Monday, June 29, 2009

More on Sotomayor

Further to my "dueling" op-ed with Ed Fallone on the Sotomayor nomination, I thought an interesting point is raised by Ed's statement that "over the course of an 11-year career on the appellate bench, during which she participated in more than 100 cases involving race-based claims, Sotomayor voted differently from the other judges hearing the case a sum total of four times." In Ed's view, this refutes any claim of racial bias on her part.

It probably does, but racial bias - as opposed to a certain set of assumptions about the significance of race and how to respond to racial issues - is not an accusation that I would ever make in connection with Judge Sotomayor. (And, of course, Ed was not responding to my column because he hadn't seen it as I had not seen his. That's how they roll down at 4th and State.)

Where I want to extend the conversation is to consideration of the Sotomayor record in the Court of Appeals or, more specifically, how useful statistical summaries of that record are in assessing her nomination to the Supreme Court.

Contrary to the uninformed speculation of this blogger, I am familiar with Sotomayor's record and, as I said in the column (reading helps), it is conventional if "liberal." For a summary of that record by someone with a different perspective than mine who now supports the nomination, read Jeff Rosen's piece in the July 1 issue of The New Republic. The fact of the matter is that, on most issues before a circuit court of appeals, most judges and lawyers- Sonia Sotomayor and John Roberts, Rick Esenberg and Ed Fallone - would agree.

But these are not the issues that get to the Supreme Court. Very few cases result in petitions for cert (i.e., requests that the Supreme Court take a case) and only 1% of the requests are granted.
These are the cases which make the precedent that the Court of Appeals must follow and it is a judge's handling of these cases - cases in which interpretation of the law is unsettled and which often present significant questions of policy - that are relevant when she is nominated for the high Court. These are the cases that separate the liberals from the conservatives and in which "craftsmanship" is no longer the question. As to these cases, I am more interested in the Sotomayor decisions that have gone to the Court and her explanations - off the bench - of how she approaches hard cases.

The Worst Bill Ever

They say that, in Wisconsin, if you don't like the weather, wait a few hours. In Washington, if you don't like the weather, pass a bill. As Jim Lindgren points out, the House of Representatives has voted to change the weather.

It's hard to know where to start with the cap and trade bill.

It comes at a time when the scientific "consensus" on climate change seems to be unraveling. That always seemed likely. While we certainly experienced (but are not now experiencing) global temperature increases and it is certainly possible for carbon emissions to have an impact on climate, every time I waded in to some of the literature, I was struck by how uncertain the entire project is and how unlikely catastrophic climate change really is. Al Gore's horror shows never represented the scientific consensus and the science seems to be moving further away from his alarmist vision.

It comes at a time when we have heard, for eight years, that science has been politicized. While much of that criticism was overblown, science does get politicized and the change in administrations hasn't changed that sad fact.

It comes at a time when the economic analysis seems to suggest that that adjustment is a better avoidance, yet it sets wildly aggressive emission reduction goals. Maybe they can be met, but not because Congress voted for them. What passed on Friday is a leap of faith.

It comes at a time when the earmark scandal should have taught us something about the games Congress plays. Allocating emission licenses is a an invitation to rent seeking. Allowing Congress to say who can use energy will enervate the economy but it will enrich K Street.

It comes at a time when we ought to be reluctant to further weaken the economy. The dream of "green jobs" is just that. A dream that cannot be realized from the top down. History tells us that the richer a society becomes, the cleaner it can afford to be. We are much more energy efficient and environmentally friendly than we used to be. But that is a function of wealth and market response. Limiting growth is likely to limit our ability to develop greener technologies and this bill threatens to destroy growth. Having green technologies selected by the political process brings us ethanol,

It comes at a time when the rushed passage of the pork laden and ineffective stimulus bill should have taught us something about Congress passing major legislation without due deliberation. The public has no idea what is in this bill. Neither do the people who voted for it. Ask Gwen Moore and Steve Kagen to explain - specifically and at length - what they voted for. They could not have because there wasn't even a copy to read. That a bill with profound implications for our economy should be passed in this way is disgraceful.

It comes at a time when we ought to understand the global nature of both the economy and the environment. Carbon emissions are without borders. Emission reductions in the US are likely to be nullified by huge developing economies in India and China who are unpersuaded that remaining in poverty is a proper response to Al Gore's Power Point. The bill seeks to counter that possibility with protectionism. Which has always worked.

It comes at a time when we should know better.

Saturday, June 27, 2009

Marquette throw down

Reflecting his journalistic genius, Milwaukee Journal Sentinel Crossroads editor David Haynes agreed that it would be a great idea to run dueling op-eds on the issues surrounding the Sotomayor nomination written by me and my colleague Ed Fallone. (Neither of us saw the other's before publication.) You can read mine here and Ed's here.

Friday, June 26, 2009

Lowry and Krugman agree

Earlier this week, I blogged about Barack Obama's testy response to a question about a "public option" in his coming health care plan. This is what the President said:

Why would it drive private insurers out of business? If private insurers say
that the marketplace provides the best quality health care, if they tell us that
they're offering a good deal, then why is it that the government -- which they
say can't run anything -- suddenly is going to drive them out of business?
That's not logical.

Barack Obama is a magna cum laude graduate of the Harvard Law School and served on the law review. He is too smart not to understand the problem.

It is not simply that a public plan is likely to be subsidized (although it is), but that it will be able to engage in monopsonistic purchasing - driving down prices which providers will have to pass on to the privately insured who will in turn join the public program. Don't take my word for it. In separate columns published today, Rich Lowry and Paul Krugman agree on this.

Lowry writes "[p]Private insurers are at a disadvantage vis-à-vis the federal government because they don’t have the power of the government to dictate prices to doctors and hospitals. That’s what Medicare does, and why it pays less for health services than private insurers.' He concludes that a public plan would tend to crowd out private plans.

Krugman says that "it would help keep costs down through a combination of low overhead and bargaining power." Overhead is, of course, always going to be low if you pay what you will for whatever you will. And, as pointed out in a piece in today's Wall Street Journal by John Calfee, comparing the administrative costs of medicare with private plans is a bit of apples and oranges. (For more on the sounds too good to be true claim that medicare's administrative costs are ten percent of the private sectors, see here.)

"Bargaining power," of course, refers to monopsony power. If there is a public advantage, that is where it is likely to be found.

And Krugman even agrees that this will crowd out private insurers. "Behind the boilerplate about big government, rationing and all that," he writes, "lies the real concern: fear that the public plan would succeed."

The difference between Lowry and Krugman is what "success" for the public plan means for the rest of us. Monopsony is generally thought to impair the maximization of welfare and that's likely here as well.

First, as explored Calfee's column, the minimization of payments to health care providers is not an unalloyed good. Profits pay for research and development and the likelihood that one buyer (the single payer) will know what to pay for R&D and be able to recognize valuable emerging technologies is very low. Remember that the value of a free market is not that all the private sector players are smart, but that they all don't have to be smart.

Second, we still have the third party problem. The monopsonistic buyer is not the patient and will not seek to maximize the patient's welfare but that of those who control it, i.e, the political branches. That's why single payer plans tend to result in less care. The pain of someone who is told he must wait for a hip replacement or is "too old" for a bypass operation is isolated. Everyone frets about the system's cost.

The bottom line is that a public option is likely to absorb the private plans that people are overwhelmingly happy with in order to address a serious, but limited, access problem.

Thursday, June 25, 2009

Give it a rest

Patrick Mclheran suggests that, once a Republican gets caught in an embarrassing situation, he becomes a "former" leading contender for the GOP presidential nomination. Charlie Sykes speculates that the only way that he can survive is to become a Democrat.

