Wednesday, December 31, 2008

Shark on the Air

I will be on Channel 12 News at (I think 6)prognosticating and pontificating on the comming year in politics.

Tuesday, December 30, 2008

I am not growing a mullett

To be honest, I doubt that I could. I think I'd wind up looking like Riff Raff (well, without the hump) in The Rocky Horror Picture Show.

A Russian "scholar" - actually a former KGB and current Kremlin mouthpiece - think that the US is going to have a civil war and break up into six pieces. Having been an official in the former USSR, I'd guess he knows about this type of thing.

We in Wisconsin would be part of the Central North American Republic which our Russian expert says would be under the influence or become part of Canada. Actually, given that this region of the US (which consists of the Great Lakes and Plains states) has a population of almost twice Canada's and a GDP between 2 and 3 times higher than our northern neighbor. I think they'd more likely be part of us.

Take off, you hoser.

Sunday, December 28, 2008

Music for New Year's Day

New Year's is about starting over, even if we rarely do and even if we don't feel the need to. It is a reminder that redemption is still on offer. That if we are still here, there are possibilities. In a year that, personally, has had both great highs and horrible lows, this is very much in my mind.

Over The Rhine's Trumpet Child expresses the idea with religious and musical imagery that recalls the now and the not yet. It's a great song for Christmas and New Year's Day.

The most fantastic singer that no one ever heard of is Beth Hart. She hits the hope and change theme in a way that reminds us of its potential and difficulty in "Hiding Under Water."

Beth is huge in Denmark and Holland. Why she isn't a huge star here is beyond me. But, then, I've already said that.

The obvious U2 selection would be New Year's Day, but my point is better reflected in "Walk On.' This is a performance shortly after 9-ll and can't be understood outside of that context. Near the end, the stage fills with New York cops and firefighters.

Friday, December 26, 2008

A Heartbreaker Named Detroit

As a native Milwaukeean, Detroit breaks my heart. There are just a few cities that you can go that you remind you of home. Chicago and Cleveland are the big two. Cincinnati is reminiscent but a bit too southern. Detroit - or what used to be left of Detroit - was another. (Minneapolis is an entirely different kind of place.)

So pieces like Matt LaBash's recent cover piece for the Weekly Standard disturb me. Websites like this one are fascinating and frightening chronicles of how bad urban decay can get. I have always thought that a conservatism that has no concern for places like the inner city of Detroit is not a conservatism that I want to be part of.

But one cannot, I think, make a great city by litigation or subsidy. Here in Milwaukee, the ACLU has filed a complaint with the Federal Department of Transportation alleging that actions of the Wisconsin Department of Transportation in approving the certain aspects of the reconstruction of I-94, including the partial closure of a city interchange and the construction of a new suburban interchange violates the anti-discrimination provisions of Title VI and its implementing regulations. It also complains of a decision to widen the freeway (which runs through the city) from 6 to 8 lanes instead of using the money for commuter rail.

What interests me about the complaint is that it is based upon highly contested propositions of what will best serve minority communities in the city of Milwaukee. The proposed changes, it says, discourage development in the city closer to the areas in which minorities live (although the interchange to be partially closed is in a predominantly white part of the city) and, since minorities are less likely to have cars, they are less likely to benefit from freeway construction.

Title VI does have broad anti-discrimination provisions but applying them here would seem to require resort to standards that the statute does not supply. Are minorities hurt or helped by greater access to and from outlying areas. There is a body of thought that holds that, if you make it harder to get in and out of the city, the city will prosper.

While that may have been an effective argument in 1956, I am not so sure that it works any longer and Detroit, it seems, provides some evidence for my skepticism.

While today we think of the demise of Detroit with the fall of the auto industry, the death of the former preceded the decline of the latter. Detroit long ago became the hole in a metropolitan donut. As Labash reports, a thriving Chrysler left the city's Highland Park for Auburn Hills because, among other things, the occasional bullet would whiz across its property. The tragedy, of course, is that while Chrysler left, the bullets still fly. Transportation policy could not have prevented and cannot reverse what happened.

Of course that doesn't mean that transportation policy can't have an impact on metropolitan areas,

But I'm interested in the larger question that the complaint raises about the use of anti-discrimination laws in this way. It is one thing to interpret anti-discrimination laws to prevent the exclusion of minorities and quite another to interpret them to compel policies that are thought to serve the interests of minority groups as envisioned by a certain set of ideological presuppositions. I understand that you can call the failure to do so "discrimination" and "advancing minority interests" is a standard of sorts.

But it does not seem to be one that is capable of judicial application without essentially calling upon judges to act in accordance with their individual policy preferences. Returning to my earlier remark about a conservative urbanism, a conservative judge might find another set of policies - i.e., those thought to discourage marriage or to inhibit effective law enforcement - from disserving the interests of minorities.

Cross posted at PrawfsBlawg and the Marquette University Faculty Blog.

Thursday, December 25, 2008

Merry Christmas

Have yourself a Merry Little Christmas

Remember why.

Even without the seasonal trappings.

Sunday, December 21, 2008

Scathingly Brilliant

I'll admit. As a tweener, I loved the movie "Trouble With Angels" because I loved Hayley Mills who was always coming up with an idea that she thought was "scathingly brilliant."

President-elect Obama may have come up with such an idea in asking Rick Warren to give the invocation at his inauguration. Warren is not the least inoffensive evangelical a liberal could want, but he's close. Still, although he apparently favors domestic partnerships, he is not down with same sex marriage and, notwithstanding the fact that this is, more or less, the position of the President-Elect, it is quickly becoming unacceptable in the Democratic Party. Obama (who I rather doubt is committed to it) will almost certainly be the last Democrat leader who espouses, even if only for a while, such a view.

Critics have tried to twist Warren's comments into a hostility toward homosexual couples. In a recent interview, after essentially endorsing domestic partner benefits for same sex couples, he said that he opposed redefining marriage and noted some other relationships that he would argue shoulf not be included within the definition of marriage, including relationships between brothers and sisters and older men and younger women.

Here is where the villification comes in. Gays and lesbians say that he is likening our relationships to incest and pedophillia.

Well, no.

We can't expect more from Rick Warren that he can deliver. He's a guy whose talent lies in taking concepts that are simple and true and translating them for his age and for the masses. That's no mean feat and he has done it well. Warren has probably done more for most families than almost any of our self proclaimed "compassionate" political leaders.

But that doesn't mean that he can manage to be converant with the complexities of the larger issues that engulf his age (even as he gets them right) or that his responses to an interviewer exhausts his views on the subject.

I've used the brother/sister analogy on same sex marriage and it has nothing to do with incest. No one really argues that the basis for extending marriage to gays and lesbians has anything to do with sex. No one says that a gay couple should have the legal protections and obligations of marriage because, like heterosexual couples, they engage in genital intimacy. To the contrary, they emphasize, as they should, the loving and mutual dependency of relationships which they may also form.

But that begs the question. Why extend marriage to same sex relationships involving genital intimacy, but not to a variety of equally loving and dependent relationships (like that between a brother and sister or bachelor son and mother living together) which do not? This is what Warren was trying to get at and, given a chance to explain, may have made more clear.

The example of an older man and younger woman was poorly chosen, although I can see how he got there. Relationships of that type used to commonly result in marriage. We learned - or changes in society came to show us - that this was not a good idea.

My larger point is that Warren is not ignorant or some type of bigot. He is trying to address these issues publicly because his ability to reach out to the faithful on less controverial issues has made him a prominent figure. Given his success at the latter task and resulting prominence, he is an obvious choice to lead prayer at a major national event.

Obama is right in recognizing that, but then there's the scathingly brilliant part.

He knows that his left flank will be upset with him, but not enough to cause him damage. He knows that the larger population will see their attack on Warren as nasty and unfair. His resistance will be seen as reasonable. Not a huge thing but, still, scathingly brilliant.

Songs for Christmas Week

I haven't done this for a while, but maybe it's time for some Christmas songs.

Let's start with the fantastic band Over The Rhine and "All I Ever Get For Christmas Is Blue." Karin Berquist may have one of the sexiest voices in the business.

Chloe Agnew (of Celtic Women fame) may have one of the most beatiful voices around. She sings Panis Angelicus.

