote in '00, Kerry almost did the same thing in '04.

Rather, the back story is population trends that will move electoral votes to Republican states. For the first time in who can remember, California will not pick up a seat and the Midwest and Northeast continue to lose population to the south and southwest.

Republicans should not be too sanguine. Large influxes of people into a state can change its political composition. When I was a kid, California was a fairly Republican state. But there is, nevertheless, reason to suspect that the Electoral map is going to get tougher for Democrats.

On the merits, the preferability of a national popular vote is not obvious. In yesterday's Milwaukee Journal Sentinel, Rep. Kelda Helen Roys makes an argument that seems wrong.

Furthermore, every vote is not equal in presidential elections. Al Gore won five electoral votes by carrying New Mexico by 365 popular votes in 2000, whereas George W. Bush won five electoral votes by carrying Utah by 312,043 popular votes - an 855-to-1 disparity in the value of a vote between two similarly populated states.

It's not obvious to me that the fact that one state is close and another is not alters the "value" of a vote. The Electoral College does result in some disproportion in the weighting of a vote but it's not because some states are competitive and others are not. It's because each state gets two Senators regardless of population (and to, a lesser extent, the fact that some very small population states get one representative.)

But the fact that one vote has a "better" (albeit still infinitesimal) chance of deciding an election does not mean that it "counts more." Thus, in the example she cites, a vote in Utah had precisely the same Electoral weight as one in New Mexico.

A better complaint (and one that Rep. Roys also makes)is that the Electoral College forces candidates to give disproportionate attention to competitive states. To the extent that the policy preferences of these competitive states don't match the aggregate policy preferences of the nation, one can argue that this effect constitutes a "distortion" of the campaign.

That is a weakness of the Electoral College. But it is also its strength.

The Electoral College forces candidates to pay attention to states that they otherwise might not. But there may be a certain genius to that. Forcing candidates into battleground states requires the candidates to engage each other before an electorate that is truly up for grabs and to do so by engaging - at least to some degree - in retail politics - much as the Iowa caucuses and New Hampshire primary do in the nomination process.

If you see a campaign as a dialogue in which candidates must engage the voters as opposed to a ratification of preexisting interests, there may be some value in this. A campaign resulting in a national popular vote would look very different than our current campaigns. It would be even more media intensive and, I suspect, more ideologically polarized.

Part of your attitude toward the electoral college will depend on how important you think state and geographic interests are. At the time of the founding, it mattered a great deal. While the electoral college does not guarantee broad geographical support, it tends to force candidates to take into account the interests and preferences of parts of the country that it might otherwise be rational to ignore. It can enhance the influence of minorities who, while they may be insignificant nationally, are important in a critical state.

If you don't buy that, then there are other "reforms" that might interest you such as allocation of Senate seats by population. Perhaps you may even want to consider abandon of single member districts elected by the Westminster method of "first past the post" in favor of multi-member districts with proportional representations. To extend Rep. Roys' reasoning, her district is heavily Democratic and not competitive. In fact, it was probably intentionally drawn to be that way.

Borrowing from her concept of the "value" of a vote, there is a sense in that her constituents have less impact on the composition of the assembly - and, therefore, which laws get passed and which do not - than a voter in a competitive district. If the national - or statewide - policy and will is what matters, then I ought to be far more interested in whether the Republicans or Democrats hold Congress or the State legislature than I am in the identity of "my" legislator.

To be sure there are differences between an election for President and one for a legislator who, by certain theories of representation, is supposed to represent the geographic interests of her constituents. My only point is that the matter is far more complicated than reification of the national popular vote and that we ought to be reluctant to take a position on whose ox we think will be gored.

Cross posted at Marquette University Law School Faculty Blog

Shark on Citizens United

Thanks to Walter Olson at Point of Law for posting my Milwaukee Journal Sentinel column on Citizens United.

The Neverending Supreme Court Election

I had a couple of writing deadlines so I'm a bit late to the game on the Wisconsin Supreme Court's extraordinary decision (or, more accurately, nondecision) in Allen v. State. The Court was not split on whether Justice Gableman should recuse himself in all criminal cases. No Justice held that he should. Three did not reach the issue and three, essentially, expressed the view that he is not required to do so.

Rather, the principal division was over whether the question of an individual's Justice recusal could be submitted to the Court as a whole. Chief Justice Abrahamson and Justices Bradley and Crooks wanted more briefing on the issue but it seems fairly evident that they believe that a majority of the justices considering the issue can force a fellow Justice off a case if they believe (or are willing to say) that there is either a statutory or constitutional requirement for that Justice to recuse herself.