Of course, the latter might not work. Governors Spitzer and McGreevey had to resign and I suspect Sanford will as well if only for the odd nature of the matter (where in the world is Mark Sanford?) and the possibility that state funds were misused.

Yesterday a friend e-mails me wondering:

What is it with the rising stars of the Republican Party? Are they
all narcissists who are imploding as they realize the Republican Party is
going the way of the Whigs? What's next? Are we going to find out
that Paul Ryan has been doing his babysitter?

Well, Christian Schneider is out to prevent the latter. But there is no partisan slant here. Political power brings temptations that some men cannot resist. There is long list of Democrats who have fallen in the same way. e.g., Edwards, Spitzer, McGrevey, Robb, Clinton, Kilpatrick, Reyolds, Frank, Hart, etc.

Some argue that this means that Republicans ought to drop the emphasis on family values. The reason, presumably, is because conservatives hang on to some notion that these things are wrong. If you can find someone who did not live up to his principles, that means the principles are wrong.

This implies a moral race to the bottom. Paul wrote "For I don't practice what I desire to do; but what I hate, that I do." None of us manages always to live by our own standards. Democrats who believe in higher taxes fail to pay them. Those who decry concentrations of wealth are rather attached to their own. Republicans who believe in family values may not always live up to them.

It would be an act of public maturity would recognize this. It would also help if we understood that public leaders are human beings. Extramarital affairs require an apology and have enormous personal consequences. They do not, in and of themselves, require resignation.

Tuesday, June 23, 2009

Some candor on health care is in order

President Obama lost a bit of his famed cool at today's press conference when he was asked about the "public option" in his health care plan crowding out private insurance. It's not logical, he said, if private coverage is better than public coverage, i.e., if those insurers are doing such a great job, then folks won't choose the public option.

I'm not a health care economist, but it seems to me that this would be true only under one set of circumstances. It might be true if the public option was no more than the right of people to enter the public option by paying the COBRA premium, i.e., the amount that a terminating federal employee would have to pay to stay in the federal plan (or, if the federal plan is not subject to COBRA, it's equivalent). In other words, it would be true only if there were no subsidy masking the true cost to the government.

Even under those circumstances, it seems to me that there would be a tendency for employers with high cost populations, e.g., those with a larger number of older workers, to drop coverage. That will, of course, increase costs for the public plan.

If the plan is subsidized, then a certain number of employers will have an incentive to drop coverage and let the federal government pay a portion of the health care costs that they now bear. Some of the private savings may be passed along in wage increases but, for health care, the result will be increased public domination of the health care market.

What would be wrong with that? It'd just be "Medicare for all." Here are a few. First, medicare is going broke. Adding more subsidized insureds would require some new revenue source that the President has yet to disclose.

More fundamentally, Medicare exists today with unseen subsidies. Every doctor I know says that his or her non-medicare patients wind up paying more than they otherwise would because medicare arbitrarily refuses to pay the true cost of the services that it purchases. If we enact "medicare for all," there would be, at best, a diminished private health sector over which to spread the cost of this (much larger) subsidy.

To say, as Obama and the Democrats do, that they can provide universal coverage and control costs with no real pain is disingenuous. The unanswered question is this: While the US has a problem with the absence of insurance and with the economic dislocations caused by the accident of employer provided coverage, the fact remains that the overwhelming majority of us are happy with our health care. Turning the system upside down is not the self evidently proper thing to do.

Saturday, June 20, 2009

The trouble with blogs

Or at least with political blogs is the presumption of bad faith with which we so often interact with each other. I was reminded of this over the past two weekends by the reaction - here and elsewhere - to three posts. The first two were about what I believe to be a fundamentally unfair effort to equate mainstream conservatives with a few violent acts of true extremists or disturbed individuals who worked out their rages in ways that might (or in one prominent case might not) be described as "right wing." While some comments in opposition were worthwhile, others seem focused on seizing upon - or creating - a gotcha point and doing so in a manner unlikely to lead to further discourse. Principal among them were claims about my supposed defense of Glen Beck who I said had made ill advised remarks about an internet rumor that he later decided to debunk. My point was that picking and choosing this comment and that and then extrapolating, not to Glen Beck, but to mainstream conservatives is intellectually lazy.

Now, of course, you can say that I should have described Beck in harsher terms or made it clearer that I wasn't offering a defense of Beck. In the confines of the blog (and, for that matter, op-ed media), there is always something more to be said and always nuances that go unexpressed. Real discourse tries to understand comments in context, seeks clarification or offers it in a way that doesn't declare verbal war.

I noticed the same thing in response to a joke I made about the overtop aadmiration for President Obama among some members of the Washington press corps. I must have, according to some, been denigrating them as "gay" and because I think that their adulation is silly, I must be denigrating gay people generally.

I was truly shocked. That was not on my mind at all. Should I have stopped and said that, for the overly literal among you, I am saying that Matthews, et al., are infatuated with Obama with an intensity like that which may accompany a romantic relationship but I'm not saying they actually have sexual desire for another man (which I would then, of course, would have to have followed with the Seinfeldian - "not that there would be anything wrong with that.")

The point isn't really me and I am not going to respond to any further remarks on those subjects. The point here is to wonder what this means about political blogs.

I suppose that we can think of blogs filling two fundamental purposes. One would be to offer entertainment to our side. Let's all get together and laugh about how better we are than the wing nuts and netroots. This is, it seems to me, behind some of the creepy schadenfreude over the McBride/Flynn affair which, I suppose, does complete some people.

The other is to actually explore issues.

Of course, engagement doesn't preclude a little good natured smack and even gentle mockery. I don't think that a bit of sharp language is abuse and what the world be without a bit of sarcasm now and then. And, of course, there are some things said for which nothing other than condemnation will suffice.

If all you are trying to do is score points, then there is no reason to be overly worried if what you say is unlikely to lead to civil discourse. That's not what you want.

But, if we really want a response, it seems to me that we ought to at least try to understand the point that is being made and respond to it fairly rather than distort it or to jump on something that we may consider unclear (and there will always be something in the short posts that blogging consists of) or susceptible - sometimes reasonably and sometimes not - in an unflattering way and construe it in the worst possible manner.

I can imagine two possible responses to this. One would be to say that I have done something like this myself and, while I try hard not to, I am sure - in four years of public commentary - that I have. Nevertheless, I think my body of work speaks for itself.

The second is to make some point about the heat and the kitchen. Go ahead. I have been doing this stuff for four years now and my capacity for abuse is higher than I thought it would be, although I do pause over happy little messages written with words and letters that are cut out from somewhere else and pasted on a postcard.

I am not going to respond to that stuff either, so don't bother.

The blogosphere is a free world. I guess that everyone who chooses to participate needs to think about what they want.

Friday, June 19, 2009

Can't help it

The ethical issues presented when a reporter writes about someone to whom he or she is romantically attracted have, of course, been much in the news. They arise whenever the President is covered by Chris Mathews ("I felt a tingle going up the leg"), Evan Thomas ("He's sort of God"), Ezra Klein ("he is the triumph of word over flesh"), etc.

Can't avoid it

Although I occasionally write on marriage issues and have been a fan of Chief Flynn, my initial reaction was that there is not much that is blogworthy about revelation of his affair with Jessica McBride.

But this brief post by Jay Bullock has changed my mind. I can't comment on whether McBride has broken a tenet of journalist ethics. She claims that the affair started after her story was written and she can prove it. She has been publicly embarrassed and may well have destroyed her marriage but none of us know the particulars of that. My impression of her is that she is a talented person with a bit of a penchant for getting herself in trouble.