Nat King Cole has garnered himself a permanent place in the Christmas repertoire.

But today is also the first day of Hannukah, so here is Maoz Tzur.

Since we can't be too serious, here is a montage set to Eric Cartman's Christmas classic, Swiss Colony Beef Log.

But we can't end there, so here is Michelle Shocked with some Gospel Christmas.

Friday, December 19, 2008

Indulgent pictures of dogs

The Esenberg family compound welcomed a new member last month. Lambeau (aka "Leapage" and "Bullwinkle")is a 12 week old Golden Retriever. Here he is alone.

And with his older brother, Derry (aka "Darwin")

Musings on residential segregation

I was interested to see a discussion on residential racial segregation in Milwaukee on the Political Environment Blog run by former journalist and Norquist aide Jim Rowen.

I was once absorbed in this debate. As a young associate at Foley & Lardner, I was part of the defense team representing 24 suburban school districts who were sued by the Milwaukee Public Schools. MPS sought a metropolitan-wide integration plan. We tried the case for a few months and then it settled on terms largely favorable to the suburbs.

I was in charge of the "housing" case, i.e., our response to the plaintiffs' claim that residential racial segregation (causing school segregation) was caused by discriminatory government practices over a period of 50 years or so. Very heady stuff for a young lawyer still north of 30.

I have kept up with the issue casually since then but I think that there were three important things that we learned then that our still relevant today.

1. Milwaukee is not as unique as we think it is. The claim was made then - and still made today - that Milwaukee has fewer African Americans in the suburbs than other large cities. That was true then and I suspect it still is. But when you mapped racial distribution in the metropolitan area (without regard to municipal boundaries), Milwaukee looked just like other rust belt cities. Over time, the African American community took hold near the city center and moved in a single direction in a pie-shaped movement in a single direction. In Milwaukee, that direction was to the northwest. This movement did not cross into suburban communities largely because of historic annexation of formerly independent areas to the north and west of Milwaukee during the mayorality of Frank Zeidler.

2. Milwaukee exacerbated the problem with an extraordinarily broad residency requirement for municipal and MPS employees. My sister lives in a beautiful neighborhood of nice newer houses on the northwest side. The neighborhood is predominantly African American and overwhelmingly made up of city and MPS employees. We did a computer simulation that randomly distributed people around the area as income would permit. We then adjusted for the residency requirement effect and, while not huge, it was a material factor.

3. Residential segregation is not easily altered by government policy. Surveys traditionally find that both blacks and whites express, in significant numbers, a willingness to move into integrated neighborhoods. But they define them differently. For whites, in general, an integrated neighborhood could be no more that 20 % African Americans. For African Americans, an integrated neighborhood could be no less than 50% African American. More recently, there are studies that minimize the role of choice and others that find it to be the single most important cause of residential racial segregation.

4. This implies that interventions like "affordable housing" outposts in areas that are far removed from minority communities may meet with limited success.

If they can be built. I am sure that a substantial degree of opposition to these development over the years have been racially motivated. although there are substantial nonracial reasons to oppose them. Development with modest property values and potentially large numbers of children will generally consume more tax dollars than they produce.

This is not to suggest that we ought to be indifferent to persistent racial divides. But we should be clear eyed about them.

Cross posted at Marquette University Law School Faculty Blog.

Thursday, December 18, 2008

Labor costs and the Big Three, part 3

Detroits disadvanatage when it comes to labor costs (legacy or otherwise) is not really the cause of their predicament, but a symptom. The bargaining pattern was set during a period in which the Big Three faced little competition. They could overpay production workers, add unnecessary salaried workers, and design cars without regard for or, perhaps more accurately, no incentive to push for improvements. To the contrary, when I was a kid, the Big Three were accused of planned obsolescence, i.e., they made cars that wouldn't last too long.

They have struggled against that, but have not done enough and are burdened about a generation of ill will. I am 52. I have purchased the following new cars in my adult life: Honda Civic, Volkwagen Jetta, Audi 4000, Volvo, Mitsubishi Eclipse, Mercedes C class, BMW 500, Mini and Mini S. (My wife does drive a Jeep Liberty). My sense is that American cars just aren't very good. I could be wrong but the Big Three earned that reputation and it can't be overcome by a bridge loan that leaves their substantial remaining sclerosis intact or an emphasis on "green" cars.

Shark on Prawfs

Before I get back to the Big Three, some of you may be interested in a debate over the Republic settlement that I have been having on PrawfsBlawg.

Tuesday, December 16, 2008

Labor and the Big Three, part 2A

I wanted to move on to the next point I want to make about the UAW and the Big Three, but need to stop and respond up top to some comments in response to the last two points. A commenter named Peter who identifies himself as a TA at UW made a number of comments, some worthwhile and some off the mark. I generally try to take people's arguments at their face value, but this guy, who demonstrates, at best, a limited understanding, if not fundamental ignorance, of economics, persisted not only in making his points (I never fault anyone for that) but in claiming his intellectual superiority.

As always, I wouldn't bother with him if I didn't think he shows the potential to be a valuable contributor to the local debate.

I think I have at least an average amount of patience, but when some TA whose schtick expresses his frustration at my inability to understand his corrections of my misunderstanding using every tired cliche of the net, including the single words followed by. a. punctuation. mark. and the arrogant command to "read that last sentence" again, I lose my religion.

I can read a financial statement.

I have substantial academic course work in economics, have litigated cases about manufacturing accounting and served for ten years as a member of the senior management team of a manufacturing firm that runs ten plants in five states and five foreign nations. It is a nonunion company but one that pays its employees well and has profit sharing for everyone from the receptionists to the shop employees to the CEO calculated by precisely the same formula.

And what I have said is as follows:

1. The Big Three's problems are not solely attributed to their labor contracts. While I have not yet finished my comments on the subject, I believe tht their labor contracts are part of a larger problem. But the problem went beyond labor.

2. Nevertheless, the labor contracts remain problematic, even after recent UAW concessions. The first issue is whether the current labor cost differential between the Big Three and the Japanese nameplate manufacturers in the US are solely due to legacy costs. It seems clear that they are not entirely explicable by those costs and unclear, at least to me, just how much of the difference is legacy related. Contrary to what some of the commenters say, I do look at the sources that the various sources rely on and, without doing more work than I am prepared to do, my view is that no readily accessible commentator has run the issue to ground and the easily accessed numbers require more explanation. If you dice them one way, it looks like the legacy costs could not be fully included. If you dice them another way, it looks like current costs could not amount to the $75/hr number.
What seems clear is that the costs are high - higher than the competition and higher than the compensation paid to comparable workers in the US.

3. But, to address the issue at hand, this seems to go to the magnitude of the problem and not its nature. Cash compensation for current production line workers averages $74,000 a year accompanied by unusually strong benefits, job security provisions and retirement benefits. Nothing wrong with that - until you want the taxpayers to subsidize it. The Big Three can't afford to pay this. Why should people who make much less be taxed to continue it another day? Even if it were not more than Toyota and Honda, those companies aren't asking you to pay for them.

4. This is so whether or not the UAW contracts "caused" the Big Three's miseries. . But even if we want to believe that the Big Three management should have been able to continue to pay 70% more for labor and still compete successfully, they didn't figure it out and the question remains: why should a teacher in Milwaukee be taxed to pay - even for a while - the much larger compensation of a guy in Flint who fastens bolts.

5. The idea that this is a temporary cash flow problem that requires only a bridge loan awaiting the Keynesian solution of creating something from nothing seems equally silly. The problem is lack of demand? 2005 was a near record year for auto sales. The Big Three got creamed. Their problems are not recent. How old is "Roger and Me?"

6. But even if it is "just" a cash flow problem (just as Mrs. Lincoln's problem was interruption of the play), immediate relief from uncompetitive labor contracts now instead of later will result in ... cash flow. In fact - and I do know something about this - it's the best type of cash flow because it is not accompanied by a corresponding increase in costs. Selling another car requires one to make another car and variable costs are never zero. If you're in a huge cash hole, you can climb out of it easier when you do things that go straight to the bottom line.

