Sunday, April 30, 2006

United 93

The Reddess and I saw United 93 this afternoon. This isn't a movie review, but it is incredibly well done and, literally, gutwrenching. At the end of the film, the theater was in silence, save the sound of the audience crying.

I came home and read this column(subscription required by David Thomson in the Sunday New York Times.

It's not a model of clarity and is not well written, but it concludes with the following:

The really difficult film to make or offer in America will be the one that says, no, the world did not alter its nature on 9/11, even if the worst politicians used that event to switch their reality. But on 9/11, we faced the first need to ask ourselves how other people - evil, alien, insane - could be so brave. The history of terrorism - and it includes the indepencence of this country - is that in the end, you have to understand the grievance of the aggrieved, whether you agree with it or not. That film has still to come.

There is so much that is wrong with that statement, that I will start with the one thing that is true. The world didn't change on 9/11. Evil existed before that awful day as well as the need to resist it.

So we certainly did have to ask how "other people" could be "so brave." Japanese kamikaze pilots were brave. Hitler was inexpressably evil, but he was brave. Unfortunately, courage in the service of evil is not new.

United 93 reflects the courage of the hijackers. What it does not do is try to portray their grievance, other than to unashamedly root it in Islam.

Elsewhere in the column, Thomson juxtaposes patriotism and art, stating that the latter understands that people "have their reasons" for committing atrocious acts.

Yes, people do. But sometimes those reasons are evil. Sometimes they do not deserve a sympathetic rendering. Does Thomson think that Mississippi Burning was less than it could be because it didn't explore the "reasons" that white southerners had for wanting a segregated society?

We understand the "grievances" that led to 9/11. It was a belief, on the part of some Muslims encouraged by oil despots in Saudi Arabia, that Islam should rule the earth, or at least the middle eastern part of it.

I understand. And the response of the passengers of United 93 - the very first response - was the right one. Fierce resistance.

Saturday, April 29, 2006

How are the Packers doing?

I never thought they'd be dumb enough to pass up A.J. Hawk for Vernon Davis. Sometimes I wonder if the MJS' sports page is complicit in the the Packers' pre-draft disinformation campaign. Davis may be a great player too, but Hawk has the potential to be what LeRoy Butler and Wayne Simmons were for the defense, I think he immediately makes Nick Barnett the player that he can be, rather than a guy who basically has to make three times his share of the plays. Getting Hodge in the third round (!) may take the Packers linebackers from an extraordinary weakness to a very solid strength.

That would be quite an accomplishment for day one. But what else have they done? I think it's safe to say that Greg Jennings is not Javon Walker, but I think he may be a very good no. 4 next year. I think Mark Boerichter will be a solid 3 and Driver is good enough to be a no. 1. The big question is whether Rob Gardner can move up to being a no. 2 receiver. They still have issues at wide receiver.

They picked up two interior lineman. It doesn't seem likely that either will start, but it's not outrageous that one of them could and improve what is a weak area.

Right now, I'm starting to like their defense a lot. It was better than we expected last year and with free agency and the draft, it figures to be much better next year. Getting Ahman Carroll off the field will help immensely. I think the D will keep them in most games. You still don't like KGB playing every down and they still have an issue in nickel and dime situations, but I think their defense is prepared to do very well against next year's schedule.

But the offense remains very problematic. It'd be less so if Ahman returns to form, but no one really expects that.

Step into luxury

Both Charlie Sykes and Jessica McBride are nonplussed that the state spends as much as $1195/month on auto leases. Jessica even posts a picture of a Rolls Royce.

The Shark does not exaggerate. You can't lease a Rolls for $1195/month!

But we might be able to get you into a Mercedes S550. (MSRP $86,175). I have an internet quote of 1205 but we can deal, particularly if we are a big buyer like the state.

If that doesn't work, I am sure we can score a Jaguar XJ Vanden Plas. MRSP is only $71,834. Here's what your ride would look like:

Very, very sweet.

Say it ain't so, Phil

This is the funniest man in America. Phil Hendrie hosts a syndicated radio show originating in Los Angeles that is a hilarious send-up of talk radio. It's not on the air in Milwaukee, but I first heard it in LA about 8 years ago and listen on the internet.

It's hard to convey what he does. He hosts the show and generally has a series of "guests" who are actually characters he has made up and for whom he does the voices. When the show is working well, whatever story they are telling gets progressively outrageous. Although Hendrie is quite open about what he's doing on the air, there are always some people somewhere who don't get the joke and call in "outrage" over what they are hearing. The show is decidedly not politically correct, but Phil seems to get away with it because the joke is always told by a character who is not real and never admirable. (He has a regular stable of 20 or so characters, all with different voices.)

The guy's ability to ad-lib while going between being himself and being a character talking to himself (and occasionally he does two at a time), all while talking to a caller is uncanny.

I bring this up because it is a sad day. Phil announced last night that he is retiring from radio on June 23 to pursue his acting career. If you can catch his show before then, you should.

Friday, April 28, 2006

Rape by mistake?

Via the Volokh Conspiracy

Here's a story for married guys who miss the excitement of single life. A guy in Sydney picks up a woman at a party and goes back to her apartment. They get into bed. He gets up to use the head. He is (surprise) drunk and comes back to the wrong bedroom. He accidentally gets into bed with his intended conquest's flatmate who is asleep. It's dark and he claims not to notice the difference between this woman and the one who brought him home (with whom, I think it is safe to say, he was not overly familar.) He initiates the old horizontal macarena.

But ... she doesn't notice he is a stranger, either. It is dark, remember, and she thinks that this is her boyfriend, who had apparently been asleep on the couch. She, should we say, reciprocates - presumably with gusto.

When the lights go on, she is horrified and hysterical. She claims (and I believe her) that she was "quite gutted" that it was not her boyfriend. Our back door man is surprised and gets pushed out the front door just before the boyfriend wakes up. Boyfriend wants to beat the guy up, if not to protect her honor, at least as punishment for demonstrating that, in some areas of the boyfriend department, he must be a bit nondescript.

Our "victim of the night" is not about to take the "sorry, wrong body" excuse.

He is charged with sexual assault. He plans to plead not guilty.

Fascinating questions.

Is mutual mistake a defense to sexual assault?

Or let's assume he realized he was in the wrong room, is he guilty of misrepresentation? Would that vitiate her consent? Did he have an obligation to say "You don't know me, but how about ..."? What if she mentioned Boyfriend's name during amor? Should men think it strange if a woman speaks another's name in passion? Might that not be a fairly regular occurence for some guys?

TPA's little nephew

I haven't had a chance to look at the TPA passed by the Assembly this morning and have a sneaking suspicion that the Senate will render it moot, but I don't think that the proper way to look at it is that something is better than nothing. A toothless (or near toothless) TPA will take the steam out of the movement for real spending limitation.

On the other hand, politics is the art of the possible and half an enchilada may be better than an empty plate. The question is whether this does enough.

Bases on accounts in the press, I'm actually most concerned about tying the cap to personal income growth. Does this create a presumption that state spending "should" go up with personal income? Would it really restrain state spending? Remember that when the new TPA was proposed, opponents cited the Reschovsky study to argue that state spending has tracked personal income growth over the past twenty years. I am now hearing that there would have been some reduction had this TPA been in place, but how large would the reduction have been? I don't think that we can assume that this is just the first step with more to follow. This has to be good enough to live with.

I am less concerned with the fact that this TPA does not apply to local governments or state spending outside the general fund. If spending is shifting to localities or outside the general fund, it will be easier to make a case for a new form of limitation.

My initial impression is that this is just not worth the candle, but I think everyone should look at it a bit more closely.

Thursday, April 27, 2006

Shark and Shepherd on the Air

I will be part of the Backstory panel this afternoon on Eric Von's afternoon show on WMCS-1290. Topics may include the tire slashing verdicts, Tony Snow as press secretary, the price of gas and United 93.

More on the tire slashing verdicts

Seth Zlochota has been arguing in the comments section to my earlier post that Judge Brennan was wrong to sentence the defendants "as if" they had comitted voter suppression when all they had done was some property damage. Because I think he's probably not the only one to think this, I thought I'd explain in a new post why this is not problematic.

In taking into account the defendants' motive, Brennan did not sentence them "as if" they had committed a more serious crime. Sec. 12.09 of the statutes governs the use of "abduction, duress or any fraudulent device or contrivance" to prevent someone from voting. I don't know that it would have been possible to convict the defendants of that and that is probably why they weren't charged with it, but, if they had been convicted of that, it would have been class I felony calling for up to three years and six months in prison. Obviously, the judge did not sentence them "as if" they had been convicted of this. He handed out sentences ranging from four to six months which is within the range permitted for the charge they pled to. (In fact, he could have given them more.)

Even if you draw an analogy to other forms of prohibted interference with an election, many are felonies and all permit at least six months incarceration.

Seth seems to think that the judge has to ignore the circumstances surrounding the crime. There is absolutely no legal principle that requires that. The fact that there is a more serious charge available for a type of vote suppression which arguably did not occur here, does not mean that the defendants' motive - which was to prevent voting - cannot be taken into account in deciding where within the range of sentences which are permitted for the lesser charge of property damage the sentences should fall.

