Last Friday I was a guest on Joy Cardin's show on Friday morning. The archive is here. I mention it, in part, because I got an email from an employee of the UW Hospital who said I "lied" because I denied that the bill was abolishing public employee unions and said that it restricted rather than eliminated collective bargaining rights.
I stand by what I said but it's worth qualifying. She was concerned because the bill apparently does eliminate collective bargaining for certain employees of the UW and UW Hospital. I haven't worked through all of the amendments to chapter 233 but fair enough. We were talking about the bill as a whole but she is entitled to be raise her own particular situation.
Wednesday, February 23, 2011
A Fireside Chat for the Twenty-First Century
The "fireside chat" is associated with Franklin Delano Roosevelt. Scott Walker, who gave his own version last night, may share some things in common with FDR. For those of you in Dane County, stay with me.
It's not that FDR was "really" a conservative. I dislike Presidential revisionism and FDR was a conservative as much as Reagan was a liberal, i.e., not at all. FDRs was quite clearly - in American terms - a man of the left - someone whose views would probably render him unelectable today.
It's not simply that he was FDR of collective bargaining in the public sector. He wasn't but that point has been made and Walker's opponents are determined to ignore it and the reasons behind it.
No, it's that Walker - like FDR and Reagan - appears to believe that he was elected to do something other than secure another term. That's rare in a politician. (Incidentally, I give Obama credit for the same quality even as I disagree with what he wants to do.) Walker has diagnosed a problem and proposed a solution that creates the structural reform that his diagnosis calls for.
Unions are an effort to grant labor near-monopoly power and move the supply curve up. The result - in almost every case - is as follows. First, unemployment happens. Employers will hire fewer people if they must pay more. Second, for those lucky enough to keep their jobs, compensation will be higher. If you regard the world as a Dickensian place made up of greedy and powerful employers exploiting defenseless workers, this might be a good thing. If employers are earning greater than competitive profits, the job loss may be small and the wage gain may be high.
I would argue that this dark satanic world is no longer the one we live in. But it is almost certainly not the world in which public employees live. Management is unlikely to play Scrooge to WEAC's Cratchits because WEAC members pool their resources and exert a disproportionate influence on whether Scrooge stays in charge of the counting house.
Collective bargaining in the public sector simply isn't adversarial in the same way that it is in the private sector. This is why Democrats - who are elected to represent the government's "management" - support collective bargaining. You will find almost no manager in the private sector who wants anything to do with unions. Yet Democrats seem to want to pay state employers more of the taxpayer's money.
The reason is simple. There is no special interest that is more important to keeping Democrats in business. In supporting public employee unions, they are simply doing the honorable thing. Having been "bought," they are staying "bought," i.e., they are supporting the folks who put them where they are. The problem is that when you combine this with collective bargaining protection - essentially the right of employees to try to fix the price of labor, you run the risk of collusion.
Of course, these collusive results are not popular with the rest of us so they tend to be made opaque - hidden in the form of work rules, fringes and promises to retirees. Walker understands this and knows that closing the immediate budget gap is only the beginning of the fiscal challenge that Wisconsin is facing. In limiting the nature of collective bargaining agreements that states and local units of government can agree to, he is attacking the structural problem. He is actually doing something that might, for better or worse, make a difference.
It's not that FDR was "really" a conservative. I dislike Presidential revisionism and FDR was a conservative as much as Reagan was a liberal, i.e., not at all. FDRs was quite clearly - in American terms - a man of the left - someone whose views would probably render him unelectable today.
It's not simply that he was FDR of collective bargaining in the public sector. He wasn't but that point has been made and Walker's opponents are determined to ignore it and the reasons behind it.
No, it's that Walker - like FDR and Reagan - appears to believe that he was elected to do something other than secure another term. That's rare in a politician. (Incidentally, I give Obama credit for the same quality even as I disagree with what he wants to do.) Walker has diagnosed a problem and proposed a solution that creates the structural reform that his diagnosis calls for.
Unions are an effort to grant labor near-monopoly power and move the supply curve up. The result - in almost every case - is as follows. First, unemployment happens. Employers will hire fewer people if they must pay more. Second, for those lucky enough to keep their jobs, compensation will be higher. If you regard the world as a Dickensian place made up of greedy and powerful employers exploiting defenseless workers, this might be a good thing. If employers are earning greater than competitive profits, the job loss may be small and the wage gain may be high.
I would argue that this dark satanic world is no longer the one we live in. But it is almost certainly not the world in which public employees live. Management is unlikely to play Scrooge to WEAC's Cratchits because WEAC members pool their resources and exert a disproportionate influence on whether Scrooge stays in charge of the counting house.
Collective bargaining in the public sector simply isn't adversarial in the same way that it is in the private sector. This is why Democrats - who are elected to represent the government's "management" - support collective bargaining. You will find almost no manager in the private sector who wants anything to do with unions. Yet Democrats seem to want to pay state employers more of the taxpayer's money.
The reason is simple. There is no special interest that is more important to keeping Democrats in business. In supporting public employee unions, they are simply doing the honorable thing. Having been "bought," they are staying "bought," i.e., they are supporting the folks who put them where they are. The problem is that when you combine this with collective bargaining protection - essentially the right of employees to try to fix the price of labor, you run the risk of collusion.
Of course, these collusive results are not popular with the rest of us so they tend to be made opaque - hidden in the form of work rules, fringes and promises to retirees. Walker understands this and knows that closing the immediate budget gap is only the beginning of the fiscal challenge that Wisconsin is facing. In limiting the nature of collective bargaining agreements that states and local units of government can agree to, he is attacking the structural problem. He is actually doing something that might, for better or worse, make a difference.
Monday, February 21, 2011
Madison Parties Like it's 1939
There is something almost retro about the drama in Madison. If there is a future for the Democratic Party in Wisconsin (and there certainly is), I would not think that it is rooted in support for labor unions - entities that have become all but irrelevant in the economy at large for reasons that are unlikely to change. I had this vision of Pete Seeger coming to the rotunda and croaking about Joe Hill and the copper bosses. I actually saw a sign calling upon the "Workers of the World to Unite." Note to Madison: The Revolution crapped out.
Madison has all the drawbacks of a company town. People in Dane County actually think that this collective temper tantrum is working. They are proud of themselves. The rest of us are not proud of them. One of the most amazing things was to see doctors openly engaged in - it's not too strong a word - fraud and justify it on the grounds of "social activism." One of my favorites was the doctor who thought that his decision to whore out was protected by confidentiality. Lawyers famously love doctor clients. Something about them is irredeemably clueless.
Giving people sick notes is not protected by the physician-patient privilege. The privilege protects things that people intend to keep confidential. Sick notes are, by definition, not that. Read the statute. If you put your health in issue (by calling in sick), your communications with your doc are not private.
Madison has all the drawbacks of a company town. People in Dane County actually think that this collective temper tantrum is working. They are proud of themselves. The rest of us are not proud of them. One of the most amazing things was to see doctors openly engaged in - it's not too strong a word - fraud and justify it on the grounds of "social activism." One of my favorites was the doctor who thought that his decision to whore out was protected by confidentiality. Lawyers famously love doctor clients. Something about them is irredeemably clueless.
Giving people sick notes is not protected by the physician-patient privilege. The privilege protects things that people intend to keep confidential. Sick notes are, by definition, not that. Read the statute. If you put your health in issue (by calling in sick), your communications with your doc are not private.
Sunday, February 20, 2011
Sunday for Senators, part two
Take that ---- public!
We're gone
We're running
We're holed up
Cause we got debts no honest man can pay
And we're a bit confused
We're gone
We're running
We're holed up
Cause we got debts no honest man can pay
And we're a bit confused
Sunday for Senators, part one
The lam is a lonely place. Oh, it may sound romantic and exciting. Staying one step ahead of the law, matching wits with the pursuit, living on the edge, evading your oath of office and becoming a national joke. But the reality is more quotidian. Empty hours, truck stop food, boredom. Just a lot of ennui, you know?
You sit on twin beds and watch movies. In the spirit of bipartisanship and in recognition of the possibility that, all things considered, having Lena Taylor and Fred Risser in Illinois may not be all bad, here is some suggested viewing.
A friend recommends All The President's Men, Benjie Returns, Ghost Dad and Escape to Witch Mountain. All good. I add the following:
The Godfather There's that scene between Marty Beil and Jon Erpenbach. Erpenbach has not treated Beil with respect. He has not offered friendship. He does not think to call Beil "Godfather." Beil can't remember the last time he was invited over for a cup of coffee. But they patch things up. Marty puts his arm around Erpenbach. "Some day, and that day may never come, I will call upon you to do a service for me." Good stuff. Reminds you of just why you're at the Quality Inn in Peoria. Then there's the part where Michael Corleone improves negotiations with Sollozzo by shooting him in the face.
The Warriors.If only for that scene at the end where Scott Walker clicks those little bottles together. "Democrats, come out and play - yay." But Local 36 of the Riffs get him!
Downfall. It sure ends badly for Scott Walker in that bunker in Berlin!
Then there's those movies that demonstrate the successes of organized labor. Like Norma Rae. If it weren't for women like Chrystal Lee Sutton (the real life "Norma") that shirt you're wearing would probably have been made in China! There wouldn't even be textile mills in North Carolina! Or maybe they could watch season two of The Wire which shows how labor unions saved the port of Baltimore from being turned into condominiums by season four. Or that great classic On The Waterfront. Watch Johnnie Friendly give that scab Terry Malloy a one-way ticket to palookaville! Face it, Malloy, a bum is what you are!
You sit on twin beds and watch movies. In the spirit of bipartisanship and in recognition of the possibility that, all things considered, having Lena Taylor and Fred Risser in Illinois may not be all bad, here is some suggested viewing.
A friend recommends All The President's Men, Benjie Returns, Ghost Dad and Escape to Witch Mountain. All good. I add the following:
The Godfather There's that scene between Marty Beil and Jon Erpenbach. Erpenbach has not treated Beil with respect. He has not offered friendship. He does not think to call Beil "Godfather." Beil can't remember the last time he was invited over for a cup of coffee. But they patch things up. Marty puts his arm around Erpenbach. "Some day, and that day may never come, I will call upon you to do a service for me." Good stuff. Reminds you of just why you're at the Quality Inn in Peoria. Then there's the part where Michael Corleone improves negotiations with Sollozzo by shooting him in the face.
The Warriors.If only for that scene at the end where Scott Walker clicks those little bottles together. "Democrats, come out and play - yay." But Local 36 of the Riffs get him!
Downfall. It sure ends badly for Scott Walker in that bunker in Berlin!
Then there's those movies that demonstrate the successes of organized labor. Like Norma Rae. If it weren't for women like Chrystal Lee Sutton (the real life "Norma") that shirt you're wearing would probably have been made in China! There wouldn't even be textile mills in North Carolina! Or maybe they could watch season two of The Wire which shows how labor unions saved the port of Baltimore from being turned into condominiums by season four. Or that great classic On The Waterfront. Watch Johnnie Friendly give that scab Terry Malloy a one-way ticket to palookaville! Face it, Malloy, a bum is what you are!
Thursday, February 17, 2011
If You Think Scott Walker Is Like Hitler, Your History Teacher Was Overpaid
I understand that everyone from Patrick Dorwin to Charlie Sykes to Jay Nordlinger has linked to the well done GOP video contrasting liberal concern over the rhetoric of the Tea Pary with the rhetoric of opponents of the Governor's proposals on collective bargaining in the public sector. The video is well done and makes a valid point, but there is one part in particular that deserves special mention.
Comparisons of Scott Walker to Adolf Hitler are surpassing ignorant and offensive. In this case, though, it hasn't just been overwrought protesters who indulged themselves. State Sen. Lena Taylor warns us that "Hitler abolished unions in 1933" and that's "what our Governor is doing today." The implication is that the Governor's limitation of collective bargaining by public employees (something that wasn't widely permitted until the sixties and seventies and still isn't in some states)is comparable to and somehow of a piece with the dangers and horrors of National Socialism.
She is, of course, wrong as a factual matter. Twice. Walker hasn't proposed the abolition of public employee unions - much less "unions" in general - and there actually were unions in the Third Reich. In fact, the national trade union organization, the Deutsche Arbeitsfront, was run by an alcoholic and corrupt socialist sympathizer named Robert Ley. It administered a wide variety of often elaborate worker benefits as part of a program called Kraft durch Freude ("Strength through Joy"). Ley ultimately hung himself before he could be tried at Nuremberg.
To be sure, the DAF was controlled by the state. But everything in Nazi Germany was controlled by the state and party pursuant to a policy of "Gleichschaltung" - or "coordination." That's precisely why the comparison - even were it true - would be so preposterous and shameful. In a very real sense, Hitler tried to abolish or transform every institution that is familiar to us (including the family).
I hadn't appreciated that Scott Walker has proposed a totalitarian state or anything like it. I did hear that he wants public employees to pay amounts toward their retirement and health insurance that are higher than current levels but still much lower than the average for the rest of us. I guess I missed the part where people were going to be dragged from their homes and sent to concentration camps. I read that he has proposed a modification of the authority of state and local governments to enter into collective bargaining agreements and collect dues on behalf of unions, but must have overlooked the abolition of the rights of free speech and association. I saw that he wants voter approval of raises above the cost of living for unionized public employees (i.e., those represented by the unions that he hasn't abolished). But who knew that this was somehow the equivalent of forced sterilization and extermination camps?
I hadn't noticed that the budget adjustment bill sets up a WalkerJugend in which all children must be enrolled or that it establishes a paramilitary organization - maybe called the Leibstandarte SS- Rebecca Kleedfisch - to intimidate political opponents and "undesirables." I'll have to read it again.
It's funny, but it's not. All of us - across the political spectrum - are burdened by people who say foolish things. It is one thing for idiotic Hitler comparisons to be made by anonymous protesters holding homemade signs (although the probability tht they are public school teachers is frightening). After all, we on the right had to live down hairbrush moustaches drawn on President Obama.
But it's another thing for the same odious comparison to be made by someone who claims to be a community leader. Where ever she is hiding tonight, Lena Taylor should be ashamed. When she and her colleagues decide to come out and abide by their oath of office, she should apologize.
Comparisons of Scott Walker to Adolf Hitler are surpassing ignorant and offensive. In this case, though, it hasn't just been overwrought protesters who indulged themselves. State Sen. Lena Taylor warns us that "Hitler abolished unions in 1933" and that's "what our Governor is doing today." The implication is that the Governor's limitation of collective bargaining by public employees (something that wasn't widely permitted until the sixties and seventies and still isn't in some states)is comparable to and somehow of a piece with the dangers and horrors of National Socialism.
She is, of course, wrong as a factual matter. Twice. Walker hasn't proposed the abolition of public employee unions - much less "unions" in general - and there actually were unions in the Third Reich. In fact, the national trade union organization, the Deutsche Arbeitsfront, was run by an alcoholic and corrupt socialist sympathizer named Robert Ley. It administered a wide variety of often elaborate worker benefits as part of a program called Kraft durch Freude ("Strength through Joy"). Ley ultimately hung himself before he could be tried at Nuremberg.
To be sure, the DAF was controlled by the state. But everything in Nazi Germany was controlled by the state and party pursuant to a policy of "Gleichschaltung" - or "coordination." That's precisely why the comparison - even were it true - would be so preposterous and shameful. In a very real sense, Hitler tried to abolish or transform every institution that is familiar to us (including the family).
I hadn't appreciated that Scott Walker has proposed a totalitarian state or anything like it. I did hear that he wants public employees to pay amounts toward their retirement and health insurance that are higher than current levels but still much lower than the average for the rest of us. I guess I missed the part where people were going to be dragged from their homes and sent to concentration camps. I read that he has proposed a modification of the authority of state and local governments to enter into collective bargaining agreements and collect dues on behalf of unions, but must have overlooked the abolition of the rights of free speech and association. I saw that he wants voter approval of raises above the cost of living for unionized public employees (i.e., those represented by the unions that he hasn't abolished). But who knew that this was somehow the equivalent of forced sterilization and extermination camps?
I hadn't noticed that the budget adjustment bill sets up a WalkerJugend in which all children must be enrolled or that it establishes a paramilitary organization - maybe called the Leibstandarte SS- Rebecca Kleedfisch - to intimidate political opponents and "undesirables." I'll have to read it again.
It's funny, but it's not. All of us - across the political spectrum - are burdened by people who say foolish things. It is one thing for idiotic Hitler comparisons to be made by anonymous protesters holding homemade signs (although the probability tht they are public school teachers is frightening). After all, we on the right had to live down hairbrush moustaches drawn on President Obama.