7. It's not quite right to regard the legacy costs as unalterable. They are fixed costs in the accounting sense in that they do not vary with production. But that's not the same as being unalterable. Some ERISA protected benefits are functionally unalterable. Others - such as retiree health care - are not. Of course, it would disrupt the retirees' bargain to deny them, but it was the Big Three and not the taxpayer that promised them.

Sunday, December 14, 2008

The Big Three and Labor Costs, part 2

So what difference do outsized UAW contracts matter to the Big Three? Locally, Jay Bullock says "machts nichts" citing calculations that bringing the Big Three into line with the Japanese manufacturers would save $800/car. Going back to the last post, I did a back of the envelope calculation for Chrysler/Daimler that seems to bear that out. Of course, if Sherk is right, the legacy burden adds another $500 or so to that figure.

Hardly enough to bother over, says Jay. American cars, he says, are already cheaper than their Japanese counterparts. Certainly it couldn't matter if they were even less expensive? It might. An $800 to $1300 cost difference is significant even if you are already at a lower price point. No rational businessperson would imagine that it is possible to exist with labor costs that are 70% higher than the competition unless your workers are adding some substantial value that the competition's are not.

But here's the larger point. The Big Three are losing money and say they need an immediate transfusion of cash. They want the taxpayers to come up with the money because no one else will. The UAW has made some concessions but the cost of their contracts is still, as we have seen, roughly 70% over the labor costs for the Japanese nameplate manufacturers.

But let's look at the excess labor costs. The UAW says it is making concessions. But, again, by a back of the envelope calculation using Chrysler Daimler numbers, let's see what that extra $800/vehicle means. Daimler/Chrysler sold 4.7 million units in 2006. $800/unit is almost 4 billion dollars annually. If the impact is the same for Ford and GM, then noncompetitive labor costs are costing the Big Three $12billion each year and the cost of deferring labor concessions for two years (as the UAW insists upon) could be as much as $24 billion even as, if Sherk is right, the legacy costs are untouched.

It could be more. It could be less. But, when we are talking about - at least initially - $ 25 billion in loans that no rational creditor would make (otherwise there would be no need to come to DC), the deferral of concessions to 2011 is material. The UAW is, in effect, asking the taxpayers (most of whom are earning substantially less) to give them a few more years of benefits their employers can no longer afford.

So Jay wants to be taxed to permit people whose compensation is twice his to continue to enjoy their unaffordable contract for a while longer.

What's the matter with Bay View?

I concede that the Big Three's problems are not limited to ill advised labor contracts. They have too many salaried employees (who also may be paid too much), designed lousy cars and have too many dealerships. They are a mess. But I do think that all of it is rooted in the same problem and that's where we'll start tomorrow.

Saturday, December 13, 2008

Labor costs and the Big Three, part 1

The debate over the UAW's role in the plight of the Big Three automakers and its responsibility for the cratering of the bailout deal has been rather tendentious. Let's start with the oft-cited statistic that the hourly labor costs of the big three are north of $70/hr while that of the name-brand Japanese manufacturers operating in the US are a bit over $40/hr.

The number seems indisputably correct but there is a disagreement over just what it means and how significant it is.

One argument belabors the obvious but does correct what may be a common mispprehension. To say that labor costs are $ 70/hr is not to say that the average Big Three worker receives this in cash compensation. UAW defenders point out that the average base wage of an assembler is actually around $28/hr. Nice money but much less than $ 70/hr.

Of course, if we stop there, we understate cash compensation. The UAW contracts contain a complicated patchwork of provisions for overtime, premium pay, compensation during layoffs, etc. It turns out that the cash compensation of current UAW workers is around $40/hr per hour worked. Since, to use Chrysler/Daimler as an example, the average hourly employee worked 35.5. hours per week in 2006, actual cash compensation would be a little under $ 74,000. For production line work, that's a ton.

But cash compensation is not all there is. The UAW has negotiated very nice health care and pension packages. Do they make up the remaining $ 30-some/hr?

No, say the critics of the number. They claim that it includes the cost of paying benefits to current retirees and at least one GM spokesperson is quoted as saying that it does.

But this seems to be contradicted by company documents. James Sherk at the Heritage Foundation goes over the companies' SEC filings and concludes it does not. What it includes, he says, is amounts set aside to pay the promised retiree benefits of the current workers -something that currently applicable accounting standards require. Benefits paid out to current retirees are another matter,he says, costing the companies roughly another $30/hr per hour worked by current workers. In other words, according to Sherk, if you include legacy costs, the labor burden per current hour worked actually exceeds $100/hr.

I can't say who is right, but Sherk's claim sounds closer to the truth. If Chrysler/Daimler, to use one example, is paying and accruing, as he reports, $20/hr per current hour worked for the current and future health care costs of current workers, it seems unlikely that the pension obligations to current workers and the rather substantial benefits enjoyed by 84,000 retired workers and their families could be accounted for by a little over $10 per current hour worked.

Either way, the UAW contracts are still pretty rich. But what difference does it make? For ease of reading and in accord with blog etiquette, let's address that in a second post.

Friday, December 12, 2008

Good result for the wrong reason

I am not the right guy to play Scrooge this time of the year, but why is the resolution of the Republic sit down strike something to be applauded. I understand the plight of the employees. State law entitled them to notice and pay that they were not about to receive.

But this is hardly the fault of Bank of America. BOA has been politically pressured to make a loan that will never be repaid.

You may say "who cares?" BOA is a big bank and 1.75 million dollars is barely a crumb in its cookie jar. But, as the old saying goes, a million here and a million there, and pretty soon we are talking about real money. Neither BOA nor any other bank can survive by making, not merely a poor - but an insane "loan" in response to political pressure. In a free economy, businesses fail and various stakeholders - shareholders, employees and creditors - will be hurt by it. We can't expect banks - even those who have had an influx of federal capital - to insure against it.

The Republic employees acted boldly and certainly benefited from being from the President-elect's hometown. Maybe (although I would oppose it) the government should guarantee obligations under the plant closing laws. But shifting the costs to a firm's lender based upon who can and cannot exert the requisite political pressure seems irrational and even dangerous.

I suppose that those who are committed to a greater collectivization of losses and gains, this is a fumbling step in the right direction. My own view is that, if you want to assume community responsibility for private obligations, it ought to be done directly so the community can assess the costs and benefits.

Crossposted at Marquette University Law School Faculty Blog and Prawfsblawg.

I was answering a question

Yesterday, in its report to premium subscribers, quoted me as saying that I had been approached to run for the state supreme court and had decided against it. Bill Christofferson and Illusory Tenant wonder why I issued a "press release" announcing my decision not to run against the Chief Justice.

But, of course, I did not issue a press release. I was responding to an inquiry from a reporter who had heard a rumor. I answered honestly. Much to my surprise, some very good and influential people (and, no, it was not WMC or any officer, employee. memner or other affiliate of WMC) asked me to consider a run. I was flattered, but declined. That is all that I am ever going to say on the subject.

Xoff goes on to criticize me for not being a judge before I decided not to run in response to others' suggestion that I do so. As I blogged during the Clifford-Ziegler race, I don't think that being a judge is a necessary qualification for the state supreme court. The Chief Justice, I am sure, would agree with me because she herself was not a judge before joining the court and, while I certainly have my disagreements with her, she did go on to a long and impressive career.

I suppose I could have declined to comment but I don't see why I should allow rumors to circulate about me challenging Chief Justice Abrahamson when I am not doing so.

Wednesday, December 10, 2008

This is just plain fun

Now that Governor Rod Blagojevich has been caught. Of course, he was abusing his office and betraying the people of Illinois, but I see no larger issue other than the soon to be former Governor of the flatlanders is what is perhaps the worst amalgamation of the Friends of Dorothy.* He's got no brain and no heart, but he certainly has the nerve. Bad combination. He is, perhaps, the ur-FIB.

But there is no larger issue here. In the absence of some evidence that isn't there now and never may be, it tells us nothing about Obama. He comes from Chicago politics and Chicago politics is a cesspool of corruption. We knew that. But that doesn't translate into personal guilt.

It doesn't tell us anything about the need for "clean government" reforms. The trap into which Blagojevich fell was inherent in the human government condition. Government dispenses things of great value (e.g., money) and the Governor has a fair amount of power in the the transactions by which these things are disbursed. There will always be a temptation to use that power for personal gain, if not campaign contributions, then a job, money or a friendly editorial board.