But what about Flynn? As a general matter, I think persons in positions of great responsibility and authority ought to model exemplary behavior. Extramarital affairs are harmful to the social fabric and ought to be accompanied by a certain amount of ostracism.

But we are all human and there is no one whose behavior is always exemplary. Some sins become public and others do not. None of us can know the particular circumstances of these two individuals so our insistence upon propriety must be tempered with charity.

Under these circumstances, I think that Flynn ought to - as he has done - admit that he has wronged his family and apologize. That's it.

Jay thinks it significant that Flynn's arrival "was heralded, far too much so, by the morality squawkers on line, in print, and over the air. He was coming in to clean up the town ... [and] this Good, Upstanding, Irish Catholic ... was going to put Milwaukee criminals on notice ...." He says that Flynn's base "base of support expects--nay, demands--fealty to the straight and narrow."

Although I am not going to accuse Jay of this, his post hints at a fairly common argument to the effect that only those without moral blemish can call for moral fealty. This, it has always seemed to me, is a corruption of Jesus' call for forgiveness and direction that it is he is without sin who should cast the first stone.

This - for those us who pay attention to such matters - is a call for forgiveness, not a command to moral relativism. Forgiveness does not mean the absence of consequences just as the insistence on moral standards (also a Jesus theme) does not exclude the practice of mercy.

Flynn has been subjected to public humiliation and must now face the consequence of his action for his relationship with his wife and family. He has been - and will be - forced to bow and scrape in public. His image has been tarnished; his honeymoon with press and public ended. He has - and this is critical - admitted his wrong and asked for forgiveness.

I think that's enough.

Thursday, June 18, 2009

The constitutionality of domestic partnership status

One of the unfortunate aspects of legislative process in Wisconsin is that so much major policy that is either unrelated or tangentially related to appropriations is made in the budget bill. This results in a lack of public scrutiny and debate and, in my view, too much logrolling. It empowers the ability of legislative leaders - as opposed to constituents - to twist the arms of backbenchers. It's not a Republican or Democratic thing. It happens no matter which party is in power.

Among other major policy initiatives in this year's budget bill are the creation of a domestic partnership status for same sex couple and the extension of health care and other benefits to a household member of state employees with whom the employee says he or she shares financially responsibly. The latter is clearly targeted for gay and lesbian couples although it is not limited to them.

The latter proposal is bad policy but does not violate the marriage amendment. It confers a rather limited benefit on a basis that is not substantially similar to marriage. An unmarried state employee could share her benefits with her roommate in return, say, for a reduction in her share of the rent. (That's one of the things that makes it bad policy.) Proponents of the amendment (including me) repeatedly said that such benefits would not violate it.

The former proposal does violate the amendment. While the reasons that I believe this to be so are more fully stated in a forthcoming paper co-authored with my former student Daniel Suhr, the essential problem is that it creates - it is intended to create - a status with the same social meaning as marriage.

Those who defend the new domestic partnership status argue that it does not confer substantially all of the legal incidents of marriage and they are right about that. While I don't have room to specify what it does and does not do, it omits certain of the incidents of marriage that create legal claims by one spouse against the other. Domestic partners need not get divorced, are not subject to Wisconsin's system and are not obligated to support one another.

In my view, determining whether a new status is substantially similar to amendment is not a simple matter of calculating the percentage of legal incidents that it shares with marriage. The reason I believe that has to do with the nature of the judgment that voters necessarily made when the amendment passed.

We know that the purpose of the amendment was not simply to reserve the term "marriage" for heterosexual relationships. Had that been the purpose (and there are constitutional amendments in a number of states that do only that), it would have been unnecessary to include the "second sentence" prohibiting the creation of a status "substantially similar" to marriage.

In the paper, Daniel and I consider why voters would have passed that second sentence. There is little or no evidence in the ratification history that they were motivated by animus toward gays and lesbians. Rather the debate was almost entirely about "saving" heterosexual marriage. It was about what the recognition of homosexual marriage (or its equivalent) would "do to" heterosexual marriage as an institution.

The only way in which a status equivalent to marriage for same sex couples could do anything to marriage is by altering its social meaning, i.e., by contributing to changes in the way that society views marriage. This would, proponents argued, change the privileged status enjoyed by marriage, alter the way in which marital partners view it and create pressure for changes in its legal incidents.

Opponents of the amendment argued that this could not possibly happen; often acting as if they could not understand what proponents were saying. (In fact, many sophisticated academic proponents of same sex marriage expect it to lead exactly where the amendment's supporters feared it would lead and support the redefinition of marriage for that very reason.)

But it no longer matters who was right - at least for interpretive purposes - because the amendment passed. Even if the arguments of amendment supporters were wrong, the voters concluded otherwise. For that reason, we argue, any status that is intended to confer upon sexual relationships other than those between one man and one woman a social meaning that is substantially similar to marriage is prohibited.

Toting up the conferral of benefits is part of the process of identifying such a status but it is not dispositive. If a status is structured in a way to suggest that it is a form of marriage for relationships other than those between one man and woman, it presents the risks to marriage that the voters (rightly or wrongly) wanted to avert.

The proposed domestic partnership status, it seems to me, is intended to and will have precisely that effect. The conditions for entry into a domestic partnership mirror the conditions for entry into marriage save that the partners must be of the same sex. While the status does not include all of the incidents of marriage, it includes enough to be seen as a status mimicking marriage.

In fact, I would argue, what it excludes suggests precisely the harms feared by the amendments proponents. The legally "sticky" nature of marriage are a consequence of its potentially procreative nature. Marriage places financial obligations - and does not simply confer benefits - upon the partners because of the economic vulnerabilities associated with childbearing and childraising. It is not surprising that these obligations would be less critical for relationships that are not procreative and in which children are far less likely to be present. Even if same sex couples adopt children, it requires an intentional choice which is not always present when heterosexual couples make babies. The need for a choice permits - for those who wish to do so - the voluntary assumption of financial obligations toward one another. It is less essential that these obligations be intrinsic to the relationship.

The creation of a status for same sex couples that is "their form of marriage" and which does not require these commitments will certainly create pressure to eliminate these commitments for heterosexual couples and will further undercut the notion that marital commitments ought to be "sticky" in this way and must include these mutual commitments and financial intertwining.

We are aware of statements by some proponents of the amendment during the ratification process that are now used by supporters of the domestic partnership scheme. Upon close examination, most of these statements were not about the creation of the type of status about to be enacted or are simply irreconcilable with what we conclude to be the unavoidable public meaning of the amendment.

The better argument in favor of the constitutionality of domestic partnership status is that the exclusion of a mutual obligation of support, the lack of a requirement for divorce and absence of community property will preclude these domestic partnerships from being seen as a "marriage-like" relationship. I think that claim is belied both by the nature of the new status and the reasons that its supporters give for its enactment, i.e., recognition of same sex unions as "equal" to marital unions is one of the principal reasons for its creation.

In politics shared hatreds are almost always the basis of friendships.

So said Alexis de Tocqueville whose Democracy in America remains one of the most insightful treatments of both ever written.

That observation is one of the reasons that I am disturbed by the concerted effort of the New York Times and others on the American left to portray some ill defined thing called "the right" (but which includes mainstream conservatives) for the violence committed by a few disturbed individuals.

If they're not talking about you, then why worry about it? This an oddly insensitive question. Assume that the Department of Homeland Security or the editorial page of the New York Times tried to blame "populists" for a few twisteds that killed wealthy businessmen who they regarded as "leeches" enjoying riches built on the bodies of the poor. What if Fox News blamed the anti-war movement for the murder of a military recruiter? If you're not one of them, why worry about it? If you are not one of those "bad" blacks that a racist rails about, why should you care?