But it's another thing for the same odious comparison to be made by someone who claims to be a community leader. Where ever she is hiding tonight, Lena Taylor should be ashamed. When she and her colleagues decide to come out and abide by their oath of office, she should apologize.
Senate Democrats:Down By Law?
Rumor has it that the Senate Democrats are holed up in a motel in Rockford, Illinois. If that's so, I'm disappointed. If you're going to lam it, why not head to some place fun?
What you may ask, are the legalities of the matter? Why are they hiding? Why have they left the state? Why not simply refuse to come to work?
The Wisconsin Constitution clearly authorizes each house of the legislature to compel the attendance of members in order to obtain a quorum. Each house may do so by whatever means or penalties it prescribes. In the case of the Wisconsin Senate, the Sergeant-at-arms is authorized to "bring in" absent members.
What does that mean? Can the sergeant-at-arms have them arrested? Apparently some people are taking the position that they can be "chased" but not "arrested." That's unclear. Legislators are normally immune from "arrest on civil process" during legislative sessions but that is only while they are "in actual attendance upon the duties" of their office. These legislators are in fact ignoring - actually fleeing from - the duties of their office. We are in uncharted territory, but its not clear to me that they can't be arrested, although that would be an extraordinary thing to do.
This is probably why they left the state. The Wisconsin State Police cannot arrest them in Illinois (if that's where they are) and the law enforcement authorities in Illinois are probably only too happy to stay out of this mess.
So what to do? Here's something to think about. A quorum is normally a majority of each house. The reason that the Republicans can't proceed without Democrats here is because the budget adjustment bill is a fiscal bill and the state constitution provides that, for a fiscal bill, the required quorum is three-fifths of each house.
Ironically, though, the provisions that are most objected to by the Democrats - the prospective limitation of collective bargaining rights - are not fiscal provisions. They could presumably be put in a separate bill and passed by the Republicans with no Democrats in attendance because, for that bill, a simple majority would constitute a quorum. I'm not suggesting that the GOP Senators would or should do this. But I think that they could.
What you may ask, are the legalities of the matter? Why are they hiding? Why have they left the state? Why not simply refuse to come to work?
The Wisconsin Constitution clearly authorizes each house of the legislature to compel the attendance of members in order to obtain a quorum. Each house may do so by whatever means or penalties it prescribes. In the case of the Wisconsin Senate, the Sergeant-at-arms is authorized to "bring in" absent members.
What does that mean? Can the sergeant-at-arms have them arrested? Apparently some people are taking the position that they can be "chased" but not "arrested." That's unclear. Legislators are normally immune from "arrest on civil process" during legislative sessions but that is only while they are "in actual attendance upon the duties" of their office. These legislators are in fact ignoring - actually fleeing from - the duties of their office. We are in uncharted territory, but its not clear to me that they can't be arrested, although that would be an extraordinary thing to do.
This is probably why they left the state. The Wisconsin State Police cannot arrest them in Illinois (if that's where they are) and the law enforcement authorities in Illinois are probably only too happy to stay out of this mess.
So what to do? Here's something to think about. A quorum is normally a majority of each house. The reason that the Republicans can't proceed without Democrats here is because the budget adjustment bill is a fiscal bill and the state constitution provides that, for a fiscal bill, the required quorum is three-fifths of each house.
Ironically, though, the provisions that are most objected to by the Democrats - the prospective limitation of collective bargaining rights - are not fiscal provisions. They could presumably be put in a separate bill and passed by the Republicans with no Democrats in attendance because, for that bill, a simple majority would constitute a quorum. I'm not suggesting that the GOP Senators would or should do this. But I think that they could.
Days of Rage? Why?
On Monday, I decided to write a column on Governor Walkers's proposal to restrict the collective bargaining rights of public employees. My point was to highlight the historic critique of pubic employee unionization and the insights into collective bargaining in the public sector provided by public choice theory.
The column ran in Tuesday's Milwaukee Journal Sentinel. I'll be discussing it tomorrow on Joy Cardin's show on Wisconsin Public Radio (in either the 7:00 or 7:30 segment). The basic point is that the traditional rationale for unions doesn't work well in the public sector.
Unions are supposed to empower workers in unequal bargaining situations. In economic terms, they are intended to move the supply curve for labor so that the equilibrium wage is higher than it otherwise would be.
But in the public sector, unions tend to, if not capture the employer, exert significant influence on it. This is because the interest of, say, a teacher's union on the composition of a school board and district policy - at least with respect to compensation - is far greater than that of the rest of us. Public choice theory suggests that this will result in unions having disproportionate influence on the public bodies that employ them - quite apart from labor negotiations. To put it bluntly, the officials who employ them may well owe their jobs to union support (or fear their ability to keep them without union support).
Given the absence of competititon in the public sector, this moves the demand curve as well. The distinction between management and labor which supposedly creates the unequal bargaining situation that justifies unions becomes blurred. The result is a tendency for public bodies to reward their union constituents in ways that aren't readily apparent to taxpayers. This is why collective bargaining agreements in the public sector tend to be heavy on fringe benefits and emoluments at retirement.
The response to Walker's proposal is making my point. The "uprising" at the Capitol is unlike the Tea Party. It is the yelp of a large special interest. The alarm with which Democrats are greeting the proposal is, in large part, fueled by concern over losing a large base of organizational and financial support. Walker's proposal is radical not because it is "mean" or will impoverish public workers. It will do neither. What it will do is reduce the influence of unions on public bodies and their ability to serve as political sponsors.
That's what these "days of rage" are about. The Walker proposal may be fiscally necessary but it is potentially a political game changer.
The column ran in Tuesday's Milwaukee Journal Sentinel. I'll be discussing it tomorrow on Joy Cardin's show on Wisconsin Public Radio (in either the 7:00 or 7:30 segment). The basic point is that the traditional rationale for unions doesn't work well in the public sector.
Unions are supposed to empower workers in unequal bargaining situations. In economic terms, they are intended to move the supply curve for labor so that the equilibrium wage is higher than it otherwise would be.
But in the public sector, unions tend to, if not capture the employer, exert significant influence on it. This is because the interest of, say, a teacher's union on the composition of a school board and district policy - at least with respect to compensation - is far greater than that of the rest of us. Public choice theory suggests that this will result in unions having disproportionate influence on the public bodies that employ them - quite apart from labor negotiations. To put it bluntly, the officials who employ them may well owe their jobs to union support (or fear their ability to keep them without union support).
Given the absence of competititon in the public sector, this moves the demand curve as well. The distinction between management and labor which supposedly creates the unequal bargaining situation that justifies unions becomes blurred. The result is a tendency for public bodies to reward their union constituents in ways that aren't readily apparent to taxpayers. This is why collective bargaining agreements in the public sector tend to be heavy on fringe benefits and emoluments at retirement.
The response to Walker's proposal is making my point. The "uprising" at the Capitol is unlike the Tea Party. It is the yelp of a large special interest. The alarm with which Democrats are greeting the proposal is, in large part, fueled by concern over losing a large base of organizational and financial support. Walker's proposal is radical not because it is "mean" or will impoverish public workers. It will do neither. What it will do is reduce the influence of unions on public bodies and their ability to serve as political sponsors.
That's what these "days of rage" are about. The Walker proposal may be fiscally necessary but it is potentially a political game changer.
Saturday, February 12, 2011
Fighting the Last War in Supreme Court Race
The three challengers to Justice David Prosser seem to want Justice Michael Gableman the issue. Oh, to be sure, that's not what they say. It's not Gableman, it's the fact that Justice Prosser joined two other justices in voting to affirm a unanimous three judge panel recommending that Gableman not be disciplined for his infamous Reuben Mitchell ad.
Let's look at that. Our blogging friend Tom Foley seems to think that the problem is that the Prosser three are guilty of "exonerating Gableman from any wrongdoing ...."
Well, that's not right. The three concluded only that, if the ad violated the applicable disciplinary rule, it only violated the "aspirational" part of the rule (because they thought it was only "misleading" and not literally false). The law is clear that discipline may not be imposed for violation of an aspirational rule. That's hardly exoneration from "any wrongdoing. The three did not say that there was nothing wrong with the ad. In fact, they called it distasteful.
Candidate Marla Stephens addresses the issue, criticizing the conclusion that the ad violated only the aspirational part of the rule. The court was wrong because "[y]ou don't take a statement and parse it . . . phrase by phrase. You take a statement as a whole," and then, presumably impose discipline - perhaps even overturn the results of an election - if you conclude that the statement was false.
I don't think she means it. At least I hope she doesn't. Do we want courts or legislatures (because the principle would apply in other contexts) that are often composed of hostile or interested parties to undermine the will of the voters by concluding that a campaign communication "really" conveyed a message that is false? Is she really willing to apply that standard across the board?
I hope not because there are few campaigns that do not run ads that can be characterized as objectively false.
There is another take on the Gableman ad that we don't hear as often and which is, I think, closer to the real objection. It seems to me that the problem with the Mitchell ad was not that it implied something that was false, i.e., that Butler got Mitchell released and he offended again. (In fact, he failed to get Mitchell released and the offense was committed after completion of his sentence.)
Imagine that this part was true or that the ad had made clear what actually happened. Would critics of the ad be any happier? As one of those critics, I would not. It was Butler's job to represent Mitchell and he ought not to be blamed for what Mitchell's sunsequent crimes if it turns out that he was wrongfully convicted.
There are some who would argue that Gableman should be disciplined - or at least criticized - for such an ad because it misleads the public about the nature of the legal system. But once again, it's unclear that they are willing to apply such a standard across the board. In her latest reelection campaign, Chief Justice Abrahamson ran ads in which she was lauded as an "ally of law enforcement." Not as provoctive, to be sure, but also misleading.
Let's look at that. Our blogging friend Tom Foley seems to think that the problem is that the Prosser three are guilty of "exonerating Gableman from any wrongdoing ...."
Well, that's not right. The three concluded only that, if the ad violated the applicable disciplinary rule, it only violated the "aspirational" part of the rule (because they thought it was only "misleading" and not literally false). The law is clear that discipline may not be imposed for violation of an aspirational rule. That's hardly exoneration from "any wrongdoing. The three did not say that there was nothing wrong with the ad. In fact, they called it distasteful.
Candidate Marla Stephens addresses the issue, criticizing the conclusion that the ad violated only the aspirational part of the rule. The court was wrong because "[y]ou don't take a statement and parse it . . . phrase by phrase. You take a statement as a whole," and then, presumably impose discipline - perhaps even overturn the results of an election - if you conclude that the statement was false.
I don't think she means it. At least I hope she doesn't. Do we want courts or legislatures (because the principle would apply in other contexts) that are often composed of hostile or interested parties to undermine the will of the voters by concluding that a campaign communication "really" conveyed a message that is false? Is she really willing to apply that standard across the board?
I hope not because there are few campaigns that do not run ads that can be characterized as objectively false.
There is another take on the Gableman ad that we don't hear as often and which is, I think, closer to the real objection. It seems to me that the problem with the Mitchell ad was not that it implied something that was false, i.e., that Butler got Mitchell released and he offended again. (In fact, he failed to get Mitchell released and the offense was committed after completion of his sentence.)
Imagine that this part was true or that the ad had made clear what actually happened. Would critics of the ad be any happier? As one of those critics, I would not. It was Butler's job to represent Mitchell and he ought not to be blamed for what Mitchell's sunsequent crimes if it turns out that he was wrongfully convicted.
There are some who would argue that Gableman should be disciplined - or at least criticized - for such an ad because it misleads the public about the nature of the legal system. But once again, it's unclear that they are willing to apply such a standard across the board. In her latest reelection campaign, Chief Justice Abrahamson ran ads in which she was lauded as an "ally of law enforcement." Not as provoctive, to be sure, but also misleading.
Friday, February 11, 2011
Candor in the Supreme Court Race
Yesterday I had the opportunity to appear as a guest on Charlie Sykes show, Vickie McKenna's Madison program and a morning show in Fort Atkinson discussing the Supreme Court primary. Throughout the day, I had occasion to think about how much we lawyers and legal academics try to hide the ball on questions of judicial selection.
On the one hand, we have charges of judicial activism largely hurled by conservatives at liberals. I have done it and its not all wrong. In the modern era, the development of methods of interpretation that maximize a judge's discretion, i.e., give her greater leeway to depart from unambigiuous text or some notion of its original meaning has most often been championed in the course of reaching or advocating for results that we would call "liberal" or "progressive." It hasn't always been that way and there is no ironclad rule that it has to be that way (text and original understanding will not always lead to "conservative" results), but that's been the general lay of the land.
Of course, the allegation of activism and call for something like strict construction is an oversimplification. No one - at least no one since Bill Douglas - thinks that judges can do whatever they want and no one really believes that judging (at least at the level of law development) is a technical exercise from which all value and ideological judgements can be excluded.
If that's so, we are all, to a greater or lesser degree, judicial activists. So there is some truth in the standard liberal rejoinder that charges of "activism" can be misleading. But to say that the concepts of "activism" and "restraint" are meaningless or that judges don't differ in interpretive method is also an oversimplification. Both sides draw caricatures.
But there is an ironic twist to this.
Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.
Candidates who abjure charges of activism - generally because they believe that judges must resort to their own values and ideology to a greater extent than is commonly supposed - tend not to tell us what values and ideology they hold. They deny being activists. They may even say that they believe the charges of activism is meaningless.
But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals.
This isn't because they are dishonest people or because they fail to understand how ideology matters. It is because it would be political suicide. Voters tend not to want "liberal" or "progressive" judges, largely because of concern about criminal justice issues and the left's postwar project of judicially mandated social change.
Although I dislike the word "activism," I believe that it does make some sense to talk about the degree of a candidate's commitment to judicial restraint. But I also recognize that ideology - at least at the level of the Wisconsin Supreme Court - still matters. There is often room for a judge's values to influence a decision. In fact, it is sometimes impossible to make a decision without them. So when I hear candidates say that their ideology is irrelevant, I roll my eyes. They are hiding the ball.
On the one hand, we have charges of judicial activism largely hurled by conservatives at liberals. I have done it and its not all wrong. In the modern era, the development of methods of interpretation that maximize a judge's discretion, i.e., give her greater leeway to depart from unambigiuous text or some notion of its original meaning has most often been championed in the course of reaching or advocating for results that we would call "liberal" or "progressive." It hasn't always been that way and there is no ironclad rule that it has to be that way (text and original understanding will not always lead to "conservative" results), but that's been the general lay of the land.
Of course, the allegation of activism and call for something like strict construction is an oversimplification. No one - at least no one since Bill Douglas - thinks that judges can do whatever they want and no one really believes that judging (at least at the level of law development) is a technical exercise from which all value and ideological judgements can be excluded.
If that's so, we are all, to a greater or lesser degree, judicial activists. So there is some truth in the standard liberal rejoinder that charges of "activism" can be misleading. But to say that the concepts of "activism" and "restraint" are meaningless or that judges don't differ in interpretive method is also an oversimplification. Both sides draw caricatures.
But there is an ironic twist to this.
Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.
Candidates who abjure charges of activism - generally because they believe that judges must resort to their own values and ideology to a greater extent than is commonly supposed - tend not to tell us what values and ideology they hold. They deny being activists. They may even say that they believe the charges of activism is meaningless.
But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals.
This isn't because they are dishonest people or because they fail to understand how ideology matters. It is because it would be political suicide. Voters tend not to want "liberal" or "progressive" judges, largely because of concern about criminal justice issues and the left's postwar project of judicially mandated social change.
Although I dislike the word "activism," I believe that it does make some sense to talk about the degree of a candidate's commitment to judicial restraint. But I also recognize that ideology - at least at the level of the Wisconsin Supreme Court - still matters. There is often room for a judge's values to influence a decision. In fact, it is sometimes impossible to make a decision without them. So when I hear candidates say that their ideology is irrelevant, I roll my eyes. They are hiding the ball.
Wednesday, February 09, 2011
Packers Postscript
As post Super Bowl euphoria begins to subside, I note that we are already thinking about next year. There's a certain irony in that. Teams struggle and their fans sweat blood over the course of a season in the unlikely hope that they can win it all. And then - a few days later - the question turns to the next struggle. That tells us something about life (or at least human nature) and may prompt some questions as well.
I have to admit that I didn't think the Packers could do it this year. I thought that the loss of Finley and Grant took just enough way from the offense and I couldn't get away from the fear that someone would eventually exploit a defense that had become increasingly populated by guys that were entering sales trainee programs at the beginning of the season. But I guess Dom Capers really is a genius.
People have commented to death on the idea that Brett Favre's Wisconsin star has fallen in a way that no one could have predicted. Bart Starr did not fall as far after an uninspired turn as Packer coach ended by an utter brain freeze that gave the last game of the season - and the playoffs - the Bears in 1983. My son still remembers how incensed I was. He was not to be born for another month.