Thinking that we can remove these temptations is tantamount to a puppy who believes that great things will follow if he can only catch that tail.

* I am aware of one commonly accepted secondary meaning of this phrase. I don't use it in that way. I'm trying to say that removing a great flaw can lead to even worse results if it is unbalanced by other virtues. Or something like that.

Monday, December 08, 2008

Need money? Draw your own !

Last Friday, I gave a talk at a CLE seminar to the St. Thomas More Lawyers Society. In introducing the program's speakers, Dean Joe Kearney of the Marquette University Law School explained why each was qualified to speak on the particular topic to be addressed. With respect to me, he said that, as legal academic, I was (or, perhaps more accurately thought I was) qualified to speak on the law, the weather, the Brewers schedule or absolutely anything else. Substitute "blogger" for "legal academic" and the proposition still works.

Although I have a fair amount of course work in the subject, I am not an economist so I am ready to be corrected on this. But the notion that the East Side and Riverwest neighborhoods in Milwaukee ought to print their own money strikes me as completely pedestrian.

Imagine that the east side currency - let's call them "Bolshevik Bucks" - are purchased with US currency for redemption at participating east side businesses. For $40 US paid to a joint venture of those businesses, you get $ 50 in Bolshies. When you use them, the merchant receives eighty cents on the dollar from the joint venture. This makes it nothing more than a joint discount program akin to Disney Dollars with the marketing hook being neighborhood affinity. This appears to be the way that the Berkshares program works in Massachusetts.

There is nothing remarkable about that. It's called a "sale" and my wife tells me that they are happening all over the place about now. The only difference is that there is a patina of self righteousness that comes with promoting "sustainability."

The article suggests that this might be what's going on, but it's not clear. Another model seems to represented by the Ithaca Hours program in which businesses and employees agree to accept - to some limited extent - a local currency that is not redeemable in or pegged to US currency. In this iteration, the idea seems to be to create a mechanism for businesses and consumers to try to erect what the E. F. Schumacher Society calls a "protective membrane" but what is more commonly called a trade barrier.

As you might imagine, there is a limited demand for that type of currency because it is premised on the idea that economies of scale and comparative advantage are less significant sources of value than they are. The premise is that we ought to buy and produce locally and on smaller scales, presumably resulting in a kinder and gentler, if less wealthy, society.

Although some claim that these local currencies have a higher velocity (i.e., they circulate faster), there are apparently only $ 100,000 in Ithaca Hours (which are supposedly worth ten dollars per Hour) in circulation after 17 years. That doesn't seem very significant.

Apparently, the Camelot of the local currency movement is the Wörgl experiment. During the Great Depression, a town in Austria issued its own Arbeitsbescheinigungen. or labor certificates, that bore a negative interest rate, i.e., you could exchange them for Austrian schillings but at a depreciating rate, creating an incentive to use them or lose them. This supposedly resulted in a financial miracle in which depressed little Wörgl turned into the Lake Woebegone of the Tyrol. The idea is that, when people are overly liquid because they fear losing money, a depreciating currency (and inflation) are our friends. Maybe there is a circumstance in which this is true, but, if that's where we are now, I doubt that Linneman's, Outpost Natural Foods and Beans & Barley are going to lead us out. In any event proponents of local currency do not seem to propose it as a matter of economic management but as a way of life.

Are there legal problems? I don't think so - at least not in the examples that I imagine - but I'll leave that to others for now. That's too close to things that I am supposed to know about.

Cross posted at the Marquette University Law School Faculty Blog.

Sunday, December 07, 2008

The Big Three's Scrooge may be America's Santa

It's been incredibly slow here at Shark and Shepherd. This past week presented one enormous (but not bad) distraction and one smaller one as we cope with a new canine addition to the Esenberg family compound. My bipolar blogging identity (here and on the Marquette University Law School Faculty Blog) has now muted into full scale multiple personality disorder as I take my first guest stint on PrawfsBlawg. There will be a storm of crossposting for me this Christmas season.

But, for now and here, I want to comment on John Nichols' column suggesting that the UAW is in need of bailout because it has devoted some of its considerable resources to causes that he - and, with respect to some of them, even people like me - like.

But this ignores the economic reality of the matter. The UAW negotiated sweet contracts for its members during an era that the Big Three enjoyed an oligopoly in the US auto market and it extended the cost of those contracts far into the future by securing outsized pension and retiree health care benefits.

But we need to understand the narrative correctly. It wasn't that the UAW took advantage of the auto companies. It was that the auto companies were taking advantage of us because they lacked competition. Sharing some of the swag with the UAW in order to buy industrial peace made perfect sense. Think of them as cohorts.

And cohorts they remain. When I was a kid, we talked about planned obsolescence in the auto industry. American cars weren't very good because they didn't have to be. Management, shareholders and labor put it to us.

But the foreign manufacturers came in and raised the bar. There was no more free ride but, for too long and even now, the UAW and Big Three management wanted to act as if there was. You can't compete by paying production line workers total compensation in excess of six figures while your competition is paying roughly half that. It's not that the only problem with the American companies is their labor costs but their labor costs are an inextricable part of the problem.

We can't just bail out the auto companies. Their union contracts must be repudiated because they can no longer afford them. If the shareholders have lost value, tough. Management should be fired, but at the direction of the owners (even if those come to be the creditors) and not the government. That is what would happen in bankruptcy. If bankruptcy, which has worked for a number of other companies, is somehow thought to be impossible for car companies, then the alternative should not leave any stakeholder - labor or owner or management - better off than bankruptcy would have.

If there is a bailout, it should be in the form of an imposed bankruptcy adjudication. Contractual obligations (including executive salaries and bonuses) are restructured. Shareholders take a hit and are free to exact their revenge on management.

But throwing money at failure is silly.

Monday, December 01, 2008

Gender and soul mates

I have been wanting to post on the e-Harmony settlement. I have the same reaction to its founder and his participation in its TV commercials as I do to George of the Men's Wearhouse. I am sure that he's a nice guy and all,but he might be a tad overexposed.

For those who missed it, eHarmony is a computer dating service that touts a system for matching men and women who are thought to be compatible based upon their answers to a series of questions. As I understand it, the system is based upon research on the experiences of heterosexual couples and premised upon the particular responses of men and women as to what they seek in an opposite sex partner and self identification of certain values and attributions. The selection of the questions is based on experience with married couples.

(I've thought it would be interesting to register and see if your are matched with your spouse, but the idea is hardly original. Green Acres did it in that age of punch cards.)

eHarmony doesn't provide this service for gays and lesbians and, for this reason, found itself subject to a discrimination complaint in New Jersey and California. Faced with significant litigation costs, it decided to settle the New Jersey matter and will develop a separate site for same sex matching.

The case hardly seems to be about discrimination in the traditional sense of the word. eHarmony developed a product designed for heterosexuals. It did not choose to develop one for same sex couples. That, in and of itself. cannot constitute discrimination. Harley's and Victoria's Secret do not discriminate by failing to sell, respectively, women's and men's clothing.

Those who support the idea of discrimination would respond by saying the analogy is inapt. There is a difference between clothing for men and women but not between heterosexual and homosexual couples.

That may be true but it's not self evident. Whether by socialization or otherwise, there are differences between men and women that affect relationships between them. This strongly suggests that a relationship between two men and two women will be different. Accepting a separate system for same-sex couples seems to be an acknowledgement of that.

Perhaps these differences are not relevant to the eHarmony system. I don't know and neither does the Attorney General for New Jersey. The case is not about that. It's about making the point that gender is irrelevant to sexuality other than for its obvious limitations on physical activities and the superficialities associated with socially constructed gender roles.

It also raises, again, the question of conscience protection as it relates to sexual orientation. Our society has decided that individuals cannot act in certain ways even if they belief that separation of the races is a moral imperative. Ought we treat beliefs about sexual orientation in the same way?

Wednesday, November 26, 2008

The virtue of gratitude

A few years ago, I wrote a Thanksgiving Day column for the Milwaukee Journal Sentinel. It got a good response. My favorite came from one my former partners (now an adjunct at Marquette University Law School) who is a former naval officer. He told me that, on Thanksgiving, he orders his family to listen while he reads it to them.

