Thursday, August 31, 2006

Marriage on trial

We taped a public TV "mock trial" on the marriage amendment last night. I am not going to comment on how it went, other than to say that my opposing counsel (Michelle LaVigne of the UW Law School who is a very good lawyer) and I both agreed that trying to use a trial format to address these issues and then imposing the time limits that TV requires resulted in a process that, for each of us, was like trying to push a camel through the eye of a needle.

I will also say that the public television people were admirably gracious and professional.

Monday, August 28, 2006

Mack is back in town

Blogging was slow because I have gotten crazy busy, but it stopped because I have spent the last week in Oregon for a family wedding. I didn't even have time to say that I would be gone. When I got out there, my laptop turned up dead.

But I did spend a lot of time working on getting witnesses for the public TV marriage amendment trial. I think it'll be a pretty good exposition of the issues presented by the amendment. I am certainly happy with what I have.

Thursday, August 17, 2006

Shark and Shepherd on the Air

This afternoon at 4:30 on WMCS-1290. Hear about merging the city and the county, the Dems war against David Clarke, the return of racial profiling and paying fired cops. Find out about the statutory and common law powers of the coroner.

ACLU, et al., v. National Security Agency, et al.

I have taken a preliminary look at Judge Anna Diggs Taylor's decision enjoining the NSA's Terrorist Surveillance Program. Whether or not you think she got it right, the opinion is embarassingly simplistic. She simply doesn't address the issues that have divided legal commentators since the existence of the program was disclosed. For example, she finds that the program violates the Fourth Amendment without addressing any of the arguments that many, if not most, commentators have found to have established that it doesn't. She thinks that the program "obviously" violates the Fourth Amendment without addressing any of the potential exceptions to a warrant requirement (e.g., by analogy to border searches which do not require warrants or a "foreign intelligence" exception left open by the Supreme Court in the Keith case). All she really does is say that the "bill of rights" must be relied notwithstanding Congress' Authorization for the Use of Military Force in conducting the War on Terror, but that doesn't answer the question of what the "bill of rights" requires with respect to the gathering of foreign inteliigence from international communications.

She may have done this because she wanted to resolve the case without getting hung up on the government's assertion of the "state secrets" privilege. The government had argued that the case had to be dismissed because disclosure of the program's details would reveal state secrets and harm the national interest. She agreed that the government had properly asserted that privilege, but went on to rule anyway, saying that she didn't need to know the details of the program. A more thorough and intelligent analysis of the Fourth Amendment issues might have required that.

I think there is still a good chance that the case will get kicked for lack of standing. Only people who have suffered a sufficently concrete injury are able to sue and none of the plaintiffs here could show that any of their communications had been monitored. She held that there was standing because the plaintiffs alleged that their sources were deterred from speaking on the phone due to the existence of the program. But the Supreme Court has held that an allegation that communication is chilled by the mere existence of a survaillance program does not confer standing. She tried to distinguish that case by arguing that the plaintiffs here alleged that their sources really wouldn't talk on the phone amd that there is a more direct relation between the TSP and the calls they want to make than was present in the prior case. That might work (its a lot better than the Fourth amendment analysis). It does respond to a natural inclination to avoid a Catch -22 (i.e., you can't challenge our program for monitioring your calls in secret because you don't know if we did it and we won't tell you if you did it because it's a secret), but it isn't self evident. Any program of goverment surveillance - even the FISA court and the taps that it orders - may have a chilling effect on persons who may be subject to them. Does that mean that those persons could challenge the constitutionality of those programs without demonstrating that any of their communications had been monitored? I don't know that the Sixth Circuit (or the Supremes) will want to open that door.

In short, I think this is far from the last word and, as a first one, its not well put.

Donovan Riley's terrible, horrible,no good, very bad day.

Democrat state senate candidate Donovan Riley has been accused of voting twice in the 2000 elections and Owen Robinson points out that it is almost impossible to prove that he did it - as opposed to being the victim of a clerical error. Maybe, but Riley's response - "it's possible I made a mistake" - is tantamount to an admission. Just how would you make a "mistake" that involved voting twice in the same election? I'm assuming that he used at least one absentee ballot. Did he forget about it when he sent the second one or showed up at the polls?

In my experience, people who do not want to admit to something are more likely to catch amnesia than to deny it. It's easier to convince yourself that you don't recall and it doesn't feel like lying. I can't say that this is the case here, but saying that you "might have done it" but don't recall is only a little better than saying you did it.

As for the alleged crime, what a stupid thing to do. It's not as if a single person voting twice will change the results of an election (although it might if lots of people did). It is really more an act of arrogance and self centeredness. I want to vote in both of the places that I live and, even though its illegal, I'm going to do it.

