One way or another, the Gableman Case Is Over

The more I look at the writings in Judicial Commission v. Gableman, the more I become convinced that the case should be over. To suggest otherwise seems to require the Judicial Commission to do something that it cannot do, that makes no sense and that cannot alter the deadlock on the Court. Here's why.

The Abrahamson group (I refer to the two groups by the name of their senior member) purports to dismiss the three judge panel and remand the case to the Judicial Commission. As a preliminary matter, it can do neither because a majority of the participating justices have not so ordered. Ties don't count as wins.

The Abrahamson group would get around this problem by treating the recommendation as a motion for summary judgment that has, by virtue of a deadlock, not been granted and that would somehow leave the matter pending below. But that is not quite right. The motion for summary judgment was directed to the three judge panel and resulted - not in a motion - but in a recommendation. That recommendation has not been accepted but that is not equivalent to the denial of a motion for summary judgment.

It might have been akin to denial of such a motion if a majority of the participating justices had remanded the case for further fact finding. But, again, that didn't happen and it is clear from their writings that neither the Abrahamson or Prosser group believes that further factfinding is necessary. More on this in a moment.

The Abrahamson group goes beyond a simple assertion that the motion for summary judgment has been denied. It tells the Judicial Commission to treat the complaint "as if were just being filed." But it cites no authority that would permit the Commission to do so. The reason that the group wants to do this is to take the matter from the three judge panel who, in its view, got it wrong and could not reasonably be expected to do anything differently should the matter be tried. (This is because, as noted below, there appear to be no factual assertions advanced by anyone that would - or, given the reasons they have given for the panel's decision - should alter the outcome.) The Abrahamson group tells the Commission that "it needs" to request a jury (and, oddly, not only a jury but a jury of twelve - something that is not required even if a jury is properly requested).

This seems to contradict the relevant statute which provides that "before the commission files a formal complaint or a petition under s. 757.85(5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing." Wis Stat. sec. 757.87(1)(emphasis supplied) The statute goes on to say that "[i]f a jury is not requested, the matter shall be heard by a [panel ...." Id.

In this case, the Commission did not request a jury and, therefore, the matter was submitted to the three judge panel. Absent some breakthrough in quantum physics, there is obviously no way that the Commission can now go back and request a jury before the complaint was filed.

Perhaps an argument can be made to read the statute to permit a jury request at this stage in the proceeding. A realist might, after all, point out that the statute means whatever the state's highest court says it means.

And there's the rub. A majority of the participating justices has not said that the Commission may now request a jury trial. In fact, three justices have said that it may not and that alone is enough to render any such trial meaningless. Those three justices believe - and will hold - that a jury trial was unlawful and presumably will not accept any recommendation based upon such a trial.

Putting that aside, a jury trial in this case seems almost certain to accomplish nothing. No participant in the process to date - not the Judicial Commission, not Justice Gableman, not the Abrahamson group and not the Prosser group - has thought that there are any unresolved issues of material fact. What they have disagreed on is how to read the statute, its application to the undisputed facts and, in the case of Judge Fine, its constitutionality as applied to this case. If you take seriously what the Prosser group and Abrahamson group said in their writings, a jury verdict won't change anyone's mind. In fact, it shouldn't change anyone's mind.

Assume that a trial is held and a jury finds that the ad was not false. The Abrahamson group will not - and, given the rationale set forth in its writing - should not change its position. These three Justices believe that the undisputed facts establish a violation. They were willing to, in effect, grant summary judgment to the Commission because they do not believe that there is any issue of material fact as to Justice Gableman's liability. If you believe that there is no issue of material fact on the question of a violation, then the matter ought not to be submitted to a jury and any verdict that finds no violation should be set aside.

Conversely, if a jury finds that the ad was misleading, the Prosser group will not - and given the rationale set forth in its writing - should not change its position. They believe that there are no material issues of fact as to Justice Gableman's innocence. If that is what you believe, then submission of the question to a jury would be error and any verdict finding a violation should be set aside.

This is why our friend Illusory Tenant is wrong in suggesting that there are facts to be tried. The Abrahamson group tries to create an issue of fact by referring to the video portion of Mitchell's ads and three citations that appeared on the screen. These three citations were to the proceedings in Mitchell's case in the circuit court and Court of Appeals. There was no citation to the Supreme Court decision that reversed Mitchell's victory in the Court of Appeals while including citations to the proceedings below. That omission, they say, wasn't included in the stipulation considered by the three judge panel.

There are three problems with that. The first is that it is not at all clear that the video of the ad was not considered by the three judge panel. Second, the import of excluding the Supreme Court citation was addressed by the stipulation of facts before the panel, i.e., then Attorney Butler did not obtain Mr. Mitchell's release. The Supreme Court affirmed his conviction and he served his sentence. It is, at best, cumulative.