The problem with Krugman, Rich and Napolitano is that they paint with a broad brush and create the impression that the other side is somehow associated with "hate" and steadily push opposing discourse beyond the pale. See, e.g., Rich's claim that critics of Judge Sotomayor's racialist notions of the law are little different than a Nazi murderer or referring to the Obama administration's strong statism as "socialist" is the equivalent of calling the President a "terrorist."

Wednesday, June 17, 2009

Is he being ironic?

I have been told - by people whose judgment I respect - that left wing bloggers - or at least certain ones - should be dead to me. But, guys, I am an educator and I jest cain't quit you.

Local lawyer and blogger Mike Plaisted is rather lathered up over my refusal to accept the idea that conservatives promote "hate" and are responsible for - or at least contribute to - murder.

It's quite rare to find so many misstatements in one place. Let's see if Mike can take instruction.

He [this means me]even goes so far as to say that the Nazis in Germany had more in common with the left than the right.

No. I said that it is an anachronistic fool's game to connect Nazis or fascists to current political movements in the United States. I do think that fascism was a form of socialism, but that doesn't mean that there is much use in calling it left or right as we use those terms in this country in this century.

The guy who killed legal abortion provider Dr. George Tiller has lurked in the shadows of the right-wing’s favorite anti-woman emotional wedge issue – the right of women to make up their own minds about what happens inside their own bodies – for years.

Women are no more likely to be pro-choice than men and there are certainly people on the left who are pro-life - although not many since the Democratic Party has pretty much chased them away.

The guy who shot up the Holocaust Museum is an old-school right-wing lunatic in the white supremacist/John Birch Society mode, howling at the moon about the control of the world by the Jews and interracial dating, proudly exercising his Second Amendment rights to wreak havoc in a public place (talk about open-carry!).

He is also a self avowed socialist whose alternative target was apparently the offices of The Weekly Standard. I have no idea what he thinks about the Second Amendment. Given his apparent admiration for Nazi Germany, the odds are not much. If you don't think that anti-semitism can be found on the left, go to an ANSWER rally, listen to WMCS or to Jermiah Wright and hundreds like him.

And, for those who might not swallow that load of bullshit, they made the "point" that the left has its own extremists, resulting in – well, no one who has caused death with the bright light of world peace, universal health care, choice, etc. in their hearts, but, you know, they made us feel bad. Or something.

Mike is apparently not a student of human history. Movements from the left have often been quite bloody in their pursuit of paradise on earth. Domestically, Mike has apparently never heard of the Weather Underground, Black Panthers, SLA, ELF, etc. All of these, incidentally, were organized political associations and not lone nuts. (Of course the most infamous lone nut of our times was a communist who killed the President.) I would not blame the anti-war movement and its often overheated rhetoric (in which Mike indulges just about everytime he logs on) for the murder of a military recruiter but, were I to follow Mike's standards for intellectual responsibility, argument and civility in discourse, I don't see why I wouldn't.

he defends circus clown Glen Beck

No, I said that picking out some foolish statements by a second tier entertainer doesn't prove much.

He also says it was no big deal "calling" an abortion provider a "baby killer" (he’s talking about Bill O’Reilly) – apparently, you can be a professor at Marquette without knowing the difference between an unborn fetus and a "baby". Actually, now that I think of it, such delusion might be a job requirement.

There is no such job requirement, although the Church with which we are associated does believe that abortion is a grave moral wrong and that "baby killing" is not an inaccurate way to describe - in particular - the type of abortions that Tiller performed - elective abortions in the third trimester and to the point of birth. You can apparently, it seems, graduate from the University of Wisconsin Law School without appreciating the distinction between condemning a reprehensible practice and calling for murder.

White supremacy is not a ‘right wing’ view [sez who? It certainly always has been.]

Once again, Mike is a poor student of history. Back when we had white supremacists in mainstream politics, they were often on the left. William Jennings Bryan, Theodore Bilbo, Margaret Sanger, J. William Fulbright, the younger Robert Byrd and so on. Opposition to affirmative action or support for a more modest welfare state aren't racist.

Al Gore taking the nation to school on climate change (oh, Rick, you're not really a climate change denier, are you?) supposedly "could...prompt violence on the part of environmental radicals", he says in a comment. To Esenberg, information is not only power -- it's hate.

Actually, what I said was that if you buy into this notion that people who cause extreme and exaggerated statements are responsible for nuts who use those statements as an excuse to let their inner freak flags fly, you could just as easily blame Al Gore as Bill O'Reilly. I believe that we have seen - although not recently - an increase in global temperature and that the hypothesis that this can be related to greenhouse gas emissions has scientific merit. I also think that Al Gore's claims regarding the issue are exaggerated and his movie is full of false claims. Part of the argument against people like O'Reilly is that they exaggerate their points and express them in a hyperbolic way. That's Al Gore, too. Personally, I would not blame either one of them for the actions of lunatics.

Did Howard Dean say at some point that the Democrat/Republican contest was one between "good and evil", as Esenberg claims in a comment? So what if he did? Did he craft a whole show around the idea and drive it for years, as Sean Hannity does everyday to make the same point about how evil Democrats are?

He did. He also said he hated Republicans and a number of other things. He did not craft a whole show on the idea. He only ran the Democratic Party. If you are looking for people on the left who have crafted shows, books and movies on demonizing their political opponents, you need to look to Al Franken, Randi Rhodes, Keith Olberman, Michael Moore, etc.

People like Beck and O’Reilly (and Limbaugh and Hannity and Sykes and Belling, etc.) don’t argue issues; they demonize opponents. Obama isn’t just wrong, he’s evil. ... This is the black-and-white fantasy world these people create for themselves and their emotional, fearful, imaginary target demographic: the angry-white-male who feels he is being emasculated and made powerless by other races, immigrants, feminists, gays, Democrats and anyone else who seem to be dancing happily in the streets while they sink further into their Lazy-Boy in High Life-enhanced depression.

Coming from a guy whose blog is largely given over to adjective label vituperation, I think we may have a bit of displacement going on here. Judging from his blog, Mike is about the angriest white man in Milwaukee. This post alone consists of claims that people he disagrees with are nuts, engaged in lunacy and have a "twisted penchant for unnecessary death. They are "hateful," "irrational," " beer-soaked depressives, etc. Worse, they are murders "who know if they spew enough poison in the air, a few of the more unbalanced in their audience will go off the reservation and act on the logical consequences of their hateful words and campaigns. This is the way they want it. " (Emphasis mine.)

Really, Mike, can we a little self awareness here?

Tuesday, June 16, 2009

Who do we hate?

A recent e-mail exchange with Marquette University Law School Dean Joe Kearney raised the following question: What team is a fan of the Milwaukee Brewers supposed to hate? This was the provocative statement:

My distaste for the Cubs meant that, even if the White Sox had lost to the
Brewers this weekend, I could have seen something good in the matter.
Surely, to hate like this is to be happy forever. But who can we despise? And who will detest us?
The easy answer is the Cubs, but I have bad news. They are just not that into us. During last July's four game debacle at Miller Park, I overheard a Cubs fan say that it would take years before he could hate us like he hates the Cardinals. Ours would be hate unrequited. Oh, sure, they might call and ridicule us when St. Louis isn't around. We'd be just any port in a storm.