But the real miracle is that we now love Ted Thompson. We know that his draft will leave us scratching our heads. He'll be reaching and passing over media favorites. He won't sign a free agent. He'll explain nothing. But, for now and for a while, we will follow.
I have to admit that I didn't think the Packers could do it this year. I thought that the loss of Finley and Grant took just enough way from the offense and I couldn't get away from the fear that someone would eventually exploit a defense that had become increasingly populated by guys that were entering sales trainee programs at the beginning of the season. But I guess Dom Capers really is a genius.
People have commented to death on the idea that Brett Favre's Wisconsin star has fallen in a way that no one could have predicted. Bart Starr did not fall as far after an uninspired turn as Packer coach ended by an utter brain freeze that gave the last game of the season - and the playoffs - the Bears in 1983. My son still remembers how incensed I was. He was not to be born for another month.
But the real miracle is that we now love Ted Thompson. We know that his draft will leave us scratching our heads. He'll be reaching and passing over media favorites. He won't sign a free agent. He'll explain nothing. But, for now and for a while, we will follow.
Wednesday, February 02, 2011
Why Do Out of State Persons Contribute to State Supreme Court Candidates?
So wonders our friend Tom Foley. After all, he says, "[i]t has no jurisdiction beyond these borders."
I don't blame Tom for blotting out memories of first year Civil Procedure (and, depending on one's practice, the question may not come up much in the daily life of a lawyer), but this is not quite true. Remember International Shoe and the rise of "minimum contacts? C'mon, say it with me. It'll only hurt for a moment. A state's courts may exercise jurisdiction over an out of state defendant who has minumum contacts with the state such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.
So Wisconsin courts can do all sorts of things that affect persons who reside outside of the state but have the requisite contacts. Consider that wonderful Milwaukee company, Rite Hite, who I still have the privilege of serving as general counsel. We do business in every state in the union and can probably be sued in every state. Thus, those with an interest in Rite Hite have lesser or greater interests in the quality of jurisprudence in every state. I don't know that anyone associated with the company has ever contributed to a judicial campaign outside the state, but there would be nothing illegitimate and nefarious if someone did.
As for Tom's hope that the new public financing law will put an end to the influence of out of state donors, he's going to be disappointed. In many races, it will have little effect in that the public grant - at least for the general election - is more than most candidates can raise. But it is not enough to run a state wide race and is a small fraction of what the independents are willing to spend on a competitive race. So the funding for this race is going to come - on both sides - largely from out of state interests. The Impartial Justice Act makes that more, rather than less likely. Even for candidates like Marla Stephens who turn down public funding - "reform" has made it impossible for candidates to raise money for their own campaigns (It was already nearly so as Butler and Gableman's own fundraising showed) and the public grants are woefully inadequate for a state wide race. The independent groups will fill the void.
I don't blame Tom for blotting out memories of first year Civil Procedure (and, depending on one's practice, the question may not come up much in the daily life of a lawyer), but this is not quite true. Remember International Shoe and the rise of "minimum contacts? C'mon, say it with me. It'll only hurt for a moment. A state's courts may exercise jurisdiction over an out of state defendant who has minumum contacts with the state such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.
So Wisconsin courts can do all sorts of things that affect persons who reside outside of the state but have the requisite contacts. Consider that wonderful Milwaukee company, Rite Hite, who I still have the privilege of serving as general counsel. We do business in every state in the union and can probably be sued in every state. Thus, those with an interest in Rite Hite have lesser or greater interests in the quality of jurisprudence in every state. I don't know that anyone associated with the company has ever contributed to a judicial campaign outside the state, but there would be nothing illegitimate and nefarious if someone did.
As for Tom's hope that the new public financing law will put an end to the influence of out of state donors, he's going to be disappointed. In many races, it will have little effect in that the public grant - at least for the general election - is more than most candidates can raise. But it is not enough to run a state wide race and is a small fraction of what the independents are willing to spend on a competitive race. So the funding for this race is going to come - on both sides - largely from out of state interests. The Impartial Justice Act makes that more, rather than less likely. Even for candidates like Marla Stephens who turn down public funding - "reform" has made it impossible for candidates to raise money for their own campaigns (It was already nearly so as Butler and Gableman's own fundraising showed) and the public grants are woefully inadequate for a state wide race. The independent groups will fill the void.
Monday, January 31, 2011
Walker and wetlands
I'm not offering any opinion on the constitutionality of Gov. Walker's proposed bill exempting a parcel of land in Brown County from certain wetlands regulations. But there have been some misstatements in the blogosphere.
Blogging lawyer Mike Plaisted notes what he refers to as the state constitution's prohibition of private and local bills. Mike admits that he's a bit rusty on this. After all, he practices criminal law. But the thing is that there is no such general "prohibition" and certainly not in the provision that he cites. Art. IV, sec. 18 simply states that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." In other words, you can pass such a law in a single subject properly titled bill. (There is another provision, Art. IV, sec. 31, that does purport to prohibit certain type of special and private bills but it isn't applicable here.) Art. IV, sec. 18 is a procedural requirement, not a substantive prohibition.
Of course, Governors and legislatures have run circles around the requirement of a single subject, properly titled bill for years and it is often done as part of the budget bill. There are perfectly legal ways to do so. Mike seems to think this is a Republican trick. Actually, it's been a trick of whoever has power.
Exempting this project from the normal adminstrative review process reminded me, not of the Court of Appeals case that Mike refers to, but of Tony Earl's effort to place a prison in the Menomonee Valley. In that instance, the legislature exempted the project from normal environmental review and the Supreme Court stopped it, albeit on equal protection grounds.
As for the merits of "destroying wetlands," I can only say this. I am not an environmental lawyer but I have represented enough clients on developments to know that what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us and that wetlands protection in Wisconsin can approach a fetish as can the desire to protect things like suspected snake habitats. You may notice that large vacant parcels awaiting development are often farmed. There is a reason for that which has nothing to do with the desire to earn a few bucks while waiting for a buyer.
Blogging lawyer Mike Plaisted notes what he refers to as the state constitution's prohibition of private and local bills. Mike admits that he's a bit rusty on this. After all, he practices criminal law. But the thing is that there is no such general "prohibition" and certainly not in the provision that he cites. Art. IV, sec. 18 simply states that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." In other words, you can pass such a law in a single subject properly titled bill. (There is another provision, Art. IV, sec. 31, that does purport to prohibit certain type of special and private bills but it isn't applicable here.) Art. IV, sec. 18 is a procedural requirement, not a substantive prohibition.
Of course, Governors and legislatures have run circles around the requirement of a single subject, properly titled bill for years and it is often done as part of the budget bill. There are perfectly legal ways to do so. Mike seems to think this is a Republican trick. Actually, it's been a trick of whoever has power.
Exempting this project from the normal adminstrative review process reminded me, not of the Court of Appeals case that Mike refers to, but of Tony Earl's effort to place a prison in the Menomonee Valley. In that instance, the legislature exempted the project from normal environmental review and the Supreme Court stopped it, albeit on equal protection grounds.
As for the merits of "destroying wetlands," I can only say this. I am not an environmental lawyer but I have represented enough clients on developments to know that what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us and that wetlands protection in Wisconsin can approach a fetish as can the desire to protect things like suspected snake habitats. You may notice that large vacant parcels awaiting development are often farmed. There is a reason for that which has nothing to do with the desire to earn a few bucks while waiting for a buyer.
Cap Times can' be serious about the supreme court
Recently, I chided the Cap Times for saying that "no serious observer" would doubt that Louis Butler would have been easily confirmed had he been white. The fact is that every serious observer should doubt that. Whether you think its proper or not, Butler is being opposed for his participation in a hard left swing on the Wisconsin Supreme Court during his tenure there. If he was the judicial clone of Clarence Thomas, the people who oppose him now would be falling all over themselves to support him. But the President would never have nominated him. Race, happily, has nothing to do with it.
Today it trots out that tired old phrase again, announcing that "no serious observer" would blame Chief Justice for the conflict on the Wisconsin Supreme Court. The unimaginative and (apparently) stylistically stunted editorial board pronounced themselves "taken aback" when Justice Prosser did so at a debate sponsored by the Milwaukee Bar Association. (NB: I moderated that debate.) The Cap can't understand this given that she "presided over the court when it was getting high marks for collegiality and efficiency."
The Cap Times needs to get out more. She did no such thing. In fact, no matter what you think of the Chief Justice, any "serious observer" would have to acknowledge that her tenure has been marked by conflict among the justices. It may not be her fault but she has absolutely not presided over a Court that has ever gotten high marks for collegiality.
That serious observer, apparently unlike the Cap Times, would recall that in 1999 - three years after she became Chief Justice and began to "preside" - a majority of her colleagues recruited a candidate - Sharon Rose of Green Bay - to run against her.
Not so collegial - but not ideologically based. The anti-Abrahamson group included Justice William Bablitch - a liberal who largely voted with the Chief in contested cases - and current Abrahamson ally Pat Crooks. It did not, as he pointed out in the debate, include Justice Prosser who was new to the Court.
Things quieted down - at least publicly - during the period that Diane Sykes was on the Court. This shouldn't surprise. There are few people on earth nicer than Diane Sykes. But contention flared up again after Judge Sykes was replaced by Louis Butler and the Court lurched left and into controversy.
I agree that the Chief Justice is very smart and has a strong national reputation. I have always found her to be charming on a personal level. But her tenure as Chief has been marked by extraordinary factionalism among the Justices. That's simply a fact that any "serious observer" would know.
Today it trots out that tired old phrase again, announcing that "no serious observer" would blame Chief Justice for the conflict on the Wisconsin Supreme Court. The unimaginative and (apparently) stylistically stunted editorial board pronounced themselves "taken aback" when Justice Prosser did so at a debate sponsored by the Milwaukee Bar Association. (NB: I moderated that debate.) The Cap can't understand this given that she "presided over the court when it was getting high marks for collegiality and efficiency."
The Cap Times needs to get out more. She did no such thing. In fact, no matter what you think of the Chief Justice, any "serious observer" would have to acknowledge that her tenure has been marked by conflict among the justices. It may not be her fault but she has absolutely not presided over a Court that has ever gotten high marks for collegiality.
That serious observer, apparently unlike the Cap Times, would recall that in 1999 - three years after she became Chief Justice and began to "preside" - a majority of her colleagues recruited a candidate - Sharon Rose of Green Bay - to run against her.
Not so collegial - but not ideologically based. The anti-Abrahamson group included Justice William Bablitch - a liberal who largely voted with the Chief in contested cases - and current Abrahamson ally Pat Crooks. It did not, as he pointed out in the debate, include Justice Prosser who was new to the Court.
Things quieted down - at least publicly - during the period that Diane Sykes was on the Court. This shouldn't surprise. There are few people on earth nicer than Diane Sykes. But contention flared up again after Judge Sykes was replaced by Louis Butler and the Court lurched left and into controversy.
I agree that the Chief Justice is very smart and has a strong national reputation. I have always found her to be charming on a personal level. But her tenure as Chief has been marked by extraordinary factionalism among the Justices. That's simply a fact that any "serious observer" would know.
Sunday, January 30, 2011
Lawyers Behaving Badly
Sunday morning's Milwaukee Journal Sentinel informed us that at least 135 lawyers with felony convictions are practcing law. Inside, it had the mug shots of twelve whose licenses and been suspended or revoked for criminal behavior. I looked over those mug shots and, sure enough, it seemed accurate. I was the referee who recommended that two of them be allowed to practice again. (I was initially the referee in Brian Burke's case but wound up recusing myself because I had written that no one should have gone to jail behind the caucus scandal.)
The article raised some interesting issues. Maybe we should automatically suspend lawyers upon conviction of a felony, although I will note that OLR not infrequently gets emergency suspensions pending completion of a full disciplinary proceeding. Perhaps there are certain crimes that should result in permanent suspension, although I am skeptical that we can write a rule that is better than the Court's exercise of judgment on this question. There are other issues that the reporters may want to pursue such as who gets disciplined, the resources devoted to the system and the exercise of charging discretion. I am also aware that there are a few notorious repeat offenders that the Court seems to have given a few too many chances.
But I don't believe that the system is "easy on lawyers." Reinstatement - whether from revocation or suspension (suspended lawyers are not automatically accepted back to the bar when the period of suspension is completed)- is not easy. One must retain counsel, file a petition requesting reinstatement, provide OLR with essentially any information it asks for and then have a public hearing before a referee. I recommended the reinstatement of Charlie Hausmann and Hazel Washington after evidentiary hearings in which I heard OLR's opposition and from witnesses called by both parties.
After the best deliberation I am capable of, I was convinced that both Mr. Hausmann and Ms. Washington understood what he or she did wrong, were remorseful, had paid a sufficient price and were unlikely to reoffend. When I have not been convinced of these things, I have recommended that reinstatement be denied. (My report in the Washington case was 22 pages.) The Journal Sentinel's statement that 60% of lawyers who apply for reinstatement get it does not shock me. Given the work involved, people whose cases are such that reinstatement is unlikely don't apply.
I do not believe that either attorneys Washington or Hausmann has gotten into more trouble. In fact, Mr. Hausmann later accepted my invitation to speak to law students about how he came to break the law and wind up in federal prison. He was not easy on himself. (I think he still gives this talk.)
It has never seemed to me that OLR is particularly easy on lawyers. As the paper noted, very few lawyers get charged but that's a meaningless number without knowing how many complaints the office gets. I can say that the office does not have a great deal of resources which may be one reason why more lawyers are not disciplined. It's easy to say that "lawyers should not regulate lawyers" and "doctors should not regulate doctors." But the intractable fact is that no one else can. Practicing law involves the application of professional expertise and judgment. While some cases are easy, others are not. It's hard for me to see how a system of discipline in which the decisionmakers lack the training and experience to assess the conduct of the accused would be "better."
A lot of this comes from the notorious case of Calument County DA Ken Krantz who made sexual advances upon a victim in a domestic abuse case. I don't know why OLR whiffed on that one and I am mindful of the fact that it can't defend itself. The facts as we know them (which I suspect are accurate) may not be same as the facts that were available to it. Putting that aside, he violated a number of rules and the alleged offense was serious - very serious. But one failure does not define the system.
The article raised some interesting issues. Maybe we should automatically suspend lawyers upon conviction of a felony, although I will note that OLR not infrequently gets emergency suspensions pending completion of a full disciplinary proceeding. Perhaps there are certain crimes that should result in permanent suspension, although I am skeptical that we can write a rule that is better than the Court's exercise of judgment on this question. There are other issues that the reporters may want to pursue such as who gets disciplined, the resources devoted to the system and the exercise of charging discretion. I am also aware that there are a few notorious repeat offenders that the Court seems to have given a few too many chances.
But I don't believe that the system is "easy on lawyers." Reinstatement - whether from revocation or suspension (suspended lawyers are not automatically accepted back to the bar when the period of suspension is completed)- is not easy. One must retain counsel, file a petition requesting reinstatement, provide OLR with essentially any information it asks for and then have a public hearing before a referee. I recommended the reinstatement of Charlie Hausmann and Hazel Washington after evidentiary hearings in which I heard OLR's opposition and from witnesses called by both parties.
After the best deliberation I am capable of, I was convinced that both Mr. Hausmann and Ms. Washington understood what he or she did wrong, were remorseful, had paid a sufficient price and were unlikely to reoffend. When I have not been convinced of these things, I have recommended that reinstatement be denied. (My report in the Washington case was 22 pages.) The Journal Sentinel's statement that 60% of lawyers who apply for reinstatement get it does not shock me. Given the work involved, people whose cases are such that reinstatement is unlikely don't apply.
I do not believe that either attorneys Washington or Hausmann has gotten into more trouble. In fact, Mr. Hausmann later accepted my invitation to speak to law students about how he came to break the law and wind up in federal prison. He was not easy on himself. (I think he still gives this talk.)
It has never seemed to me that OLR is particularly easy on lawyers. As the paper noted, very few lawyers get charged but that's a meaningless number without knowing how many complaints the office gets. I can say that the office does not have a great deal of resources which may be one reason why more lawyers are not disciplined. It's easy to say that "lawyers should not regulate lawyers" and "doctors should not regulate doctors." But the intractable fact is that no one else can. Practicing law involves the application of professional expertise and judgment. While some cases are easy, others are not. It's hard for me to see how a system of discipline in which the decisionmakers lack the training and experience to assess the conduct of the accused would be "better."