But most fundamentally, neither the Prosser or Abrahamson group found this fact to be material, i.e., they were able to resolve the case without any finding on whether the citations made the ad true (as Justice Gableman's counsel attempted to argue) or constituted some type of independent or exacerbating falsehood.

Commenting on Tom Foley's blog, Rob Henak (who brought certain of the motions to recuse Justice Gableman) offers the Abrahamson group some advice. Perhaps the problem is that the Prosser group misunderstands the impact of the First Amendment here wrongly believing that it prohibits discipline of statements that, while literally true, are misleading. Why not petition for cert and ask the Supreme Court to make clear that this is not so?

But,as Rob points out, there is no final order to appeal from and cannot be unless at least one member of the Abrahamson group crosses over and votes to dismiss - presumably because further proceedings would be futile. Beyond that, it doesn't seem like a strong case for cert. Although the constitutional issue is quite interesting, the Prosser group didn't hold the rule unconstitutional but simply construed it to avoid a constitutional problem. Construction of the rule is a question of state law and is not reviewable by the United States Supreme Court.

Even if the Court, through invocation of the rule requiring a clear statement of adequate state grounds to avoid the potential for federal review, takes the case, the most it can do is clarify what it believes the First Amendment requires and remand for reconsideration in light of that clarification. The Prosser group would still remain free to construe the statute as it has and might even invoke the state constitution in support of its construction. Given all that, it's hard to see that the U.S. Supreme Court would take the case.

I appreciate the concerns of those who have a hard time seeing why the case should be over because the Court deadlocked. The answer lies in allocation of the burden of proof. A violation cannot be established without the agreement of a majority of the Court. A majority has not agreed and, based upon the reasons given by the competing groups, never will. I think that, whatever your view of the merits, it's over.

Shark Jr. at Summerfest

Chris Esenberg performed this afternoon at the M & I Classic Rock Stage at Summerfest. He lost to a Whitney Houston sound a like. He was robbed. I am contemplating injunctive relief.



The young man enjoying his lunch at the beginning is Caleb Richard Esenberg who will be 2 on the President's birthday.

Gableman Agonistes

I am on deadline for a column in the Journal Sentinel so I can only make a few preliminary comments on the Wisconsin Supreme Court's actions in Wisconsin Judicial Commission v. Gableman. One group of Justices (Justices Prosser, Roggensack and Ziegler) would have accepted the recommendation of the three judge panel and dismiss the complaint. Another group (Chief Justice Abrahamson and Justices Bradley and Crooks)would have rejected it and found that Justice Gableman violated SCR 60.06(3)(c).

There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three judge panel is a recommendation. What happens when it is not accepted.

The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.

The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter for a jury trial.

But there are problems with that. First, the statute governing these proceedings seems to require that a jury trial be requested before the complaint is filed. That did not happen. If there is a trial, it would have to be before the three judge panel.

But, in the view of the three judge panel, there are no issues to be tried. They concluded that the complaint, either as a matter of statutory construction (for two of the judges) or as a matter of constitutional law (for Judge Fine), must be dismissed as a matter of law. Neither the Judicial Commission nor Justice Gableman believes that there any new facts that bear on the matter. If the thing that happens here is that the proceeding below continues before the three judge panel, it would presumably reach the same decision.

In saying that the Wisconsin Judicial Commission "needs" to request a jury trial, the Abrahamson group essentially wants the Commission to start all over again and do what it did not do the first time around.It is telling the Commission, "look, you lost before the three judge panel. Now that you know that, try a jury." But the rules don't seem to permit that.

Beyond that, as a practical matter, replacing the three judge panel with a jury will do not break the impasse. No member of the Court believes that the there are any material facts in dispute, so there would seem to be no reason for a jury verdict to change any one's mind. It is quite clear that three members of the Court (those in the Prosser group) believe that the complaint should be dismissed as a matter of law. A jury verdict in the Commission's favor won't change that. Conversely, there are three members of the Court who believe, as a matter of law, that the Mitchell ad violates SCR 60.06(3)(c). A jury verdict in Justice Gableman's favor won't change that.

The only way that the impasse might be broken is if the composition of the Court changes. Is it appropriate to keep the matter alive in the hope that this might happen? Is there any point in conducting a jury trial that might prolong the controversy but has little or no chance to resolve it?

More to come.


Cross posted at Marquette University Law School Faculty Blog.

Marriage Amendment Was Validly Enacted

The Wisconsin Supreme Court has held that the amendment to Wisconsin's constitution defining marriage as the union of one man and one woman and prohibiting the recognition of any substantially similar status (Art XIII, sec. 13) was properly enacted. Justice Michael Gableman wrote for a unanimous Court.