So what about the Cardinals? Here are the facts of life. Earlier this month, I spoke on a panel in St. Louis. For my obligatory ice-breaker, I shamelessly stole from our Cubs fan and said I felt comfortable there in the middle of a pennant race because I knew it would take generations before they hated us like they hated the Cubs. That room full of Card fans laughed and applauded. They could never hate us like we could hate them.

Face it. The prom is next week and pickings are slim. We could hate the Pirates. I heard the Phillies left them for the Mets. But it would be like dating the head of the AV Club. There are the Astros but I don't think we can hate them as long as Cecil Cooper is the manager. During that magical summer of '82 ... with Coop ... we had something. Something real.

Do you know the Reds? Cincinnati is something like Milwaukee - only with rednecks. There's not much history, but we could make memories, couldn't we? Does anyone have their number?

Cross posted at the Marquette University Law School Faculty Blog

The Old Gray Lady ain't what she used to be

On a Sunday evening, I gather my dogs, pour a glass of wine, fire up the grill and repair to the deck with the Sunday New York Times. For a conservative, this is a guilty pleasure, But this week, I am afraid, it caused me to lose my religion.

I like the Times because of the breadth of its news coverage. While, as someone who spends a fair amount of time in opinion journalism, I faithfully read the Op-Ed pages. What is published there is - I don't know how else to say it - increasingly embarassing.

I'm not talking about Maureen Dowd who seems to have retreated into an interior world that I, at least, find largely incomprehensible. I have a broader concern.

Recent columns by Paul Krugman and Frank Rich suggest that mainstream conservatives (not your odd nutters) and, in particular, Fox News fed (Krugman) or enabled (Rich) - not "directly" but certainly - recent murders committed by Scott Roeder (who shot abortionist George Tiller) and James von Brunn who killed a security guard at the Holocaust Museum. (von Brunn, an anti-semitic racist socialist and 9-11 truther is hard to characterize as left or right, but he is definitely crazy).

Krugman and Rich complain about harsh words (references to Tiller as a killer) or hyperbole. Rich complains of an former GOP official who, Rich (not quite accurately) implies wants to call Obama a fascist. Both complain of a Fox News host who demonstrated a silly credulity ("I can't debunk them") about rumors of government concentration camps before he actually did debunk them through analysis of aerial photographs.

A grip is called for. The notion that Roeder and von Brunn would have quelled their inner demons if only a few TV personalities had been more temperate or responsible is far from obvious. If we are to blame the pro-life movement for Roeder, then why not blame the left for Carlos Bledsoe whose wrath at the American military and our polices in the middle east lead him to kill a military recruiter the day after Roeder killed Tiller. In both cases, I would have hoped that some sense of intellectual responsibility and balance would caution restraint.
It would be one thing for Krugman and Rich to call upon participants in the public debate to act more responsibly or even to suggest that Fox News shouldn't give a forum to Glen Beck. There is nothing wrong - and much that is right - with calling for civility and intellectual integrity in public discourse. If it were possible to read the Krugman and Rich columns as simply calls for greater responsibility in public debate, I'd sign up. But that's not what's going on here.

First, the only incivility and extremism that seem to bother Krugman and Rich are on the right. There are no enemies on the left.

If you show me Bill O' Reilly, Rush Limbaugh and Tom Tancredo, I'll see and raise you Howard Dean (who has said he "hates" Repuplicans because they are "evil" and who sat quietly on national television in the face of accustations that 9-11 was a false flag operation) and Al Gore ( who accused the President of treason and whose claims about the otherwise serious issue of global warming are embarrassing exaggerations). If you want media figures, I might offer the archly melodramatic and syntactically odd Keith Olberman ("you, sir, have - of all that is decent and holy - taken leave and are - truly, sir - the worst person in the world") and Michael Moore.
Rich cites what sure sounds like a tasteless joke about shooting Nancy Pelosi and Harry Ried. The joke, he says was told by a "radio host'" in, "of all places," Dallas (invoking an important bit of the JFK assassination mythos) and Rush Limbaugh "fill-in."* Certainly he knows former Air America host Randi Rhodes repeatedly joked about shooting President Bush. Certainly he knows that Wanda Sykes recently joked about wanting Limbaugh to die for his "treason" in the presence of a laughing (I hope from embarassment) Barack Obama.

There are a host of others who seem to believe that George W. Bush shredded the constitution, instituted a police state, lied so people could die, ushered in theocracy and rigged the 2004 election. I could go on. It seems no less vitriolic and no less pervasive.
I could, in fact, even include Paul Krugman and Frank Rich in the litany. To cite a few examples, Krugman recently referred to Bush as "evil" and earlier this year implied that opposition to government spending was racist. Rich associated the Bush administration's tactic in the war on terror with the Gestapo.

Of course, we could argue about which of these charges are "true." Maybe ( despite the conclusions - often very critical in other ways- of I don't know how many investigations), Bush was not merely mistaken about weapons of mass destruction in Iraq and did not simply mishandle the available intelligence, but actually lied. It could be that George Tiller did kill babies One would expect that a substantial number of, for example, Roman Catholics think so, even if they don't think he should be shot for it. Perhaps Obama's policies have made us less safe or expanded the state in ways which threaten liberty. It might turn out that Bush's aggressive policies toward terrorism have no readily ascertainable stopping point and, for that reason, threaten liberty even as the administration did not, like the Gestapo, drag thousands of citizens off into the night, never to he heard from again.

We could assume the mantle of objectivity, tug on our chins and conclude - reluctantly, of course - that while both sides cross the line, our side crosses it less. We could suggest, as Krugman and Rich want to, that the short circuited on the right are more prominent than the faded on the left.
To that I invoke the old theological caution about being wary if you find the Christ you were looking for. I can't see that incivility and irresponsibility have any particular political cast. They are human and not ideological vices. Howard Dean was and is the chairman of the Democratic Party. While Rush Limbaugh is the left's designee as Head Republican, it is Al Franken who has actually (maybe) been elected to the Senate.

Of course, to say that there is a problem with incivility and irresponsibility on the left does not excuse the same things on the right - even if Krugman and Rich can't bring themselves to mention it. Flawed messengers don't necessarily trump the message.
But Krugman and Rich have not limited themselves to criticism of a few intemperate conservatives or even to a call for responsible conservative outlets to unburden themselves of a few bad apples.

Krugman says can see no difference (if there ever was one) between mainstream conservatism and what he calls "the black helicopter crowd." He elides the irresponsibly goofy (there are concentration camps in Indiana) with the strident (the Obama administration seeks to serve socialist ideals or is a false prophet.) The latter examples may be exaggerations or over the top, but they are hardly expressions of hate.

For Rich, conservatives are "irrationally fearful of the fast-moving generational, cultural and racial turnover Obama embodies indeed, of the 21st century." Of course, he may not mean to apply this hackneyed cliche to all conservatives. He's strategically ambiguous on that. Still the suggestion is that opposition to Obama (even as he allows opponents the right to express their ideological differences) is based in fear and irrationality and is even on the wrong side of history. (But I won't refer to Hegel because he might think I was calling him a communist.)

If there were any doubt about his intent to paint with a broad brush, Rich thinks it is beyond the pale for National Review and other conservative outlets to criticize Sonia Sotomayor for views that even the President thinks were poorly stated and that a majority of Americans find deeply problematic even if they ultimately conclude (and this remains to be seen) that they are not representative of her judicial philosophy. Citing an unflattering caricature on the cover of National Review ( Rich must not look at many political magazines), this criticism of Judge Sotomayor is, he says, "an aggrieved note of white victimization only a shade less explicit than that in von Brunn's white supremacist screeds."