Wednesday, August 16, 2006

On the shores of the big lake they call Gitche Gume

I'm back from three days in Ashland for depositions. There is always something about a few long days of putting words into someone body's mouth that is both exhilarating and exhausting. It's kind of like trying to paint a picture with someone else's hand on the brush.

Saturday, August 12, 2006

World Trade Center

The Reddess and I saw World Trade Center tonight. Not a review, but a few observations.

1. To be reminded of the gallantry of the police and fire services in New York that day is to wonder why you wasted your life sitting behind a desk. The story of McLoughlin, Jimeno and their families is hopeful, but what is really hopeful (as the movie makes explicit) is the heroism of hundreds of mostly nameless men and women who gave a damn.

2. I can't believe Oliver Stone made this movie. Arianna Huffington tried to dispel the obvious implications of the film by referring to a sequence in which people around the world see what happened in dismay. I do recall the global horror, but this is one false note in the film. We all know that there was one part of the world that cheered the 9-11 attacks and they are missing from Stone's montage. The absence is so evident - really as to make me wonder whether Stone was trying to make a subtle point and marvel at how Arianna could be that obtuse.

3. What really impressed me was Stone's quite accurate depiction of retired Marine David Karnes. Arianna is right to note he could never be depicted in a movie if he weren't true. But she thinks that Karnes who, after locating the trapped cops, says he's not going into work that morning because it's going to "take some good men to avenge this", is ultimately portrayed as an ironic figure because he goes on to serve two tours in Iraq which has nothing to do with the carnage we see in the movie. (She recognizes others may seem him as iconic; I do.)

4. As to Arianna's point about the unrelatedness of Iraq and 9-11, this has always struck me as willfully reductionist and singleminded. In the immediate aftermath of 9-11, I had a conversation with local Democrat attorney Matt Flynn. I don't agree much with Matt, but he said something insightful that day. Osama bin Laden, he said, was almost a metaphor. Kill him and there would be hundreds more crawling out of the desert. What is really ironic about the left's take on Iraq (it was about WMDs; Saddam had nothing to do with terror), is that old simple-minded George W. Bush grasped that. Although we mostly refuse to say so, the enemy here is not some discrete force called "terrorists", but an Islamic fascist movement that consists of discrete manifestations such as al Qaeda, Hamas and Hezbollah. Sometimes they work together and sometimes they don't. Sometimes they are supported by opportunistic secular Baathists - as Saddam did and as Syria is now doing in Lebanon. Eliminating them means eliminating the movement within Islam (present in the mideast and, sadly, now in much of Europe)that hates and seeks to overthrow western culture and modernity.

5. The movie brings tears (again people leave a movie in utter silence), but like United 93, it provokes anger. I could not help to think that civilian deaths in Lebanon provoke anger as well. War is an awful thing and the way in which modern warfare too often involves noncombatants is a tragedy. But to respond to that with an assumption of moral equivalence is just to ensure that it will continue. The "cycle of violence" idea is a real one and sometimes the best way to end it is to simply stop. But when one side doesn't want to stop - when they actually welcome it as Hezbollah certainly does - that won't work.

As Tony Blair says "defeat it we must."

Thursday, August 10, 2006

Shark and Shepherd on the Air

Once again you can catch my pearls of wisdom on Eric Von's show this afternoon from 4:30 to 6:00. WMCS-1290.

The Brave New World sort of sucks

Two things strike me about the (hopefully) foiled London terrorist plot - and not for the first time. First, technology has enabled small groups of people to be enormously destructive. Second, our traditional notions regarding the balance of civil liberties and protection of the public don't take that into account. We have generally thought that the government may not invade a person's "privacy" (however that may be defined) until it has a justification rooted in a particularized suspicion about that particular person. Once that justification is established, however, substantial encroachments on his or her privacy are permitted. Although the law does recognize lesser invasions for lesser reasons, our rules focus on individualized suspicion and have an "all or nothing" character about them.

The new world may require rethinking this. It may be that lesser invasions of persons' privacy (say computer - as opposed to human - monitoring of cell phone calls) are, under certain circumstances, going to have to be based upon reasonable probability as opposed to individualized probable cause. Civil libertarians are right to suggest that this creates real risk of abuse, but the debate may have to be about how to protect against those abuses, rather than to insist upon 20th century notions of what and when the government can search in a 21st century world.

Wednesday, August 09, 2006

Dems lieben Joe nicht.