Justices Prosser, Roggensack and Ziegler disagreed. They believe that the only issue before the Court is whether the justice at who a recusal motion is directed has given it the proper considertation. They went on to conclude that Justice Gableman had done so and made it clear that they thought Allen's motion was pretty weak tea.

These latter group of Justices are pretty clearly concerned about judge shopping and frustration of the will of the voters. Recusal based on generalized allegations of bias against a broad class of litigants defined in a way that is not inextricable from judicial and legal philosophy would open a Pandora's Box filled with opportunities for lawyers to sprawl litigation in an attempt to manipulate the system.

This is the reason that Justices Prosser, Roggensack and Ziegler wanted the Court to act more quickly than it did. They believed that the repeated recusal motions and cheerleading for them in the Public Defender's office, on the blogs and in the press was undermining public confidence in the Court and putting undue political pressure on some Justices.

As I have blogged before, I believe that the Gableman ad on Rueben Mitchell was a bad thing. I said it before the election and, in fact, my criticism was cited in at least one of the briefs filed by Rob Henak in support of recusal. But I don't think that Justice Gableman is required to recuse himself because of those and other ads or the comments made by lawyer offering his interpretation of the ad. As I have said, "tough on crime" campaigning is quite common in judicial campaigns. Almost all political advertising is oversimplified and much of it is unfair and misleading. Beyond that, the problem with the ad is not that it demonstrates Justice Gableman's "bias" against criminal defendants.

But, to the question at hand, I am skeptical that there is any judicially manageable standard for policing campaign speech through mandated recusal. This is particularly so when the allegation of bias is not on some basis (e.g, race) wholly unrelated to judicial and legal philosophy. Some judges have less expansive views of the rights of criminal defendants than others. That was the case in the race between Justices Gableman and Butler. It seems to me that, if we are going to elect judges, then candidates are entitled to address those differences. While I don't believe that the Mitchell ad was an appropriate way to do that, I don't think the remedy is that Justice Gableman should never sit on criminal cases.

The fact of the matter is that Justice Gableman does not have a record of "never" ruling in favor of criminal defendants - even those accused of heinous crimes. (Indeed, the Greater Wisconsin Committee ran ads accusing him of being soft on sex offenders.)But he is almost certainly a tougher justice for defendants than some other members of the Court and that should help us see the problem.

An aggressive regime of mandatory recusal is going to be seen as - in fact is likely to be - an effort to judge shop. In the context of an elected Supreme Court in which certain indivuals are selected by the voters to be the final judicial arbiters of Wisconsin law, that is extremely problematic.

I suspect that I'll get commenters again emphasizing what was wrong with the Gableman ad. They are essentially arguing for an approach somewhat akin to Justice Potter Stewart's standard for identifying obscenity. They know it when they see it and they are sure they have seen it. I am not completely dismissive of that. But when the question is as politically charged as it is here, such a rule will to often come down - or appear to come down - to who has the votes to "see" an ad in a way that will change the composition of the Court and, perhaps, the outcome of a case.

None of this is intended to endorse or excuse misleading or inaccurate campaign ads. But, as a general matter, the remedy for bad speech is good speech and the ultimate arbiter of the matter is the voters.

Songs for Valentine's Day

From Randy Newman's work of genius Rednecks (1974)

I'm drunk right now baby/but I've got to be/I never could tell you what you mean to me.


From one of Springsteen's many works of genius, in this case, Born To Run (1975)

Waste your summer/praying in vain/for a savior to rise from this streets




U2's "One" and then pace The Righteous Brothers pace Todd Duncan (for the 1955 film Unchained)

we get to carry each other

lonely rivers sigh 'wait for me, wait for me



The incomparable Beth Hart wants to know if she is the one. (The video may not be safe for everyone's work.)

just tell me you love me baby/even if its a lie




Chrissie Hynde wonders what's wrong.

Shut the light/go away/full of grace/you cover your face

She wrote on her hand.

My son used to do this and it bothered me. Maybe he still does but, as an adult, he just makes sure I don't know. There is something about it that strikes me as too casual. Perhaps I'm just a bit of a dualist and this integrates mind and body too much. I'd be willing to say it's because I am older but my wife says she used to do it when she was young. At the time, she was way cooler than me so I have nothing to say.