I doubt that is true, but, if you know the man, the image is priceless and, for those of us who were litigators at Foley & Lardner during the eighties and nineties, evocative of many warm memories.

In any event, I reprise the column each Thanksgiving. Think of it as my low rent version of "Yes, Virginia, there is a Santa Claus."

The virtue of gratitude
By Rick Esenberg

Cross posted at Marquette University Faculty Blog.

Posted: Nov. 23, 2005
Abit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn't breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.

I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, "The Big One." It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was "more stable" than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was "thank you."

This is not exactly the emotion I would have expected. I am generally not the type of guy who sees the glass as half full. Those who know me would be quick to tell you that I am decidedly not Mr. Sunshine.

So why "thank you"?

We think of gratitude as a debt we owe for favors received. It is the currency by which we compensate others - or, if we are so inclined, God - for whatever has been done for us. Giving thanks is simply honoring our end of a bargain.

We are thankful - or not - to the extent that we feel we have been - or have not been - blessed. Even those who urge us to be more thankful than we are argue that the key is to recognize that we are better off than we know.

This is, I think, incomplete. Gratitude is just as important when we are in life's troughs as when we are astride its peaks. The Roman orator Cicero thought gratitude to be not only the greatest of virtues but the parent of all the others. It is not simply what we owe but the way in which we should live.

Living in a spirit of gratitude requires an acknowledgment that we are dependent, something that certainly comes hard to me and runs counter to a culture that has turned the "me decade" of the 1970s into the "me millennium" of forever.

But we are dependent on others - those who are with us today, those we never meet and those who have lived before us. I believe we are, whether we acknowledge it or not, dependent on God.

It may have taken a heart attack to teach me that.

My wife and I attend a church in downtown Milwaukee. We joke that our pastor says "thank you" more than any person on the face of the Earth. If you can do it, Pastor Amy can thank you for it. That she also seems to be happier than just about anyone else we know is not a coincidence.

I think she knows, and I learned the hard way, that to acknowledge the ways in which we are incomplete and in which we need something and someone outside ourselves frees us from the burden of needing to be perfect. Once we acknowledge that we cannot control all that happens to us and that we cannot create a perfect life, we are freed to do what we can do.

It may have taken a heart attack for me to learn that to be grateful for whatever gifts I have is far more important than to yearn after those I do not.

So take a moment today, between football and feasting (a nice Gewürtztraminer, by the way, goes wonderfully with turkey), to cultivate a habit of gratitude. Not just today but every day. Not just when things go well but when they don't.

The Christian mystic Meister Eckhardt once said that if the only prayer that you say in your whole life is "thank you," it will be enough.

It will certainly be a good start.

Rick Esenberg of Mequon is an attorney and junior warden at St. Paul's Episcopal Church in Milwaukee. His e-mail address is

Shark on the air

If you are in Racine, I am on WRJN as we speak. 1400 AM.

Tuesday, November 25, 2008

No New Deal Again

Long time, no blog. There are so many things going on. But I think I must add my small voice to the bailout mania.


Although Bush 43 has been portrayed by some on the left as a type of ur-conservative, he was never that. He did cut taxes but restraining spending was never very important to him. The creation of large slush funds to bail out whoever has the political capital to stake a claim seems wildly wrongheaded.

Perhaps Obama, to the disgust of the netroots, won't continue this policy. So far, his appointments in the economic area, in sharp contradiction to his campaign rhetoric, seem largely in line with the Reagan consensus.

But then there is this is this talk of a two year recovery plan and massive infusions of government cash into the economy as if passing money through Washington somehow creates value that was not there before it passed go at the Potomac. This hasn't worked in the past and seems unlikely to work now.

Thursday, November 20, 2008

Prayers for General Mukasey

I am in Washington for the Federalist Society's annual Lawyer's convention. Tonight, in the midst of a thoughtful speech about the successes of the Bush administration in fighting the war on terror, the hyperbole regarding the administration's legal positions on certain aspects of the response to terror and the dangers inherent in post hoc attempts to criminalize what were, at worst, disputed legal positions, Attorney General Michael Mukasey collapsed. He is in my prayers tonight and, I hope, yours.

Greetings from the District

I'm blogging tonight from our nation's capitol, but I am still locked on to what's going on back home.

There's not much to say about the controversy regarding the Dan Shelley article in Milwaukee magazine. It strikes me as, at best, hyperventilation over the uninteresting and, at worst, wrong headed. Talk radio tends to come from a certain perspective. On the right, folks like Sykes and Belling and, on the left, people such as McNally and whoever hosts on what's left of Air America, are candid about their bias. Bias is not a weakness, it is a fact. We have them. We deal with them better when we acknowledge them.

If I know someone is a conservative or liberal, then I can assess their comments in light of that. On the local scene, I think that, for example, Sykes and Von are hosts with a perspective but who conduct themselves in a way that make them worth listening to. There are others as well.

This doesn't mean that you can't mine their shows and find objectionable things that they have said. Let someone talk enough (including me) and that will happen.

This doesn't mean that I think that all talk show hosts, including the locals, conduct themselves honorably. It's ok to talk politics in an entertaining way, but one should always remember that it is serious business and our country is not a cartoon made up of heroes and villians.

Monday, November 17, 2008

OK, don't touch that dial, but ...

Before I leave the topic of the nature of political discourse (something that I have a great interest in), I think I have one more post in me.

Discourse, in my view, can only occur between people who believe that the other side is worth listening to. I certainly understand - and even appreciate - a bit of sharp riposte. Nor do I deny that the reality of politics affects the propensity of (and language with which) we are willing to dump on people on our side of the tracks.

But if you really think that your side has a monopoly on intelligence, moral character and honesty, you are unlikely to say anything worth listening to. One of the ways to guard against this, I think, is to try to understand (and to assume that others will understand) the argument to which you are responding. As I am sure I have blogged before, I encourage students to do that because I think this is the most effective starting point.

The key, it seems to me, is whether you try to do that and not whether you are just as quick to criticize folks on your side of the study hall or whether you use all of the same adjectives.

But I also know that some people read blogs for affirmation. Local bloggers like this guy (who I pick on because I think he could do better)have no interest in responding to folks on the other side because he doesn't think there is anything worth responding to. But if you want an adjective-laden example of a white guy playing the dozens on conservatives, it's there for you.

It's there that the rhetoric can get overheated and people can get mislead about the nature of the other side. If you're main purpose is to entertain people who already agree with you, then some exaggeration is required and, really, is OK.

Still, there is a line there. And a need to remember that when we exaggerate to get a laugh, we're still exaggerating. If you come to believe - really believe - hat conservatives have no soul and that liberals hate their country, you need to rethink things.

Wednesday, November 12, 2008

You're not dialing it down

Tuesday's post questioning the notion that there is no monopoly on - or even a disproportionate tendency toward - anger and vitriol on the right as opposed to the left has gotten a fair amount of response. There are three things that strike me.

First, there is a fair amount of emphasis on what I understand to be very intemperate remarks by a local conservative blogger on election eve. I can't comment on them because I didn't see them. I have now read Peter DiGuadio's explanation of his comments and it is overwrought. I am not going to pretend that I don't think Obama was a poor choice for President. But his victory is hardly the end of the American Experience. While I know that people do get overwrought in the aftermath of an election into which they have poured so much of themselves, President-elect Obama is my President even if I do expect to disagree with a good deal of what he does.

Since I took an academic position I have far less time to read blogs than I'd like. Right now, I probably read more local left blogs than blogs on the right (I tend to try to catch up on some of the latter in periodic sweeps) because I want to know where there might be an interesting subject for debate. This isn't necessarily the way I want it but its the way it is. If, as one commenter suggests, there should be a father figure on the right who keeps the brothers and sisters in line (and who, I wonder, would that be on the left), it's not going to be me.

Another theme was to take me to task for suggesting that Charlie Sykes is a reasonable guy. As I have said before, talk radio is not a faculty workshop. It's entertainment and, because it is, there needs to be a certain vibrancy that can get in the away of a perfectly detached and neutral conversation. Within the confines of the medium, I think that Charlie does a fairly good job of maintaining a civilized discourse. Notwithstanding Dan Shelley's rather underwhelming piece in Milwaukee Magazine, I think that important things get discussed on talk radio and, on some shows, get discussed in a fairly informative way.