A lot of this comes from the notorious case of Calument County DA Ken Krantz who made sexual advances upon a victim in a domestic abuse case. I don't know why OLR whiffed on that one and I am mindful of the fact that it can't defend itself. The facts as we know them (which I suspect are accurate) may not be same as the facts that were available to it. Putting that aside, he violated a number of rules and the alleged offense was serious - very serious. But one failure does not define the system.
A Return to Sunday Songs
It's Sunday and it's January. January in Wisconsin has very few redeeming qualities and can only be endured through hope. I haven't done this for awhile but since one of my resolutions for 2011 is to return to Shark and Shepherd (I hope to), here's a hopeful song for Sunday from the energetic young Grace Potter and the Nocturnals. The song seems to be about friendship surprised by love but that' close enough enough and I really like it.
For those of you who prefer classic rock, here is Potter with Joe Statriani on Neil Young's Cortez the Killer. I love the way she drops Young's jarring lyric on human sacrifice. I get the point (the lyrical paen to Montezuma isn't to be taken literally)but it makes the song feel like multicultural sop and it has, I think, a deeper and more interesting point than that.
Finally, for a broader version of hope, here are Potter and the Nocturnals one more time with "Big White Gate."
For those of you who prefer classic rock, here is Potter with Joe Statriani on Neil Young's Cortez the Killer. I love the way she drops Young's jarring lyric on human sacrifice. I get the point (the lyrical paen to Montezuma isn't to be taken literally)but it makes the song feel like multicultural sop and it has, I think, a deeper and more interesting point than that.
Finally, for a broader version of hope, here are Potter and the Nocturnals one more time with "Big White Gate."
Wednesday, January 26, 2011
Supreme Court Race is On.
I just got off the air on WSAU in beautiful Wausau. The subject was the Wisconsin Supreme Court race and that will be the subject tomorrow at a forum sponsored by the Milwaukee Bar Association. The candidates for the Wisconsin Supreme Court and Milwaukee Circuit Court will be there. Yours truly will moderate.
One of the odd dynamics of this race will be the new public financing law. My sense is that it will result in rather anemic efforts by the candidate campaigns. The public grants are not adequate to run a statewide race and, if the race proves to be competitive, independent organizations will spend multiples of what the campaigns spend on media. Although one candidate, Marla Stephens, has "declined" public funding, correctly pointing out that, as a nonincumbent, she can't possibly run a credible statewide race on the amount provided. Nevertheless, word on the street is that she simply was unable to get her act together in time to qualify and, although she certainly is a serious and credible candidate, it is unclear that she can raise much more than the public grant. (I am unaware of her personal resources or willingness to commit them to the race.) Once again, it appears that the tenor and substance of the debate will be beyond the control of the candidates.
The new law seeks to address this by providing some additional public funding to candidates who face opposing independent expenditures (which will be, at least, both of the general election candidates.) But there are two problems.
The first is that these "matching funds" (and they are far from adequate to actually match what is likely to be spent) are only triggered by express advocacy for or against a candidate. That is easily avoided.
But there will probably be no need to do so. The "matching funds" provision is probably unconstitutional. A similar provision in Arizona is currently under review by the United States Supreme Court and that Court enjoined the operation of the law during the last election cycle. That is very likely to happen here as well so that the matching funds, even if they are triggered, will never be provided.
One of the odd dynamics of this race will be the new public financing law. My sense is that it will result in rather anemic efforts by the candidate campaigns. The public grants are not adequate to run a statewide race and, if the race proves to be competitive, independent organizations will spend multiples of what the campaigns spend on media. Although one candidate, Marla Stephens, has "declined" public funding, correctly pointing out that, as a nonincumbent, she can't possibly run a credible statewide race on the amount provided. Nevertheless, word on the street is that she simply was unable to get her act together in time to qualify and, although she certainly is a serious and credible candidate, it is unclear that she can raise much more than the public grant. (I am unaware of her personal resources or willingness to commit them to the race.) Once again, it appears that the tenor and substance of the debate will be beyond the control of the candidates.
The new law seeks to address this by providing some additional public funding to candidates who face opposing independent expenditures (which will be, at least, both of the general election candidates.) But there are two problems.
The first is that these "matching funds" (and they are far from adequate to actually match what is likely to be spent) are only triggered by express advocacy for or against a candidate. That is easily avoided.
But there will probably be no need to do so. The "matching funds" provision is probably unconstitutional. A similar provision in Arizona is currently under review by the United States Supreme Court and that Court enjoined the operation of the law during the last election cycle. That is very likely to happen here as well so that the matching funds, even if they are triggered, will never be provided.
Who Cares?
Do you pay much attention to the State of the Union Address? I don't. It's largely a poorly written litany of platitudes and promises that will not only not be fufilled, but won't even be attempted. It is nothing like the typical "State of the Company" address that one often sees in the private sector in that it makes absolutely no attempt to be candid about what the state of the union actually is. It is a campaign speech followed by another campaign speech by the opposition. The particulars of whatever the President says will bear little resemblance to what happens in the year to follow.
This State of the Union seems to be even less consequential than most years. The President is chastened. He pursued a bold change agenda in the first two years of his term and achieved some of it. At least for now, the voters don't much like it. So he has retrenched. The collectivism seems to have been toned down and the difficult choices, although acknowledged, either elided or deferred. (How any American President can continue to duck entitlement reform and call himself responsible is beyond me, but this one continues to do it. Unfortunately, his predecessors showed him the way.)
The problem is that Paul Ryan was right in his response: "We still have time . . . but not much time." I think that the President knows that, but he also fears that his preferred nostrums won't fly. So he plays small ball and temporizes. Ryan, like it or not, has a plan. The President gave a speech.
This State of the Union seems to be even less consequential than most years. The President is chastened. He pursued a bold change agenda in the first two years of his term and achieved some of it. At least for now, the voters don't much like it. So he has retrenched. The collectivism seems to have been toned down and the difficult choices, although acknowledged, either elided or deferred. (How any American President can continue to duck entitlement reform and call himself responsible is beyond me, but this one continues to do it. Unfortunately, his predecessors showed him the way.)
The problem is that Paul Ryan was right in his response: "We still have time . . . but not much time." I think that the President knows that, but he also fears that his preferred nostrums won't fly. So he plays small ball and temporizes. Ryan, like it or not, has a plan. The President gave a speech.
Thursday, January 20, 2011
The Cap Times Didn't Get the Memo
And ought to be ashamed of itself. Amidst calls by President Obama and others for greater civility in political discourse, the virtual paper from Madison decided to run an editorial on the Senate's failure to confirm Louis Butler's nomination for federal judgeship. That's certainly a salient topic and there are many interesting things to say about it.
But one of those things is not that the Butler nomination has been held because he is black. There is not a shred of evidence for that. This is not the only nomination that has been held and it is not hard to see why it is being held. While, as I have repeatedly said, Louis Butler is a smart and gifted lawyer, he espouses a judicial philosophy with which many disagree and, during his tenure on the state supreme court, he demonstrated a willingness to pursue it rather aggressively.
We can disagree about that philosophy and about the extent to which it ought to play a role in confirmation proceedings, but that is the issue in the Butler nomination.
Apparently concluding that genuine discourse would be too hard, the Cap Times has decided to play the Confederacy Card. The problem is Jeff Sessions (he's from Alabama) and those other GOP Senators - many of whom are from ... the South! The Cap Times says: "No serious observer doubts that, were Obama to nominate a white male
who was less qualified and less committed to a constitutionally based
application of the rule of law, the Senate would move quickly to
confirm the president’s pick."
Actually, I think that every serious observer doubts - or should doubt - that. Were Louis Butler white, the conservatives opposing him would be just as opposed. If Louis Butler espoused the same judicial philosophy as Clarence Thomas, they would love him (as they love Thomas; he's a rock star at conservative events).
There isn't a shred of evidence to the contrary. This is irresponsible and demagogic calumny. I'm not surprised that the piece is unsigned. If I had anything to do with it, I'd be ashamed too.
But one of those things is not that the Butler nomination has been held because he is black. There is not a shred of evidence for that. This is not the only nomination that has been held and it is not hard to see why it is being held. While, as I have repeatedly said, Louis Butler is a smart and gifted lawyer, he espouses a judicial philosophy with which many disagree and, during his tenure on the state supreme court, he demonstrated a willingness to pursue it rather aggressively.
We can disagree about that philosophy and about the extent to which it ought to play a role in confirmation proceedings, but that is the issue in the Butler nomination.
Apparently concluding that genuine discourse would be too hard, the Cap Times has decided to play the Confederacy Card. The problem is Jeff Sessions (he's from Alabama) and those other GOP Senators - many of whom are from ... the South! The Cap Times says: "No serious observer doubts that, were Obama to nominate a white male
who was less qualified and less committed to a constitutionally based
application of the rule of law, the Senate would move quickly to
confirm the president’s pick."
Actually, I think that every serious observer doubts - or should doubt - that. Were Louis Butler white, the conservatives opposing him would be just as opposed. If Louis Butler espoused the same judicial philosophy as Clarence Thomas, they would love him (as they love Thomas; he's a rock star at conservative events).
There isn't a shred of evidence to the contrary. This is irresponsible and demagogic calumny. I'm not surprised that the piece is unsigned. If I had anything to do with it, I'd be ashamed too.
Wednesday, January 19, 2011
Belling and the "Jewish" Power Structure
I don't blog much about Mark Belling. He has said and done things which I think make my side look bad and I don't much appreciate it. I rarely hear him (I must admit that, if I am in the car at that time, I am a bit more partial to the "Big Show" on 1250 AM) and did not hear the show in which he commented on the way in which certain powerful business people in Milwaukee "band together" to look out for one another. In commenting on the efforts of Steve and Greg Marcus and David Uihlein to block the Marriott Hotel project, he observed that members of this "old boys network" are friends and belong to the same country club. Inexplicably, he also noted that "[T}he fact that the majority of them are Jewish may be neither here nor there.”
My first reaction to this was that it is just screwy. Putting aside the Marcus' opposition to the Marriott (of course, they don't want a new competitor downtown anymore than the Packers welcomed the Bears' signing of Julius Peppers), I think it's safe to say that there is an old boys network (although it is less strong than it used to be). But it is also safe to say that it is predominantly not Jewish. To the extent that Belling's comments reflect bias, it is this weird trope that Jews have much more power than they do.
Perhaps Belling has imbibed that and it lead him to say something that is, at best, curious and, at worst, sort of ridiculous. But, having listened to the remark, I don't know that he consciously intended to express anti-semitic sentiment. He did present the (false)"fact" that a majority of the local power structure is Jewish as sort of a throwaway that didn't mean anything. While we could assume bad faith from the fact that he mentioned it at all, I'm not sure that accomplishes anything and may well be inaccurate. I don't know what's in his heart and I'm not going to presume that it includes anti-semitism.
By way of full disclosure, I am not Jewish in the sense that my Mother was a gentile and I was raised as a Catholic. But my father's family were ethnic German Jews. I would not have survived Nazi Germany and I suspect I have many unknown relatives who did not. My daughter-in-law is Jewish and my grandsons are being raised in the Jewish faith and tradition. So I don't take anti-semitism lightly. I'm just not willing to play that card here.
But my final reaction is that, if he's just can the distracting comment, this is what Belling does best - although I don't hear much of him doing it anymore. He is very good when it comes to sports and the inner machinations of power in the region. He is, I think, really a better reporter than an opinion guy. If he's do more of it, I might spend less time with Gary, Sparky and the gang.
My first reaction to this was that it is just screwy. Putting aside the Marcus' opposition to the Marriott (of course, they don't want a new competitor downtown anymore than the Packers welcomed the Bears' signing of Julius Peppers), I think it's safe to say that there is an old boys network (although it is less strong than it used to be). But it is also safe to say that it is predominantly not Jewish. To the extent that Belling's comments reflect bias, it is this weird trope that Jews have much more power than they do.
Perhaps Belling has imbibed that and it lead him to say something that is, at best, curious and, at worst, sort of ridiculous. But, having listened to the remark, I don't know that he consciously intended to express anti-semitic sentiment. He did present the (false)"fact" that a majority of the local power structure is Jewish as sort of a throwaway that didn't mean anything. While we could assume bad faith from the fact that he mentioned it at all, I'm not sure that accomplishes anything and may well be inaccurate. I don't know what's in his heart and I'm not going to presume that it includes anti-semitism.
By way of full disclosure, I am not Jewish in the sense that my Mother was a gentile and I was raised as a Catholic. But my father's family were ethnic German Jews. I would not have survived Nazi Germany and I suspect I have many unknown relatives who did not. My daughter-in-law is Jewish and my grandsons are being raised in the Jewish faith and tradition. So I don't take anti-semitism lightly. I'm just not willing to play that card here.
But my final reaction is that, if he's just can the distracting comment, this is what Belling does best - although I don't hear much of him doing it anymore. He is very good when it comes to sports and the inner machinations of power in the region. He is, I think, really a better reporter than an opinion guy. If he's do more of it, I might spend less time with Gary, Sparky and the gang.
Shark on Dead Tree
My latest column in the Milwaukee Journal Sentinel, commenting on the alchemy of schemes for job creation is here.
Regular readers of this blog will know that I am skeptical (actually derisive) of the notion that the President (much less the Governor) runs the economy and that the government ever "creates" jobs.
But I do part ways with some conservatives in suggesting that government can contribute to the creation of the conditions under which jobs may be created by doing something other than getting out of the way. There is infrastructure which is, at least as a practical matter, more efficient for government to provide. The set of those tasks is sunstantially smaller than the set of things that government currently does but it's not empty.
Regular readers of this blog will know that I am skeptical (actually derisive) of the notion that the President (much less the Governor) runs the economy and that the government ever "creates" jobs.
But I do part ways with some conservatives in suggesting that government can contribute to the creation of the conditions under which jobs may be created by doing something other than getting out of the way. There is infrastructure which is, at least as a practical matter, more efficient for government to provide. The set of those tasks is sunstantially smaller than the set of things that government currently does but it's not empty.
Tuesday, January 11, 2011
The Scoop on Redistricting
I'm sort of amused by the minor contretemps over whether the legislative Republicans ought to allow the legislative Democrats money to hire their own counsel for the upcoming redistricting.
The Wisconsin legislature hasn't successfully redrawn district lines in almost 80 years. The reason is that we generally haven't had single party control in a redistricting year (which, since the Supreme Court's "one-man, one vote" decisions in the '60s, has been every ten years).
As I pointed out in a pre-election column in the Milwaukee Journal Sentinel, single party control of the state house and both legislative chambers almost guarantees that this year will be an exception. Because there are relatively few ways to challenge a properly drawn plan, the redistricting this year will turn out to be what the Republicans want it to be.
This is because political gerrymandering is nonjusticiable, i.e., a plan can't be challenged in court because it is "unfair" to one party or another or was designed to protect incumbents and limit competition. Four justices of the current Supreme Court have held that this is a political matter and a fifth (guess which one) isn't sure it is but hasn't been able to imagine judicially manageable standards so, at least for now, won't entertain such challenges.
One can challenge a plan as a violation of the rights of minority voters and that is where drawing the plan raises legal questions. A plan can't improperly deprive minorities of the opportunity to elect candidates of their choice and that may require drawing supermajority minority districts (because minority voter turnout is normally lower than average).
But here's the thing. Creating such districts generally favors Republicans because it requires "packing" minority voters and, since these voters tend be overwhelmingly Democrats, that means packing Democrats. When, for example, we draw Gwen Moore's district to contain lots of minorities, we make it overwhelmingly Democratic and the surrounding districts become more Republican.
Doing this in the right way requires lawyers and that is why Fred Kessler's comments that there is no need for lawyers in redistricting and the the legislature's decision to retain Michael Best and the Troupis Law Offices could only have been a sop to lawyer campaign contributors. Jim Troupis is one of the best redistricting lawyers in the country. To say that he was hired because he gave money is one of the stupidest things I've heard a politician say on the subject.
Of course, it is true that one could (particularly if there were no minority vote dilution concerns) redistrict without lawyers. It is possible to program a computer to draw compact and contiguous districts of equal size that respect, to the extent possible, political and geographic boundaries.
But that would probably tend to favor Republicans because Democratic voters tend to be geographically concentrated. Democrats who are upset this year because of the Republicans' control over redistricting ought to be careful what they wish for.
The Wisconsin legislature hasn't successfully redrawn district lines in almost 80 years. The reason is that we generally haven't had single party control in a redistricting year (which, since the Supreme Court's "one-man, one vote" decisions in the '60s, has been every ten years).
As I pointed out in a pre-election column in the Milwaukee Journal Sentinel, single party control of the state house and both legislative chambers almost guarantees that this year will be an exception. Because there are relatively few ways to challenge a properly drawn plan, the redistricting this year will turn out to be what the Republicans want it to be.