The other thing I have been hearing (not from Seth) is that it was wrong for the judge to reject the plea deal and he in some way sandbagged the defendants by doing so. While judges accept those deals more often than not, it is far from unheard of for them not to do so. In fact, Brennan told the defendants (as every judge does every time someone pleads guilty or no contest) that he was not bound by agreement and might sentence them to more.

When you slash tires to prevent people from getting to the polls in a presidential election in a state where the last presidential contest was decided by a handful of votes, you ought not be surprised that a judge thinks you shouldn't just walk away.

Wednesday, April 26, 2006

Will the Pack be back?

Brett Farve says he's coming back and the Packers sign Charles Woodson. Coincidence? I don't think so.

But it's still hard to be optimistic.

The team still needs 1 or 2 linebackers, a defensive end and two guards. They may fill one of these needs in the draft with Mario Williams (DE) or A.J. Hawk (LB). Or maybe they could draft D'Brickashaw Ferguson (T) and move Mark Tauscher to guard. But I don't know that they fill a second of these needs through the draft. And if Vince Young (QB) drops to 5, they have to take him, potentially leaving all needs unmet.

Maybe Brady Popinga can be a starting linebacker. Maybe they get by with KGB and Kampmann at DE.

Of course, if Javon Walker doesn't come back, they need a WR. I'm thinking that if Ahman Green can't come back, they need a RB because I don't know that Samkon Gado is an every down player. They can probably get a WR in the second round. I don't know where the RB comes from.

They also need a kicker but you should be able to find one somewhere.

Kane on Senior McGee

And while we are talking about Gene Kane, he is not upset about Michael McGee's jokes using the "n-word" and suggesting that persons of Mexican descent are too dumb to know where to pay their phone bill.

I will agree with his comment that black people are allowed to call each other the "n-word." That doesn't bother me. The "Taco Bell" joke, however, is the kind of thing that would have gotten Belling fired. The difference is the NOV doesn't really care what anyone outside its target audience thinks. It considers itself under absolutely no obligation to be responsible to the larger community or to abide by any standards of professionalism. In that sense, the difference between it and WMCS (from which I am not paid to be occasionally on the air) is light years.

That's why Kane is right when he says McGee has the most outrageous show around. I have heard him do far worse than last week's tastelessness. I have heard him describe how to make a molotov cocktail and use it in a way that would actually burn down a cosmetic store with a wooden roof during controversy in the black community over a Korean beauty supply store in which an African American woman had been allegedly mistreated. I have heard him broadcast all sorts of information about a college columnist who wrote a column he didn't like, implying, if not suggesting, that listeners go over to the guy's house and beat him up. We all know about his calls for a race war.

But is Kane saying that he is so contemptable to be beneath condemnation or using the "old story" trope to duck an issue that he obviously felt compelled to write about?

"Guilty" and "not guilty"

Observing that the Jude defendants were acquitted and the tire slashing defendants were sentenced to jail terms ranging from four to six months, Gene Kane asks:

But again, what does this say about the value of a man's life compared to a bunch of tires?

Putting aside the fact that Jude didn't lose his life, it says nothing. If the tire slashing defendants had been found not guilty, they would have walked as well. When you are acquitted, you don't get punished. When you are found - or plead - guilty, you do.

Had the Jude defendants been found guilty (or if they are in a federal prosecution), we will not be talking 4 to 6 months. They'd be lucky to see only 4 to 6 years.

Finally, what was at stake in the tire slashing case was not merely a bunch of tires, but an attempt, however misguided and ineffectual, to interfere with the electoral process. That makes it a more serious case than one involving mere property damage. Judge Brennan did the right thing. (I think he'd look good at the Wisconsin Supreme Court.)

Let's talk sense on health care

Jay Bullock and the Daily Koss-ers are pointing to column in the LA Times by conservative writer and NRO contributor Cathy Seipp. The Koss-er sees it as an indictment of our "atrocious and immoral system."

Seipp has lung cancer and is frustrated with her insurer, suspecting that it wants her to hurry up and die. This is supposed to be exhibit A for health care reform, presumably single payer.

I can empathize with anyone's frustration with an insurer and am going to cut a river of slack for someone who is battling cancer, but I think Seipp's column gets at a problem that plagues every type of health care decision-making. Who gets how much?

Health care is unique in that, when you really need it, your demand for it is insatiable and completely inelastic. We all would presumably pay any price not to die.

But, at the end of the day, society at large will not be willing, or able, to pay any price to save us, so there must be some vehicle for rationing. Single payer systems ration health care just as much - arguably more - than our system. That's one of the reasons that they are cheaper.

Seipp admits the company generally pays for her very expensive treatment (as it should). Her problems amount to this. First, she has a large deductible - $7500. She has a $30 co-pay on prescriptions but they add up for her because they must be refilled frequently. She doesn't say she can't afford all this, but she understandably doesn't like it and her share is apparently higher than when she first bought the policy. On the other hand, she apparently pays a premium of $395/month - that is dirt cheap. It doesn't surprise me that a policy like that would have high deductibles. In fact, one might argue that such a policy makes the most sense. Insurance is generally thought to be a hedge against extraordinary expense. Everyone is going to have a certain amount of health care expense every year just as they will have to pay a certain amount for gas, food, etc. As a friend of mine once said, "you don't buy grocery insurance." So why would we expect a predictable amount of health care to be free as opposed to acquiring insurance to cover the much higher costs associated with serious illness or injury. Seipp's deductible is high, but her premium is low.

Second, the insurer has failed to approve certain treatments that it regards as experimental, but that her doctor believes would be helpful. That's something worth getting angry about, but every health care system in the world does that. She acknowledges that she has the right to appeal and notes that, with respect to the denied treatment, her doctor and the drug company has said they will eat the cost if her insurer won't pay.

Understandably frustrated, she blames the problem on the desire for profit, noting that Wellpoint, the parent of her insurer, Blue Cross of California, earned a profit of 2.5 billion. The treatment it has denied as experimental runs $5000 every two weeks. Couldn't they throw an extra $130,000 per year her way?

Again, I understand how she feels but here is the reality. Wellpoint earned a net income of 2.5 billion on operating revenue of 44.5 billion. That's a margin of a bit over 5%. Hardly outrageous. Earnings amounted to a little under 4 bucks per share and Wellpoint trades at a bit over $69. Once again, not stupid profitability.

What would it cost Wellpoint to throw an extra $50,000 at anyone who can make a case that it "might" help? Wellpoint had 33.9 million insureds at the end of 2005. Let's say 1% were in that situation. The company would go from a 2.5 billion profit to a 1.9 billion dollar loss. Would even 1% be in that situation? Or would it be more? I don't know. The point is that, at some point, we run out of money. Eventually, in this or any other type of system, we reach a point where the answer must be "no."

I'm not saying all this to make insurance companies look like heroes or to say Cathy Seipp is not entitled to the treatment she wants (and is getting). The former is not true and the latter is a medical question.

What I am saying is that it is overly simplistic to think that everyone can have the health care they want (or maybe even that they need) and the only thing preventing it is someone's greed.

Tuesday, April 25, 2006

Satire becomes impossible, pt. 63980

In the early days of Saturday Night Live, Dan Ackroyd played Irving Mainway, a sleazy toy manufacturer, who offered toys like "Bag-o-glass" and "Johnny Human Torch," a bunch of oily rags with a lighter. When confronted by an investigative reporter played by Jane Curtin (or, sometimes, Candace Bergen), Mainway would argue that common place toys could also cause injury in some implausible way.

But when millions of a thing are sold, implausible things will happen. So a pair of Wisconsin legislators want to ban the "yo-yo waterball," a ball filled with water connected to a tether. A kid could wrap that thing around his neck and, apparently, a few have.

I am sometimes glad I got to get through childhood before people tried to make it risk free. If you can't have a yo-yo waterball, why a yo-yo? Why a jump rope? Certainly tetherball should be banned (I suspect it has; please don't tell me).

But, you know, if we can save even one kid by placing them in a hermetically sealed environment, step inside, my little darlings.

H/T: Charlie Sykes.

Conservatives shall inherit the earth

An interesting article appeared in the latest issue of Foreign Policy(subscription required.)

The article is written by Phillip Longman, a Senior Fellow at the New America Foundation, and he argues that the global future is conservative. This is so, he says, not because of conservatism's philosophical, economic or moral superiority (he may not even recognize any of these), but because of it's evolutionary advantages!

The key for Longman is patriarchy which he defines, not as male domination (although it may, to a greater or lesser extent, include that), but as a system in which the approved social roles are for a man to marry and provide for a family that will carry on his lineage. In return for a woman's agreement to bear and raise his children, he is to remain faithful and provide support. Women are to accept this support and, in return, are to specialize in the raising of children. Alternative roles, for both men and women, are disapproved.

Note that he distinguishes this from the type of mysogyny that characterizes certain middle eastern societies. Patriarchy confers rights and responsibilities on both men and women, but they are complementary not identical.