The third thing I noticed was the depth of the investment in the idea of moral superiority. I do not claim that there is a "hate left" stronger than the "hate right." That's a contest that I think isn't worth having. Human nature is such that we can expect abuse - and reason - from both sides. I can tick off bunches of people in this town on the left and the right for whom I have the greatest degree of respect and who I regard to be honest, intelligent and fascinating. Someday I'd like to see them all get together for conversation - perhaps even fueled, Mr. Brawler, {you might even be invited), by Oregon Pinot Noir and even, truth be known, some French varietals.

Tuesday, November 11, 2008

Dial it down

I am sure that Dave Begel does not remember me, but I have a fond recollection of him. Back when I was but a young lawyer, I was a member of the defense trial team in the metropolitan Milwaukee school desegregation case (this was a case that wanted to extend some form of mandatory racial balancing throughout the metro area, not just in MPS). The case was of substantial public interest and Judge Curran decided to allow the press to sit in the jury box (there were so many lawyers - 12 to 27 on any given day - that the normal spectator section had to be removed).

I was cross examining (actually eviscerating, if I so say so myself) one of the experts (it was this guy) for MPS (who wanted the 4 county busing)and momentarily could not locate one of my exhibits. Begel handed it to me. A young lawyer appreciates that type of thing.

But I can't agree with the notion - advanced by Begel and others (and more civilly by him) - that last week's election marked some type of defeat for "angry" talk radio. It wasn't a good night for conservatives, but this stereotype of talk radio as "angry" and "divisive" and "against everything" is tired. Listen to Joel McNally's morning show (or read his Shepherd Express column) and tell me that he doesn't take the position - at least for public consumption - that his political opponents are moral or intellectual defectives. Try reading this guy's blog. You won't find that kind of vituperative self-righteousness in many other places.

I understand that Belling's schtick is outrage, but Sykes and Wagner are hardly breathing fire. We have embarrassments like G. Gordon Liddy and Michael Savage. The left has Randi Rhodes and Keith Olbermann.

It's one thing to claim victory. It's another to claim moral superiority.

Religous freedom - or oppression?

The BBC reports that a group in the UK called the Centre for Social Cohesion has issued a report finding that European governments have not done enough to protect the free speech of Muslims from other Muslims.

According to the report, Muslim reformers have not been sufficiently protected from attacks by Muslim extremists, citing as a prime example (but it offers many others) the fatwah against Sir Salman Rushdie for the publication of The Satanic Verses. It called on European governments to treat Muslims "as complete citizens, neither restricted in their freedoms nor unduly permitted to issue threats against others."

The report suggests, in other words, a kind of multicultural condescension - a view that fatwas and threats of violence are simply the Islamic way and must, at least within the community, be tolerated. Of course, this becomes sort of a self fulfilling prophecy as Islamic reformers are run off. When the lion is allowed to lie down with the lamb, what follows is usually dinner.

The co-author of the report noted that "[u]nless Muslims are allowed to discuss their religion without fear of attack there can be no chance of reform or genuine freedom of conscience within Islam." Without ensuring this, "there can be no chance of reform or genuine freedom of conscience within Islam."

The report does not offer much in the way of specific proposals. The easy thing - at least for the lawyers and public officials who decree it - is to protect critics from violence and calls for violence.

But the report may also reflect a tension with the notion, which seems to enjoy substantial support in Europe, that religious groups and religions ought to be protected from denigration. To what extent do legal prohibitions of denigration reinforce cultural pressure?

And should there be legal protection for critics that goes beyond the punishment of violence and express threats of immediate violence? Imagine a critic who is branded an "idolator" and "apostate" by a Imam who teaches an unnuanced reading of Sura 9.5 ("slay the idolaters wherever ye find them"). There are, of course, nuanced readings of this verse in Islam (held, I suspect, by some overwhelming percentage of Muslims) which argue that it does not require killing anyone.

Our American answers would turn on whether comment is likely to incite imminent violence but, in this context, one can infer that only if one makes a judgment about what the words said mean to a class of religious believers. Should the state take that into account in responding to the comments, i.e., reacting differently to different speakers who are presumed to have different audiences? If the state can do that, can it move (hard to imagine in the US tradition) against religious teachings that call for violence under certain circumstances, i.e., apostasy? Certainly it can do so through persuasion, but it ought it be able to do so through sanction?

Should the state be permitted to act to encourage forms of religion that are compatible with free and pluralistic societies?

Cross posted at Marquette University Law School Faculty Blog.

Sunday, November 09, 2008

Post election rock

Late today, but it's post-election time and we should all feel good for awhile before we get back at each other's throats. Has the One who left us here come for us at last?

I have insisted that the proper response when you lose an election is to be a happy warrior. I couldn't find a great clip but I like ELP's "Jerusalem." "I shall not cease from mental fight nor shall my sword sleep in my hand till we have built Jerusalem in England's green and pleasant land." Or, in our case, achieved the Restoration. I'd give a hat tip to Tony Blankley on this but he actually credited the poem to Robert Blake. You should keep your eye on the sparrow when the going gets narrow, but that's not what we're talking about here. The party of Sarah Palin is not the He-Man Women Haters Club.

And, its so obvious, but I have to do it. 46% of the vote? "God's will! I pray thee, wish not one man more." They will come.

Post-election Reflection

1. Conservatives ought to be wary of opponents bearing advice. A case in point is the idea that we must jettison the "Sarah Palin" wing of the party. I'm not sure what that wing is, although I suppose it means social conservatism. It's hard for me to see how that is the lesson to be drawn from successive election defeats in which social issues were not predominant. This election turned out to be about the economy. If there is any imperative for conservatives, it is about how to fashion policies that help the market to work for the middle class and to learn how to articulate the way in which it does apart from talk about taxes.

2. Incidentally, the Palin bashing by McCain's people and his silence on it are shameful. The charges are facially incredible and the idea that McCain lost because of Palin is silly. He lost the election on September 15.

3. We should be careful about talk of realignment or a new Democratic era. In 1976, Jimmy Carter was elected President and there were 292 Democrats in the House and 61 in the Senate. Our new President was also thought to be transformative. He was the first Southerner to have been elected without having first served as Vice President since Reconstruction and this was said to have healing and racially redemptive qualities. He was said to be a breath of fresh air after the imperial and heavy handed Nixon presidency. He spoke of moral renewal and a government as good as the American people. I recall that he walked during the Inaugural Parade and everyone swooned. There was - I was there and remember - talk about how the youth vote (that would have been me and my contemporaries) meant the end of the GOP. Four years later, the Dems had lost 49 seats in the House, 15 in the Senate and the Presidency.

4. I note that, in today's Washington Post, an omsbudsman came to the conclusion that the paper had been biased in favor of Obama and that gambling has been going on at Rick's nightclub in Casablanca. Sorry, they say, our bad. That's ok. The New York Times is still stuck on the first step. It looks like the Post has already moved to the fifth ("Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.")

5. Lighten up on the Nancy Reagan joke. It was funny.

Thursday, November 06, 2008

Is racial change on offer?

Black conservative Shelby Steele throws some cold water on the theme of racial redemption expressed by Obama's victory. Steele has always argued that Obama is a "bargainer" - a black man who promises whites that he will not accuse them of racism if he does not hold his race against them. This, by itself, might be called racial reconciliation, but, for Steele, Obama offers whites this racial innocence only in return for their support. Thus the implied and express charges of racism in response to certain criticisms of Obama.

For Steele, this is anything but post-racial. Nevertheless, couldn't an Obama victory move us in a post-racial direction? Over at NRO, a number of commentators argue that, if it doesn't, it should. Obama's election, they say, should lead to a recognition that the real problems facing the African-American community are largely unrelated to current day racism.

But Steele isn't buying.

Like most Americans, I would love to see an Obama presidency nudge things in this direction. But the larger reality is the profound disparity between black and white Americans that will persist even under the glow of an Obama presidency. The black illegitimacy rate remains at 70%. Blacks did worse on the SAT in 2000 than in 1990. Fifty-five percent of all federal prisoners are black, though we are only 13% of the population. The academic achievement gap between blacks and whites persists even for the black middle class. All this disparity will continue to accuse blacks of inferiority and whites of racism -- thus refueling our racial politics -- despite the level of melanin in the president's skin.