The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.

Justice Michael Gableman wrote that the legislature may "submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." The marriage amendment, in the view of the Court, had one general purpose:

"The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing "a legal status identical or substantially similar to that of marriage."

By way of full disclosure, I filed an amicus brief supporting the state's position.

Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.

It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.

Cross posted at Marquette University Law School Faculty Blog.

It Takes an Awful Lot of Nerve

I have no idea whether the tragedy at the O'Donnell Park parking structure is attributable to deferred maintenance and neither, as far as I can tell, does anyone else. To reach that conclusion one would have to know why the accident happened and then identify some particular proposed action that would have prevented it or uncovered the flaw that caused it. To simply note that O'Donnell Park has had problems or that there are proposed repairs to the structure that have been deferred tells us exactly nothing about the connection of these matters to the accident. Scott Walker says the County was aware of no needed repairs or existing problem that could have caused such a collapse. While the investigation is just beginning, no one has pointed to a single fact suggesting otherwise. It may turn out to be so, but we don't know yet.

But that doesn't mean that the political ghouls have held their fire. The Recess Supervisor seem to have jumped on it before the next of kin could be informed. The latter seems to acknowledge that there is no proof that deferred maintenance contributed to the tragedy but, the political arts being what they are, it doesn't matter. He's not exploiting anything, just providing us with a political science lesson. Tom Foley allows that while it is "perhaps" tasteless to inject politics into such a tragedy, it is inevitable so ... what the hay. He might as well get in on it.

But the worst person in the world in this regard is former Milwaukee County Supervisor Jim McGuigan - one the Board members who brought us the County pension scandal. Having been recalled by the voters for the gross stupidity that may ultimately cost a government already overly burdened with legacy costs a billion additional dollars, you'd think he'd be wandering around Brown Deer in sack cloth and ashes. But no, he authors a blog with the ironic title of "Watchdog Milwaukee." A bit late on that, Jim, don't you think?

McGuigan's defends himself by blaming others. Who would have thought to question claims that, since the stock market had gone up, it would never go down? Who would have doubted that the way to address the potential for early retirements prompted by the County's already ridiculously generous pension plan would be to make it even more generous?

I am perfectly willing to believe that at least some of those responsible for the pension mess were clueless rather than cunning. The Board may well have gotten poor advice from its human relations manager and actuaries, although the idea that one could promise the world to employees without risk to the taxpayers seems - as we say in the law - frivolous on its face.

Still, we ought to be chastened by our mistakes. One would think that, having blundered into a first class mess, McGuigan might display some humility and generosity in questioning the judgment of others.

Not for a minute. McGuigan accuses Walker of "killing off constituents to satisfy a craven lust for power." He says that "[t]onight there are two parents who have lost a son because Walker has decided that politics is more important than safety." He doesn't know - he couldn't possibly know - whether there is any truth to these allegations.

I suppose that one shouldn't be surprised that someone who voted to financially hollow out County government would not be overly concerned about whether he knows what he's talking about. What we do know is that Thursday night two parents lost their child and Jim McGuigan couldn't wait until after the funeral to politicize their loss.

Reflections on the World Cup

Every so often, we have this debate about soccer. Real Americans, we hear, don't like soccer. Even my own son says that he thought ESPN was running binary code (0010011110)but it turned out to be soccer scores.

There are some conservatives who want to say that it is a liberal's game or that there is just something, I don't know, French about it - even though the French don't seem to have the hang of it during this World Cup.

If we want to ruin sports by politicizing it, I can make an argument that soccer is, in fact, a conservative game. The overwhelming difficulty in scoring reflects an understanding that we live in a fallen world. The fact that plays are made on the fly against a changing geometry of play rather than called in the huddle or signalled from the dugout reflects the spontaneous creativity (Hayek's catallaxy)of the market and stands against the Progressive faith in the administrative state. Its unchanging - even archaic rules - reflect a Burkean commitment to tradition.

I don't like the South African vuvuleza horns either, but it is wrong to say that they are being blown "when nothing is happening." In soccer, there is never such a time. A goal can come quickly - either because of a great play or a defensive lapse - and one goal can determine - often does determine - the outcome of a match. For this reason, there is a tension throughout the game. It could be decided at any moment. Or if one team is ahead, that lead is, on the one hand, a huge obstacle but, on the other, one that might be overcome at any moment. I think the purpose of the horns - annoying as they are - is to magnify that tension.

The important thing is that the US team controls its destiny. It is through if it beats Algeria on Wednesday.