Patriarchy produces lots of children. One problem with it, though, is that people can get tired of it. Men grow weary of its burdens. Women tire of its limitations.

Patriarchy, according to Longman, has been largely rejected in much of western Europe and parts of the US. But the rise of non-patriarchal systems carry the genesis of their own decline. They don't produce lots of children. Much of the western world is now below the replacement rate. Birth rates in red states are higher than birth rates in blue states. There is a strong correlation between conservative social views and the number of children one has. Over time, these families and societies will come to outnumber the more liberal ones.

I'm a conservative who had one kid, so I'm not sure how much I buy this, but it is an interesting spin on political demography. Usually we hear that the higher birth rates among minorites will doom the GOP in the United States, but maybe our future is actually full of home schoolers.

God have mercy on the DOT

Jessica McBride blogs on the DOT video in which managers were in choir robes singing a Christian hymn. She suggests that the video mocked Christianity, but I'm not so sure.

According to the news account, the video began with a manager speaking into the camera and saying that "[w]e know last year was tough for you. It was tough for us, as well, so this morning, the southeast regional inspirational choir would like to bring you a song." Then a group of managers in choir robes were shown singing a hymn called "Looking For You", with lyrics that speak of the comfort of Christ. Here's how it begins:

I've been down so long,
I've been hurt for so long,
There were times I thought I would never so the break of day.
It was hard for me,to see your plan for me
And I tried to believe surely it won't last always
But night after night, (Night after night, Night after night)
I pray Lord don't take your joy from me
Then late one night I read in your love letter that it's gunna get betta

Jessica, being a real journalist might know some facts that I don't, but I guess I don't see this as mocking Christianity. Rather, it uses a Christian theme to mock the DOT, exaggerating their "woes" by suggesting they are so burdensome as to require divine sustenance. I see it as self-deprecating.

From what I can gather, the people who were offended seem to see it as an "endorsement" of Christianity or maybe even as subjecting them to a "prayer." But that seems wrong as well. While I don't think the video mocked Christianity, it certainly wasn't intended as a geniuine invocation of Jesus' favor on the DOT.

I suppose some people think you can't use religion to make fun of something. I think it can be a wonderful vehicle for, especially, self deprecating humor. Human beings, even as we seek God, can be absurd and I see nothing wrong with pointing that out.

(I like lawyer jokes, too.)

Others think you ought to have some lock down right never to be exposed to a religion other than your own or to be reminded that you are a religious minority. That type of overwrought sensitivity apparently made some employees oblivious to the fact that this wasn't an invocation of God, but, rather, used a Christian motif to poke fun at whatever "dire" situation the southeastern regional DOT thinks itself to be in. (That's probably a whole other story.)

Are others too sensitive or am I too cavalier?

Anatomy of a Veto

A lawyer from Madison had a column in the Milwaukee Journal Sentinel yesterday criticizing Governor Doyle's veto of a bill that would have changed (actually restored an earlier understanding of) Wisconsin's rules governing remedies for frivolous litigation. Although I am intimately familar with the limitations of a 700 word column, he doesn't quite explain it thoroughly, although his larger point is exactly correct.

Wisconsin had a rule that permitted courts to award attorney's fees against parties (and their lawyers) who brought frivolous claims. A word of explanation is in order. A frivolous claim is not a case you lose. It is not even a claim that you are likely to lose. It is, essentially, a claim that, under the law and facts, you can't win. It's a claim that no lawyer not under the influence of illegal substances should bring. If you want to compare it to a concept that is applied to the rest of the civilized world, it's negligence (actually, closer to recklessness).

The Wisconsin Supreme Court interpreted the rule to be mandatory. If the claim is found to be frivolous, the party against which it was filed gets it attorneys' fees and costs. In other words, it gets made whole like anyone else who is harmed by someone's negligence.

The new rule doesn't say that can't happen, but it says (in additon to some other things) that it doesn't have to and arguably provides that, in most cases, it shouldn't. It says that the penalty for a frivolous lawsuit should be " limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." It requires a specific finding that an award of attorneys' fees (i.e., compensating the victim for what he or she has lost)is necessary to deter future misconduct before they can be awarded. Otherwise, the court should impose some (presumably) lesser sanction.

The legislature moved to change this and Doyle, on Good Friday, vetoed the bill. He said it eliminates "judicial discretion" which, for some reason, must be sometimes be exercised so that a harm is not remedied.

The new rule was championed by trial lawyers and there is a tremendous irony there. The plaintiffs' bar would go ballistic if anyone proposed that persons hurt by negligence or a defective product need not be made whole. If Wisconsin Manufacturers & Commerce proposed that we change the law so that a court (or jury) need not fully compensate a plaintiff for what she has lost (i.e., medical expenses, lost wages, etc), but need only impose some type of award sufficient to deter such conduct in the future, there would be a mobilization like we haven't seen since the Allies landed at Normandy.

Some people made arguments about trying to get the state rule to mirror the federal rule, but you could say that what happened here is that the trial lawyers did not want to be subject to the same standards that they hold everyone else to.

And Doyle went along.

Monday, April 24, 2006

Free Speech Alert

This is getting tiring. A Penn State art student puts together an exhibit critical of Palestinian terrorism. He is scheduled to show his work at a university gallery, but then is told that he cannot because his work does "not promote cultural diversity" or "opportunities for democratic dialogue." Penn State has been sued by David French, a lawyer on the side of the angels who used to be the President of the Foundation for Individual Rights in Education, but is now with the Alliance Defense Fund. You can read the complaint here.

Race and the Jude case, pt. 1

Eugene Kane and Gregory Stanford want us to acknowledge that the Jude beating and verdict were about race. Near as I can tell, the argument is that white people do not know how racist we all - or some of us - are.

Was Jude beaten because he was black? There was testimony that the officers who beat him used the "n-word' (although, based on at least some of the pictures in the paper, I am not sure most people would have regarded Jude as black), but this may prove less than it seems to. When you are beating the tar out of a guy, chances are that you are really mad at him. People who, for whatever reason, are angry with others, tend to say the most hurtful things they can think of. The notion that what we say in anger reflects what is truly in our hearts had always struck me as wrong.

Still, these words matter and it may well be that Jude became the candidate for "badge thief", at least in part, because of he was preceived to be non-white.

Whether they went ahead and beat him because he was black seems less plausible. My stepfather is a retired firefighter. I grew up around cops and firemen. Mostly great people, but their occupational hazard is to come to regard the people they deal with - actual and suspected offenders - as vaguely subhuman. If I had a nickel for everytime I heard the word "s***bum" when I was growing up, I might own that second home in Tuscany. Yet this was in Greenfield back when you never saw a black person south of the Menomonee Valley. There is just such a thing as a bad cop and they come in all hues. Spivak and Bice recently reported on the beating of a biracial inmate by a black sheriff's deputy (also resulting in an acquittal). Take a bad cop and pour in eight hours worth of beer and you've got trouble.

What of the jury? The brain dead comments of juror Vaso Sasic do suggest that something may have been clouding common sense. It's unlikely that Jude was injured in the way he was by being taken down. But the other juror who spoke to the press suggested that the problem was not that the jury thought that Jude was not wrongly beaten, but that they could not conclude beyond a reasonable doubt that the cops who were charged were the ones who were responsible.

Kane thinks an African-American juror or several would have made a difference, but how would that work? How would the presence of black jurors clear up identification problems. Here is what he has to say:

Unfortunately, the jury refused to consider race as a possible factor in their deliberations. That is the kind of thing that happens with a group of people who are limited in terms of perspective and melanin.

An African-American juror or two may not have substantially changed the verdict, but chances are they could have influenced discussion in a case where Jude was beaten, allegedly by white cops who were using racial slurs.

What would it mean to consider "race as a possible factor" if the issue is, not whether Jude was beaten, but who did it? Would it mean that you convict these officers because they are white and you think white cops beat black suspects? Would it mean that you are committed to convict someone because someone "has to pay?" It seems that "considering race as a factor" is just as likely to cloud judgement as to clarify things.

Of course, there is a racial element to the case and this case is viewed in light of other cases as well, but what, exactly, would it mean to decide that the case is "about race" and to act accordingly? More on that tomorrow.

Feingold learns to love strict construction

I wrote a long post early this morning on race and the Jude verdict. Blogger lost it. I'll try to reconstruct it later.

In the car earlier, I heard a few minutes of an interesting discussion on Charlie Sykes show regarding the Feingold web commercial in which a Rove-like figure (complete with a 30s gangster movie voice - no such thing as laying it on too thick, I guess)tells a President "George W." (but its Washington, how mind blowingly ironic) to stop treating the Constitution like it was "set in stone."

Since when does Russ think the Constitution is "set in stone." Not during the Alito hearings, that's for sure. Whether or not you like Roe v. Wade, there is no way you get it without opting for a "living" - even mutating - Constitution. Charlie points out the "double standard." You can recognize a right of privacy not readily inferable from any provision in the Constitution, while the interpretation of the Fourth Amendment cannot be varied to reflect current realities.
But, if Feingold is guilty of hypocrisy, are conservatives as well? Do we want the Constitution "set in stone" when it comes to abortion, but "living and breathing" when it comes to terrorist surveillance?