I'm a bit more optimistic, but the ball is in President-elect Obama's court. We can move past our racial politics if he intentionally decides to lead us there. I don't expect him to do that, but he is uniquely situated to accomplish that.

Wednesday, November 05, 2008

Change all around

Congratulations to President-Elect Obama and his supporters. While I would have preferred someone along the lines of Michael Steele or J.C. Watts, the election of an African-American to the Presidency is historic. It reflects racial progress and is itself redemptive and healing.

"Change" is here, but its still unclear to me just what it will be. As I said on WMCS last night, if Obama doesn't disappoint his enthusiastic supporters on the left like Joel McNally (who was in studio), he's likely to be a one term President. Interestingly, Eric Von expects him to do just that.

As for the state of the GOP, it was a bad night but not nearly as bad as we feared it might be. The Senate and House pickups are at the low end of the expected range and Obama's margin of victory was less than or comparable to those of Clinton.

But a loss is a loss and this is two in a row. Although the media deserves some of the blame and McCain did not run a good fall campaign, it would be a mistake if we avoid the frank and difficult discussion of what conservatism means in 2008.

What do we need to change?

That's a conversation that begins today.

Tuesday, November 04, 2008

A few initial reactions

It doesn't look like an Obama blowout, but without Pennsylvania, the path to victory for McCain is remote. He needs to win Virginia, North Carolina, Ohio, Indiana Missouri and Florida - all currently too close to call. It seems unlikely that all of these would break the right way.

But even that leaves him ten electoral votes short and there are only three places to get them - New Mexico, Nevada and Colorado. He has to win two of the three.

At this point, it looks like 51-48 and 317-221 for Obama. 57 Dems in the Senate.

Monday, November 03, 2008


I'm not going to post any election predictions because, while I don't believe in the Bradley effect, I am a bit wary of the bandwagon effect.

But here is something to mess with your minds.

The polls have fluctuated a bit, but Obama has been ahead nationally by 2 to 10 points and is, by poll average, ahead in enough states to win comfortably in the Electoral College.

But what if there is a systematic bias in favor of the Democrats (as there were in the exit polls in 2004) and a late surge for McCain. Libertarian blogger Vox Day (who is not voting for McCain) thinks you have to adjust the polls by 5% in favor of the GOP. I certainly wouldn't think there is any rule to that effect (I don't think that pollsters generally overstate the Democrat vote by 5%), but, if the poll results are affected by assumptions regarding turnout and party identification that don't hold up, it could happen.

Blogger Baseball Savant, tries that adjustment, using's projections. McCain wins with 274 electoral votes. If you use the RCP averages, you can get McCain to 271, but only if you ignore a half point in Colorado.

Of course, for this to happen, the error would have to be systematic. There would have to be enough polls with a methodology skewed in the same direction to have significantly pushed the averages to the left. (Note: I am not talking about the statistical margin of error here. That's another thing altogether.)

Testing this theory would require more work than I have the time or inclination to do. For example, how do the adjustments for each poll work (I suspect that all of that info isn't even publicly available) and is there any poll that shows a McCain win or a collection of states that exceeds 270 within the statistical margin of error or with a McCain lead? Fox/Rasmussen is close but not quite there. IBD/TIPP is within the margin of error nationally, but I am unaware that it does state polling.

So, you'd have to have a systematic Obama error in almost all of the polls and a surge to McCain.

This may be unlikely, but it's not impossible. We probably won't know more based on leaked exit polling because those are likely to overstate Obama's vote as they overstated Kerry's.

Prior Restraint in Black River Falls

I have posted a comment on the awful decision by a circuit judge in Black River Falls enjoining political speech over at the Marquette University Law School Faculty Blog.Democrats should be careful about what they wish for. If this is permissible, then at least half of Obama's spots in Wisconsin could have been ordered off the air.

Courts (or at least those who know what they are doing) are reluctant almost to the point of always and everywhere refusing to issue prior restraints on political speech. There are good reasons for that.

H/T: Illusory Tenant

Update: The Court of Appeals has stayed the TRO.

Sunday, November 02, 2008

Old songs for election week

Old rock for election day.

For my liberal friends, we'll start with the great John Lee Hooker's "Democrat Man" released in 1960. It's a bit anachronistic for today. Hooker wants the Democrats in power so he won't go to the "welfare store" but women keep voting them out. (You have to wait for the introductory jingle to end.)

In acknowledgement of this year's Democrat Man, here's Willie Dixon singing the Seventh Son. "I can heal the sick/raise the dead."

But to acknowledge him in another way, let's listen to Rush and "The Trees." "Now there's no more oak oppression/For they passed a noble law/And the trees are all kept equal/By hatchet, axe and saw" (Warning: Hair Alert)

In honor of Sarah Palin, as we prepare to elect the most pro-abortion President in our history, here is the Cranberries' "Icicle Melts."

And for John McCain - and for all of us - there can be no surrender. It's one of those times. "Well, now young faces grow sad and old/And hearts of fire grow cold/
We swore blood brothers against the wind/Now I'm ready to grow young again."

Saturday, November 01, 2008

Who could oppose paid sick leave?

One of the weaker arguments on behalf of the City of Milwaukee's sick pay referendum is that it will help businesses. It is certainly true that paid sick pays can be a benefit that helps attract and retain good employees. That's why many businesses offer them.

But those that don't aren't stupid. They have either found that they can attract the workers they need without offering paid sick days or that, in the context of their business, the benefits to the enterprise don't outweigh the cost.

The idea behind requiring them to offer paid sick days presumes that they will simply absorb the additional cost and that there will be no impact on employment or other forms of compensation.

That's unlikely. In a competitive labor market where the marginal cost of labor is roughly equivalent to marginal productivity, some people who were worth employing will no longer be. There will be the winners that we see (i.e., those who still have a job and now have paid sick leave) and the losers that we do not see (those who would have been employed but are now unemployed). In a market where there is an oversupply of labor, employers who are forced to provide paid sick days will simply reduce other forms of compensation.

One argument in support of this type of regulation is that, if you impose this obligation on all employers, they will be able to pass the cost on to their customers knowing that none of their competitors will be able to avoid it. There are market conditions where that can happen.

But this isn't one of them. Many employers can escape the mandate by moving the jobs outside the city.

Of course, you can make these arguments in opposition to almost all forms of mandated labor practices, including wage and hour regulation. I can see an argument that certain employment relationships are an affront to human decency even if they are freely entered into. But I don't know that the absence of paid sick leave qualifies as such.

Friday, October 31, 2008

What may be coming

I've had the opportunity to do some radio interviews around the country on the election and the Supreme Court. What I have to say on the subject is summarized in this piece that I wrote for WI Interest.

A host on a syndicated show that I understand airs in Tennessee, Indiana and New Mexico asked me whether "technically, we can say that Barack Obama a Marxist?"

No, he's not. But, to the extent there is a consistent theme in his career, it is one that places him firmly on the left of American politics.

Much of his campaign has been focused on trying to obscure that. His public record is limited enough to be explained away as indeterminate. He's a guy who has never held one job for more than a few years and whose resume largely consists of aspiring to the next thing. This has certainly been an obstacle to his campaign, but, in a way, it has also been an advantage. It enables him to define himself.

If he was a leftist community organizer and someone who wrote an autobiography steeped in the presumptions of the left, it can be dismissed as a youthful interlude. If he chose as a spiritual mentor and father figure an intemperate, race-baiting radical, it was just something that grew out of his racially equivocal origin and search for his African-American identity. If he served on a board with an unrepentant terrorist and Marxist shoveling money to politicized and ill considered educational projects, it's just one little thing. Does he have a highly partisan and liberal voting record? That record is brief enough to be dismissed and we are asked to believe what he says and not what he's done.

The positions he has adopted for purpose of the campaign are generally way stations to more fully interventionist and redistributive policies. He has not proposed a single payer health plan, but the logic of what he as proposed - offering the federal plan as a guaranteed and subsidized alternative - will move us in that direction. He hasn't proposed tax increases for most of us, but his stated desire to use tax credits to spread the wealth plan and plans for new spending would require him to do so.