Reflections on Father's Day

I had a nice Father's Day. Had you walked into my kitchen at the right time yesterday, you would have come across three generations of Esenberg males imitating the buzz of the vuvuzela. No, I don't know why (no alcohol was consumed by either adult),but Caleb (almost 2) sure seemed to like it.

Via Kathryn Jean Lopez, President Obama had the following to say about Father's Day:

Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a step father, a grandfather, or caring guardian.

Literally, this is true. But as an endorsement of the value of family diversity, it is not. Alternative family forms can be nurturing. But the idea that these forms are "just as good" as a family headed by a child's mother and father in a low conflict marriage is not true. Social science is highly politicized but, notwithstanding elite resistance to this idea, the empirical evidence is pretty overwhelming.

The consequence of our refusal to acknowledge this is a devaluation of fathers with devastating consequences. The President recognizes the consequences of that in his own life saying that he still feels the weight of his father's absence. My own Dad left my life when I was around six and, even though I had - and, thank God, still have - a wonderful stepfather, it's something that you never get over.

The President, typically, wants to have a national dialogue on fatherhood. Good idea. Let's hope its candid and not circumscribed by political correctness.

Shark on Wisconsin Eye

Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel's Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.

We can expect to see a lot from the Court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.

There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment, Milwaukee's sick pay ordinance,* and the legislature's $ 200 million dollar "raid" on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.

* Over at the law school blog, one of Justice Gableman's outgoing clerks reminds me that the Milwaukee sick pay case, although accepted for review, has not yet been argued. We won't see it decided this summer.

Cross posted at Marquette University Law School Faculty Blog.

Indicted for Blogging?

The local political blogs are (can't really say "atwitter" any more) but interested in an apparent investigation of the left blogger Chris Liebenthal by the Milwaukee County District Attorney's office. The investigation may have been undertaken in response to a complaint by Citizens for Responsible Government suggesting that Liebenthal, who works for Milwaukee County, has been blogging on government time.

It's not clear that this is true. It may well be that the examples that CRG has made public were posted on days that Liebenthal was on furlough or had a paid day off. CRG looks sloppy on this, although it is possible that there are other examples or that there is a question whether the posts were actually written at the time they posted. (That may be why the DA wants to look at this computer.)

But here's my point. I don't know that this is worth the DA's time. I understand that one may be able to make political blogging on government time fit into an extant criminal statute, but I don't think we ought to. If Liebenthal blogged on company time (and I am not suggesting that he did or that the public evidence suggests that he did), it ought to be a personnel matter.

I thought that about the caucus scandal. I think it about this.

Of course, there is a distinction between this and the caucus scandal. Unlike legislative caucus employees, Liebenthal does not work for legislators who are inextricably involved in politics. But, in the absence of evidence, that some one has turned whatever department he works in into a political operation, I just don't see this as something warranting treatment as a crime.

And maybe the DA will agree.

But Liebenthal ought not to be surprised that some people are happy at his troubles. You play nasty (and he does), you make enemies.

UPDATE: CRG lists additional dates.

Critical Announcement !!!!

My son Christopher is a trainer for M & I Bank. He is also one of the finalists for the august title of M & I Idol. (It's a very big company!) The competition will take place at 12:30 on the M & I Classic Rock Stage at Summerfest on July 4.

And if you ever need a live band reprising the alternative rock of the 90's, book his band SuperOpus. I can hook you up.

Curb Your Enthusiasm

I've met Mike Tate and I have to confess that I like the guy. He's bright and funny and not quite the zealot that he (and most other politicos) seem to be. I have the same impression of Scot Ross.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.

The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)

As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.

Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.

The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.

There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.

Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.

I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.

But I do think Mike should be careful. This was several bridges too far.

Cross posted at Marquette University Law School Faculty Blog

The Obama Administration's War on Scientists

Let's say that the Bush administration had consulted with a group of biologists on stem cell research. Imagine that it had placed summarized that consultation and made some policy recommendations in a memorandum that had then been approved by these scientists. The report went on to stated that the report's recommendation had been peer reviewed by the listed scientists.

But before it was released, administration officials - oh, let's say a Cabinet level secretary - added a recommendation that there be a blanket moratorium on stem cell research. It retained the language that the scientists had "peer-reviewed the recommendations, but the scientists never saw that recommendation for a blanket recommendation. They did not "peer review" it. They do not agree with it.

It'd be another example of the Bush administration's so-called "war on science."

This very thing just happened but not, obviously, in the Bush, but in the Obama administration. A peer reviewed report on off shore drilling was modified - after it was reviewed by its scientists - to include Secretary Ken Salazar's call for a blanket moratorium on off shore drilling. The scientists have now said that they never saw the language on a blanket moratorium (they had only approved the recommendation for a more limited moratorium) and do not agree with it. They say that the "[t]he Secretary should be free to recommend whatever he thinks is correct, but he should not be free to use our names to justify his political decisions.