I don't think so. In supporting the abortion right, Feingold is supporting a restriction on democratic government not readily inferable from any provision in the Constitution. In sponsoring his horrible campaign finance law with John McCain, he is taking an absolute constitutional prohibition ("Congress shall make no law abridging the freedom of speech") and making it relative in a way that undercuts core First Amendment values. While courts have long recognized some limitations on the speech right (i.e., no yelling "fire" in a crowded theater, no "fighting words"), making it unlawful for people to run ads criticizing politicians at election time unless they have raised the necessary money in a certain way strikes at the core of what the First Amendment is about. You've got to break the tablets to make that happen.

For Bush, the Fourth Amendment prohibits "unreasonable" searches and seizures. This invites judicial definiton of what is and is not unreasonable. Although the Clause goes on to state that no warrants shall issue without probable cause, the courts have always recognized that not all searches require warrants, i.e., not all warrantless searches are unreasonable. His interpetation of how that related to cross-border communications to acquire foreign intelligence is arguably constitent with the way that the Fourth has long been interpeted and in which Presidents have always (or at least often) acted. Read about that here.

Sunday, April 23, 2006

Everyone's a juror

Ann Althouse links to a great piece by Dahlia Lithwick in the Washington Post on the Duke rape case. On the off chance that one of my eleven readers does not look at Althouse, I thought I'd share the link.

Lithwick argues that we take cases like this and view them through the lenses of our presuppositions.

The same thing happened after the Kobe Bryant accusations surfaced. People made instant judgments -- based on their own experiences, or what they read in the paper, or what they simply knew to be true. People far from that resort in Colorado knew for certain that Bryant's accuser was a liar and a tramp. Women who had never heard of Bryant knew absolutely that he was a rapist.

Often, we express our uninformed opinion in service of some political point:

As with Simpson, Bryant and Jackson, this is becoming an inkblot test: We look to the facts to confirm our preexisting suspicions about what happens between men and women, rich people and poor people, black people and white people.

I've got a suggestion. When folks are accused of crimes, why don't we all just shut up until we know what we're talking about?

Friday, April 21, 2006

folkbum fumbles on the TPA

You know, I think Jay Bullock is a smart and thoughtful, albeit wrongheaded, commentator. He recently went mano-a-mano with Patrick McIhleran over the TPA. He claims victory, but I think he comes up short.

The problem with tax limitation measures he says is that government has these oh-so-unique costs that cannot be cabined by anything so prosaic as the rate of inflation or personal income growth. Government, you see, has to pay for ... people, while every other entity in the economy is paying for, I don't know, robots or something.

The cost of employing people (i.e., government workers) grows like corn in July, although please don't suggest that these people (i.e., government workers) are anything but underpaid and overworked.

Jay writes:

Whether that cost comes from unfunded pension obligations, the staggeringly expensive health care market in Southeast Wisconsin, or the need to pay better to attract better workers, there is no question that the price of keeping a steady workforce increases faster than any of the numbers a TABOR-like amendment would allow Milwaukee County to follow.

Here's a tip to liberals who want to argue for more government spending in Wisconsin. Ix-nay on the ounty-cay ension-pay. No good can come from mentioning that. It is exhibit A for a TPA. The reason that the pension is underfunded is that the County made promises it could never afford. It is in financial shambles today because of that, not because Scott Walker is a big meanie.

I know that health care costs are skyrocketing. I am a member of the senior management team of a corporation that sees the same higher costs. But you know what? We don't get to respond to that by allocating ourselves more money. We have to ask the employees to contribute more or take it out of something else. Life is hard sometimes.

The fact is that every private employer is limited by something external to itself. It can't raise prices much higher than the rate of inflation. Absent some innovation or extraordinary effort on its own behalf, it can't expect to raise revenues at a rate that exceeds the growth in the economy.

The argument that government spending cannot be kept within some larger metric because of labor costs eventually collapses into an argument that government can't control its labor costs.

Why would that be? One possibilty is that the system of determining what those costs will be is dominated by those interest groups who have a unique interest in the outcome, i.e., public employee unions.

And that is precisely the argument for something like the TPA.

I think I know what Jay's response would be, but I think I'll let him, if he wishes, make it before I respond.

Thursday, April 20, 2006

First Amendment Alert

There was what seems to be an awful decision today by a divided panel (2 of the 3 judges who heard the case) of the 9th Circuit in Harper v. Poway Unified School District. The case involved a high school student who decided to wear a t-shirt expressing his view that homosexuality is a sin in conjunction with a school-supported, if not sponsored, "Day of Silence" designed to promote the opposing view. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The kid was told he had to take the shirt off and was told to "keep his religion in his car."

The opinion upholding the school's censorship of his speech was written by Stephen Reinhardt, hands down the worst judge in America. He says that "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" are unprotected in schools because they "may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

But of course what he means is speech that is objectionable to the minorities that he approves of. That Chase Harper found the speech promoted by the Day of Silence to be injurious to and derogatory of his evangelical faith doesn't count. That a school, having permitted students to speak, would permit them to speak on only one side of a controversial issue is apparently fine in Reinhardt's Brave New World. I want to read the case and will blog more, but this strikes me as an extraordinarily authoritarian and wrongheaded decision. I doubt it will survive further scrutiny, either from the en banc 9th Circuit (all the judges in that circuit) or the Supreme Court.

Shark and Shepherd on Dead Tree

My latest column in the Milwaukee Journal-Sentinel is online and will be in tomorrow morning's paper. It's on the Jude verdicts.

At least it wasn't North Korea

If you are not already convinced that the UN is an irredeemably silly institution (and, if you are not, you are slow on the uptake), the fact that Iran was elected as vice-chair of the UN Nuclear Disarmament Commission should seal the deal.

FIRE strikes again

The student government at UW-LaCrosse tried to strangle a student publication called The Second Supper. The offending article had apparently portrayed Dick Cheney as a gang member and bore the headline "Cheney Kills Five Crips in Inner City Hunting Accident." The silly children who comprise LaCrosse's Student Association passed a resolution denouncing the paper's “racist, sexist, homophobic, ablest (sic.), anti-Semitists (sic.) speech” (No comment.) That would have been ok, but then they went on to order its distribution reduced from 2000 to 60 copies(later negotiated up to 900). (The student government controls the printing of student publications.)

After one of my favorite organizations, the Foundation for Individual Rights in Education, sent a letter to UW-L's Chancellor, the SA backed off. Another win for the good guys.

Shark and Shepherd on the Air

I will be on Eric Von's Backstory segment this afternoon from 4:30 to 6. WMCS-1290 AM. The topic will the Jude verdict and its aftermath which is also the topic of my next column in the Milwaukee Journal-Sentinel.

A veto on Tuesday?

I don't have a huge problem with Doyle's veto of a bill that would have prevented discovery of certain hospital quality control documents. There is always a trade-off between the type of discovery that might help the plaintiff make out a case that someone acted negligently or that a product is defective and the need to encourage the people who provide those services or manufacture those products to engage is self-critical examination. There is always a risk that, if internal efforts to improve the way you do things are going to come out in litigation, those efforts will never be undertaken because no one wants to make out a case for the other side.

As a general matter, the law errs on the side of disclosure. I think that's mostly reasonable. Any lawyer who advices a client not to address internal problems because of the fear that it will "discover" problems that which can then be used against it in court is 1)not a good lawyer (because uncorrected problems present greater liability risks) and 2) telling her client to wag the dog.

The real problem with our liability rules is not what the plaintiff can find out, but the circumstances for which we tell juries they can impose liability.

I suppose you could make an argument that, since in medical malpractice cases, the issue is always negligence which presumably exists or does not exist regardless of what happened in other cases, this type of disclosure is not necessary. But it isn't that simple.

I agree that the trial lawyers own the Dems, but this one isn't as bad as many of his other vetoes.

Maybe that's why he didn't wait until Friday.

Wednesday, April 19, 2006

Bring Him Back!

The giant pink pig has moved to Cedarburg. I miss him already.

TABOR's nerdy little brother?

State Senators Sheila Harsdorff and Ron Brown have announced their opposition to the TPA and have proposed a law that would would "cap local government property tax levies at the percentage gain in new construction in their communities, plus inflation; limit overall state spending to growth in personal income statewide; and give local government new flexibility to deal with soaring health-care bills."

This is not as potent as the TPA in that it could be overridden by a vote of the legislature and, of course, sets what should, in most years, be a higher limit, i.e., increase in personal income growth as opposed to inflation.

Having said that, it could be better than nothing if it requires a separate vote on lifting the cap. Legislators who wish to exceed the funding limit would have to go on record rather than simply saying that they "had to" vote for the budget but would have preferred to spend less. It will make it less easy to claim that it was the fault of "those other guys." If this is the best we can get, it might be worth having.