The real impact of Joe Lieberman's loss is that it will make Democrat politicians more wary of, and cause them to cater to, the "netroots." This is a great day to be a Republican. But it's a sad day for the country. Joe Lieberman did not deserve that.

Tuesday, August 08, 2006

Sex and drugs and rock and roll

Patrick McIlheran links to an essay by Joseph Pierce at the website of the journal First Things in the sexualization of childhood and to the report of a study which supports the common sense notion that sexually explicit and violent entertainment encourage, you know, sex and violence.

What struck me was a statement attributed to a hip-hop executive who said that "explicit music lyrics are a cultural expression that reflect "social and economic realities ...."

Isn't this the prototypical argument of the social libertine? Permissive practices on, you name it, sex education, sex and violence in music, tv shows and video games, drugs are all defended in the name of "reality." You've got to know what time it is out on the street. You've got to be with what's happening today.

This isn't completely wrong. Clinging to the ideal in ignorance of the actual can lead to a great deal of misery.

But it is wrong in that it is not complete. What we regard as acceptable shapes reality as well as reflects it. Those in authority haven't just recognized the loss of innocence; they have helped to bring it about.

Monday, August 07, 2006

No Jesus in St. Bernard's

The Lousiana ACLU is upset over a memorial to be erected in St. Bernard's parish in remembrance of those who lost their lives to Katrina. The monument will apparently feature the face of Jesus Christ.

The legal issues are going to turn on whether this is a private or government sponsored undertaking, although, in my view, they should not. This ought not to be considered an establishment of religion, no matter how involved the government may be. While it may offend the sensitive, it neither coerces nor meaningfully abridges religious pluralism.

Regrettably, that is not the law, although the Shark has just about finished a law review article explaining why it should be.

H/T: Religion Clause blog.

Shark goes Hollywood - or, at least, Madison

Owen Robinson says that he reluctantly agreed to participate in the blog debate on the marriage amendment, at least in part because of the difficulty that public television had in finding someone to participate on the "yes" side for a project they are planning. He wrote:

What tipped me over was a news story from WPR (I think) that said that they were unable to get anyone to debate the “pro” side of the amendment on the air. Given that polls show that at least half of the people of Wisconsin support the amendment, I found it appalling that nobody was willing to step up

It was, of course, Wisconsin public television and what they were looking for was an attorney to particpate in a "mock trial" on the amendment.

I feel guilty if Owen based his decision on the absence of a pro-amendment lawyer because WPTV did get some applicants for the gig and the lawyer for "yes" will be ... me.

I don't know how many people will see the show but I can tell you that my case will feature no religious argument or contention that homosexuality is immoral (other than, perhaps, to acknowledge that many people do have religious and moral objections). Amendment opponents say that proponents can't do that. We'll see.

I expect this to be a learning experience. Watch this space for details.

In the meantime, I suspect that the Great Blog Debate will be very interesting.

Sunday, August 06, 2006

Give up on the tax haven thing

Jeff Browne, president of the Milwaukee Public Policy Forum and author of the idea the city of Milwaukee is a tax haven, loves the property tax. He may be the first person that I have ever seen call the property tax progressive. Work done at the UW's LaFollette School of Public Affairs, for example, concluded that it is regressive, as have just about everything else I have ever read on the subject. The LaFollette school (the one with a big old picture of Hillary on its home page)did a tax incidence study concluding that "lower income households [are] forced to devote a larger share of their income to [property] taxes than higher income households."
A recent study of tax incidence by the Department of Revenue found the same thing.

The Reddess and I are looking at property in the city. Homes with the same value have property tax bills that are more than twice what we pay in Mequon. We'll probably choose to pay the taxes, but to call Milwaukee a tax haven is to beggar reality.

Jeff Browne just likes taxes and he'll say anything to defend them.

Rice must have pictures of Chirac

Perhaps others have noted it (I'm behind on my blog reading), but I thought that the headline in my pulp copy of the Milwaukee Journal Sentinel on the proposed Security Council resolution was a tad misleading. The online tag seems more accurate.

On dead tree, at least, the paper said that Israel and Hezbollah are not prepared to abide by ceasefire. In fact, it seems that what has happened is that the US has somehow gotten the French to agree to a reasonable resolution of this. Israel holds its ground until an international peacekeeping force is on the ground. Hezbollah gets disarmed (which will take a war) and arms supplies are interdicted. This is precisely what should happen and Hezbollah has promptly rejected the idea, belying the notion that it is, in any sense, engaged in a defensive war.

This all may be just as well because I doubt the UN would follow through on this and, without these things happening, there isn't going to be any peace in south Lebanon or across the Israeli-Lebanese border.