Secretary Salazar has apologized. Secretary Browner, apparently unable to understand that there is a difference between acting on information provided by others and stating that the others have reviewed your action, has said that they did nothing wrong.

Glenn Reynolds says he is beginning to lose confidence in there people.

If it's a Diet, it's Atkins

There are millions - even billions - awaiting the creation of the first truly effective painless diet. If someone can follow Drs. Melik and Aragon in Sleeper and figure out how to lose weight on steak, cream pies and hot fudge, there is serious money to be made.

Tom Barrett is giving the political equivalent a try. He's going to put Madison on a diet, but it won't hurt a bit. It's not that his plan doesn't have some good ideas but what they have in common is that no one (save prisoners, persons engaged in "fraud" and "waste" and some unidentified middle managers)must make the slightest sacrifice. Turn off the computers at the end of the day, go paperless, provide something called "accountability in state contracting training" and there's a billion dollars for you.

Count me skeptical. Politicians have been promising easy savings to avoid addressing spending cuts or tax increases for at least as long as I have been sentient. I've got no problem with most, if not all, of Barret's ideas but I wouldn't count the money just yet.

The President Apparently Has Standards After All

During the election campaign, the President famously said that he would meet with our enemies. He'd talk to anyone. Since the election, he has proved that he will bow to anyone.

But he has his limits. He apparently has not spoken to BP CEO Tony Hayward. You know, they guy who controls technology that the federal government does not have and whose neck our boot is supposed to be on while we kick his ass?

Of course, I don't think that Tony Hayward and Barack Obama would hop on a boat and git 'er done. It is the particular conceit of guys like this to suggest that they can do things like that (or at least make them happen). But a few well placed words from the most powerful man on earth at the right time (it's really too late now)might have helped - both practically and politically. It may have concentrated the mind much sooner than events did.

Back From DC

Blogging has been glacial as I've been working on four law review articles and just returned from a talk at the annual meeting of University Faculty for Life at Catholic University Law School in DC.

Some random observations:

I didn't do anything touristy in DC, but I did notice an absence of hagiographic Obama merchandise for sale compared to the last time I was there (November). I suppose that stuff has a limited shelf life, but still ....

My former partner Fred Geilfus has a column in the BizTimes discussing Accountable Care Organizations, a concept that is to be tested under the Obama health care bill - although I would be surprised if it hasn't already been tested in other contexts. The idea is to move away from fee for service on the theory that this creates incentives to provide more service. As Fred knows, this is an issue with lawyers as well. Hourly fees create an incentive to run the clock. Folks in the legal community talk all the time about moving to different fee structures and sometimes they do. But it's not easy and comes with its own costs. My impression is that, for twenty five years or so, it is far more talked about than implemented. I don't know that ACOs are a bad idea but I think, as with so much of ObamaCare, it falls into the trap of thinking that we can get something for nothing. Nor is it clear why, if they work, they wouldn't develop in a true market.

Dan Bice points out that Ron Johnson opposed the proposal to remove the limitations period for suits against organizations claimed to be responsible for the crimes of child sex abusers. Good for Ron Johnson. The bill was a bad idea and opposition to it does not imply a lack of sympathy for victims or lack of revulsion for perpetrators (who are almost never the ones who have to pay civil judgments).

Responding to Johnson's opposition to the bill, Peter Isley of SNAP had a moment of candor - otherwise known as a gaffe - when he said that ""It's interesting they send a Lutheran down to fight a Catholic cause." He wonders "what would Martin Luther say?" The idea that Isley thinks Lutherans should be hostile or indifferent to the concerns of Catholics says more about Isley than it does about Johnson.

It has been my impression that the only studies available show that Catholic priests are no more likely to engage in pedophilia than other groups that work with children. (I was surprised by this.) Those who work for the state generally will not cause litigation to be brought against it because the government is generally immune from that form of liability. Those who work for non-episcopal or hierarchical churches won't cause lawsuits to be brought because their employers are not deep pockets. There have been lawsuits against other churches with episcopates like the Lutherans but the Catholic Church is so much larger that it is always going to seem like a predominantly Catholic problem.

This is not to say that the Church's response hasn't often been disgraceful. But whether to bankrupt a charitable organization for the sins of the dead and retired is another question.

Finally, via Richard Dudley Martin and Bill Tyroler, my attention is drawn to this.