Free Speech Alert

A Washington trial court has held that favorable comments by talk radio hosts are "in-kind" contributions to an intiative campaign to repeal a gas tax increase and, therefore, subject to the state's campaign finance laws. If this is so then most media coverage of political campaigns ought to be shut down or neutered. The case is on appeal to the Washington Supreme Court. I hope it knows free speech when it sees it.

Will the "Zionist Entity" handle it?

One of my favorite pieces of pulp is the Claremont Review of Books. The latest issue features two great contributions by Victor Davis Hansen which, happily, you can read by following the link. One is on our illegal immigration problem while the other is part of a symposium of short commentary on what to do about Iran's nuclear program. In the latter, he predicts:

The Israelis are stymied, at least temporarily. The fear of a second Holocaust will make them act at the eleventh hour, though they know that most of the world would sigh in relief—and damn them in the morning papers.

Isn't that the absolute truth?

Tuesday, April 18, 2006

"On the matter of homophobia, I think you should be rather careful",

Dad29 comments on the librarian at Ohio State-Mansfield who was charged with sexual harassment for ... recommending some books. The librarian, Scott Savage, had recommended a book called The Marketing of Evil for a freshman reading program. The book apparently explores, and is critical of, the way in which elites have transformed notions of sexual morality. Two gay professors filed a harassment charge saying that the recommendation had made them feel "unsafe."

The charge was promptly dismissed as it should have been. But the presuppostions of the complaining professors are interesting. You can read more and find a link to the relevant documents at the Volokh Conspiracy. Essentially these guys thought not only that their ideology should determine what is and is not in the reading program (because it comports with OSU's "non-discrimination" policy"), but that they were objective scholars who had determined that the book is "quackery" and unworthy of consideration. Pretending that there is a "scientific" answer to what is ultimately a moral question strikes me as the quackery.

The other interesting notion is the idea that one is made to feel "unsafe" because someone disagrees with you or the manner in which you live your life. So much for free inquiry.

The Ghost of Tax Day Future

I spent most of Tax Day in Dubuque so I didn't read yesterday's scary column in the Wall Street Journal by R. Glenn Hubbard bearing the captioned title. You need a subscription so I can't link, but I will tell you that Hubbard reminded all of us that a generation from now, absent any changes, entitlement spending will consume 10 more percentage points of GDP than it does today. This means that, without reducing any other federal spending, the size of the federal government will go from about 20% of GDP today to 30%, requiring a 50% tax increase.

That's scary enough, but consider this: It is not possible to cut other federal spending enough to pay for this. We spend only 4% of GDP on defense and 3.1% on all other nondefense federal programs.

And it gets worse. Economists Eric Engen of the Federal Reserve Board and Jonathan Skinner of Dartmouth college estimate that paying for increased entitlement spending through tax increases would depress annual growth by a percentage point. Over time, that turns out to be huge.

Remember this the next time the Dems demagogue entitlement reform.

Monday, April 17, 2006

Pigasus for the rest of us

In my Journal-Sentinel columns and on my blog, I never write about Mequon or Ozaukee County issues. Part of it is that they do not interest me and part is that the Reddess and I are probably just about at the end of our tenure out here. But this story reminds me of why both are true. Why would anyone complain about this magnificent pig? A mile or so north on I-43, a wonderful soul puts up a cross on Good Friday which stays up through Easter. I think that both make Mequon a better place.

(And, incidentally, I have no idea what kind of music "the Hog" plays.")

Sunday, April 16, 2006

McCann's trial strategy

People are starting to second guess McCann's trial strategy. If he made a mistake it was in thinking that he had to anticipate and neutralize the defense as part of his case. There is an old trial lawyer's rule that you want to bring out damaging material rather than get it shoved down your throat by the other side, but I'm not sure that it applied here.

McCann was worried about the fact that there were lots of people at the party (cops) who would not identify the defendants. So he wanted to establish, as part of his case, that there was a police cover-up. That was fine, but, as it was executed, he began his case by calling a bunch of witnesses that did not see anything and then arguing with them about it. But its hard to impeach a witness by simply calling him a liar. You need a prior inconsistent statement or some logical flaw. He may have started the trial by planting the idea that, although something had happened, no one really knew - or would say - who did it.

His error, if that's what it was, was in feeding the notion of a reasonable doubt by overcomplicating his case. Let the defense argue about who didn't come forward. By sticking with Belmore and Schabel (the two responding cops), he would have put in all he needed to argue for the Blue Code of Silence. In fact, it was their testimony that seemed so convincing on this.

Here's where it appears the jury came out. They may have bought - probably did buy - the Blue Code of Silence argument. They undoubtedly believed that some cops beat Jude up. But they couldn't conclude which cops did it because everyone was saying something different and that made it all confusing. And sometimes confusing translated into reasonable doubt.

Hindsight is 20/20, but maybe a streamlined case would have made it seem less confusing. But maybe not. Its easy to second guess.

Jessica McBride has collected a more thorough summary of the testimony of the various witnesses than appeared in the Journal-Sentinel. (Although, in fairness, the paper made reference to the problem with Masarik's cell phone call and some of the late identifications, even if it did not fully lay out the problems that, the former in particular, presented.)

My impression is that the case against Masarik was weaker than I thought. I am still surprised that Bartlett walked. Remember that McCann charged this as "party to a crime" so he didn't have to prove precisely which blows were delivered by whom. Anyone who was participating was guilty.

I don't think this case gets any better as a federal prosecution or even with a different jury. (A federal jury is even less likely to have minorities since it is drawn from the eastern half of the state.) The key thing to deal with now is that a guy went to a party filled with a bunch of cops and got stomped. None of them helped. And almost all of them claim that they didn't know what happened. They should be ashamed. Everyone of them.

Saturday, April 15, 2006

Unshackle Nan Hegerty

Perhaps there was a reasonable doubt as to the guilt of these particular three cops. But what we know is that a guy got beaten to within an inch of his life at a party full of cops and not one of them prevented it or will admit to seeing what happened.

I have written two columns in the Journal Sentinel in the past year, arguing that the residents of Milwaukee's inner city should realize that the police are part of the solution and not the problem. (They are here and here.)

I still believe that.

But what happened at that party suggests that there are cops on the force who have no business carrying a badge. The police department is too important to let that happen.

I suggest that someone introduce a bill that would not give the police chief the power of plenary dismissal. No review by the Fire and Police Commission. Nothing but a pink slip like the rest of the world gets. If we expect Hegerty to clean house, then let's give her the tools she needs to do it.

If John Gard and legislators who like police union dollars want to spike it, great. But, if they do, southeastern Wisconsin conservatives should keep their wallets in their pockets. We like law and order.

Shark and Shepherd on Dead Tree

It seems more unimportant than usual today, but my latest MJS column is in this morning's paper.

The Jude verdict

Unlike some lawyers, I do not put juries on a pedestal. I do not think that they have any mystical propensity to get things right and, given the way we select juries, are probably unlikely to understand the evidence in a lot of cases.

Nevertheless, I think that you can't really make a judgment on a jury's verdict unless you do something approximating the work that they did. You need to hear the witnesses. You have to be familiar with all the testimony. Until you do that, you don't have an informed opinion; you have an impression.

It seemed to me like OJ was guilty and it seemed to me like the tire slashing defendants were guilty.

And it was my impression that the evidence was there to convict at least two of the defendants in the Frank Jude beating case.

That was my impression but it was the firm conviction throughout the African-American community. And the fact that the jury which decided otherwise was all white makes this an awful day for race relations in the community.

I am skeptical of the claim that the jury went the way it did for racial reasons. It's too simple to say that the jury believed white cops over a biracial defendant - or even cops over civilians - because the main testimonial conflict was among white cops.

I am not certain that the jury even rejected the idea that there is a "blue line of silence" for racial reasons. Look at the reaction to the testimony on that issue on (largely white) conservative talk radio and among (I think entirely white) conservative bloggers. I wouldn't be surprised if the jury believed that the cops were covering up.

But that wasn't the question. The question was whether those three guys did the thing that was being covered up. Eyewitness identifications are not as certain as people believe them to be and the defense must have kicked up enough doubt about them given the fact that the prosecution witnesses were drinking, may have identified the defendants only after their picture was in the paper, etc.

Still, none of that is going to still the anger in the black community and, although I generally hate the way in which everything gets racialized, this time I can't help but be sympathetic.

A jury can't convict people because there is community pressure to do so, but this is all very unfortunate.

Friday, April 14, 2006

Dhimmidy Central

For you fellow South Park afficionados, what did you think when you saw this panel on Wednesday night's show? I wasn't sure that it wasn't part of the joke. Comedy Central lets South Park do just about anything. They have already shown images of Mohammed in their Super Best Friends bits. Why wouldn't they allow a depiction of Mohammed handing a football helmet to Family Guy?

For anyone who doesn't know the story, South Park ran a two-part episode featuring a story-within-the story. The nation was gripped in a panic because the Fox cartoon feature Family Guy was going to run an image of Mohammed. Muslims were rioting and frightened Americans were responding by (literally) burying their heads in the sand.