This is because political gerrymandering is nonjusticiable, i.e., a plan can't be challenged in court because it is "unfair" to one party or another or was designed to protect incumbents and limit competition. Four justices of the current Supreme Court have held that this is a political matter and a fifth (guess which one) isn't sure it is but hasn't been able to imagine judicially manageable standards so, at least for now, won't entertain such challenges.
One can challenge a plan as a violation of the rights of minority voters and that is where drawing the plan raises legal questions. A plan can't improperly deprive minorities of the opportunity to elect candidates of their choice and that may require drawing supermajority minority districts (because minority voter turnout is normally lower than average).
But here's the thing. Creating such districts generally favors Republicans because it requires "packing" minority voters and, since these voters tend be overwhelmingly Democrats, that means packing Democrats. When, for example, we draw Gwen Moore's district to contain lots of minorities, we make it overwhelmingly Democratic and the surrounding districts become more Republican.
Doing this in the right way requires lawyers and that is why Fred Kessler's comments that there is no need for lawyers in redistricting and the the legislature's decision to retain Michael Best and the Troupis Law Offices could only have been a sop to lawyer campaign contributors. Jim Troupis is one of the best redistricting lawyers in the country. To say that he was hired because he gave money is one of the stupidest things I've heard a politician say on the subject.
Of course, it is true that one could (particularly if there were no minority vote dilution concerns) redistrict without lawyers. It is possible to program a computer to draw compact and contiguous districts of equal size that respect, to the extent possible, political and geographic boundaries.
But that would probably tend to favor Republicans because Democratic voters tend to be geographically concentrated. Democrats who are upset this year because of the Republicans' control over redistricting ought to be careful what they wish for.
Civility Is A Big Tent
The idea that the tragic shootings in Arizona over the weekend are attributable to the Tea Party, Sarah Palin, the right wing or "anti-government" rhetoric is too stupid to merit discussion. It is itself an example of the debasememnt of our political conversation.
It's not new. If, for example, you watch taped coverage of John F. Kennedy's assassination, there was an undercurrent of "blame the right wing" before Air Force One had even returned to Washington. To a large degree that bit of folk wisdom has continued to this day. Yet Kennedy was shot by a communist.
Still, I'm all for more civility in political discourse and have frequently blogged about it here. The first step in civility is to avoid the automatic presumption that your opponents are ignorant or acting in bad faith; that they are somehow not like you.
So I agree with Rep. Tammy Baldwin that we ought to find ways of deliberation and discourse that "respect difference of opinion." One place to start, of course, is to refrain from promiscuous allegations of "bigotry" and "hatred." It might continue with care about accusing others of "destroying" the government or leaving people to die.
It's not new. If, for example, you watch taped coverage of John F. Kennedy's assassination, there was an undercurrent of "blame the right wing" before Air Force One had even returned to Washington. To a large degree that bit of folk wisdom has continued to this day. Yet Kennedy was shot by a communist.
Still, I'm all for more civility in political discourse and have frequently blogged about it here. The first step in civility is to avoid the automatic presumption that your opponents are ignorant or acting in bad faith; that they are somehow not like you.
So I agree with Rep. Tammy Baldwin that we ought to find ways of deliberation and discourse that "respect difference of opinion." One place to start, of course, is to refrain from promiscuous allegations of "bigotry" and "hatred." It might continue with care about accusing others of "destroying" the government or leaving people to die.
Friday, January 07, 2011
2011 Predictions
I wanted to absorb a bit of the new year before making a few predictions. I did OK last year so I'm encouraged to try again.
1. The Packers will lose a close game to the Eagles but will edge out the Lions for the NFC North title in the fall.
2. The Brewers will be much better but not good enough to get past the Reds. They take the wild card but that's as far as they go.
3. The House votes to repeal ObamaCare. The Senate doesn't. The plan continues to be a riot of unintended consequences and unnoticed little gems.
4. Scott Walker has a historically successful legislative year that will end with public employee unions in full scale apoplexy. Here are a few: Concealed carry, Voter ID, a return to restrictions on local school spending and salaries, some significant move away from retiree health care and defined benefit plans and expanded school choice.
5. David Prosser is easily reelected to the Wisconsin Supreme Court.
6. The United States Supreme Court strikes down the matching funds provision of the Arizona Clean Elections Act. This means that the provisions in the Impartial Justice Act are gone as well. I don't think the Court cites my article but it should.
7. I have a feeling. The Supreme Court also strikes down the individual mandate in ObamaCare.
8. I have another feeling. Unemployment falls to 7%. Why? I don't know. I just think it's time.
9. There is a major move to abolish Milwaukee County as a distinct government entity and rumblings of MPS bankruptcy.
10. Watch this blog for big news.
1. The Packers will lose a close game to the Eagles but will edge out the Lions for the NFC North title in the fall.
2. The Brewers will be much better but not good enough to get past the Reds. They take the wild card but that's as far as they go.
3. The House votes to repeal ObamaCare. The Senate doesn't. The plan continues to be a riot of unintended consequences and unnoticed little gems.
4. Scott Walker has a historically successful legislative year that will end with public employee unions in full scale apoplexy. Here are a few: Concealed carry, Voter ID, a return to restrictions on local school spending and salaries, some significant move away from retiree health care and defined benefit plans and expanded school choice.
5. David Prosser is easily reelected to the Wisconsin Supreme Court.
6. The United States Supreme Court strikes down the matching funds provision of the Arizona Clean Elections Act. This means that the provisions in the Impartial Justice Act are gone as well. I don't think the Court cites my article but it should.
7. I have a feeling. The Supreme Court also strikes down the individual mandate in ObamaCare.
8. I have another feeling. Unemployment falls to 7%. Why? I don't know. I just think it's time.
9. There is a major move to abolish Milwaukee County as a distinct government entity and rumblings of MPS bankruptcy.
10. Watch this blog for big news.
Wednesday, January 05, 2011
Mayfair Need Only Avoid Unforced Errors
I agree with everyone who says that Mayfair needs to react proactively to Sunday's incident. I have long thought that it is a nonstarter to tell people that they ought not to be concerned with their security when they are concerned. Mayfair cannot let things like that happen and it's going to mean further restrictions on the use of the mall by young people. There is no point in discussing that.
My sense is that those efforts will be successful. Mayfair is not Northridge. It won't make Northridge's mistakes (if for no other reason than Northridge made them) and, more importantly, it doesn't bear the demographic burdens that Northridge came to bear. Northridge was located in an area that became increasingly ill suited for retail development both because of its distance from and inaccessibility to the residents of higher income areas and the problems that came to be posed for safety in the area from large public housing projects in the vicinity. I don't think that Northridge was ever as unsafe as many people thought it was but there is no question that the surrounding area detioriated.
Northridge may have, moreover, contributed to its own problems by moving away from retailers that would be more attractive to the more affluent shoppers to its far west and north, but that may have been a result more than a cause.
Mayfair, on the other hand, is located on the cusp between two relatively affluent suburbs and, most importantly, is easily accessible to the rest of the metropolitan area because it is at the confluence of two major freeways.
My sense is that those efforts will be successful. Mayfair is not Northridge. It won't make Northridge's mistakes (if for no other reason than Northridge made them) and, more importantly, it doesn't bear the demographic burdens that Northridge came to bear. Northridge was located in an area that became increasingly ill suited for retail development both because of its distance from and inaccessibility to the residents of higher income areas and the problems that came to be posed for safety in the area from large public housing projects in the vicinity. I don't think that Northridge was ever as unsafe as many people thought it was but there is no question that the surrounding area detioriated.
Northridge may have, moreover, contributed to its own problems by moving away from retailers that would be more attractive to the more affluent shoppers to its far west and north, but that may have been a result more than a cause.
Mayfair, on the other hand, is located on the cusp between two relatively affluent suburbs and, most importantly, is easily accessible to the rest of the metropolitan area because it is at the confluence of two major freeways.
Monday, January 03, 2011
2010 Predictions Revisted
Predictions for 2010
1. Scott Walker will become the 45th Governor of the state of Wisconsin and the first elected from Milwaukee until Julius Heil in 1939. The Democrats will continue to hold both houses of the legislature by razor thin margins.
One out of three ain't bad. Three out of three was better.
2. The Republicans pick up seven seats in the Senate and twenty in the House.
Light on the House. Remember this was before the Massachusetts Revolution.
3. The United States Supreme Court will bury a key element of the McCain-Feingold bill by holding that the funding of independent expenditures cannot be restricted unless they can be construed as express advocacy lacking any substantial component of issue advocacy - or something along those lines. You can't expect me to read five minds.
Buried deeper than I thought it would be.
4. The Wisconsin Supreme Court will hold (4-3) that Wisconsin's marriage amendment was not unconstitutionally enacted.
Yes but it was unanimous.
5. I fervently pray that I am wrong but there will be a significant terrorist attack on American soil or against an American target.
Wrong, thanks to God.
6. As I predicted last year - and was wrong, Israel will strike at a target in Iran. The Obama administration will take no action but will respond equivocally further isolating the Israelis and accomplishing nothing.
Again, not so and thank God.
7. Newly installed Milwaukee Archbishop Raymond Listecki will undertake some highly visible effort to insist that a prominent Catholic or Catholic organization not act contrary to church teaching. Tom Barrett needs to watch himself.
No and, after discussing this issue with the Archbishop, I was just wrong from the start.
8. The Green Bay Packers will edge Arizona in the first round of the NFC playoffs. They will lose a shoot out to New Orleans in the second round.
A little shorter on that pass to Jennings and I hit on this one.
9. Because I can't get over the Norv Turner factor, I think that Indianapolis beats Philadelphia in the Super Bowl.
Who dat?
10. Alabama beats Texas next week. Wisconsin makes the NCAAs but loses in the first round. Marquette doesn't make it, but goes to the NIT semifinals. UWM goes out in the Horizon League semi-finals. The Brewers rebound to take the National League Central and lose to the Dodgers in the NLCS. Look for breakout years from Rickie Weeks and Mannie Parra. Brett Favre will not retire, but the Packers will win the NFC North next fall. Wisconsin will be second in the Big Ten and go to its first BCS Bowl other than the Rose Bowl.
Alabama did win. Wisconsin and Marquette were better than I thought. The Panthers weren't. Neither with the Brewers and Manny Parra. Wisconsin came through but I didn't think they'd edge out Ohio State.
11. Nothing happens at the Mexico City climate summit.
Nothing did.
12. The individual health care mandate is not held unconsitutional but the Supreme Court grants cert.
It was. It will.
13. No significant cap and trade bill - and maybe no cap and trade bill at all - gets passed.
Correct.
14. There will be a well funded challenge (in the sense of independent expenditures) to Justice David Prosser. I will predict its failure in my predictions for 2011.
Correct.
15. This time - this year - Paul Krugman and Ann Coulter will announce their engagement. Love hopes. Always.
Love still hopes.
1. Scott Walker will become the 45th Governor of the state of Wisconsin and the first elected from Milwaukee until Julius Heil in 1939. The Democrats will continue to hold both houses of the legislature by razor thin margins.
One out of three ain't bad. Three out of three was better.
2. The Republicans pick up seven seats in the Senate and twenty in the House.
Light on the House. Remember this was before the Massachusetts Revolution.
3. The United States Supreme Court will bury a key element of the McCain-Feingold bill by holding that the funding of independent expenditures cannot be restricted unless they can be construed as express advocacy lacking any substantial component of issue advocacy - or something along those lines. You can't expect me to read five minds.
Buried deeper than I thought it would be.
4. The Wisconsin Supreme Court will hold (4-3) that Wisconsin's marriage amendment was not unconstitutionally enacted.
Yes but it was unanimous.
5. I fervently pray that I am wrong but there will be a significant terrorist attack on American soil or against an American target.
Wrong, thanks to God.
6. As I predicted last year - and was wrong, Israel will strike at a target in Iran. The Obama administration will take no action but will respond equivocally further isolating the Israelis and accomplishing nothing.
Again, not so and thank God.
7. Newly installed Milwaukee Archbishop Raymond Listecki will undertake some highly visible effort to insist that a prominent Catholic or Catholic organization not act contrary to church teaching. Tom Barrett needs to watch himself.
No and, after discussing this issue with the Archbishop, I was just wrong from the start.
8. The Green Bay Packers will edge Arizona in the first round of the NFC playoffs. They will lose a shoot out to New Orleans in the second round.
A little shorter on that pass to Jennings and I hit on this one.
9. Because I can't get over the Norv Turner factor, I think that Indianapolis beats Philadelphia in the Super Bowl.
Who dat?
10. Alabama beats Texas next week. Wisconsin makes the NCAAs but loses in the first round. Marquette doesn't make it, but goes to the NIT semifinals. UWM goes out in the Horizon League semi-finals. The Brewers rebound to take the National League Central and lose to the Dodgers in the NLCS. Look for breakout years from Rickie Weeks and Mannie Parra. Brett Favre will not retire, but the Packers will win the NFC North next fall. Wisconsin will be second in the Big Ten and go to its first BCS Bowl other than the Rose Bowl.
Alabama did win. Wisconsin and Marquette were better than I thought. The Panthers weren't. Neither with the Brewers and Manny Parra. Wisconsin came through but I didn't think they'd edge out Ohio State.
11. Nothing happens at the Mexico City climate summit.
Nothing did.
12. The individual health care mandate is not held unconsitutional but the Supreme Court grants cert.
It was. It will.
13. No significant cap and trade bill - and maybe no cap and trade bill at all - gets passed.
Correct.
14. There will be a well funded challenge (in the sense of independent expenditures) to Justice David Prosser. I will predict its failure in my predictions for 2011.
Correct.
15. This time - this year - Paul Krugman and Ann Coulter will announce their engagement. Love hopes. Always.
Love still hopes.
Thursday, December 30, 2010
The Mean Streets of Germantown?
Jay Bullock, pace Jim Rowen (who really, really, really hates suburbs), argues that it is more dangerous to live in suburban or exurban counties than in Milwaukee County because the combination of traffic deaths and stranger murders are higher in the former than in the latter. Jay's take away: "Whatever you may think of life here in the urban hellhole that is Milwaukee, it's a lot safer than life in a lot of those exurban hellholes to the north and west of here." (Both Jay and Jim link to a post extolling the wisdom of a woman who lets her 9 year old ride the New York subway alone and citing a University of Virginia study.)
Well, not quite. If one limits the analysis to stranger murders and traffic deaths, it may be safer to live in Milwaukee than in Washington County. Both Ozaukee and Waukesha counties remain safer than Milwaukee.
But even this is problematic. Jay - or, more accurately, the study he relies upon - fudge the numbers by limiting homicide deaths to stranger murders thereby limiting most homicides. You are most likely to be killed by someone you know and one of the reasons that people leave Milwaukee - or certain parts of it - is that so they will not know or be in the vicinity of people who might kill them.
In addition, the exclusion of homicide by acquaintance reflects the reason that traffic accidents are not interchangeable with stranger murders. The justification for exclusion is that homicide by an acquaintance is not quite a random event to which everyone in the city is subject. If you avoid certain areas, people and activities, you are much less likely to be killed by someone you know. As the study on which Jay relies puts it, stranger homicide is most likely to happen when you are just going abot your routine business. Stay out of trouble and you'll be safer.
But traffic accidents are not completely random either. You can't immunize yourself from them, but if you drive defensively, stay off your smart phone and don't drink and drive, you are much less likely to be killed in a traffic accident.
Having said that, I do agree with the title of Jay's post that Milwaukee is safer than - at least many people - think. Most parts of the city are relatively crime free. Not like Mequon to be sure, but reasonably safe places to live and work. In that sense, he's right.
But there is a confounding factor. Most of Milwaukee's violent crime is highly concentrated. In some parts of the city, violent crime is a rather large problem. The continuing determination of liberals to want to minimize that has always puzzled me. It is not wealthy white Republican guys that suffer from the problem.
One final point. I don't know that violent crime is a major cause of exodus to the suburbs. It seems to me that the major positive reason is that people like space. And the major negative reason is that they do not like the Milwaukee Public Schools.
At all.
Well, not quite. If one limits the analysis to stranger murders and traffic deaths, it may be safer to live in Milwaukee than in Washington County. Both Ozaukee and Waukesha counties remain safer than Milwaukee.
But even this is problematic. Jay - or, more accurately, the study he relies upon - fudge the numbers by limiting homicide deaths to stranger murders thereby limiting most homicides. You are most likely to be killed by someone you know and one of the reasons that people leave Milwaukee - or certain parts of it - is that so they will not know or be in the vicinity of people who might kill them.