Words fail. They really do. My own view (which I plan to address in a separate post) is that Sotomayor's remarks are not racist (even if her references to innate racial and ethnic differences make one rather uncomfortable). But neither are they innocuous. They should be taken seriously and, if they are, they raise some rather substantial questions about her perspective on the role of the courts. Reasonable people will differ on how those questions should be answered. Some may applaud her views while others may regard them as disqualifying. But raising these questions and criticizing the judge's views are hardly the equivalent of endorsing The Protocols of the Elders of Zion.

Both Krugman and Rich seem to think that Scott Roeder has validated the Department of Homeland Security's unnuanced and nonspecific charge that "the right" might engage in violence. The report, because it offers no suggestion of who these extremists might be other than that they are "antigovernment" or "opposed to abortion" or to the administration's policies on "immigration and citizenship, the expansion of social programs to minorities, and restrictions on firearms ownership and use" - implies - with just enough wiggle room to back away - the same group libel indulged in by Krugman and Rich.

Rich wonders why conservative leaders don't denounce "the hate" apparently forgetting that everyone to the right of oncoming traffic fell over themselves to denounce these crimes. But let me catch up on the denouncing. Beck's temporary agnosticism about concentration camps was ridiculous. Speculation about whether Obama is "really" a Muslim and demands for his birth certificate are loopy (as I have heard many conservative commentators say). Those people in the audience at campaign rallies who called Obama a traitor and terrorist were wrong to do so. While I disagree with him about many things, he loves his country and is a man of peace (or whatever else you call someone who is not a terrorist.) Many conservatives have been too promiscuous with charged labels just as many progressives were when Bush was in office.

The former GOP official referred to by Rich, Saul Azusis, is a good if somewhat extreme example. He actually said that Obama was not a fascist (give him points for that!) but that certain of his policies were "economic fascism." I understand (as Rich apparently does not) that fascist economic policy was corporatist and statist . I appreciate that Obama, after a jump start in the last months of the Bush administration, has aggressively moved in that direction. But the f word connotes a lot more than command economics and centralized economic planning. Beyond that, these were far more comprehensive in 1939 Berlin than what we have seen - or are ever likely to see - in 2009 Washington. Godwin's Law remains good counsel.

But here's what I wonder. I wonder why people of good will on the left don't disassociate themselves from the attempt by Krugman and Rich to define their political opponents as the Other - indeed to do just what Krugman and Rich accuse the right of doing.
But these columns were just published. Perhaps they will.

*The joke, told by someone named David Feherty (actually a CBS golf analyst who has also called for the death penalty for pro-lifers.) It was apparently meant to demonstrate the hostility to Ried and Pelosi among military personnel that Feherty claimed to observe when touring in Iraq. Connecting the joke to Limbaugh's show furthers Rich's argument that extremism is part of mainstream conservatism. While he creates the impression that the joke was told on Limbaugh's air, it was actually published in D Magazine.

** The cover poked fun at Judge Sotomayor for calling herself "a wise Latina" portraying her as a Buddha figure. It was mocking. Depending on how we feel judges should be portrayed, it may have been in bad taste. It was not racist.

Cross posted at the Marquette University Law School Faculty Blog

Sunday, June 14, 2009

What Caperton ought not to mean

Mayor and Attorney Paul Soglin has revised and extended his remarks on the implication of the Caperton decision. Paul had claimed that Caperton means that "the purchasers of the Ziegler and Gableman seats will watch their pawns sit on the sidelines while a new majority of three out of five Wisconsin justices determine their fate." and that, for some reason, cases that Justice Ziegler participated in will be appealed.

Although Caperton could lead to that type of mischief (and that is what it would be), it is far from clear or even probable that it will. Caperton involved a single huge donor who was party to a case before the court. That is true here only if we assume that WMC (or other conduits) are a "party" and that they have an interest in any case in which their policy interests are implicated.

But, Paul argues, we really need to know who contributes to these conduits to apply Caperton. But that's another issue, isn't it? In fact, one might just as well argue that there is no due process problem as long as the donors are anonymous. The judge has no idea where the money came from and, therefore, does not know who she is "indebted" to.

But even if we did compel disclosure of donors, when does Paul think recusal ought to be required? On the facts of Caperton, it hardly seems likely that we will be left with a new majority of five because it is improbable that any single party with a case before the court has given anywhere near the kind of money that Massey's CEO did in the Caperton case.

It seems to me that we are likely to get this new majority of five only if Caperton is interpreted to require recusal when far less money is contributed or when the case before the court is thought to raise issues that donors are interested in even if they are not directly affected. The latter argument was behind calls for Justice Ziegler to recuse herself in the sales tax case involving Menasha corporation. It wasn't that Menasha spent money on her behalf but that "business" (through WMC did) and that "business" (as evidenced by WMC's amicus brief) argued that the sales tax should not apply to custom software.

On this view, recusal would be necessary if, say Wal Mart execs gave a lot of money and the case before the court involves a challenge to a minimum mark up law that Wal Mart opposes even if it is not a party.

I think that would be a bad result and is irreconcilable with the notion of an elected judiciary. But even that view doesn't get us to a new majority of five unless we assume that only the conduits that Paul doesn't like could create an appearance of bias that requires recusal. GWC and WEAC and a variety of groups on the left contribute and bundle cash as well. If judges that benefit from money spent by "business" must recuse themselves in cases in which "business" interests are at stake, then judges who have benefited from, say, money spent by trial lawyers or labor must recuse themselves in cases in which the interests of trial lawyers and labor are at stake. We may wind up with a new majority of none.

Saturday, June 13, 2009

Is anonymity worth it?

WisOpinion won't publish the remarks of any writer without his or her name. At the Marquette University Law School Faculty Blog, we won't publish a comment without a full name or valid e-mail address. The idea, I suppose, is that it encourages intellectual responsibility and civility.

Some of the anonymous and pseudonymous comments on this blog are trenchant - even if I don't agree. But many are a waste of time. The ones that really bother me are filled with partisan bile but written by people who I suspect could make a point if they really tried.

Shouldn't we encourage responsibility? Aren't readers entitled to know who is talking to them. Shouldn't I ban anonymous or pseudonymous comments?

Don't take our toys

Tom Foley thinks its funny, I guess, that anyone would question the characterization of National Socialism as a right wing ideology. On this Saturday morning when I should have been revising a law review article, I posted a comment on his blog suggesting a few obvious ways in which National Socialism was wholly inconsistent with what we call "the right" in the United States in 2009.

There followed a flurry of comments (I thought no one read blogs on Saturday) as if I had blasphemed. As I suppose, I had. The ability to cry Nazi must be very important to some people.

Much of the comments were to "refute" a claim that I did not make, i.e., that Nazism can be referred to as part of what we call "the left" in the United States in 2009. It can't be. My point would be that National Socialism has no place on the American political continuum. There are huge disconnects between it and our politics, almost all of which is rooted in the assumptions of classical liberalism.

To characterize the Nazis as left or right as we use those terms today and in this country is anachronistic. It requires you to pick out something (say its collectivism or its selective invocation of tradition) that sounds conservative and liberal and riding it until it drops. Taken as a whole, National Socialism is completely inconsistent with contemporary conservatism in more ways than I care to count.

For example, in the United States, conservatism is inextricably tied to free markets and limited government. That's not the Nazis. It is inextricably tied to traditional values, often rooted in religion. That's not the Nazis either. It is distrustful of the notion that politics and the state can remake the world. But that was precisely the Nazi project.