The kids rush to Los Angeles. And, in the end, Cartman and Kyle confront the president of Fox. Kyle urges him to "do the right thing." He explains to him that fear is how terrorism works and makes an impassioned plea for free speech. Cartman, who wants the episode pulled because he hates Family Guy (its "jokes are interchangeable and unrelated to the plot")holds a gun on him. In the end, he decides to run the image, but, just when Mohammed is supposed to appear, the screen goes black with text describing the scene and explaining that Comedy Central would not allow an image of Mohammed.

Parker and Stone then twist the knife by showing a final scene (in a cartoon that is supposed to have been made by Zarqawi in response to the depiction of Mohammed) showing President Bush and Jesus defecating on the American flag.

Apparently this is all no joke. Comedy Central gave the show two choices. South Park could censor the image or it would. The show's producers decided to do it themselves so they could make clear whose decision it was and that it was done out of fear and not sensitivity. You can read more about that at the Volokh Conspiracy.

What's interesting about this is that there is no sense in which the image itself was derogatory. While the panel going around the internet is apparently bogus (Peter at Texas Hold 'Em, who calls the network "Coward Central" links to it here; Michelle Malkin who initially put it up collects its debunking), there was an animated scene that was ready to run and it literally (and only) shows Mohammed handing a football helmet to Family Guy.

There isn't really much to add here. As Cartman puts it, Kyle's "gay little speech" says it all. If people who react in a vicous and nasty way to whatever gives them offense thereby earn the right not to be offended, the boundaries of free speech are determined by the least tolerant among us.

The reason that Comedy Central will show what are offensive and derogatory images of Jesus but not even a representation of Mohammed is not because it thinks it's "ok" to make fun of Christians but not "ok" to make fun of Muslims. It's because Christians do not express their offence by burning cars and beating people in the streets.

Thursday, April 13, 2006

At least Holloway has some moves

I know that Eugene Kane has avoided jumping on the Lee Holloway as martyr bandwagon and remains critical of Holloway in his latest column. But he admires the way in which Holloway has slipped and slided:

But I must admit a grudging respect for the way Holloway has "played" the system. Rather than concede to what he perceived as an unfair investigation, Holloway put up a wall of successful legal maneuvers to frustrate his opponent.

Kane's respect is apparently enhanced by the fact that Holloway is a serial evader:

For much of his public career, Holloway has managed to evade all sorts of traps and landmines, everything from failed recall movements to voter fraud investigations to angry confrontations with colleagues and citizens.


How much of Holloway's support is due to the fact that he is seen to be fighting off the Man? In the black community as in the community at large, the words "OIC" generate anger, but not always for the same reason. For many African-Americans, "OIC" is associated with the persecution of black politicians. It seems that what is important is, not whether a guy is a crook, but that he is our crook.

Before you become incensed at me (for suggesting this) or at the black community (for harboring this attitude), let me point out that this is not a new phnenomenom and it wasn't pioneered by African-Americans. For years, poor Irish and Italian communities had the same attitude about their own crooked pols. That's most of the political history of places like Chicago, Boston and New York.

Kane points out that Holloway hasn't been "charged with any crime, no matter what your favorite talk radio squawker might suggest."

That's true, but what he is being investigated for could very well be a crime. Eugene makes it sound like Holloway's flaw is not knowing that, as he puts it, "cutting corners" isn't tolerated anymore.

But until there is a thorough investigation, we don't know that cutting corners is a fair characterization of what Holloway did. As I have said before, this isn't just about sloppy paperwork. It's about voting to give money to a group that seems to have been paying you for nothing and covering up that fact.

I don't know that Holloway is guilty of anything. I do know that there are questions that still beg for answers and that, if the worst turns out to be true, his ability to feint and dodge around the system will get no respect from me.

Tiger Woods had less than optimal muscle control

Driving from here to there this morning, it seemed to me that Charlie Sykes is all over this Tiger Woods thing. Tiger apparently said that he putted "like a spaz" at the Masters and has now been forced to apologize for using a term deemed by some to be offensive tho those with nuero-muscular disorders.

Charlie has made the two most important points: 1)truly empowering "disadvantaged" groups is better served by teaching them that words do not have the power to hurt them because 2)trying to find a set of nonoffensive words for characteristics that truly are a disadvantage is a game with no end.

As a case in point, think of the terms "moron" and "imbecile." Today, these are derogatory terms. But in the first part of the twentieth century, they were supposedly precise medical definitions of intellectual disability that were thought to carry clinical neutrality. They were not slurs.

One of the more infamous decisions of the United States Supreme Court is Buck v. Bell, in which the Court upheld the forced sterilization of a "mentally challenged" woman in Virginia. Justice Oliver Wendell Holmes punctuated his opinion with the ringing declaration that "three generations of imbeciles are enough."

But the great Holmes was wrong. Carrie Buck had been diagnosed as a "moron" not an "imbecile." There was a difference. (You can read the whole story in this book. Today these words have evolved into interchangeable insults.

As words take on a negative connotation, we invent new ones that become increasingly opaque like "special needs" or "challenged." But these quickly become "negative" as well, so we need to invent still more. Wisdom lies in refusing to play a game that you can't win.

If we are really going to insist on never using words that might give someone offense, the left is going to have to change much of their current discourse. George Bush can no longer be an "idiot." He must be referred to as someone whose "intellectual capabilities are, perhaps, not what he'd like them to be." Jerry Falwell can no longer be called a "fundie," "bible-thumper" or "homophobe." He is a man whose "interpretation of the Scriptures requires development." F. James Sensenbrenner cannot be referred to as a "Nazi" or "bigot," but as someone "still seeking full appreciation of his undocumented brothers and sisters."

Let McGee go

There seems to be a question as to whether Alderman Mike McGee, Jr. lied under oath in a hearing seeking a restraining order against a woman who claims to have had an affair with him and says she is now carrying his child. Perjury requires a clear and intentional falsehood, and, even if McGee testified inaccurately, that may not have occurred.

But let's remember the context. Even if he didn't tell the truth, isn't he covered by the Clinton Exception to the perjury statutes? You can swear to tell the truth, but when it comes to the sex you may have had with someone other than your wife, all bets are off. A guy has to survive, doesn't he?

Wednesday, April 12, 2006

Existential Crisis

What if you were put on earth to find some really old worm s***?

Jude case goes to the jury

The Frank Jude beating case should go to the jury today. It's dicey for people who haven't sat in the courtroom and listened to the testimony to know what the verdict should be. Even people who follow the case closely don't have access to the same information that the jury does and do not engage in the same deliberative process.

That's important to keep in mind here because it is a racially charged case with an all-white jury and I suspect that there will be serious racial tension if there is an acquittal.

Having said that, I will now violate my own caution. I would be surprised if, at least, Masarik and Bartlett aren't convicted. I wonder if Bartlett didn't blow whatever chance he had by testifying that it was Schabel (who had just testified against him) who was the one who, for no apparent reason, kicked Jude in the head. That seemed incredible and juries tend to get hacked off at people who lie to them. If they think he did, he is in trouble. I still wonder, though, whether the jury will convict them of more than substantial battery? Has McCann got the jury angry enough?

Spengler who doesn't face the more serious charge of reckless endangering safety decided not to testify and there seemed to be a bit less incriminating testimony regarding him. Maybe he walks.

Whatever the verdict, the trial has been a PR disaster for the MPD. Heggarty has her work cut out for her.

Limits on public pay

Public employee unions are going ballistic about a proposed new provision in the Taxpayer Protection Amendment that would prohibit an arbitrator from forcing any unit of local government to grant a percentage pay increase that exceeds the percentage revenue increase to which that unit is limited by the TPA.

Local units of government would not be prohibited from granting larger raises, but, if they wanted to do so, they'd have to get voter approval or take the money from something else. This is what businesses and households have to do if they want to increase spending on something at a rate that is greater than the increase in available money. Sometimes life just sucks.

Of course this means that local governments will not increase salaries at a rate greater than the "TPA rate" unless they have to. And they'd have to if salaries were not high enough to attract the needed employees. One would hope that's what governs pay decisions today.

Tuesday, April 11, 2006

Should we bank at the Wal-Mart?

Wal-Mart wants to establish a bank to handle its own transactions, but promises to stay out of consumer lending. Should it? We, even conservatives, are troubled by payday lending operations that charge loan shark rates. We wonder why the market doesn't drive those rates down. One way, I think, to lower those rates to the market clearing price would be to let Wal-Mart do it. They've found a way to make money on providing inexpensive goods to low income people. Who is to say that they couldn't do the same thing with respect to the provision of money?

CEOs who earn as much as utility infielders

Last Sunday's New York Times bemoans CEO compensation and, in the tactic known to NASCAR, if not to journalism, as "drafting," Milwaukee Magazine's Bruce Murphy takes another wack. He says that:

A recent national survey found that 81% of Americans believe chief executives of large companies are overpaid. The increasing gap between worker and executive pay is contributing to the largest wealth gap seen since the 1920s.