In addition, the exclusion of homicide by acquaintance reflects the reason that traffic accidents are not interchangeable with stranger murders. The justification for exclusion is that homicide by an acquaintance is not quite a random event to which everyone in the city is subject. If you avoid certain areas, people and activities, you are much less likely to be killed by someone you know. As the study on which Jay relies puts it, stranger homicide is most likely to happen when you are just going abot your routine business. Stay out of trouble and you'll be safer.
But traffic accidents are not completely random either. You can't immunize yourself from them, but if you drive defensively, stay off your smart phone and don't drink and drive, you are much less likely to be killed in a traffic accident.
Having said that, I do agree with the title of Jay's post that Milwaukee is safer than - at least many people - think. Most parts of the city are relatively crime free. Not like Mequon to be sure, but reasonably safe places to live and work. In that sense, he's right.
But there is a confounding factor. Most of Milwaukee's violent crime is highly concentrated. In some parts of the city, violent crime is a rather large problem. The continuing determination of liberals to want to minimize that has always puzzled me. It is not wealthy white Republican guys that suffer from the problem.
One final point. I don't know that violent crime is a major cause of exodus to the suburbs. It seems to me that the major positive reason is that people like space. And the major negative reason is that they do not like the Milwaukee Public Schools.
At all.
Wednesday, December 29, 2010
A Conversation and Not a Shouting Match
I haven't blogged much lately so why not stir things up.
One of the great things around is the Witherspoon Institute. It runs a blog called Public Discourse which recently featured an interesting exchange on same sex marriage between Andy Koppelman (for) and Robbie George, Ryan Anderson Sherif Girgis (against). The great thing about the exchange is that Koppelman does what proponents of same sex marriage rarely do. He addresses differing views of what marriage is and what it is for.
Much of the discussion of "marriage equality" simply assumes that marriage is something designed to facilitate a sexually intimate relationship between two people. But there are all sorts of embedded assumptions and begged questions in that assertion.
In a recent column in the Washington Post, Matthew Franck of Witherspoon addresses the implication of the fact that differences on same sex marriage are differences about marriage as much as they are differences on homosexuality. He suggests that proponents of same sex marriage stop playing the "hate card." But it won't happen. Politically useful demagoguery is rarely abandoned.
One of the great things around is the Witherspoon Institute. It runs a blog called Public Discourse which recently featured an interesting exchange on same sex marriage between Andy Koppelman (for) and Robbie George, Ryan Anderson Sherif Girgis (against). The great thing about the exchange is that Koppelman does what proponents of same sex marriage rarely do. He addresses differing views of what marriage is and what it is for.
Much of the discussion of "marriage equality" simply assumes that marriage is something designed to facilitate a sexually intimate relationship between two people. But there are all sorts of embedded assumptions and begged questions in that assertion.
In a recent column in the Washington Post, Matthew Franck of Witherspoon addresses the implication of the fact that differences on same sex marriage are differences about marriage as much as they are differences on homosexuality. He suggests that proponents of same sex marriage stop playing the "hate card." But it won't happen. Politically useful demagoguery is rarely abandoned.
Tuesday, December 21, 2010
Thoughts on Butler Nomination
I am not shocked that Louis Butler will apparently not be confirmed as a federal judge. I was not one of those people who believe that he was disqualified by losing two statewide races for the Wisconsin Supreme Court. We don't elect federal judges and that reflects a judgment about the role that popular sentiment should play in judicial selection.
I also believe that he is more than qualified by way of lawerly craft, i.e., he is quite smart and very good at the things that lawyers do. The problem was that he demonstrated, while on the state supreme court, that he has a rather expansive view of the judicial role and, while these terms are always tricky in judicial terms, tacks strongly to the left. Indeed, when it came time to explain those positions to the voters, he and his supporters just didn't do a very good job. (No, I don't think he lost because of the Reuben Mitchell ad. It actually may have helped him.)
Concern over these views is arguably less relevant to a seat on the district court since the opportunity of a trial judge to make law is limited. But a runaway district judge can do a lot of damage. I don't know that Louis Butler would have been such a judge but apparently enough of the right people thought so to scuttle his nomination.
I was not disturbed by the Butler nomination and would not have minded if the had been confirmed. Elections matter and he is the type of person I would expect President Obama to nominate. In fact, he was a pretty good nominee given the presumptions that I suspect control the administration's selection process. But, at this point, it would seem that the administration ought to reload and nominate someone else. It looks like this isn't going to happen.
I also believe that he is more than qualified by way of lawerly craft, i.e., he is quite smart and very good at the things that lawyers do. The problem was that he demonstrated, while on the state supreme court, that he has a rather expansive view of the judicial role and, while these terms are always tricky in judicial terms, tacks strongly to the left. Indeed, when it came time to explain those positions to the voters, he and his supporters just didn't do a very good job. (No, I don't think he lost because of the Reuben Mitchell ad. It actually may have helped him.)
Concern over these views is arguably less relevant to a seat on the district court since the opportunity of a trial judge to make law is limited. But a runaway district judge can do a lot of damage. I don't know that Louis Butler would have been such a judge but apparently enough of the right people thought so to scuttle his nomination.
I was not disturbed by the Butler nomination and would not have minded if the had been confirmed. Elections matter and he is the type of person I would expect President Obama to nominate. In fact, he was a pretty good nominee given the presumptions that I suspect control the administration's selection process. But, at this point, it would seem that the administration ought to reload and nominate someone else. It looks like this isn't going to happen.
Tuesday, December 14, 2010
Is ObamaCare About to Go Under the Bus?
Judge Hudson's decision in Virginia v. Sebelius is hardly the last word on the constitutionality of ObamaCare's individual mandate. My guess is that there are four votes on the Supreme Court to uphold the mandate and that the "swing vote" in this case may not be Anthony Kennedy but Antonin Scalia.
I have always thought it a closer question that most legal academics who tend to be unconcerned with the absence of structural limitations of the power of the federal government. One could certainly assemble cases that seem to point to sustaining the mandate.
The problem is that, if Congress can do this, there is little that it cannot do. I think that forces people to take a hard second look at expansive readings of the commerce and taxing powers.
One of the more interesting aspects of the opinion is Judge Hudson's conclusion that the mandate is severable, i.e., it can be struck down while the rest of ObamaCare stands. Putting aside the legal merits of that conclusion, doesn't it ruin the plan? How can you force insurers to cover pre-existing conditions without a mandate? I had thought that the penalties associated with the mandate are not high enough to force people to buy insurance that they don't need. But, if Judge Hudson is right, there are no penalties at all.
It is not clear to me, however, that, on Judge Hudson's reasoning, a mandate could not be recast as a tax credit. The problem is, I think, that the numbers wouldn't work unless one combined the credit with a tax increase.
In any event, the plan may be well on its way to unraveling.
I have always thought it a closer question that most legal academics who tend to be unconcerned with the absence of structural limitations of the power of the federal government. One could certainly assemble cases that seem to point to sustaining the mandate.
The problem is that, if Congress can do this, there is little that it cannot do. I think that forces people to take a hard second look at expansive readings of the commerce and taxing powers.
One of the more interesting aspects of the opinion is Judge Hudson's conclusion that the mandate is severable, i.e., it can be struck down while the rest of ObamaCare stands. Putting aside the legal merits of that conclusion, doesn't it ruin the plan? How can you force insurers to cover pre-existing conditions without a mandate? I had thought that the penalties associated with the mandate are not high enough to force people to buy insurance that they don't need. But, if Judge Hudson is right, there are no penalties at all.
It is not clear to me, however, that, on Judge Hudson's reasoning, a mandate could not be recast as a tax credit. The problem is, I think, that the numbers wouldn't work unless one combined the credit with a tax increase.
In any event, the plan may be well on its way to unraveling.
Monday, December 13, 2010
Shark at the National Press Club
Last week, I had the privilege of participating in a panel on amendments to the Federal Rules of Civil Procedure sponsored by the Federal Society for Law & Public Policy Studies at the National Press Club in Washington DC. Procedure mavens can watch it here. My co-panelists were Marty Redish of Northwestern (author of one of the leading texts in the area), Ron Allen of Northwestern and Don Elliott of Yale. This had me wondering whether this ought not to have been the theme song for the panel.
Smoking them out.
I am quoted briefly this morning by Dan Bice in an article about certain illegal campaign contributions made with treasury dollars of the firefighters union. I'd like to revise and extend my renarks.
I have nothing against the union. In fact, it has a soft spot in my heart. My stepdad was a member and I grew up with an IAFF sticker on the family car. There is no question that what happened was illegal. A corporation or a union can't reimburse employees or board members for campaign contributions that it could not make. I have advised clients whose employees have asked for such reimbursement. The answer is no.
The union seems to be claiming that it did not know it was doing that. It says that the board members submitted fraudulent expense reports. Yet the board members are still on the board. Why the union thinks that's a good idea is beyond me. You would think that it would want to distance itself as far as possible from these people who, if the story is as reported, may have committed several crimes.
There seem to be some real questions - raised by a number of union members - as to the extent of the union's knowledge and the extent of the practice. I'm sure that there is internal politics involved, but this was bad business.
I have nothing against the union. In fact, it has a soft spot in my heart. My stepdad was a member and I grew up with an IAFF sticker on the family car. There is no question that what happened was illegal. A corporation or a union can't reimburse employees or board members for campaign contributions that it could not make. I have advised clients whose employees have asked for such reimbursement. The answer is no.
The union seems to be claiming that it did not know it was doing that. It says that the board members submitted fraudulent expense reports. Yet the board members are still on the board. Why the union thinks that's a good idea is beyond me. You would think that it would want to distance itself as far as possible from these people who, if the story is as reported, may have committed several crimes.
There seem to be some real questions - raised by a number of union members - as to the extent of the union's knowledge and the extent of the practice. I'm sure that there is internal politics involved, but this was bad business.
Tuesday, December 07, 2010
Whither Class Warfare?
There is a great article by the always interesting William Voegeli in the most recent issue of Commentary. I prefer mine on dead tree but you can read it here. Essentially, Voegeli examines the lack of ardor for soaking CEOs and hedge fund managers on the part of the middle class that so puzzles academics and journalists and other members of the chattering classes. To extend the conundrum, why do the great unwashed seem to be susceptible to attacks on the government which can benefit them so?
Voegeli suggests that it has something to do with who you know and who you consider to be peers. The average guy doesn't know a rich CEO or hedge fund manager (they are exceedingly thin on the ground)so doesn't much care what they make or how they live. He does know teachers and cops who seem very comparable to him but relatively better off.
On the other hand, columnists and professors all know the average student back at Princeton who did nothing but chase girls and drink beer. The buffoon now makes twenty times what they do. That must not stand.
Sure there's more to be said, but it's an interesting observation.
Voegeli suggests that it has something to do with who you know and who you consider to be peers. The average guy doesn't know a rich CEO or hedge fund manager (they are exceedingly thin on the ground)so doesn't much care what they make or how they live. He does know teachers and cops who seem very comparable to him but relatively better off.
On the other hand, columnists and professors all know the average student back at Princeton who did nothing but chase girls and drink beer. The buffoon now makes twenty times what they do. That must not stand.
Sure there's more to be said, but it's an interesting observation.
Supreme Court Conference
In late August of 2009, it occurred to me that it might be a good thing if Marquette University Law School held a conference on the Wisconsin Supreme Court. We had a great inaugural conference in October 2009 and last Friday reprised the conference for an audience of over 150 lawyers in Eckstein Hall.
There are too many people to thank here. One of the great things about doing this conference is the willingness of so many great lawyers of all ideological persuasions and specialities to help. See you next year.
There are too many people to thank here. One of the great things about doing this conference is the willingness of so many great lawyers of all ideological persuasions and specialities to help. See you next year.
Saturday, November 27, 2010
I often lament about the public debate on legal matters and how it tends to be framed. But the public debate on religion is just as skewed. A recent phenomena is the evangelical atheist. Folks like Bill Maher, Richard Dawkins and Sam Harris who, to my mind, represent nothing as much as an adolescent who thinks he knows something that everyone else has missed. Just as science is unlikely - almost by definition - ever to prove the existence of God, it is just as ill suited to prove the absence. So guys like Dawkins, et al., and Dennett and PZ Myers go after low hanging fruit - making fun of caricatures of religious viewpoints and the most simple minded of believers. It's great sport but its largely useless.
Into the fray enters Phillip Goldberg, author of a book on Indian spirituality and the West. He wants to posit an alternative to the cartoonish religion of the Traveling Atheism Show but winds up suggesting a some mix between agnosticism and a religion of the Self. Rather than suggest a religion that is is consistent with reason, he suggests one that is barely religious.
Goldberg's preaching the faith called Spiritual But Not Religious which, at least in his mind, sees God as "a formless, creative power that would not seem out of place in a physics seminar." The SBNR are, apparently unlike the traditionally religious, rational and reasonable. These folks don't see God as an anthropomorphic father figure in the sky and "don't accept all religious dogma as revealed truth ...." "If they value scripture at all," he says, "they do so selectively and read it metaphorically, not as history or as an infallible guide to morality."
The difficulties with such a "faith" are well rehearsed. It amounts to what some have called "Sheilaism" - which threatens to become a reification of whatever one happens to feel at the moment without much regard for the wisdom of others, particularly of one's ancestors. Because it can mean anything, it means nothing.
But more fundamentally, Goldberg has missed much of the Judeo-Christian tradition (I can't comment on Islam) which has always read the Bible as something other than literal history or moral statutes. For Goldberg, people like Augustine, Aquinas, Luther, Barth, etc., must never have existed. He obviously doesn't know - or at least care to acknowledge - that people wrestle with the issues that they wrestled with every day.
To say that the Bible is something other than the literal word of God (something that Roman and Anglo Catholicism and the mainline Protestant denominations and Judaism largely do say) does not render it irrelevant. To acknowledge moral complexity is not to slide into moral relativism. To recognize that our images of a personal God are metaphorical because God as God exists cannot be fully known ("we see through a glass darkly") is not to render God the equivalent of some groovy form of Dark Matter.
Into the fray enters Phillip Goldberg, author of a book on Indian spirituality and the West. He wants to posit an alternative to the cartoonish religion of the Traveling Atheism Show but winds up suggesting a some mix between agnosticism and a religion of the Self. Rather than suggest a religion that is is consistent with reason, he suggests one that is barely religious.
Goldberg's preaching the faith called Spiritual But Not Religious which, at least in his mind, sees God as "a formless, creative power that would not seem out of place in a physics seminar." The SBNR are, apparently unlike the traditionally religious, rational and reasonable. These folks don't see God as an anthropomorphic father figure in the sky and "don't accept all religious dogma as revealed truth ...." "If they value scripture at all," he says, "they do so selectively and read it metaphorically, not as history or as an infallible guide to morality."
The difficulties with such a "faith" are well rehearsed. It amounts to what some have called "Sheilaism" - which threatens to become a reification of whatever one happens to feel at the moment without much regard for the wisdom of others, particularly of one's ancestors. Because it can mean anything, it means nothing.
But more fundamentally, Goldberg has missed much of the Judeo-Christian tradition (I can't comment on Islam) which has always read the Bible as something other than literal history or moral statutes. For Goldberg, people like Augustine, Aquinas, Luther, Barth, etc., must never have existed. He obviously doesn't know - or at least care to acknowledge - that people wrestle with the issues that they wrestled with every day.
To say that the Bible is something other than the literal word of God (something that Roman and Anglo Catholicism and the mainline Protestant denominations and Judaism largely do say) does not render it irrelevant. To acknowledge moral complexity is not to slide into moral relativism. To recognize that our images of a personal God are metaphorical because God as God exists cannot be fully known ("we see through a glass darkly") is not to render God the equivalent of some groovy form of Dark Matter.
Friday, November 26, 2010
Feingold for Supreme Court ? Probably Not
And what about Russ Feingold as a candidate for the Wisconsin Supreme Court as suggested by the Progressive's Matt Rothschild?
He'd be a very serious candidate. I don't have much sense of him as a lawyer. My recollection is that he was a few years ahead of me at Harvard Law School where I think he was an average student. We worked briefly at the same law firm but he was in Madison and pretty clearly more interested in politics than practicing law. My guess is that he would be a very attractive candidate for those on the legal left.
As a result, he'd attract powerful independent opposition. Because he's never been a judge - or, for that matter, much of a lawyer - there'd be little in the way of a record concerning actual cases as will be the case with Justice Prosser and his current opponent. But Feingold has been fairly adamant in adopting a view of the Bill of Rights that emphasizes the rights of criminal defendants and that is always a tough sell in a judicial election. I think he'd lose in a hugely expensive race and that would probably make a race for the Senate in 2012 highly unlikely.
More than that, it may be a mistake to come back to a statewide race so quickly. The voters just said no. It may be best to wait a while before you ask them again.