In addition, his rhetoric outpaces his position papers. He has promised to change the nature of our world and lots of his fans believe him.

That doesn't mean that he will try to govern in that way. Those who believe that he won't want to say that political expediency and his own intelligence (i.e., he's too smart to believe his own class warfare rhetoric)will moderate his policies. The report that he is making plans to "dampen expectations" sounds consistent with this view.

But, at the end of day, it makes more sense to judge a candidate by his past deeds and present rhetoric, rather than projecting onto to him or her some heretofore undemonstrated moderation. After years in the wilderness, the American left will expect this to be their time. They are likely to claim a mandate and, if they do, may promptly lose it.

Wednesday, October 29, 2008

Shark on the Air

I will be on Charlie Sykes' show tomorrow at 8:30 or so to discuss the election and the Supreme Court.

There is nothing to see here

As I blogged yesterday, I think that the 2001 interview with Barack Obama is unclear as to whether he believes that the constitution should be interpreted to confer rights to certain redistributive policies. That is one plausible reading. But it also may be that he is saying that the courts are a poor forum for pursuing such policies. The only thing that is clear is that he is sympathetic to what a caller calls "reparative economic work" and that, whether rightly or wrongly, its not going to come from the courts.

This has resulted in two lines of attack on Obama. One is that he favors the type of judicial activism that constitutionally mandated redistributive policies would constitute and that he would appoint judges who would want to bring that about. I agree that the interview, standing alone, does not prove or disprove those charges. I would note, however, that some of Obama's key legal advisors and defenders, including Cass Sunnstein, a prominent legal academic often mentioned as a potential Obama nominee to the Supreme Court, seems to favor precisely that.

The second line of attack is that, whether or not, he wants to do it through the courts, Obama favors substantial additional redistribution. As blogged yesterday, part of the response to this is too cute by half. We know that the government already redistributes money and that neither John McCain or Sarah Palin has argued that it never should do so.

But will Obama favor a substantial increase in redistributive policies? Professor Sunstein and Emily Bazelon say that there is no evidence for this.

But there is.

Obama has proposed tax credits (he calls them cuts) and spending increases that may cost at least 4.3 trillion dollars over the course of his administration. In addition to what he has proposed, his rhetoric - calling for the government to (as if for the first time) heal the sick, provide jobs and stem the rising of the sees suggests even more.

What do we know about Obama's past? We know that he had a very liberal - and very partisan - voting record in both the Illinois and United States Senates. We know that he was a "community organizer" working for things that can fairly be called "reparative economic work." We know that he is steeped - this is where Ayers, Wright, Pleger and ACORN come in - in the leftist politics of Hyde Park and the south side of Chicago. We know that, if he wins, he is likely to have large Democratic majorities who believe it is their time.

Is it possible that Obama will recognize that there is only so much "reparative" work that can and ought to be done. Possibly. But we know that he has no compunctions against shifting his positions and that his history suggests that he is to the left of every Democratic nominee since McGovern.

I hardly think this is a phony issue.

Tuesday, October 28, 2008

Shark on the Air

Locally, I will be on Joy Cardign's show on Wisconsin Public Radio during the 6 am hour. We will be discussing the Supreme Court and the election.

Words Fail Again

This is the second time in the past month that former Madison Mayor Paul Soglin has written something astonishingly ridiculous.

First, he compared Bill Ayers to someone who supported Newt Gingrich's Contract for America. Nail bombs and tax cuts, whatever.

But now he suggests - not metaphorically but literally - that Sarah Palin is a fascist - "a charismatic American political leader with a populist bent who can lead a viable political movement towards fascism."

He offers absolutely no support for this, seemingly basing his view on the fact that she is a social consrvative (the Nazis, incidentally, were not) and is, at least in style, a populist - what some have called a "Sam's Club conservative."

If I thought there was something close to a cogent argument there, I'd respond. But there isn't.

A commenter suggests that Paul get a grip. Some Lorazepam might help.

Monday, October 27, 2008

Obama and wealth redistribution

I briefly discussed Obama's comments on the courts and the redistribution of wealth on a morning radio show on KRSM in Osage Beach, MO (OK, I'm on the B-team) and expect to do a few more around the country in the next few days.

The response of the Obama supporters to the issue in general seems to be that there is nothing particularly revolutionary about the state redistributing income and there is a sense in which that is true. If you believe in government provided services - even the standards like roads, schools, national defense and law enforcement - and that these services should be funded by a tax - even a flat tax - based on income, wealth or property value (as opposed to user fees or a pro rata charge), then you support some redistribution of wealth.

But this is hardly the "gotcha" that it is claimed to be. And that's where the interview is instructive.

Obama notes, mostly correctly, that courts have largely (although not entirely) seen the constitution as a guarantor of negative liberties, protecting you from the government rather than requiring that the government do anything for you. They have not much addressed the redistribution of wealth or become involved in what one caller during the interview called "reparative economic work."

The interview - or at least the portions that we have heard - makes clear that Obama is not,as he put it, "optimistic" about accomplishing this work through the courts. What is not clear is whether he thinks this is because it cannot be done well in this way (he suggests that is the case), is not required by the Constitution (he talks about the Constitution as "it has been interpreted") or just as a matter of addressing the likelihood of success. At one point, he suggests that legal arguments in support of such reparative work could be made.

But what is also clear is that he believes that this work is in order. The state, if not by judicial fiat then by legislation, ought to remedy the economic injustice wrought by markets.

Here's where we start to sort people out. I certainly believe that we should give everyone an opportunity for an education and that certain public facilities and services should be provided for everyone. I even believe that there ought to be a safety net that guarantees basic subsistence and medical care for everyone. I know of few people who don't.

But, at the same time, I think that most of what passes for "reparative" economic work is counterproductive. Obama, in his interview, suggests that it was a tragedy that the civil rights movement remained "court-focused" and either because of the limitations of the Constitution, nonresponsiveness of the courts or unwieldiness of the judicial process, did not accomplish this economic reparation.

I respect and like many people who hold that view. I can see its attraction. But it's wrong and, if adopted, would represent a hard left turn from policies which, over the past 30 years, have been spectacularly successful.

Sunday, October 26, 2008

It's Halloween Week

Do the mash

Feed your Frankenstein

Do the Time Warp

Burn the Witch

Curl up with your Spooky Girl

Because Bela Lugosi is dead

Shark for McCain

I have a column in this morning's Milwaukee Journal Sentinel presenting an opposing view to the paper's endorsement of Obama.

One of the things that I hinted at but couldn't develop in a 700 word op-ed is concern with a full-throated return to the idea, not only that government does the most important work in our society, but that this work can change the nature of our lives.

I quoted a line from a recent column by Michael Gerson to the effect that, if Obama is elected, the "least responsible, least respected, least popular political institution in America - the Democratic-led Congress - would also be the most emboldened." Gerson suggests that Congressional Democrats will push for "divisive measures that punish and alienate businesses, seek backward-looking political vengeance and impose cultural liberalism."

Gerson says that Obama will need to stand up to him and suggests that he might, citing Obama's identification of Reinhold Niebuhr as one of his favorite philosopher. Niebuhr, who wrote in the wake of the second world war, emphasized the fallen nature of man and the reality of evil, arguing for a Christian realism that that recognized that the kingdom of heaven cannot be realized on earth. Gerson sums this up as a theology of "conflicted humility."

The problem is that I see little of this in Obama. I have blogged in the past about concern over the grandiosity of his rhetoric and the out-sized expectations of his supporters. Some readers were upset, pointing to the allegedly modest fine print in Obama's position papers and criticizing me for suggesting that anything about Obamamania was dangerous.

I know that Obama has said that "we should be humble and modest in our belief we can eliminate" the pain and suffering in the world. He says, nevertheless, that we shouldn't trade "bitter realism" for "naive idealism."

Well, I agree. And that's why we shouldn't think that the state can heal the world and make the waters to recede. It's why policies that emphasize collective approached centralized in the state, particularly the federal government (see,e.g., his health plan) ought to be viewed with suspicion.

But this election is, I think, about whether we are going to hang on to that suspicion.

It's possible that Obama will stand up to the Barney Franks of the world. But I don't expect it.