Maybe. Certainly from an arithmetic perspective. But if the problem is CEOs who earn multi-million dollar salaries, I am skeptical. There aren't enough of them to have a statistically significant impact on the national distribution of wealth. One might just as well say that the high incomes of movie stars and professional atheletes has such an impact.

I actually agree that the salary of the CEOs at many publicly held companies is too high. But, having spent some time in business, I also know that the difference between having the right, rather than the wrong, person in charge can be enormous - much like the difference between having Brett Farve and a host of pretenders at quarterback. I guess that, if I am going to have to choose who will be wrong less often, I'd choose the people who have money riding on the outcome.

Monday, April 10, 2006

Tell me what I'm missing

A wonderful couple of days for Milwaukee County Board Chair Lee Holloway. First, the Ethics Board is denied funding to continue its investigation. While much of the area is outraged at this, the spin among opinion leaders in the African-American community is that the witchhunt has gobbled up enough money already and somebody had to end it. Now 2/3 of the counts pending against him have been dismissed. Here is how the Journal-Sentinel characterized what remains:

Some 30 counts accusing Holloway of failing to disclose a business relationship with a social service agency that he also voted to approve county funding for remain valid, Hogan's ruling stated. Holloway received about $165,000 in rent and mortgage payments from the now-defunct Opportunities Industrialization Center of Greater Milwaukee Inc., in connection with a Holloway property at 2100 W. Atkinson Ave.

Several counts related to Holloway's failure to publicly disclose his ownership of the Atkinson property also were deemed valid by Hogan. Holloway has said he didn't view the property as his after the mid-1990s when OIC and an affiliate began negotiating for it. However, the sale of the building was never completed and OIC never took possession of it.

This, I think, is the crux of the Holloway problem, although the summary doesn't capture how problematic this is. Hollway got 165,000 from an agency that was supposed to be helping poor people. And whose funding (in part) he voted on. In return for that $ 165000, he provided that agency with - nothing. The money was for - what? Rent for a building the agency never occupied or payments for a building it never purchased. That's bad enough but when you add in the fact that Holloway forgot to mention that very property on his disclosure forms, the thing gets really rank. The notion that he thought he no longer had an interest in property he was getting paid $165,000 with respect to is silly. If Holloway really thinks that, he's too stupid to be on the County Board.

I drove down to Marquette this afternoon listening to Holloway's attorney repeatedly imply that his client "just forgot" to disclose his interest in that building. But how can you forget to disclose a building for which you are getting $ 165,000 from an agency that you vote to fund and for which you are providing no value. Putting all of that aside, how can you take that amount of money from someone for nothing and call it a misunderstanding?

It may be that Holloway can dance around this, but, if that happens, I don't know why anyone should think another dime from any source should be entrusted to Milwaukee County government.

Spring Fever

I wonder, occasionally, how people manage to so easily suspend their critical faculties in the service of self-righteousness. Three examples from the weekend.

First, at the community meeting on police/community relations sponsored by the League of Martin, we heard once again that the "community's" "no-snitchin'" policy is somehow a quid pro quo for the department's thin blue line of silence. How is that supposed to work? Isn't it a bit like me saying that since I believe the government wastes my tax dollars, I'm going to take a bunch of my money into the backyard and burn it? To show that I can do it too?

"Clean your own house first!" The cops had better clean their house, but while they are doing that a few less mob beatings might be nice.

What about the "immigration" debate itself. This is a civil rights issue only if you are prepared to say that a nation has nothing to say about whether people from other countries can sneak across the border and claim to be entitled to the same privileges as its own citizens. Is there anyone who is really willing to get up and say this?

Did Christofferson Defame Mark Green?

Christofferson is all purple-face over the fact that Mark Green is supposedly willing to "let women die." He apparently bases his indignation on the fact that Green expressed the frustration that most pro-lifers feel over the elasticity of exceptions to abortion restrictions to benefit the "health of the mother." The problem with an exception phrased in that way is that it can mean anything from helping with depression (which itself can be no more than I'm upset because I don't want this baby)to procedures that are of aid to the abortionist. Partial birth abortion, for example, is defended by those who would use it as a procedure which is less likely, to put it bluntly, leave body parts in the uterus. The abortionist isn't ever supposed to do that, but this makes it easier not to.

According to Christofferson, Green wants an abortion prohibition with no exception to save the life of the mother.

But has Green ever said that, if Roe is ever resigned to the hell that contains Dred Scott and Plessy, he would propose a prohibition on abortion that does not contain an exception for the life of the mother? Even the Vatican doesn't say that.

The closest Christofferson gets to this is to say that Green wants to "bring back the age-old Wisconsin law that made abortions a felony, with no exceptions."

There are two problems with this statement. The first is that it doesn't have to be "brought back." Its still on the books. The second is that, since it is still on the books, it is easy to see that Wisconsin's abortion law does contain an exception to save the life of the mother.

Even the South Dalota law, that Green may or may not support, has such an exception.

Sunday, April 09, 2006

Should Dems be the party of the Clones

Jay Bullock, basking in last night's Democrat Love-In, thinks that stem cells should be the issue in this year's gubernatorial campaign.

Is that right? What would the issue be? "Stem cells" or even "stem cell research" does not describe a controversy. There is, of course, no controversy about research and therapy using adult stem cells which are, to date, the only type of stems cells that have proven useful.

Even the controversy surrounding embryonic stem cells may go away because it may be possible to "turn" adult cells into embryonic stem cells.

But putting that prospect aside, what has been controversial is the notion of destroying embryos to harvest stem cells and the cloning of human embryos to create additional stem cells or stem cells of a given genetic composition.

The first issue may be about to go away because scientists appear to be on the verge of figuring out how to harvest embryonic stem cells without destroying the embryo.

Which leaves us with so-called "therapeutic cloning." Governor Doyle did veto a bill that would have prevented it so he's clearly in the cloning camp. But I am not sure that is a winning issue. Last week, when we discussed this stuff in my law school class, the students who are not a particularly ideological bunch, seemed pretty hinky about creating even cloned embryos. One young woman said that "human cloning gives me the creeps."

Is this the kind of issue that Doyle can ride to victory?

(NB: The picture is not Jay Bullock. Or even Governor Doyle. Its is sports talk guy Jim Rome who, for reasons I have never learned, calls his callers "clones.")

Saturday, April 08, 2006

Are RINOs people too?

The blogger known as the Recess Supervisor is upset with Milwaukee area conservatives and, I think, the Blogosphere generally for extremism. He wants us to lay off more "moderate" Republicans outstate as a matter of political expedience. Without these "RINOs", he says, the GOP would be a minority party. (He extends his views here.)

I agree, but I don't. Of course, compromise is necessary in politics but, unlike Recess and the other anonymous bloggers, most of us do not make a living on partisan success and are less likely to define the objective as "Republican," as opposed to "conservative" success. I'm just as willing as the next guy to close my eyes, think of England and vote for (or otherwise support) the best possible alternative.
But the price of that support is that we will try to make the mods know that what Jon Stewart calls "crazy Base-world" is out there and must occasionally be fed. I understand that this may make a politician's life difficult but that, my friend, is a personal problem.

That there are far more vulnerable Republicans than there are seats that might be flipped to our column is not surprising. The idea that an Assembly majority approaching 2/3 is tenuous in a state that is pretty much split down the middle is indisputable.

But that doesn't mean that principle is trumped by politics. I agree that Tommy Thompson was the King of the RINOs. While he was certainly preferable to every Dem he ran against, I do not regard his administration as Wisconsin's Golden Age. And we are not running a guy like Thompson this time. There is no comparison between Tommy and Mark Green who, contrary to the distinction that Recess seems to see, has few discernible differences with Walker. (And, yes, I get it that people who grow corn like Ethanol.)

I'll give Recess this. Movement conservatives have to understand that there is more to conservatism than opposition to government. Recess is right that conservatives need something to say on health care and education other than "no." School choice was a step in the right direction. Attacking the complacent cocoon created by the teacher's union may be the next. On health care, there is going to have to be reform and it is inconceivable that government won't be part of that in some way. We need to understand that market based reforms are going to require some element of (hopefully minimal)mandate and subsidy. On the TPA, it may not be possible to craft an amendment that will be a perfect (as opposed to a pretty good) guardian of the taxpayers' wallet. Opposing even the slightest compromise is what lead to problems in Colorado and, because of it, the cause of taxpayer protection has been set back for years in that state.

But I see little reason to support people who oppose most of what I favor because they are in the Republican Caucus. I can make allowances, but my principles are more important than politicos' job security.

Friday, April 07, 2006

Shark and Shepherd on Dead Tree

My latest Milwaukee Journal Sentinel column is on the net and will be in tomorrow morning's paper. It's on the state's exclusion of conservative Christian groups from the state employee charitable contribution program, a story that I put up a day before the paper (although, in fairness, I don't run a broad-based news operation and I do get all manners of heads ups from the Vast Right Wing Conspiracy.)

