The Mean Streets of Germantown?

Jay Bullock, pace Jim Rowen (who really, really, really hates suburbs), argues that it is more dangerous to live in suburban or exurban counties than in Milwaukee County because the combination of traffic deaths and stranger murders are higher in the former than in the latter. Jay's take away: "Whatever you may think of life here in the urban hellhole that is Milwaukee, it's a lot safer than life in a lot of those exurban hellholes to the north and west of here." (Both Jay and Jim link to a post extolling the wisdom of a woman who lets her 9 year old ride the New York subway alone and citing a University of Virginia study.)

Well, not quite. If one limits the analysis to stranger murders and traffic deaths, it may be safer to live in Milwaukee than in Washington County. Both Ozaukee and Waukesha counties remain safer than Milwaukee.

But even this is problematic. Jay - or, more accurately, the study he relies upon - fudge the numbers by limiting homicide deaths to stranger murders thereby limiting most homicides. You are most likely to be killed by someone you know and one of the reasons that people leave Milwaukee - or certain parts of it - is that so they will not know or be in the vicinity of people who might kill them.

In addition, the exclusion of homicide by acquaintance reflects the reason that traffic accidents are not interchangeable with stranger murders. The justification for exclusion is that homicide by an acquaintance is not quite a random event to which everyone in the city is subject. If you avoid certain areas, people and activities, you are much less likely to be killed by someone you know. As the study on which Jay relies puts it, stranger homicide is most likely to happen when you are just going abot your routine business. Stay out of trouble and you'll be safer.

But traffic accidents are not completely random either. You can't immunize yourself from them, but if you drive defensively, stay off your smart phone and don't drink and drive, you are much less likely to be killed in a traffic accident.

Having said that, I do agree with the title of Jay's post that Milwaukee is safer than - at least many people - think. Most parts of the city are relatively crime free. Not like Mequon to be sure, but reasonably safe places to live and work. In that sense, he's right.

But there is a confounding factor. Most of Milwaukee's violent crime is highly concentrated. In some parts of the city, violent crime is a rather large problem. The continuing determination of liberals to want to minimize that has always puzzled me. It is not wealthy white Republican guys that suffer from the problem.

One final point. I don't know that violent crime is a major cause of exodus to the suburbs. It seems to me that the major positive reason is that people like space. And the major negative reason is that they do not like the Milwaukee Public Schools.

At all.

A Conversation and Not a Shouting Match

I haven't blogged much lately so why not stir things up.

One of the great things around is the Witherspoon Institute. It runs a blog called Public Discourse which recently featured an interesting exchange on same sex marriage between Andy Koppelman (for) and Robbie George, Ryan Anderson Sherif Girgis (against). The great thing about the exchange is that Koppelman does what proponents of same sex marriage rarely do. He addresses differing views of what marriage is and what it is for.

Much of the discussion of "marriage equality" simply assumes that marriage is something designed to facilitate a sexually intimate relationship between two people. But there are all sorts of embedded assumptions and begged questions in that assertion.

In a recent column in the Washington Post, Matthew Franck of Witherspoon addresses the implication of the fact that differences on same sex marriage are differences about marriage as much as they are differences on homosexuality. He suggests that proponents of same sex marriage stop playing the "hate card." But it won't happen. Politically useful demagoguery is rarely abandoned.

Thoughts on Butler Nomination

I am not shocked that Louis Butler will apparently not be confirmed as a federal judge. I was not one of those people who believe that he was disqualified by losing two statewide races for the Wisconsin Supreme Court. We don't elect federal judges and that reflects a judgment about the role that popular sentiment should play in judicial selection.

I also believe that he is more than qualified by way of lawerly craft, i.e., he is quite smart and very good at the things that lawyers do. The problem was that he demonstrated, while on the state supreme court, that he has a rather expansive view of the judicial role and, while these terms are always tricky in judicial terms, tacks strongly to the left. Indeed, when it came time to explain those positions to the voters, he and his supporters just didn't do a very good job. (No, I don't think he lost because of the Reuben Mitchell ad. It actually may have helped him.)

Concern over these views is arguably less relevant to a seat on the district court since the opportunity of a trial judge to make law is limited. But a runaway district judge can do a lot of damage. I don't know that Louis Butler would have been such a judge but apparently enough of the right people thought so to scuttle his nomination.

I was not disturbed by the Butler nomination and would not have minded if the had been confirmed. Elections matter and he is the type of person I would expect President Obama to nominate. In fact, he was a pretty good nominee given the presumptions that I suspect control the administration's selection process. But, at this point, it would seem that the administration ought to reload and nominate someone else. It looks like this isn't going to happen.

Is ObamaCare About to Go Under the Bus?

Judge Hudson's decision in Virginia v. Sebelius is hardly the last word on the constitutionality of ObamaCare's individual mandate. My guess is that there are four votes on the Supreme Court to uphold the mandate and that the "swing vote" in this case may not be Anthony Kennedy but Antonin Scalia.