Leonard Pitts' Way Back Machine

Patrick McIlheran is properly put out by Leonard Pitts' column claiming that Rand Paul's musings about the Civil Rights Act prove, once again, that social conservatives are always "against us" - "us" being African Americans. Pitts cites arguments against the Act made by segregationists like Richard Russell which, in his view, are similar to Paul's defense of private property.

Pitts commits two errors - a category mistake and an anachronistic fallacy. First, it is not clear to me that Paul is a social conservative. He is pro-life, but there is a huge tension between social conservatives and libertarians. (The most preeminent social conservative in the academy, Robbie George, recently referred to libertarianism as "heresy.") More fundamentally, Richard Russell and other Southern Democrats who opposed the civil rights acts were not necessarily "conservatives" in the sense that we use the term today. They were often progressives who tended to support New Deal and Fair Deal policies. Russell, for example, had little or no concern about limiting the power of the federal government or respecting private property in other areas. He was a staunch supporter of the New Deal and considered his most important legislative accomplishment to be the National School Lunch Act of 1946.

Second, it makes little sense to speculate about what Sarah Palin or some other contemporary conservative "would have" done in 1964. Their political views have been formed during a time - and consistently with - a national consensus that racial discrimination is wrong. (In fact, opposition to affirmative action is an application of that principle, albeit not one that all of those who oppose racial discrimination accept.)These people are what they are. Pitts doesn't like them. But it is intellectually dishonest to smear them by imagining that, if they were different people born at a different time, they would have taken positions that they do not, in fact, take.

"Daddy, Did You Plug the Hole?"

The sad fact is that he can't. Just like George W. Bush couldn't stop a hurricane or prevent its foreseeable impact on a city that took no care for its own welfare, Barack Obama can't plug an oil leak that is almost a mile below the surface of the ocean.

In a sense, he is being hoisted on his own petard. There are few, if any things, that he has been willing to admit that the federal government cannot do. This was supposed to be the moment when we begin to "provide care for the sick and good jobs to the jobless" and "when the rise of the oceans began to slow." Instead, it was the moment when we couldn't "plug the damn hole."

Of course, our expectations of the federal government have become oversized without regard to Barack Obama. We think that the President runs the economy and that the federal government ought to bend the laws of nature.

The irony is, having bought into and doubled down by these expectations, the President's first impulse was to blame BP. It was BP's fault. BP's mess. BP's problem.

All of this may be true, but, as he seems to have belatedly recognized, it was his problem as well. The more that he seemed to be blaming BP, the more it seemed that he was not accepting his own responsibility. As Peggy Noonan points out, Katrina fed a certain narrative about President Bush, i.e., that he was clueless and slow to respond. The oil spill underscores a developing narrative about President Obama, i.e., that he is aloof and arrogant. His indifference to concerns about illegal immigration, health care and the rather enormous increase in government spending is exacerbated by the impatient and peevish way in which he responds to criticism. His hectoring and defensive press conference did not help. He should wait at least another 309 days before doing it again.

Don't Cry for Me, Arlen Specter

It's hard to imagine a good resolution for the Democrats on the Joe Sestak mess. If Sestak is telling the truth, there may have been a crime committed. (Rick Hasen has an explanation here.)Very bad for the Obama administration. If he isn't (or exaggerated), very bad for Joe Sestak. What is certainly not going to work is for Sestak and the administration to continue to say no more. I'd look for something tomorrow afternoon.

Don't Hate Me Because I'm Beautiful

Today's self serving award goes to Madison blogger Emily Mills who writes:

Imagine the Democratic Party as Darwin's Galapagos finches, closely related but still wildly diverse and ever-evolving, and the Republican Party as, let's say, a clan of Neanderthals facing a choice between extinction or inter-breeding with Homo sapiens.

There's some brutal honesty for you.

Rand Paul was wrong even on libertarian terms

It was a political and substantive error for Rand Paul to criticize those portions of the Civil Rights Act (largely Titles II and VII) that applied to private business. It is wrong as a matter of constitutional principle. A unanimous Supreme Court upheld Congress' ability to prohibit discrimination in public accommodations in Heart of Atlanta Hotel v. United States. Even if you believe that its scope goes beyond what should be subject to the commerce power (perhaps even even as applied to Ollie's Barbecue, a segregated restaurant that was among the plaintiffs in Katzenbach v. McClung, argued along with Heart of Atlanta and decided the same way), it does not seem unreasonable to think that Congressional authority under section five of the Fourteenth Amendment either supports federal intervention (perhaps to counter the impact of Jim Crow laws) or suggests a rationale for a broader reading of Congressional authority in matters of racial discrimination. In any event, the matter is water under the bridge.

