Monday, March 30, 2009

All aboard the disinformation train

I really hate to do this, but the disinformation in the state Supreme Court race comes from all sides. It's one thing for folks to disagree about the significance of particular cases and the interpretive philosophies of the candidates.
It's another thing to characterize those with whom one disagrees as liars or uninformed.

Tom Foley, the blogger sometimes known as Illusory Tenant, is someone that I like and who often has interesting things to say. Most recently he accused Charlie Sykes of cluelessness ("riding the disinformation choo choo") and dishonesty ("why do these people lie?) with respect to a case called Ferdon v. Patients Compensation Panel and its announcement of a standard called rational basis scrutiny "with teeth" that is not "toothless" and that "has bite." Ferdon struck down limits on noneconomic damages in medical malpractice cases. Some of my criticism of the case can be found here.

This is the Sykes statement with which Tom takes issue. Referring to the Ferdon decision, Charlie wrote:

[Wisconsin Supreme Court Chief Justice Shirley Abrahamson] changed the court's standard for reviewing legislation to something called "rational basis with teeth" which essentially allows the justices to second-guess laws they don’t like ...

Not true, says IT, rational basis scrutiny has never been toothless. There is nothing to see here. Sykes statement is, he says, nonsense.

Actually, it's spot on.

Let me put this as gently as I can. The point, as Tom surely knows, is not whether anyone else has ever used dental imagery to describe equal protection analysis, but what the Court actually did in Ferdon. If Tom is suggesting that it was not an extraordinary decision that is wholly irreconcilable with the way in which courts usually treat equal protection challenges to distinctions drawn on the basis of a nonsuspect class and not involving the exercise of a fundamental right (and both of those things are legal terms of art, so lay commenters ought to watch where they tread), then he is thoroughly and flagrantly wrong.

Now, we can argue about whether the Ferdon approach is a good idea or a bad idea. We can argue about whether it adopts a standard that leaves judges with no coherent guidance as how to apply Article I, section 1 of the Wisconsin Constitution (although I don't think we can argue long about that). We can even argue - as some have - about whether the courts' traditional formulation of three tier scrutiny in equal protection cases adequately explains what they do.

But the notion that the legislature did not have a "rational basis" for enacting the malpractice caps that it did - as that term is traditionally understood and applied -is nonsense. One can only conclude the caps were "irrational" by engaging in a close analysis of and making a series of contestable empirical and policy judgments about whether these caps serve their intended purpose. This is why the Ferdon decision is so long. It doesn't spend page after page discussing legal standards. It spends page after page discussing the intricacies of malpractice caps. As Judge Diane Sykes put, if a law were truly irrational, it would would be easier to explain why.

But this type of analysis is precisely what courts do not do when applying rational basis scrutiny. They do not substitute their own judgment about what constitutes good public policy for that of the legislature.

Sunday, March 29, 2009

It should be May Day, but ...

When I return to this space, I might start my "Obamaphobic" reservations about the need to radically transform, at least in American terms, the size and scope of government. A good crisis ought not to be wasted when it can bring back lost dreams; when it can allow us to once again chase ghosts. But, for today, just a musical tribute. After a month of scholarly care, I need to get my partisan on and, in any event, I have a love/hate relationship with the olden days..

We got a Revolution.

So we can share the land.

Because, you know, the old sign said "private property" but "on the back side it didn't say nothing/That side was made for you and me."

So let's get back to the garden.

And, for the less patient among us, roll down Rodeo.

Same old stuff

As I place my last law review article of the spring submission season, its time to return to the blogosphere. I want to pay a little attention to the state Supreme Court race, as anticlimactic as it has turned out to be. I think I have been fairly consistent in suggesting that much of the angst that has been expressed about the "ethics" of judicial campaigning is simple partisanship.

When conservatives accuse a liberal justice of "siding with criminals" or not standing up for the victims of crimes, they are making a consequentialist argument about a real philopsophical difference. In the case of the current race, the Chief Justice's views on the law and her interpretive philosophies make her far more likely than most other members of the Court to grant relief to criminal defendants. To say that she "sides with criminals" is, of course, an oversimplification but then so is most campaign rehetoric.

But overly simple reliance on consequences comes from the other side as well. The Abrahamson campaign's claims that she stands up for victims and helps people are also consequentialist claims that ignore the complexity of the issues in, say, the lead paint decision. The Greater Wisconsin Committee's latest ad attacking Randy Koschnick is just the left's spin on last year's ads attacking Louis Butler by emphasizing some decisions in which he ruled in favor of the claims of some people who did bad things. It gets at what is a real philosophical difference in a ham handed way. That's what attack ads do.

There is part of me that remains annoyed that neither side will engage in the debate that the public deserves. But perhaps I expect too much.

Monday, March 23, 2009

The train to nowhere

One of the frustrating things in the debate about rail in southeastern Wisconsin is the tendency of folks to be either for it or against as a matter of first principles. Rail is either, for opponents, the foolish desire of someone's inner child for a choo choo (it's actually far less innocent than that) or, for proponents, something we need to enter an imagined 21st century.

Take, as an example, my former Backstory colleague Jim Rowen who is an intelligent. decent and charming person. I don't mean to pick on him (well, actually I do) but it has always seemed to me that Jim has an innate preference for cities and (although I'd suspect he'd differ)collective solutions. He is a bear on the environment and a bull on the environmental movement's preferred solutions. He tends to support any rail project, arguing that even those that don't make sense in and of themselves "build momentum" (or at least that is how I understand his argument on why we need a train downtown that goes in a circle and that nobody really expects to attract significant ridership).