But please. It may well be that Sarah Palin is not ready to run for President, but the fact that she wanted to list a few talking points is not one of them. Sometimes, in preparing for class, I'll write down four topics. It's not because I can't remember them or don't understand them. It's a way to remind myself that this is what I want to emphasize and to avoid getting carried off message. Maybe I'll look at them in the course of a class. Most often, I won't. But writing them down somehow - or at least I believe - makes it less likely that I'll forget something.

These four points - believe me - are not going to be profound. They'll be pretty general. They are really cues for whatever spiel I have that lies behind them.

So, really, the point is not what was on her palm, but what she had to say.

Songs for Super Bowl Sunday

So we start with a New Orleans song. There are many. I rule out anything related to Katrina. Too easy. One the best New Orleans songs is "House of the Rising Son." I've done some versions of that before, but not this tripped out version by Detroit's one-hit wonders Frigid Pink.



But we can't forget Katrina and we should acknowledge the Queen of Gulf Coast Blues, here singing Randy Newman's great "Louisiana 1927" at a Katrina benefit.



Indiana songs are harder to come by. I could do "The Banks of the Wabash" or "Down Home Again in Indiana. Or - for those of you of a certain age - I can do this.



But I should also pick a good song.



For the Saints.



For the Colts



And even for the old Colts

Law Lords to JFS: You're Not So Free

There has been a fair amount of commentary regarding a decision of the Supreme Court of the United Kingdom (formerly the Lords of Appeal in Ordinary and part of the House of Lords) in a matter called R (on application of E) v. Governing Board of JFS.
The case involved the desire of a man referred to only as E to have his son, M, admitted to London's prestigious Jewish Free School. There are many more applicants than spaces in the school and it gives preference to children who are recognized as Jewish either by the rule of matrilineal descent derived from Deuteronmomy 7:3-4 ("... neither shall his daughter take on to thy son/For they shall turn thy son away from following me") or by an Orthodox conversion (i.e., one recognized by the Office of Chief Rabbi of the United Hebrew Congregation of the Commonwealth).

E is Jewish but M's mother is a former Roman Catholic whose conversion was supervised by a Reform rabbi, so was not recognized by the OCR.

M was denied admission and E sued, arguing that the preference violated the Racial Relations Act of 1976 which forbids discrimination on the basis of ethnicity. Is that what happened?

A 5-4 majority of the Justices (formerly the Law Lords) said that it was. The matrilineal test is, the majority said, a test based on ethnicity and, therefore, unlawful.

The opinion has drawn a great deal of criticism. Some of it is related to the sensitivity of a court decision that would provide fodder for the old canard that "Zionism is racism" although the Court - particularly in a concurrence by Lady Hale - went to some length to say that they were not accusing JFS of racism. This aspect was emphasized by those who see an increase in anti-semitism in the UK and its foreign policy drifting away from support of Israel. While perhaps (unintentionally) demonstrating Godwin's Law, the Telegraph chillingly paraphrased (maybe)Hermann Göring in observing that a modern liberal democracy has now announced "We decide who is a Jew."

But most of the criticism focuses on whether the Court had improperly taken upon itself to resolve a religious question. There are parallels with American constitutional practice. Putting aside statutory exemptions, our basic free exercise doctrine upholds neutral laws of general applicability even if they burden religious practice. (I should note that not all state constitutional doctrine is this forgiving and there have been both federal and state statutory protection of free exercise that call for more exacting scrutiny.)

Part of the rationale for such a rule is that it avoids the need for judicial scrutiny of every state law claimed to burden some claimed religious practice or obligation - claims that, depending on your point of view, are limited only (or either) by the human imagination or the inscrutability of God. In other words, not limited at all.

Courts generally seek to avoid examining the authenticity and legitimacy of a claimed religious practice. Although it is not the categorical prohibition that is sometimes claimed to be, the notion is that courts ought not to settle religious controversies and ought not to to be in the business of evaluating religious doctrine.

The JFS decision could be seen as consistent with that regime. The Court did not resolve controversies within Judaism about Jewish identity. It simply said that whatever test is chosen cannot be an ethnic or racial test. This undoubtedly burdens religious practice but maybe that is the price we have to pay for keeping the free exercise clause from turning into a license for unbounded claims of constitutional liberty.

That view has plenty of critics (I'm one of them) but here its application is not so easy. Was this an ethnic test? To say it is arguably ignores not only its religious provenance but it religious, rather than racial, rationale. If the rule of matrilineal descent is truly drawn from Deuteronomy, the idea seems to be a religiously based counsel against marrying outside of the faith not because of concerns for racial purity or ethnic identity, but for religious reasons - "they shall turn thy son away from following me."