One commenter is apparently of the belief that Umberto's Eco's sprawling essay on Ur-Facism resolves the question. I don't think so. It is a collection of 14 contradictory criteria - anyone of which, he says, can lead to fascism. They doesn't help us distinguish Nazi from Soviet totalitarianism other than to note that the two did not manifest themselves in precisely the same way. Nor do they don't point to what I would associate with the right in the United States in 2009.

There was a similar heated reaction to my suggestion that, no, "the right" is not fomenting violence because two nuts shot an abortionist and a guard at the Holocaust Museum any more than the "left" is fomenting violence because a nut shot a military recruiter. Once again I blasphemed. As usual (and somewhat ironically), many of the comments - prompted by a desire to retain that hate card - are full of vitriol as if snide attempts at ridicule and misplaced triumphalist smack add to argument.

Friday, June 12, 2009

It's Big Hate all right

Paul Krugman thinks that there is a wave of "extremism" and "hate" being fed by the media and political establishment. If there is, he ought to know. He's doing the serving.

There are three moves here. The first is to pick convenient lunatics who have committed a violent act and whose inner demons express themselves, if loosely, in political terms. The nutters of the hour are Scott Roeder, who shot abortionist George Tiller, and James von Brunn who opened fire at the Holocaust Museum. You ignore inconvenient tilted heads like Carlos Bledsoe (a/k/a Abdul Hakim Mujahid Muhammad) who killed a military recruiter in Little Rock.

Next, you characterize these jumblebrains as "members of" or "associated" with the right as if fevered minds harbored linear thought. This move may be difficult because - at the extremes - left and right often meet. von Brunn, for example, could just as readily be called a member of the extreme left as of the extreme right. Ignore what doesn't fit.

And that brings you to the final move: the blurring of distinctions between the sane and the short circuited. The way to do this is to cherry pick either ill considered statements (Glenn Beck reported internet rumours of FEMA concentration camps before he debunked them) or harsh words (like calling someone who aborts babies that are about to be born a "killer"). You must then claim that whoever has said these oh so awful things is the "face of" conservatism. The leaders of the Republican Party cannot be Sarah Palin, Michael Steele, or Bobby Jindal. They must be entertainers like Rush Limbaugh or Michelle Malkin.

You must, at all costs, avoid any mention of Howard Dean, Keith Olberman, Al Gore, Al Franken, or Joe Biden. (These are, after all, marginal figures on the left.) It is critical to ignore stupid claims (Bush knew 9-11 was coming) and intemperate language (Bush is an evil war criminal) that do not fit the narrative.

You then abandon critical thought. Shooting abortion doctors is a small step from speaking harshly of abortion even if strident attacks on the mission of America's military or wild claims about the "death" of the planet do not - and could not - lead to violence. There is no real difference between Wisconsin Right to Life and Operation Rescue. Opposition to affirmative action is sort of like white supremacy. Imply, if you can, that tonight's broadcast of Hannity and a few Jager shots are all that separates Timothy McVeigh from Bill Kristol.

Suddenly, your political opponents become terrorists. Neat trick if you can pull it off.

Wednesday, June 10, 2009

Recusal for the goose and gander

My comments on the Supreme Court's decision in Caperton v. A.T. Massey Coal Company are up at the Marquette University Law School Faculty Blog.

Here I'd like to comment on the triumphalist posts of Bill Christofferson and Paul Soglin, claiming that Justices Annette Ziegler and Justice Michael Gableman must recuse themselves from ... well, its not clear. Soglin doesn't say and Christofferson claims that it should be all cases "involving" Wisconsin Manufacturers Commerce. Of course, WMC is rarely a party before the Court so what he really means is cases in which - who knows - WMC has filed an amicus brief or has members who might benefit or in which "business interests" are at stake.

Of course, Bill and Paul are is not lawyers (ed: Soglin is too a lawyer) and what I have learned over my years in the blogosphere is that they don't care about what they don't know. Bill, in particular, when commenting on legal matters is almost universally wrong. I don't blame them for this. Politics - and that is their game - ain't bean bag.

But let me grant them a point. They could turn out to be right although I think it unlikely. The reason they could be right is that the majority opinion in Caperton is not a model of clarity and provides uncertain guidance for the next case. Justice Kennedy speaks of a need to recuse when, viewed objectively, there is a potential for bias. That's a rather broad and vague standard that could be applied in lots of cases.

But then he writes of a particular person with a personal stake in a particular case that is pending or imminent at the time and who has had a disproportionate influence on the process. Is that it?

WMC rarely has a personal stake in a case and, putting that aside, there were very few cases pending or imminent at the time of the election in which it could be said to have a more general interest.

If the latter is the measure of the due process right to recusal, then my happy liberal friends are wrong and will be sorely disappointed. My own view is that this is the most likely - and correct - outcome. In other cases, the Court has emphasized the speech rights of judicial candidates and the rights of organizations to comment on matters of public interest and, subject to reasonable regulations, candidates. It would, I think, be inconsistent with that jurisprudence to make recusal the price of speech.

I intend to explore that idea in a law review article, but, of course, it might not turn out that way.
If it does not, I fully expect to see Bill Christofferson and Paul Soglin call for the recusal of Chief Justice Abrahamson and others who have been supported by the Greater Wisconsin Committee in cases of interest to the trial lawyers, unions and casinos.

No, I don't.

Monday, June 08, 2009

The problem with joint and several liability

Prior to 1995 amendments to the state statutes, multiple defendants sued by a plaintiff who were found to be negligent (and whose percentage of liability exceeded the plaintiffs) would be "jointly and severally" liable to the plaintiff. This had the potential for anomalous results. A party who was found to have a very low percentage of liability (even something less than 10%) would find itself responsible for the all of the damages suffered by the plaintiffs. The paradigmatic case would be one in which the party who was found to have the lion's share of the liability had no money.

The amendments changed the law to impose joint and several liability on only those defendants who are found to be more than 50% liable or acted in concert with the other defendants. (If you are wondering what it means to say that a party has a certain percentage of liability, I can't help you. It's a mystery.)

The budget bill - the budget bill - would essentially return us to the pre-1995 state of the law. While the current version of the changes would require a defendant to be found to be 20% liable, that determination apparently only applies to those who have been sued by or settled with the plaintiff. This is a modification of prior law that required all potentially negligent parties (whether they have been sued or not) to have their causal negligence determined.

That modification substantially undermines the limitation on joint and several liability since the problem with the old law tended to result from negligent parties without money. Plaintiffs give up nothing by failing to sue them.

The trial lawyers association says that these anomalous results are rare. They claim that most cases have a single defendant and that the instances of cases in which a defendant with a low percentage of liability had to pay all of the damages are rare. (For a real life example, see Chart v. General Motors)

But that cuts both ways. If these cases are rare, then there is little reason to change the law to allow plaintiffs to recover from such defendants.

The argument for joint and several liability is to ensure that the plaintiff recovers all of her damages (less those that were caused by her own negligence.) That's a laudable goal but it is unclear why it should be furthered by making someone pay for more than the damages that her negligence caused. It is not the plaintiff's fault that she was injured by an insolvent defendant. But its not the fault of the remaining defendants either.

The argument to prefer the plaintiff over solvent defendants is that, as between an injured party and a "wrongdoer," we ought to stick it to the wrongdoer. But there are other considerations. If we hold defendants liable for more than the harm they have caused, we are likely to create incentives for excessive care and cause disproportionate increases in the insurance cost of certain types of businesses.