What I didn't put in my column (call it a Blog Exclusive), because 700 words won't permit it, is the obvious fact that the state can't avoid promoting some orthodoxies. Public schools are going to promote certain values at the expense of others. My own view is that treating religous, as opposed to other, orthodoxies as pariah is inherently unequal. I think that there are a number of areas in which the state can, and sometimes must, allow the religious sensibilities of its citizens to be expressed in state curriculums and programs. Those questions are hard. And, in answering them, Justice Jackson is of little help.

But a forum in which employees choose to contribute to charities of their own choice is not a hard question.

Terror at Mayfair?

My fellow community columnist Janice Eisen is critical of pork in the budget and, in particular, a congressional culture that encourages members to bring dollars home.

I agree with Janice's larger point (this may be a first!), but I am not so sure I agree with her obligatory "local" hook, i.e., the allocation of some funds to prevent terrorism at Mayfair Mall. While I don't want to get bogged down on security cameras at a shopping mall, I do want to think about one of her base presuppositions.
"Milwaukee", she writes, "is hardly a likely target. One benefit of living in "flyover country" is that we are apt to be as low on any terrorists' radar as we are on Los Angeles'."

Is that true? One of the difficulties in relying too much on profiling is screening security threats is that terrorists are likely to figure that out and learn how to use it to avoid detection. Assuming that an attack would occur in New York or Los Angeles seems to court the same danger. If the idea is to kill alot of people, why not go where you are not expected. Shopping malls and sporting events in Milwauukee or, for that matter, Iowa City attract large numbers of people to a confined space. While I can imagine terrorists wishing to strike something prominent (and therefore symbolic)like the World Trade Center, I can also imagine them selecting a target because no one expects it. In fact, you could argue that such a target is even more likely to achieve the most important objective of terror, i.e., spreading fear through the civilian population, because no one would feel safe as Janice, here in Milwaukee, apparently does.

Just sad

Terry: If I spill, my life ain't worth a nickel.
Father Barry: And how much is your soul worth if you don't?

-On the Waterfront (1954)

Wonderful. The charges against two teens charged with beating Samuel McClain in a street full of people last December have been dropped. According to the ADA handling the case:

"There were 20 or 30 people out there that night, and the bottom line is of all those people less than a handful were willing to name names," Hammond said in an interview after the court hearing. "This appears to be the result of a fairly recent 'no snitch' policy in the community."

One girl who has cooperated - but cannot identify the suspects - said people have walked by her on the street and have made references to her being "a snitch," Hammond said.

Thugs putting pressure on people to take it in silence is not new. But political leaders who contribute to an attitude of "us v. them" by repeatedly telling their constituents, in one way or another, that they are the victim of the Man and that it is the police, rather than the thugs, that they should fear encourage the type of alienation that makes "no snitchin'" work.

And, in fairness, police officers who adopt their own "no snitchin' rules do the same thing.

Thursday, April 06, 2006

Wisconsin State Panthers

A group at UW-Milwaukee wants to lose the hyphen. They say that it makes the school seem like an afterthought and it certainly makes it seem to be smaller than it is. While I prefer "Milwaukee University" (and, frankly, thought that was where this was going given that the athletic department has promoted that), the group is going for "Wisconsin State."

Either way, a school with a name like that should have a football team.

Shark and Shepherd on the Air

This afternoon at 4:30, I will be on Eric Von's Backstory segment with Jim Rowen and Robert Miranda. (I like to think they need to double team me.) Topics may include DeLay's resignation, the immigration bills, the withdrawal referenda, opening day and the French riots. 1290 WMCS. Where, I am told, the community comes first.

Wednesday, April 05, 2006

FEC v. Free Speech

Regarding another bit of damage to the Republic done by our maverick Senator, the FEC has refused to settle its case with Wisconsin Right to Life. WRTL explains:

On April 4, the FEC Commissioners voted to refuse the offer of Wisconsin Right to Life, Inc. ("WRTL") to stay and settle its lawsuit in WRTL v. FEC (WRTL's suit to establish a grassroots lobbying exception to the electioneering communication prohibition). WRTL had offered to stay proceedings and to settle the case if the FEC would issue a statement of policy and pursue a rulemaking to protect grassroots lobbying.

The grassroots lobbying exception that WRTL proposed follows the definition that a broad- spectrum coalition recently proposed as the subject of an expedited rulemaking. The coalition was comprised of the AFL-CIO, Alliance for Justice, Chamber of Commerce of the United States, National Education Association, and OMB Watch. The proposed rule may be found online at [here]

Although Feingold and McCain now apparently say it would be ok to pass this rule, if you pass a stupid law, you have to expect stupid results.

Public opposes immediate withdrawal

Both Jessica McBride (e.g., aggregating the vote outside of Madison and Shorewood) and John McAdams (comparing pro-withdrawal vote to Kerry's numbers in the same communities) make valid points about the results of the withdrawal referenda.

Of course, however the numbers came out, this was always a stunt. We know what the public large thinks of an immediate and orderly withdrawal from Iraq. We know because an NBC News/Wall Street Journal poll just asked that very question.

The public opposes such a withdrawal. 66%-30%. That a bunch of activists can cherry pick some towns in Wisconsin and get a different result doesn't change that.

Foreign Policy News

In light of their differing votes in yesterday's war referenda, Madison has announced withdrawn its ambassador to Watertown and Egg Harbor is assembling troops along its border with Ephraim.

No longer a land of a thousand dances

A New York state judge has held that there is no constitutional right to dance, rejecting a challenge to that city's requirement that restaurants and bars need a cabaret license to permit people to dance. Apparently there aren't that many cabarets in New York anymore. Stupid law. Good decision.

The plaintiffs' lawyer remains convinced that dancing is a constitutionally protected expressive activity. Time to take that dancing to the streets!

San Francisco gets sued

The San Francisco Board of Supervisor's resolution describing the moral teachings of the Roman Catholic Church as “insulting to all San Franciscans,” “hateful,” “insulting and callous,” “defamatory,” “absolutely unacceptable,” “insensitive[] and ignoran[t]” has attracted a lawsuit.

I am skeptical about the plaintiffs' chances. An earlier lawsuit brought by evangelical Christians who ran ads stating that homosexuality is a sin that were subsequently condemned by the Board was unsuccessful.

I hate to play the conservative game of "can you imagine if ...", but sometimes it fits. Can you imagine if the Board had condemned Islamic teachings as "insulting, hateful, etc."?

Tuesday, April 04, 2006

Mass oversells itself

The New York Times is reporting that Massachusetts has enacted a bill providing for universal health coverage, but I wonder. The bill supposedly provides tax penalties for those who "could afford" health insurance but do not buy it. I am skeptical that the penalties could be harsh enough to force those who do not want to insure to do so. The bill penalizes employers of more than ten $295 per employee if they do not provide insurance. Gee, that's like almost 3% of what it costs to provide family insurance that most people would recognize as such. Unless there is a huge subsidy happening here, I'm thinking that this is a huge nonstory.

Gielow to leave Assembly

Well I guess it doesn't matter if Gielow is a RINO, because he is not seeking reelection.

Something to look forward to

According to a scientist attending a recent meeting of the Texas Academy of Science, this guy thinks that humans have become a burden on Gaia and that 90% of us are likely to be wiped out by air-borne Ebola in the near future.

Cause for alarm? Well, not exactly. Our bearded friend, University of Texas biologist Eric Pianka sounds rather enthusiastic about the prospect. Illustrating his lecture with rows of human skulls, one of which (presumably the ebola jackpot) had red eyes flashing, he argues that this is the way to save the earth. It will, he says, control the "scourge of humanity" which is "no better than bacteria."

According to observers, Pianka's lecture received an enthusiastic ovation. I guess the audience was feeling lucky or has self esteem issues.

Pianka is a lizard expert. Perhaps he's gone native.

Religious discrimination by the state of Wisconsin

A coalition of faith-based charitable organizations has sued the state (technically, it has sued certain named officials) for excluding certain of its member religious organizations from the Wisconsin State Employees Combined Campaign, a vehicle through which the state promotes and facilitates charitable contributions by its employees. The excluded organizations require their employees, board members and volunteers to agree with the religious beliefs of the organizations and this includes doctrine regarding sex outside marriage, including, but not limited to, "homosexual activity."

But no charities are permitted to participate in the Campaign unless they do not discriminate on the basis of, among other things, creed or sexual orientation. Although the Campaign has exempted the Boy Scouts, it does not permit groups like the Christian Legal Society or the Fellowship of Christian Athletes to participate.

The complaint alleges that the Campaign allows the participation of groups with very diverse political, social and religious views. Secular groups are permitted to require that their employees and volunteers ascribe to these organizations' purposes and beliefs. Religious groups - at least those who require adherence to a particular creed or sexual morality - are not.

This ought to be found to be unconstitutional. The state has no business including or excluding groups from a charitable deduction program based upon religion, speech or the manner in which these groups exercise their protected associational rights.

Its also bad policy. If the state doesn't want to facilitate charitable giving by its employees, it doesn't have to. But if its going to do so (and,as I'm sure it does, to promote giving to that campaign), it ought not to discriminate on the basis of what those charities believe.

You can read the complaint here.