That this is a religious concern is demonstrated by the fact that is has a religious exception. Thy son can take on to his daughter if his daughter undergoes a proper conversion. What constitutes a proper conversion seems to be a matter of religious controversy and doctrine. It suffices to say, that in the eyes of the JFS, the former Mrs. E did not have one. Given the notion - traditionally accepted by Christians as well as Jews - that God's covenant with the Jews was with the Jewish nation rather than individuals who may or may not choose to accept it, the need for some definition of identity seems obvious.

I understand that someone may spin a hypothetical regarding some Aryan religion used to exclude nonwhites from a school. That's what makes this a hard case. It's what may illustrate the way in which the idea that religious controversies and precepts ought to be entirely free from judicial scrutiny is limited.

But was this a hard case that made bad law? Or was bad law avoided with an unsavory result?

Cross posted at Marquette University Law School Faculty Blog. (You can find a link to the decision there.)

The Internet Is Forever Even If Some Folks Are Slow On The Uptake

I was somewhat taken aback by a column posted by Milwaukee Magazine's Bruce Murphy claiming that I had a "ho hum" attitude toward the cost of higher education and levels of student debt while "making my living" off of students "sinking into ever increasing pits of debt." He offered me as an example of "apathy about this issue among older folks who no longer face the problem." He seemed upset that I chided him for reporting on the subject two years ago, saying that it must have been a slow news day.

I, quite frankly, couldn't recall writing anything that could have been interpreted in that way and the link that Murphy provided to his readers was to a post on this blog referencing a column that I wrote in Sunday's Milwaukee Journal Sentinel on the Supreme Court's Citizens United decision - fairly far removed from the cost of higher education and student debt levels. In fact, the only thing I recall ever writing about student debt levels was an acknowledgment of Joseph Zilber's wonderful $ 30 million dollar gift to Marquette University Law School, $ 25 million of which was to go to student scholarships. I wrote that student indebtedness threatens to distort student's career choices in ways that may not be conducive to their long term happiness. Mr. Zilber's gift, which is very material with respect to a student body of our size, is one of the more significant things ever to grace the Milwaukee legal community.

But after searching my blog, I found the distant insult that apparently has apparently been festering for all this time. I'll link to it because Bruce, apparently couldn't be bothered, preferring that his readers restrict themselves to his interpretation of what I said.

In October of 2007, Mr. Murphy wrote a column declaring college tuition in our state a "scandal" because tuition at Wisconsin's public universities had risen to 4% - or $ 228 - above the national average. He blamed the scandal on declining state support.

I suggested - way back then - that this could hardly be considered a "scandal" and that one might just as well argue that, in a state imposing above average taxes on below average incomes, the real problem was, not the posited weakness of state support, but the level of tuition in light of the tax burden imposed on Wisconsin residents. In other words, a state that imposes above average taxes ought not be offering (slightly) below average support for higher education.

In Murphy's World, this failure to recognize "4 %" as scandal apparently constitutes indifference to the plight of students. It's taking a "ho-hum" attitude toward people with whom I, and not he, interact daily and, for whom, I can't help but to care greatly. I'll admit that this annoys me. They are wonderful young (and, occasionally, not so young) people who tend to make me feel very optimistic about who will be in charge when I am in my dotage.

Even more bizarrely, it's something that must have bothered him so much that he remembers it twenty seven months later - long after I had forgotten the matter.

Mr. Murphy goes on to talk about the debt levels of undergraduates at Marquette and speculates that law school graduates must have even more. On that last point, he is correct. Our tuition is lower - by a lot more than 4% - than the average for private law schools. It is less - by a lot more than 4% - than out of state tuition at the University of Wisconsin Law School. But its still a lot of money. Legal education is expensive. It can be a financially sound investment. In fact, for students that land jobs at large law firms and earn more - a lot more - in their first year than my law school salary, it's a spectacularly good investment. I worked for a firm like that for quite some time and was paid quite well.

But student debt is an issue that requires attention. It's not clear, however, that additional subsidies to higher education help much. Often, it seems that they simply push the demand curve up and mostly increase university revenue. Nor is it clear that the problem with higher education costs is in-state tuition at public universities. At the time - those many months ago when I wrote the offending two sentence that bother Mr. Murphy so much today, I had just finished paying tuition at UWM for my son who had graduated in June 2007. The University of Wisconsin system is still, for the most part, a pretty good bargain.