Those businesses, it seems to me, will be those in which there is a particular risk of harm from failing to control the actions of others. Thus, it makes sense that Jonathan Barry would be particularly concerned about the impact on a ski hill like Tyrol Basin. It faces a peculiar risk of being involved in an incident in which it is apportioned a relatively modest share of liability for an injury caused by an insolvent patron. Because such injuries are hard to predict and potentially catastrophic, insurance may be practically unavailable. If it remains in business, it may have to take extraordinary steps to limit the activities of skiers.

The latter is a problem because it is overdeterrence. It's one thing to make Tyrol Basin responsible for the harm that it causes. Its quite another to make it an insurer of the actions of its patrons.

Sunday, June 07, 2009

Columnists mailing it in, Part I

Writing op-eds is hard. Sometimes they just don't come. That seems to have happened to at least two national columnists last week.

The always interesting Patrick McIlheran commented on a somewhat injudicious column by Leonard Pitts that appeared in the Milwaukee Journal Sentinel. Pitts was upset that a white woman told a false story of being abducted by black men and used the occasion to argue that someone he calls "you" (which I take it means "white people') see him as a "boogeyman" and not
for who he is. He says that "you" have done all other sorts of unspeakable racist acts.

Let's put aside a few obvious objections such as the fact that I doubt many people would regard mild-looking, middle-aged Leonard Pitts (whose picture runs with his column) as particularly threatening or the fact that it is not surprising that white people make 67% of false accusations of interracial crime. White people,after all, comprise more than 67% of the population.

Pitts is concerned about white stereotypes of black people. He is arguing against a response to individuals that is based entirely on their race. He doesn't want an entire group of people sullied by the actions of a few. Certainly "you" understand this, don't you?

Locally, Madison blogger Emily Mills is all over Pat for saying that assumptions of pervasive racism are suspect since "we" have been told that "black people were just as good as anyone else [by] “Sesame Street” and every adult [we've] ever known ...." Ms Mills believes that the statement is "dreadfully ignorant" because ... I'm not sure. I guess it's because she thinks he is saying that he doesn't know any black people so he has to learn about them from others.

Well, no he's not. He's saying that a presumption of pervasive racism is hard to reconcile with a generation of social indoctrination regarding the evils of racism. We live in a society where there is hardly a worse charge that can be leveled at someone than to call her a racist. In that type of society, it seems unlikely that every white person - "you" according to Leonard Pitts - is simply hiding his inner Lester Maddox.

This isn't to say that racism does not exist or that assumptions about race can still arise from our racial past - some of which are, I think, exacerbated by forms of "anti-racism." But that is a far cry from what Pitts was saying. Ms. Mills thinks we should be willing to have "difficult discussions"about the " incredibly complex" issue of race.

We should. But there was nothing complex or difficult about what Pitts wrote.

Friday, June 05, 2009

Shark in St. Louis

I'm back from the Conservative Heartland Leadership Conference in St. Louis, where I spoke on a panel discussing state courts and judicial selection. I spoke about the pros and cons of judicial elections and our experience here in Wisconsin. The best line of the day came from, I think, Grover Norquist who noted that Obama more or less kept his promise about not raising taxes on people earning over $250000/year in raising the tobacco tax. He is, most likely, the only person in the country who makes over $250000/year and smokes.

Wednesday, June 03, 2009

Barack the Bold

Local blogger Nick Schweitzer wonders - well actually he's pretty sure - about GM bankruptcy and the rule of law. One of his points is the manner in which the proposed reorganization crams down senior creditors in favor of junior ones, e.g., the UAW. Whether a similar move (accomplished through a sale to Fiat which is not itself free of legal uncertainty) violates the Constitution's Taking Clause will be addressed in a law suit brought by the Indiana pension fund. Whether it will be successful is unclear. This fellow says no, although, over at Prawfs, Rick Hills suggests that it may not be so clear.

My point is not to wend through the legal niceties. I am not a bankruptcy guy. But it does seem to me that Indiana Governor's Mitch Daniel's reference to Barack Obama's "shock and awe" statism is apt.

Let's acknowledge that the President came into office facing a recession. So did Ronald Reagan and George W. Bush. We should concede that the federal government's fiscal situation was a mess.

But here's what's happened. Obama has criticized the Bush debt and then made the Bush fiscal record look like something from debt hawk Suze Orman. He has decided to hang on to financial institutions that made the mistake of taking TARP funds like a golden retriever with a soup bone. He has taken the Bush administration's ill advised bailout of GM and Chrysler and used it as a vehicle to nationalize the American auto industry. And we haven't even gotten to cap and trade or federal health care. We have no idea how the Obama administration proposes to handle our looming entitlement crisis.

Is this socialism, corporatism or just a bull rush to the left ? Whatever your answer, the President certainly decided that he wouldn't let a good crisis go to waste. But he may have created a greater one.

Monday, June 01, 2009

Murder is murder

Those of us who are pro-life ought to denounce the killing of Dr. George Tiller. He was certainly engaged in awful business and I suspect that some will try to make political capital from his death, but it's not possible to promote respect for life in this instance by taking it. It was a reprehensible and cowardly act. If, as appears to be the case, the motive was revulsion at Tiller's late term abortion practice, the killer has dishonored and harmed the cause that he wished, in some twisted way, to serve.

"Guidelines" for the confirmation debate

A few observations on turns in the Sotomayor debate.

First, there has been some preliminary skirmishing over her "reversal" rate. While I think that Supreme Court treatment of her decisions can be instructive, a simple calculation of percentage of cases that were reversed is probably not going to get us very far. The United States Supreme Court is not an error-correcting court and tends to take only those cases in which the law needs clarification. Its disposition of those cases is often going to be divided (i.e., the Justices themselves will not agree) and it is, therefore, a bit off to say that reversal means an appellate court judge was "wrong" at least in the sense of performing incompetently or making some sort of mistake.

Analysis of reversals can, however, tell us something about a judge's philosophy or political orientation. If (assuming sufficient numbers), a judge is reversed more than others in a period in which the Court is thought to be "liberal" or "conservative," that may be instructive. If a judge's votes are highly correlated with those of conservative justices, that may tell us something. If (and, again, this assumes sufficient numbers), a judge is frequently reversed by a unanimous or near unanimous court, it could be a relevant bit of information.

For related reasons, I am not overly impressed by anecdotes or statistical analysis purporting to show that Judge Sotomayor reached "conservative" results, e.g., by ruling against a discrimination claim. There are two principal objections to placing a great deal of weight on such claims.

First, there is a huge difference between sitting on the Court of Appeals and serving on the Supreme Court. An Circuit Court judge ought to follow Supreme Court precedent. A justice ought to respect it, but may vote to overturn or modify it.

The second reason is related to the problem with overly simple uses of "reversal rates." Most cases aren't that hard. It is a relatively small percentage in which judges of different philosophical bents will differ.

But those are precisely the cases that the Supreme Court takes. I don't have the numbers, but it as judges on the D.C. Circuit Court of Appeals, Ruth Bader Ginsburg and Antonin Scalia may have agreed fairly often. On the Supreme Court, they may have been far more likely to disagree. What may have seemed like a minor philosophical difference now looks far more significant.

"To retain respect for sausages and laws ...

... one must not watch them in the making." This was the advice of Otto von Bismarck and, over one hundred years later, legislative Democrats did their best to spare our sensibilities, putting together a budget in the wee hours of a Friday morning.

Once again, the budget becomes a dumping ground for policy proposals that could never be passed on their own. Whatever you think of drivers licenses for illegal immigrants, new health insurance mandates, domestic partner registries, changes in liability law, early release of convicted felons, new mandates for choice schools and the like, it might be nice to see them debated on their own rather than folded into a deal on the budget.

But it does extend our sausage metaphor. The budget will consist of whatever the Democratic coalition had lying around.