He'd be a very serious candidate. I don't have much sense of him as a lawyer. My recollection is that he was a few years ahead of me at Harvard Law School where I think he was an average student. We worked briefly at the same law firm but he was in Madison and pretty clearly more interested in politics than practicing law. My guess is that he would be a very attractive candidate for those on the legal left.
As a result, he'd attract powerful independent opposition. Because he's never been a judge - or, for that matter, much of a lawyer - there'd be little in the way of a record concerning actual cases as will be the case with Justice Prosser and his current opponent. But Feingold has been fairly adamant in adopting a view of the Bill of Rights that emphasizes the rights of criminal defendants and that is always a tough sell in a judicial election. I think he'd lose in a hugely expensive race and that would probably make a race for the Senate in 2012 highly unlikely.
More than that, it may be a mistake to come back to a statewide race so quickly. The voters just said no. It may be best to wait a while before you ask them again.
Second Annual Supreme Court Conference
For those of you lawyers out there in BlogLand, one of the best deals on Continuing Education that you'll ever see is the Second Annual Conference on the Wisconsin Supreme Court: Review and Preview to be held on December 3 at Marquette University Law School. I mean 5 credits plus lunch for $ 40. That, ladies and gentlemen, is insane.
This year, we will be joined by national scholars such as James Sample and Brad Smith to discuss the ongoing recusal issues before the Court in a panel including me and moderated by the Hon. Diane Sykes. Other panelists include Michael O'Hear, Dan Blinka, Jack Kircher, Tom Shriner and a host of other stars of the bar. You really have to be there.
This year, we will be joined by national scholars such as James Sample and Brad Smith to discuss the ongoing recusal issues before the Court in a panel including me and moderated by the Hon. Diane Sykes. Other panelists include Michael O'Hear, Dan Blinka, Jack Kircher, Tom Shriner and a host of other stars of the bar. You really have to be there.
Thursday, November 11, 2010
Myths About "Job Creation"
Some of us like to say that the state can spend a large sum of money - say $ 810 million on a train - and "create" jobs. As statements go, this one is fairly meaningless. The only thing we can say for certain is that it has employed - directly or indirectly - however many people that amount of money has hired. Want 8100 jobs paying $ 100,000 in 2011? Give me that money. I'll find something for those folks to do - or not. To say that I created jobs is, in one sense of the word, a truism but a meaningless one.
In another sense of the word, it is almost certainly a false statement. It is false if you mean by "create" a net addition of 8100 jobs. That $ 810 million must come from somewhere. Had it remained where it was, it would save for the rare possibility of something like a Keynesian "liquidity trap") have been put to some use. That use also would have resulted in people being hired. I have not, therefore, added jobs to the economy in the numbers that I have claimed for I have also caused other jobs not to be created.
This is why statements about how many people would be hired (jobs "created") by some public works project are, if not entirely meaningless, not particularly helpful. The relevant question is whether the project creates additional value, i.e., gives people something they desire or increases the productivity of the economy, in an amount greater than some alternative use of the funds expended upon it.
Sharp readers will note that this statement implies that there are circumstances in which government might "create" jobs in the sense of causing there to be more jobs than there otherwise might be. This is true. Public education can create jobs although this does not mean that every dime spent on public education does so or that any additional spending on public education is justified. Highways may create jobs but, again, this doesn't mean that all highways are justified. Even consumer rail might create jobs but, given its cost and the demographics in most parts of the United States, that is unlikely.
The real test of any expenditute of public funds is whether it constitutes a better use of dollars than alternative uses - including private ones. In addition, that question must take into account the fact that state expenditures involve coercion. One does not have to be a Randian or regard private property rights as absolute to believe that regard for the intrinsic value of human beings and their autonomy creates a certain presumption against taking the fruits of their labor.
Of course, a presumption can be overcome but it is also true that, in the great run of cases, market mechanisms are ging be more efficient in directing funds to the most productive or desired use than centralized bureaucracies.
Not always, but mostly.
In another sense of the word, it is almost certainly a false statement. It is false if you mean by "create" a net addition of 8100 jobs. That $ 810 million must come from somewhere. Had it remained where it was, it would save for the rare possibility of something like a Keynesian "liquidity trap") have been put to some use. That use also would have resulted in people being hired. I have not, therefore, added jobs to the economy in the numbers that I have claimed for I have also caused other jobs not to be created.
This is why statements about how many people would be hired (jobs "created") by some public works project are, if not entirely meaningless, not particularly helpful. The relevant question is whether the project creates additional value, i.e., gives people something they desire or increases the productivity of the economy, in an amount greater than some alternative use of the funds expended upon it.
Sharp readers will note that this statement implies that there are circumstances in which government might "create" jobs in the sense of causing there to be more jobs than there otherwise might be. This is true. Public education can create jobs although this does not mean that every dime spent on public education does so or that any additional spending on public education is justified. Highways may create jobs but, again, this doesn't mean that all highways are justified. Even consumer rail might create jobs but, given its cost and the demographics in most parts of the United States, that is unlikely.
The real test of any expenditute of public funds is whether it constitutes a better use of dollars than alternative uses - including private ones. In addition, that question must take into account the fact that state expenditures involve coercion. One does not have to be a Randian or regard private property rights as absolute to believe that regard for the intrinsic value of human beings and their autonomy creates a certain presumption against taking the fruits of their labor.
Of course, a presumption can be overcome but it is also true that, in the great run of cases, market mechanisms are ging be more efficient in directing funds to the most productive or desired use than centralized bureaucracies.
Not always, but mostly.
Wednesday, November 10, 2010
Return of the Shark: Walker hits the ground running
This has probably been my longest hiatus from blogging but I didn't want to have take sides in the recent midterm elections.
Or, of you don't believe that, I have just completed a month or so of a series of outside events and dead tree writing, including talks in Southern California, western Virginia and New York City. Throw that in with the ordinary course of business and some personal issues and there has been no time to blog. I am happy to report that the polity seems to have thrived without me.
Still, its time to come back. My impressions on the rise of the Tea Party and its influence on the midterms will be forthcoming in the WI Interest. What I find intriguing is that, before the celebratory hangovers had even subsided, Scott Walker made high speed rail the first issue of his nascenct administration.
I've written in the Journal Sentinel that the debate over high speed rail frustrates me. Advocates are almost never willing to address the real economic issues in proposed systems. Analyses have shown that commuter rail is almost never economically justified on a wide variety of measures. This is not the same as saying that it does not "pay for itself." Generally speaking, what it costs (from all sources) exceeds its benefits (to all beneficiaries).
This shouldn't surprise us. Rail is an outmoded technology. It is good at moving large quantities of people or things between two fixed points. It may still work well when there are large numbers who wish to travel between those two points and then, upon arrival, go nowhere other than to another fixed point served by the rail line or some extended system of transportation that it is not too inconvenient or inexpensive.
In contemporary America, this is rarely so. So advocates must accept magical numbers regarding ridership or economic benefit to justify proposed systems.
Or, as with the train proposed to run from Milwaukee to Madison, they regard federal funds as free money. We don't hear much about why it makes sense to spend over $ 800 million dollars on a train that few people can be expected to ride. It is, we hear, "free money" since it comes from the federal government.
I suppose, although there is still the almost certain cost overruns and operating expenses (which may or may not be subsidized). But there is a certain peversity in that view. I tis precisely what leads to unchecked and irresponsible spending as every one wants to get part of the money that no one would actually spend were it her own.
That Scott Walker is refusing to play this game suggests that he may be a different type of Governor.
Or, of you don't believe that, I have just completed a month or so of a series of outside events and dead tree writing, including talks in Southern California, western Virginia and New York City. Throw that in with the ordinary course of business and some personal issues and there has been no time to blog. I am happy to report that the polity seems to have thrived without me.
Still, its time to come back. My impressions on the rise of the Tea Party and its influence on the midterms will be forthcoming in the WI Interest. What I find intriguing is that, before the celebratory hangovers had even subsided, Scott Walker made high speed rail the first issue of his nascenct administration.
I've written in the Journal Sentinel that the debate over high speed rail frustrates me. Advocates are almost never willing to address the real economic issues in proposed systems. Analyses have shown that commuter rail is almost never economically justified on a wide variety of measures. This is not the same as saying that it does not "pay for itself." Generally speaking, what it costs (from all sources) exceeds its benefits (to all beneficiaries).
This shouldn't surprise us. Rail is an outmoded technology. It is good at moving large quantities of people or things between two fixed points. It may still work well when there are large numbers who wish to travel between those two points and then, upon arrival, go nowhere other than to another fixed point served by the rail line or some extended system of transportation that it is not too inconvenient or inexpensive.
In contemporary America, this is rarely so. So advocates must accept magical numbers regarding ridership or economic benefit to justify proposed systems.
Or, as with the train proposed to run from Milwaukee to Madison, they regard federal funds as free money. We don't hear much about why it makes sense to spend over $ 800 million dollars on a train that few people can be expected to ride. It is, we hear, "free money" since it comes from the federal government.
I suppose, although there is still the almost certain cost overruns and operating expenses (which may or may not be subsidized). But there is a certain peversity in that view. I tis precisely what leads to unchecked and irresponsible spending as every one wants to get part of the money that no one would actually spend were it her own.
That Scott Walker is refusing to play this game suggests that he may be a different type of Governor.
Tuesday, October 12, 2010
More Bad Economics
Tom Foley just can't understand why PolitiFact would pronounce Russ Feingold's assertion that free trade deals have cost Wisconsin 64,000 jobs to be half true.
Neither can I. I would call it "false" or, were I given that option and inclined to be more charitable, wholly unsubstantiated.
I would direct Tom to Frederic Bastiat who observed that the difference between a good and bad economist is the ability of the former to recognize the unseen.
Feingold's protectionism is the economic equivalent of young earth creationism. Virtually no serious economist buys it. If jobs are moved to where they can be performed more cheaply, the money that is saved does not disappear. We may no longer build typewriters or pay unionized workers premium wages for turning lug nuts, but the difference is invested and new jobs are created. This is true even if other countries engage in protectionist practices.
Looking at the net gain or loss in manufacturing jobs tells us nothing. The new jobs may or may not be manufacturing jobs and, of course, pacts like NAFTA are hardly the only - and probably not the principal - impact on the growth and decline in these jobs. Manufacturing jobs have been declining from well before the passage of NAFTA.
This is the creative destruction that Feingold and his supporters pretend they cannot understand.
Neither can I. I would call it "false" or, were I given that option and inclined to be more charitable, wholly unsubstantiated.
I would direct Tom to Frederic Bastiat who observed that the difference between a good and bad economist is the ability of the former to recognize the unseen.
Feingold's protectionism is the economic equivalent of young earth creationism. Virtually no serious economist buys it. If jobs are moved to where they can be performed more cheaply, the money that is saved does not disappear. We may no longer build typewriters or pay unionized workers premium wages for turning lug nuts, but the difference is invested and new jobs are created. This is true even if other countries engage in protectionist practices.
Looking at the net gain or loss in manufacturing jobs tells us nothing. The new jobs may or may not be manufacturing jobs and, of course, pacts like NAFTA are hardly the only - and probably not the principal - impact on the growth and decline in these jobs. Manufacturing jobs have been declining from well before the passage of NAFTA.
This is the creative destruction that Feingold and his supporters pretend they cannot understand.
Last night's debate: John Galt v. Tom Joad?
It is is a common Democratic trope to call Republicans stupid. Conservatives are insufficiently informed about global warming and the implications of evolutionary science. They don't understand that embryos harvested at the blastocyst stage (before implantation) are just a clump of cells. They don't seem to understand that homosexuality is not a choice (even if its not a gene).
But the economic misunderstandings displayed by Democrats are often staggering. Russ Feingold is quickly becoming Exhibit A. He has taken a rather perceptive comment by Ron Johnson about creative destruction - one that virtually no mainstream economist would disagree with - represents some sort of heartlessness.
We can argue about the extent to which government might ameloriate the impact of creative destruction, but does Sen. Feingold really believe that it should be prevented? Should we tax every day people to prop up typewriter and film manufacturers? Should we have floated municipal bonds to save the blacksmith shop? Should those same every day Joes be forced to pay more for their flat screens to keep Zenith building televisions in the United States?
Feingold's misunderstanding of Atlas Shrugged is of a piece with that. The villians are not every day people who work, but the looting class that wishes to control - and profit from - the work of others; to reap where they did not sow and to rule the innocent by making them criminals.
I am not a Randian, but Johnson may have cited another Rand novel, The Fountainhead, to the effect that the upper class is a nation's past, while the middle class is its future. The difference between the two has to do with the way in which the middle class creates and sustains itself.
But the economic misunderstandings displayed by Democrats are often staggering. Russ Feingold is quickly becoming Exhibit A. He has taken a rather perceptive comment by Ron Johnson about creative destruction - one that virtually no mainstream economist would disagree with - represents some sort of heartlessness.
We can argue about the extent to which government might ameloriate the impact of creative destruction, but does Sen. Feingold really believe that it should be prevented? Should we tax every day people to prop up typewriter and film manufacturers? Should we have floated municipal bonds to save the blacksmith shop? Should those same every day Joes be forced to pay more for their flat screens to keep Zenith building televisions in the United States?
Feingold's misunderstanding of Atlas Shrugged is of a piece with that. The villians are not every day people who work, but the looting class that wishes to control - and profit from - the work of others; to reap where they did not sow and to rule the innocent by making them criminals.
I am not a Randian, but Johnson may have cited another Rand novel, The Fountainhead, to the effect that the upper class is a nation's past, while the middle class is its future. The difference between the two has to do with the way in which the middle class creates and sustains itself.
Wednesday, October 06, 2010
Does Russ Respect Rights
In the event that people feel that Charlie Sykes criticism of Russ Feingold's use of NFL footage in his ad is partisan hyperbole, it is not.
Those who know me may have heard me say that I think much of Intellectual Property Law is facism. But, in my capacity as General Counsel of a moderately sized multi-national corporation, I was faced - at least once and maybe more often - with questions of whether our marketing people could grab small bits of NFL video in marketing pieces - including one in which we had hired a former NFL player to promote one of our products and wanted to show the guy scoring a touchdown in the Super Bowl. Our IP guy told us - quite correctly - that we couldn't do that. He explained to me that it wasn't even a close question. He showed me that the law was clear and noted the NFL's well known vigilance in protecting its property rights. I didn't like it, but I accepted it.
It really is hard to see this as an honest mistake. Ad agencies and campaigns are lousy with lawyers and no lawyer or agency in business for more than a week and a half would have failed to recognize this issue.
When you combine this with Feingold's creepy attempt to make one of his ads look like a news broadcast, this campaign seems to be in need of some ethical guidance.
Those who know me may have heard me say that I think much of Intellectual Property Law is facism. But, in my capacity as General Counsel of a moderately sized multi-national corporation, I was faced - at least once and maybe more often - with questions of whether our marketing people could grab small bits of NFL video in marketing pieces - including one in which we had hired a former NFL player to promote one of our products and wanted to show the guy scoring a touchdown in the Super Bowl. Our IP guy told us - quite correctly - that we couldn't do that. He explained to me that it wasn't even a close question. He showed me that the law was clear and noted the NFL's well known vigilance in protecting its property rights. I didn't like it, but I accepted it.
It really is hard to see this as an honest mistake. Ad agencies and campaigns are lousy with lawyers and no lawyer or agency in business for more than a week and a half would have failed to recognize this issue.
When you combine this with Feingold's creepy attempt to make one of his ads look like a news broadcast, this campaign seems to be in need of some ethical guidance.
Sunday, September 26, 2010
It's A Wonderful Life but Social Security? Not So Much
I have met Jay Bullock a few times. He seems like a nice enough guy and I am sure he is a very good English teacher. Heck, he might even the second best English teacher in MPS. (Sorry, Jay, but top honors go to Karra Esenberg at Hamilton.)
But, Jay, you're thinking about this social security thing all wrong.
He seems to think that his insurance company (and mine), American Family, operates its business like the government has operated social security. If I thought that were true, I'd be looking at the Gekko or the ditzy girl with too much make up.
Jay fundamentally misunderstands the analogy between social security and a ponzi scheme. It is not that the government should have kept excess social security dollars locked in a vault. That would have been better than what it did do, but would have been its own piece of mismanagement. Jay says I would have beaten George Bailey to death for putting the money in Joe's house.
Not hardly.
In fact, had good old George failed to do so, I would have taken my money over to mean old Mr. Potter. Lending to Joe is how George earns the money to pay me interest.