Nor it seems to me do typical libertarian arguments against the need for legal proscription of discrimination work in the context of the 1964 Act. The argument, drawing on the work of economists like Gary Becker, usually says that the market is the best antidote to discriminatory practices. Irrational discrimination - not hiring the best workers or accepting profitable business on the basis of race - comes at a cost. The discriminating party acts as if the cost of hiring, say, an African-American is higher than it is or that the price paid by an African American customer is lower than it is. Thus, discrimination is economically detrimental and, in a market without entry barriers, nondiscriminating competitors will have an advantage.

But putting aside normal market perfections, the theory won't work if there is a pervasive economic demand for discrimination, e.g., if white employees won't work with blacks or if white customers won't sit at a lunch counter with black customers. Then the cost of hiring or serving African Americans really is higher and the market won't help us.

Of course, those are conditions under which laws prohibiting discrimination are unlikely to be passed. We weren't likely to see anti-discrimination legislation get through the Alabama legislature in 1960. But, in 1964, the areas in which there was a pervasive demand for discrimination were part of a larger community in which discrimination was, although certainly not eliminated, more broadly disfavored such that a coalition to pass a law prohibiting it could be formed. Under those conditions, it seems, a law prohibiting discrimination would change market conditions in the south and reinforce the principle of nondiscrimination throughout the nation. (The law has expressive as well as regulatory impact.)

So, even if Rand Paul is correct to say, that, were Titles II and VII to disappear overnight, we wouldn't see much more discrimination in today's world, that wasn't the case in 1964.

Having said that, I do think there is some value in the observation that the more effective barriers to a discriminatory practice are public attitudes and the market (which, of course, reflects public attitudes). While I am certainly not an expert, I have been a lawyer for quite a while and it has also struck me that age discrimination laws seem much less effective than laws prohibiting other forms of discrimination. Many - perhaps even most of us - don't really believe that age discrimination is wrong in the same way that racial discrimination is. In the eyes of many, age seems to be a more relevant factor than race and assumptions based on age are more likely to be true. The same moral stigma does not apply. I'm not sure that the mere fact of legal prohibition has done much to change those underlying attitudes.


Cross posted at Marquette University Law School Faculty Blog and Point of Law

Some Suggested Questions for General Kagan

My Marquette University Law School colleague Peter Rofes has suggested, with tongue placed strategically in cheek, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.

"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of any opinions about what the law is or should be, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification.

You have have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” We on the Republican side of the aisle agree and, therefore, anticipate and look forward to your responses to the following questions.

First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.

Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? If so, what are these limitations and, broadly speaking, how are they to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation in a way that is said to impose external costs?

Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?

In short, General Kagan, are there any justiciable structural limits on the authority of Congress? Is there anything that is none of our business and what might that be?

Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?

Putting it starkly, General Kagan, is it your view that those who believe that marriage ought to be limited to one man and one woman have no rational basis for that view and are, therefore, endorsing invidious discrimination?

Third, you have written that Justice Marshall's view that the judiciary ought to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."

Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?

Put bluntly, is it the Court's role to interpret the Constitution in a way that politically empowers those that five justices believe do not have "enough" power ?

Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."

While we appreciate that you may not have been endorsing that view in your article, let's explore what you do believe.

Is it ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets?

If government may work to "redistribute" or "balance" speech due, say, to an inequality of resources among speakers, is government itself subject to some obligation of neutrality or balance in the messages that it communicates or subsidizes? If not, how do you reconcile the permissability of state intervention to correct imbalances in private speech with the deliberate creation of imbalances by goverment speech?

May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?

In other words, is it the role of the Court to "improve" or "balance" political discourse?

We look forward to your responses. There may be follow-ups."

Cross posted at Point of Law.

You Have the Right to Remain Silent

This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don't agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I'd draft, the devil is in the details.

On more fundamental level, it doesn't seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.

I would have preferred to discuss Professor Cole's views in Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which he represents the plaintiffs.

The case presents, among other things, a facial challenge to 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization ...."

The case, which was argued on February 23, presents some interesting constitutional questions regarding the impact of the law on constitutionally protected speech and rights of association. It raises some fascinating question regarding whether it is possible to distinguish the "peaceful" and "violent" aims of terrorist organizations.

Professor Cole did manage to mention the case and to point out that the government had conceded at oral argument that the law could apply to filing an amicus brief.

It's true that the government's lawyer did say at oral argument (pp. 47-49; although the position was also taken below) that the statute might apply to filing an amicus brief for a terrorist organization if the organization itself was the amicus party (although not a brief that might take a position favorable to the position of such an organization.)

The government's lawyer? Solicitor General Elena Kagan. I'm not sure what to make of that, but I thought it was interesting.

Cross posted at Marquette University Law School Faculty Blog.

"Harvard," I spoke the word/ as if a wedding vow

Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.

If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.