It seems to me that rail is an old technology that still has appropriate applications. It can work when lots of people want to go from point A to point B and, for the most part, stay at point B once they arrive. If these things aren't true, i.e., if A and B are collection and dispersal points for further travel, then rail won't work because it has been superseded by a later technology that offers the ability of the traveler to take multiple routes that rail cannot. Under those circumstances, rail is attractive only when something prevents effective auto travel like highly congested roads. High speed rail might attract auto traveler but its going to have to much faster to overcome the inconvenience of moving to and from the collection and dispersal points.

This is why Amtrak's Hiawatha service is attractive to travelers and generally full. There are a lot of people who want to go to downtown Chicago and the roads into the city are very congested.

But I can't, for the life of me, figure out why anybody thinks the proposed high speed train from Milwaukee to the Madison area makes sense. It is conceivable to me that a train that ran from Milwaukee to downtown Madison might make sense. There are a lot of people who will want to travel between these points and it would be a relatively easy thing to run a shuttle bus or street car to the university which is another high volume destination. Whether it would make sense financially is another matter, but at least it makes sense to think that it would be used.

But the proposed train - said to cost $519 million dollars - doesn't do that. It terminates at the Dane County Regional Airport. I can't tell you how many times I have been to Madison. I can't tell you how many times that I have flown in and out of Wisconsin. I can tell you how many times I have been to the Dane County Regional Airport.

Never. I don't even know how to get there although I have some sense that it's not far from American Family's headquarters.

Now, of course, there are some folks who may want to travel that route and I understand that people will argue that we can run buses to other destinations. But taking people to where they do not want to go before they are taken to where they do want to go is what will make the rail connection less desireable than driving to Madison.

It seems to me that supporters are in some type of denial. This line is supposed to carry 1.08 million passengers as opposed to the 766000 that currently use the Hiawatha line because ... why? Is there something at the Dane County Regional Airport that I don't know about. Could be, I suppose, since I have never had a reason to go there.

Maybe the key to success is at the eastern end of the line - connecting Brookfield and Oconomowoc to Milwaukee for commuters. That's a case that someone could try to make (I am skeptical that there is enough traffic to justify it, but I could be wrong), although it it terminates at the Amtrak station I don't think it will be very attractive.

But even if a southeastern route makes sense that still wouldn't tell us why we need to go all the way to the Dane County Regional Airport

Monday, March 16, 2009

The Daily Sideshow

The confrontation between Jon Stewart and Jim Cramer was a game with no one to root for. I have never seen Jim Cramer but I get the picture. Hyperactive stock touting. I have always agreed with Megan McArdle about those shows. If they tell you to buy a stock, even if they are right, it's probably too late. But then I am the ultimate buy and hold (don't even think about it again)guy and likely to be working until I am 80, so don't follow me.

I have no doubt that financial journalists have been tempted to try to manipulate the market and that some have done so. But its (relatively speaking) nickel and dime. It's not the cause of the current economic malaise and Stewart's posturing ("f*** you")is of a piece with the notion that there are bad guys to blame. It's a natural human tendency to want to believe that, if things have gone wrong, someone must have behaved badly. It's what makes good plaintiffs' lawyers rich. But it is often not true.

Friday, March 13, 2009

Random thoughts and return

This may be the longest blog hiatus that I have ever had, but I have rarely been as busy as I have been for the past two weeks. More on that later.

Here are a few random thoughts that must get out.

1. Rush Limbaugh is an entertainer. Suggesting that he is the leader of, and somehow emblematic, of the conservative movement is like suggesting that Al Franken is someone who should be elected to important public office. Who would buy that?

2. President Obama signing the earmark-laden spending bill and announcing that the era of earmarks will now be over is a little like the guy at a bar knocking down boilermakers and announcing that he'll stop drinking tomorrow.

3. I don't understand why Charlie Sykes is making fun of Gwen Moore's energy plan. He has two dogs. I have three. We ought to sell her the right to harvest our backyards. I'll need her to send someone about everyday.

4. Rich Lowry describes Obama's economic policy as follows " more money to banks and industry, more unsustainable entitlement spending, more deficit spending, more uncertainty about how to handle the toxic assets in the banks — with promises of higher taxes layered on top." With the exception of taxes, how is this different from Bush administration policy? Are we supposed to believe that the only thing we need to do is raise marginal tax rates a bit for a small number of high earners?

5. I think that the only thing that Ted Thompson has to do to bring himself to the edge of the cliff is make one of his inexplicably obscure first round draft choices. He's going to do it. You know he is.

Tuesday, March 03, 2009

At least we're not facing relegation

We argue around here about the extent to which Wisconsin is a "tax hell" or has a bad business climate. Each side marshalls the facts that support its position. Our tax burden is extremely high, but our spending levels are closer to average. Part of that is that we tend not to employ users fees. On the other hand, the spending numbers have to be read in light of our low levels of federal aid and below average state income and so on.

William Ruger and Jason Sorens at the Mercatus Center at George Mason University have developed indices of what personal and economic freedom and compared all 50 states. Ihe economic index is, of course, value driven. They are looking for low taxes and spending, less regulation and a greater degree of local control over resources. They prefer user fees to taxes.

On this measure, Wisconsin does poorly. It is 42nd in fiscal policy, 35th in overall economic freedom and 37th in the overall freedom ranking.

Of course, folks with a different ideology would construct different indices and they would be fascinating to see. But the Mercatus work tends to support the traditional conservative critique of Wisconsin as a high tax and high regulation state.

The most free state in the union, according to Mercatus, is New Hampshire, all in keeping with Granite State license plates (Live Free of Die!").

The least free? New York.

H/T: Jonathan Adler

Cross posted at Marquette University Law School Faculty Blog.