But the social security trust fund is no Bailey Building & Loan. It did not lend its money to Joe. Lending the money to Joe - and to the Kennedys and Mrs. Macklin and a hundred others - gave that broken down old Building & Loan a claim on someone else's assets (it carries a mortgage on Joe's house) and a right to be paid income on that claim. (Joe owes principal and interest). The trust fund could have invested its money (much like American Family invests its money)in a way that gave it a claim on a someone else's assets. But it didn't. Think of Uncle Billy losing or blowing the money and leaving George with nothing but his IOU. Now that would have truly meant bankruptcy, scandal and prison.
Now, to be fair to Jay, you could operate social security (although not an insurance company) on a pay as you go basis. Insurers don't do that because they can't compel policyholders to stay with the company and can't raise the rates to whatever is required to pay current claims (and because, for those and other reasons, regulators wouldn't let them). The government, of course, has a more or less captive customer base. Taxpayers can't take their business "elsewhere."*
But social security long ago abandoned a strict notion of "pay as you go" and for good reason. We have know for a long time that birth rates following 1964 were far lower than those between 1946 and 1964. We have long known that this was going to result in a reduced ratio of workers to retirees when the little darlings born between 1946 and 1964 hang it up.
Not very complicated math demonstrated that this would result in levels of taxation that would be politically - and perhaps even economically - unsustainable. (Taxpayers may be unlikely to go elsewhere but they can prefer leisure to labor.) So we decided to charge our current "customers" "extra" to fund the largely predictable costs that would be incurred when it came time for them, as a class, to submit their "claims."
The government should not have kept the money in a safe. It should have invested it in conservative investments outside the federal government. This is, after all, what both private and public pension funds do.
Indeed, Jay should probably be a bit more concerned with this than he is. MPS has promised over two billion dollars of unfunded benefits to future retirees. If, in the end, taxes are imposed on city residents to pay those benefits, we should just rename ourselves "New Detroit."
Jay argues that, well, if the government had not done this, every dollar invested would have been a dollar in additional deficit spending or taxes. Another possibility, apparently even too hard to imagine, would have been reduced spending. But to suggest that behaving responsibly would have been hard takes nothing away from Johnson's original point that social security has been operated as a Ponzi scheme.
In the end, Jay succumbs in the end to the Ultimate Stupid Blogger Trick of the left. Concern about social security is, in the end, reducible to fear of the "Brown Menace." He cites Charlie Crist's proposition that we could fix the problem by creating a "path to citizenship." Because some critics of social security don't do that, they are, implicitly, racists or cynical exploiters of racism. I hope he doesn't teach his students to be that intellectually lazy.
Crist's comments reflect a misunderstanding of the problem. He thinks the trust fund has assets. Beyond that, current levels of illegal entry won't fix the problem. Most illegal residents already pay social security taxes. There are many issues surrounding immigration about which reasonable people can differ. Playing the race card against conservatives in general (as opposed to some particular position that might be fairly characterized in that way) fouls, rather than advances, the conversation.
* Of course, increased taxation can result in a reduced tax base.
But, Jay, you're thinking about this social security thing all wrong.
He seems to think that his insurance company (and mine), American Family, operates its business like the government has operated social security. If I thought that were true, I'd be looking at the Gekko or the ditzy girl with too much make up.
Jay fundamentally misunderstands the analogy between social security and a ponzi scheme. It is not that the government should have kept excess social security dollars locked in a vault. That would have been better than what it did do, but would have been its own piece of mismanagement. Jay says I would have beaten George Bailey to death for putting the money in Joe's house.
Not hardly.
In fact, had good old George failed to do so, I would have taken my money over to mean old Mr. Potter. Lending to Joe is how George earns the money to pay me interest.
But the social security trust fund is no Bailey Building & Loan. It did not lend its money to Joe. Lending the money to Joe - and to the Kennedys and Mrs. Macklin and a hundred others - gave that broken down old Building & Loan a claim on someone else's assets (it carries a mortgage on Joe's house) and a right to be paid income on that claim. (Joe owes principal and interest). The trust fund could have invested its money (much like American Family invests its money)in a way that gave it a claim on a someone else's assets. But it didn't. Think of Uncle Billy losing or blowing the money and leaving George with nothing but his IOU. Now that would have truly meant bankruptcy, scandal and prison.
Now, to be fair to Jay, you could operate social security (although not an insurance company) on a pay as you go basis. Insurers don't do that because they can't compel policyholders to stay with the company and can't raise the rates to whatever is required to pay current claims (and because, for those and other reasons, regulators wouldn't let them). The government, of course, has a more or less captive customer base. Taxpayers can't take their business "elsewhere."*
But social security long ago abandoned a strict notion of "pay as you go" and for good reason. We have know for a long time that birth rates following 1964 were far lower than those between 1946 and 1964. We have long known that this was going to result in a reduced ratio of workers to retirees when the little darlings born between 1946 and 1964 hang it up.
Not very complicated math demonstrated that this would result in levels of taxation that would be politically - and perhaps even economically - unsustainable. (Taxpayers may be unlikely to go elsewhere but they can prefer leisure to labor.) So we decided to charge our current "customers" "extra" to fund the largely predictable costs that would be incurred when it came time for them, as a class, to submit their "claims."
The government should not have kept the money in a safe. It should have invested it in conservative investments outside the federal government. This is, after all, what both private and public pension funds do.
Indeed, Jay should probably be a bit more concerned with this than he is. MPS has promised over two billion dollars of unfunded benefits to future retirees. If, in the end, taxes are imposed on city residents to pay those benefits, we should just rename ourselves "New Detroit."
Jay argues that, well, if the government had not done this, every dollar invested would have been a dollar in additional deficit spending or taxes. Another possibility, apparently even too hard to imagine, would have been reduced spending. But to suggest that behaving responsibly would have been hard takes nothing away from Johnson's original point that social security has been operated as a Ponzi scheme.
In the end, Jay succumbs in the end to the Ultimate Stupid Blogger Trick of the left. Concern about social security is, in the end, reducible to fear of the "Brown Menace." He cites Charlie Crist's proposition that we could fix the problem by creating a "path to citizenship." Because some critics of social security don't do that, they are, implicitly, racists or cynical exploiters of racism. I hope he doesn't teach his students to be that intellectually lazy.
Crist's comments reflect a misunderstanding of the problem. He thinks the trust fund has assets. Beyond that, current levels of illegal entry won't fix the problem. Most illegal residents already pay social security taxes. There are many issues surrounding immigration about which reasonable people can differ. Playing the race card against conservatives in general (as opposed to some particular position that might be fairly characterized in that way) fouls, rather than advances, the conversation.
* Of course, increased taxation can result in a reduced tax base.
Thursday, September 23, 2010
Just A Little on Vote Caging
A commenter in response to my earler post on our hapless (and now ex-) SEIU operative wanted to know if I would offer a "a similar critique about the just-exposed conservative voter suppression efforts ...." Faith will be rewarded.
One Wisconsin Now accuses certain conservative operates from running what they call "a vote caging" operation which, according to Bill Christofferson, is made illegal by the National Voter Registration Act.
The first thing to note is that "vote caging" is not a legal term. Some things that people call "vote caging" might be illegal, but not because of a direct legal prohibition against it.
By vote caging, most people mean a process in which potential voters are sent some type of mail that is either nonforwardable or requires a response and then some effort to remove these voters from the rolls when the mail is returned or there is no response.
The federal statute referred to by Mr. Christofferson is not, as he seems to think, an absolute prohibition against ever challenging a voter on the basis that they do not reside within the voting district, but a limitation on the circumstances under which states may remove registrants from the rolls based on failure to vote or change of registration. Thus, the state can't simply remove registrants on the basis of returned mail. But this doesn't preclude any further inquiry as to the eligibility of a voter. Compare, e.g., U.S. Student Ass'n Foundation v. Land
546 F.3d 373 (6th Cir. 2008) with Bell v. Marinko, 367 F.3d 588 (6th Cir. 2004).
Techniques referred to as vote caging sometimes involve challenges at the polls, but it is unclear to me that the groups here were planning to do that. Such a practice has been challenged when specifically targetted at minority voters, but there is not, in my voew, a general prohibition against challenges that a voter is ineligible because he or she doesn't live within the district.
However, it seems fairly obvious that such a challenge is not going to succeed if it based on nothing more than returned mail. The documents seem to suggest that the groups were planning to do much more than that, but, if it was their intent to seek the removal of, or make challenges to, voters based on returned mail, it wouldn't have worked. It wouldn't have forced the casting of provisional ballots and, depending on how it was implemented, might have faced other legal challenges.
One Wisconsin Now accuses certain conservative operates from running what they call "a vote caging" operation which, according to Bill Christofferson, is made illegal by the National Voter Registration Act.
The first thing to note is that "vote caging" is not a legal term. Some things that people call "vote caging" might be illegal, but not because of a direct legal prohibition against it.
By vote caging, most people mean a process in which potential voters are sent some type of mail that is either nonforwardable or requires a response and then some effort to remove these voters from the rolls when the mail is returned or there is no response.
The federal statute referred to by Mr. Christofferson is not, as he seems to think, an absolute prohibition against ever challenging a voter on the basis that they do not reside within the voting district, but a limitation on the circumstances under which states may remove registrants from the rolls based on failure to vote or change of registration. Thus, the state can't simply remove registrants on the basis of returned mail. But this doesn't preclude any further inquiry as to the eligibility of a voter. Compare, e.g., U.S. Student Ass'n Foundation v. Land
546 F.3d 373 (6th Cir. 2008) with Bell v. Marinko, 367 F.3d 588 (6th Cir. 2004).
Techniques referred to as vote caging sometimes involve challenges at the polls, but it is unclear to me that the groups here were planning to do that. Such a practice has been challenged when specifically targetted at minority voters, but there is not, in my voew, a general prohibition against challenges that a voter is ineligible because he or she doesn't live within the district.
However, it seems fairly obvious that such a challenge is not going to succeed if it based on nothing more than returned mail. The documents seem to suggest that the groups were planning to do much more than that, but, if it was their intent to seek the removal of, or make challenges to, voters based on returned mail, it wouldn't have worked. It wouldn't have forced the casting of provisional ballots and, depending on how it was implemented, might have faced other legal challenges.
Monday, September 20, 2010
The "Sexting DA" and Attorney Discipline
There aren't many things that political bloggers of all stripes can agree on, but I suspect there is near unanimous support for the notion that Calument County District Attorney Ken Kratz has, on apparently more than one occasion, acted like a pathetic dweeb.
I suspect that there is almost as much support for the proposition that Kratz' behavior toward a victim of domestic abuse was worse than pathetic in that it showed an utter disregard for the victim's humanity. A woman who has been the victim of domestic abuse doesn't need to be hit on by a person charged with helping to protect her. In proposing an amorous relationship at a time when he was supposed to be prosecuting her abuser, Kratz placed her in an untenable position. She was not free to laugh in his face or even to let him down gently. She may well have felt pressure to accede to - or to at least play along - with his desires.
It would not be hard to see this as a form of "quid pro quo" sexual harassment. The problem was not the words he used, but what the words proposed. If he wanted a relationship with her (in violation of the rule that you ought not to date people who could be your children much less the overly generous "half your age plus seven" rule), he needed to wait until there was no longer a professional relationship.
People are now wondering why charges were not issued by the Office of Lawyer Regulation. OLR itself is prohibiting from commenting. Under SCR 22.40, investigations are confidential.
I should point out that I am part of the attorney discipline system. I serve as a referee, i.e., I am assigned to sit as the "trial judge" in discipline cases and make - not a decision - but a recommendation to the Court. I don't see the cases until they are charged. Because of that, I don't want to comment further on the investigation which may have included significant material not in the public domain.
But ... I suspect that the question will now arise as to why "lawyers regulate lawyers." There are nonlawyers in the system and no charge can issue without review by a committee that includes nonlawyers. Often, a committee including nonlawyers will be involved in an investigation, but the rules do not make this mandatory.
Maybe a charge should have been brought in the Krantz case, but the reason that it wasn't is not that OLR is soft on lawyers.
The short answer to the question I've posed is that it takes professionals to judge many forms of professional misconduct. But there is misconduct which is more evident (this case may well involve it) and I fear that some people may believe that the OLR "goes easy" on lawyers.
Based on my experience, that is simply not the case. While it may be somewhat understaffed, my impression is that the OLR takes its charge quite seriously and, in my experience, it does take positions that are, from time to time, harsher toward the lawyer respondent than I would take. While I don't believe it is overly harsh, neither do I think that it is an easy mark.
I suspect that there is almost as much support for the proposition that Kratz' behavior toward a victim of domestic abuse was worse than pathetic in that it showed an utter disregard for the victim's humanity. A woman who has been the victim of domestic abuse doesn't need to be hit on by a person charged with helping to protect her. In proposing an amorous relationship at a time when he was supposed to be prosecuting her abuser, Kratz placed her in an untenable position. She was not free to laugh in his face or even to let him down gently. She may well have felt pressure to accede to - or to at least play along - with his desires.
It would not be hard to see this as a form of "quid pro quo" sexual harassment. The problem was not the words he used, but what the words proposed. If he wanted a relationship with her (in violation of the rule that you ought not to date people who could be your children much less the overly generous "half your age plus seven" rule), he needed to wait until there was no longer a professional relationship.
People are now wondering why charges were not issued by the Office of Lawyer Regulation. OLR itself is prohibiting from commenting. Under SCR 22.40, investigations are confidential.
I should point out that I am part of the attorney discipline system. I serve as a referee, i.e., I am assigned to sit as the "trial judge" in discipline cases and make - not a decision - but a recommendation to the Court. I don't see the cases until they are charged. Because of that, I don't want to comment further on the investigation which may have included significant material not in the public domain.
But ... I suspect that the question will now arise as to why "lawyers regulate lawyers." There are nonlawyers in the system and no charge can issue without review by a committee that includes nonlawyers. Often, a committee including nonlawyers will be involved in an investigation, but the rules do not make this mandatory.
Maybe a charge should have been brought in the Krantz case, but the reason that it wasn't is not that OLR is soft on lawyers.
The short answer to the question I've posed is that it takes professionals to judge many forms of professional misconduct. But there is misconduct which is more evident (this case may well involve it) and I fear that some people may believe that the OLR "goes easy" on lawyers.
Based on my experience, that is simply not the case. While it may be somewhat understaffed, my impression is that the OLR takes its charge quite seriously and, in my experience, it does take positions that are, from time to time, harsher toward the lawyer respondent than I would take. While I don't believe it is overly harsh, neither do I think that it is an easy mark.
SEIU Operative Kicks His Own A**
One of the things about blogs is that they can extend stories that appear in the mainstream media. Yesterday, Dan Bice wrote on comments by a union operative who said that he was going to "kick Scott Walker's ass" over the O'Donnell Park tragedy and problems at the Milwaukee County Mental Health Complex. In describing the coming campaign, he referred to things that Tom Barrett planned to say in coming debates.
I was interviewed for the story and was quoted as saying that I "could see the labor union encountering problems if it ran ads on the O'Donnell Park tragedy now that an employee is on record saying he talked with Barrett's staff about hitting Walker on this issue." Retired Elections Board lawyer George Dunst apparently agreed.
That's exactly what I said. Here's the problem. The SEIU, in a post-Citizens United world, is perfectly free to run ads that say bad things about Scott Walker. What it can't do is coordinate those communications with the Barrett campaign. If it does, it runs the risk of violating, among other things, laws that forbid providing something of value to a campaign with, to generalize, "unregulated" money.
That a guy from SEIU says that he is discussing a planned attack campaign with the Barrett campaign suggests coordination. To avoid such a suggestion, sophisticated operatives don't have those conversations. Or, if they have them, they don't tell strangers on the street.
I don't know if there was coordination. But, if SEIU now spends money to run attack ads focusing on O'Donnell Park and the County Health Complex, regulators are almost going to have to investigate.
I was interviewed for the story and was quoted as saying that I "could see the labor union encountering problems if it ran ads on the O'Donnell Park tragedy now that an employee is on record saying he talked with Barrett's staff about hitting Walker on this issue." Retired Elections Board lawyer George Dunst apparently agreed.
That's exactly what I said. Here's the problem. The SEIU, in a post-Citizens United world, is perfectly free to run ads that say bad things about Scott Walker. What it can't do is coordinate those communications with the Barrett campaign. If it does, it runs the risk of violating, among other things, laws that forbid providing something of value to a campaign with, to generalize, "unregulated" money.
That a guy from SEIU says that he is discussing a planned attack campaign with the Barrett campaign suggests coordination. To avoid such a suggestion, sophisticated operatives don't have those conversations. Or, if they have them, they don't tell strangers on the street.
I don't know if there was coordination. But, if SEIU now spends money to run attack ads focusing on O'Donnell Park and the County Health Complex, regulators are almost going to have to investigate.
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