No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.

Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.

According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")

Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."

Dude, please.

Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.

Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)

Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.

As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**

Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.

Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.

And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.

Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.

And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.

In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.

But, dude, think!


Cross posted at Point of Law and the Marquette University Law School Faculty Blog


* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.

**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.

.

Does This Stuff Fan the Flames?

In the wake of the huffing over the Arizona immigration law, I posted this on our faculty blog.

To provide a local twist, Christine Neumann-Ortiz, director of Voces de la Frontera and subject of a hagiographic profile in the Milwaukee Journal Sentinel, calls the Arizona law a product of the forces of hatred and bigotry that will lead to a “return to Jim Crow segregation and violence."

Given that the federal law mimics state law and allowing that a national community has a right to regulate the presence of - and even to exclude - outsiders, this is over the top.

And it isn't it also at least just a tad irresponsible. Tell me how that is different from the worst that we hear from Glenn Beck and Rush Limbaugh? I am sure that Ms. Neumann-Ortiz doesn't seen herself in this way. I appreciate that political operatives must talk smack.

But her comments are the political equivalent of "shut up." It makes the issue something it is not as reflected in the Phoenix Suns' odd adoption of "Los Suns" jerseys. To turn the issue into whether one is for or against Hispanics (the Suns are for!) is just as silly as saying that anyone who is concerned about the potential abuse of the law is indifferent to the need to control illegal entry into the country (the Suns hate Arizona!).

Obey Says Goodbye to All That

Republicans and Democrats differ about the retirement of Dave Obey. The former want to say that he read the handwriting on the wall and dropped out rather than, as Reince Priebus put it, have a knife fight at 72. The Democrats say that an old soldier, having passed health care, has decided it's time to fade away. For his part, Obey says that his "progressive district" will never elect a Republican.

My guess is that there is a little truth in all of it. It's hardly shocking for people in their seventies to retire. But the health care reform that was passed was not the reform Obey wanted and, whether or not it can be repealed, it is hardly a finished product. It would require ignoring the obvious to think that the Seventh wasn't potentially in play and Obey must have anticipated at least the possibility that the 112th Congress will be much more Republican than the 111th. A younger Obey may have decided to stay and fight to preserve - or to reshape - such important legislation.

Nor can he be sure that his seat will stay blue. The district is hardly firmly "progressive." Although President Obama carried it comfortably in 2008, it was a toss-up in the preceding two presidential elections. It may very well elect a Republican.

A more plausible scenario is that Obey was disappointed in what the Democrats, with extraordinary - perhaps even unprecedented majorities (large Democratic majorities in the past contained many more conservatives) - and understands that things are, from his perspective, going to go south for awhile. Rather than risk having a long career end in defeat or frustration, he decided to call it a career.

The legacy of that career is a huge mess. He may have, as he likes to say, outlasted George W. Bush, but the fiscal disaster that has been brewing ever since Mr. Obey went to Washington outlasted him.

Some one has apparently failed to get Rich Lowry a copy of the catechism.

Now that the semester is over (but for the grading of 122 exams and, to borrow the expression of a friend, that is every bit as special as it sounds), I should have more time for blogging.

I want to deal with the issue at greater length, but I am amused by the controversy over the supposed "epistemic closure" of the conservative movement, encapsuled in the controversy between Jim Manzi and Mark Levin that has played out over on National Review Online.

There is, of course, a meta point in all of this that is overlooked by all the clucking about how sad it is the conservative mind has closed. The controversy is being played out on ... National Review Online. I recall reading, over the weekend, a nice piece on the way in which some conservatives have come to misunderstand supply side economics and the Laffer curve - thinking that tax cuts always pay for themselves. I was interested because I made the same point here. The funny thing is that I read this criticism of a point commonly made by conservative talked in ... the pages of National Review.

I have commended the work of Jim Manzi on this blog on several occasions. But Jim - who things that there is anthropogenic global warming but that its impacts are exaggerated and the most commonly offered solutions are ill advised - was brought to public prominence by ... National Review. They actually gave him a cover.

The idea that conservatives are uniquely close minded while folks on the left walk around enraptured by intellectual curiousity is risible. Rhetoric from the President and folks like Harry Ried on the financial crisis and reform has largely been unreflective demagoguery. (This is not to say that there is no need for financial reform but the framework of a nation of Tiny Tims cheated by the pre-enlightenment Scrooge isn't very helpful.) Ignorance of complexity is just as much a Democratic as a Republican problem.

This is not to say that I don't think that something that can be called epistemic closure is not a problem for us all or that both parties don't have their own forms of magical thinking. But my friends on the left who think that they have identified a uniquely conservative problem are suffering from a certain lack of self awareness.

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.