Friday, August 04, 2006

More misdirection from Governor Doyle

Governor Doyle's speech at the Center for American Progress was his usual unreflective effort. He says that he vetoed a bill that would have outlawed the most "promising techniques" used by scientists. What he vetoed was a bill that banned so-called "therapeutic cloning," technically known as somatic cell nuclear transfer. You take an unfertilized egg, remove the nucleus and then add the nucleus of a somatic (body) cell from the person for whom you want to clone an (almost) identical embryo.

People argue that this is not human cloning because they do not intend to implant the embryo and allow it to develop past the blastocyst stage. Embryo-destructive stem cell research has not advanced to the stage where there's any point in doing that. But you have created what is, at the very least, a living human "entity" and, since Governor Doyle in ending his speech, says the "good science" should be our guide, what do we do when the next step that is urged is to implant the cloned embryo? Does anyone doubt that scientists will claim that this too could result in miracle cures? Why is it the governor refers to this as a "technique" which he choose not to decribe. Why, in his attack ad against Mark Green, did he conflate this with stem cell research generally. When people don't want to speak plainly, I get nervous.

Thursday, August 03, 2006

I'm going to have to start sucking up to her

Apparently it was Jessica McBride's opinions (scroll down) that led us into the war in Iraq. I had no idea that she wielded that kind of influence.

Shark and Shepherd on the Air

This afternoon. 4:30 to 6:00. WMCS-1290. Catch it.

Plain talk from Iran

Iranian President Mahmoud Ahmadinejad has the solution to the crisis in the Middle East - destroy Israel.

I think he's done us all a favor by making plain what is at stake. He also makes clear that he wants 1)an immediate "ceasefire" (presumably to last until Hezbollah's next op) and 2) no international peacekeeping force. Both are in service to what he has admitted to be his larger goal.

More on Mel

Patrick McIhleran has an excellent post on the Mel Gibson thing, suggesting that what is in his heart may be less important than how he deals with it. I agree, as long as he recognizes what is there, and struggles against it.

Wednesday, August 02, 2006

AFSCME to County: "How do you like me now?"

The fact that Milwaukee County owes its next six generations to retirees is not news, although the latest revelations never cease to amaze. The county is apparently on the hook for 1.4 billion dollars in retiree health care and nonpension benefits. This is roughly ten times the average for a county and over 50% higher than the next most profligate county government, Oakland County, Michigan.

But here is what the head of the public-spirited District 48 Council 48 of AFSCME has to say about that:

Rich Abelson, executive director of the largest county union, criticized Walker's comments as "knee-jerk" anti-unionism. The new estimate is not a serious concern, because all municipalities have to deal with the issue, he said.

"We've done very well paying as you go," said Abelson, of District Council 48, American Federation of State, County and Municipal Employees.

To say that all municipalities have to deal with the issue is sort of like saying that your maxed out credit cards are not a problem because I've got to pay my thirteen dollar balance as well. I'd much rather he was honest. I'd much prefer that he say "Look, we've taken down you for everything you've got and there's not a damn thing you can do about it. Shut up and send the checks."

Tuesday, August 01, 2006

Who's responsible for Qana?

Via the Volokh Conspiracy, the EU Referendum blog seems to have determined that widely disseminated photos of the aftermath of the Qana bombing were staged and raises questions as to the identity of a Lebanese "rescue worker" who seems to have a Gumpian capacity to be where the action is.

This isn't to suggest that the incident did not occur or even that it was not the result of an Israeli attack (as opposed to a Hezbollah "false flag" operation - where's Kevin Barrett on this one?), but it does underscore what's going on in Lebanon.

Qana is exactly what Hezbollah wanted. When you fire rockets at the enemy and then turn and run like cowards, diving under the skirts of innocent women and children, this is exactly what you get. It is tragic, but it is a completely predictable and desired part of Hezbollah's campaign.

Here's a little law, cribbed from my old Professor Alan Dershowitz. Let's say you rob a bank and grab a teller to use as a human shield as you escape. If the police, in an effort to stop you, accidentally kill her, you are looking at felony murder. It's on you.

Is Mark Green the man of the People?

Jay Bullock finds a certain moral authority in the fact that Russ Feingold's decidedly middle-to-bottom of the pack fundraising comes from small donors. He writes:

But in a second, larger sense, this also speaks to the broad appeal of Feingold's message; people aren't donating to him because they are big-money folks who want to back a winner, but rather because they are your average joes who like what Russ has been saying and doing

So I'm waiting to see what Jay will make of this little gem from this morning's Journal-Sentinel:

Doyle received much larger average contributions than Green, $440 to $176, and more maximum contributions - $10,000 for individuals.