I have always thought it a closer question that most legal academics who tend to be unconcerned with the absence of structural limitations of the power of the federal government. One could certainly assemble cases that seem to point to sustaining the mandate.

The problem is that, if Congress can do this, there is little that it cannot do. I think that forces people to take a hard second look at expansive readings of the commerce and taxing powers.

One of the more interesting aspects of the opinion is Judge Hudson's conclusion that the mandate is severable, i.e., it can be struck down while the rest of ObamaCare stands. Putting aside the legal merits of that conclusion, doesn't it ruin the plan? How can you force insurers to cover pre-existing conditions without a mandate? I had thought that the penalties associated with the mandate are not high enough to force people to buy insurance that they don't need. But, if Judge Hudson is right, there are no penalties at all.

It is not clear to me, however, that, on Judge Hudson's reasoning, a mandate could not be recast as a tax credit. The problem is, I think, that the numbers wouldn't work unless one combined the credit with a tax increase.

In any event, the plan may be well on its way to unraveling.

Shark at the National Press Club

Last week, I had the privilege of participating in a panel on amendments to the Federal Rules of Civil Procedure sponsored by the Federal Society for Law & Public Policy Studies at the National Press Club in Washington DC. Procedure mavens can watch it here. My co-panelists were Marty Redish of Northwestern (author of one of the leading texts in the area), Ron Allen of Northwestern and Don Elliott of Yale. This had me wondering whether this ought not to have been the theme song for the panel.

Smoking them out.

I am quoted briefly this morning by Dan Bice in an article about certain illegal campaign contributions made with treasury dollars of the firefighters union. I'd like to revise and extend my renarks.

I have nothing against the union. In fact, it has a soft spot in my heart. My stepdad was a member and I grew up with an IAFF sticker on the family car. There is no question that what happened was illegal. A corporation or a union can't reimburse employees or board members for campaign contributions that it could not make. I have advised clients whose employees have asked for such reimbursement. The answer is no.

The union seems to be claiming that it did not know it was doing that. It says that the board members submitted fraudulent expense reports. Yet the board members are still on the board. Why the union thinks that's a good idea is beyond me. You would think that it would want to distance itself as far as possible from these people who, if the story is as reported, may have committed several crimes.

There seem to be some real questions - raised by a number of union members - as to the extent of the union's knowledge and the extent of the practice. I'm sure that there is internal politics involved, but this was bad business.

Whither Class Warfare?

There is a great article by the always interesting William Voegeli in the most recent issue of Commentary. I prefer mine on dead tree but you can read it here. Essentially, Voegeli examines the lack of ardor for soaking CEOs and hedge fund managers on the part of the middle class that so puzzles academics and journalists and other members of the chattering classes. To extend the conundrum, why do the great unwashed seem to be susceptible to attacks on the government which can benefit them so?

Voegeli suggests that it has something to do with who you know and who you consider to be peers. The average guy doesn't know a rich CEO or hedge fund manager (they are exceedingly thin on the ground)so doesn't much care what they make or how they live. He does know teachers and cops who seem very comparable to him but relatively better off.

On the other hand, columnists and professors all know the average student back at Princeton who did nothing but chase girls and drink beer. The buffoon now makes twenty times what they do. That must not stand.

Sure there's more to be said, but it's an interesting observation.

Supreme Court Conference

In late August of 2009, it occurred to me that it might be a good thing if Marquette University Law School held a conference on the Wisconsin Supreme Court. We had a great inaugural conference in October 2009 and last Friday reprised the conference for an audience of over 150 lawyers in Eckstein Hall.

There are too many people to thank here. One of the great things about doing this conference is the willingness of so many great lawyers of all ideological persuasions and specialities to help. See you next year.

I often lament about the public debate on legal matters and how it tends to be framed. But the public debate on religion is just as skewed. A recent phenomena is the evangelical atheist. Folks like Bill Maher, Richard Dawkins and Sam Harris who, to my mind, represent nothing as much as an adolescent who thinks he knows something that everyone else has missed. Just as science is unlikely - almost by definition - ever to prove the existence of God, it is just as ill suited to prove the absence. So guys like Dawkins, et al., and Dennett and PZ Myers go after low hanging fruit - making fun of caricatures of religious viewpoints and the most simple minded of believers. It's great sport but its largely useless.

Into the fray enters Phillip Goldberg, author of a book on Indian spirituality and the West. He wants to posit an alternative to the cartoonish religion of the Traveling Atheism Show but winds up suggesting a some mix between agnosticism and a religion of the Self. Rather than suggest a religion that is is consistent with reason, he suggests one that is barely religious.

Goldberg's preaching the faith called Spiritual But Not Religious which, at least in his mind, sees God as "a formless, creative power that would not seem out of place in a physics seminar." The SBNR are, apparently unlike the traditionally religious, rational and reasonable. These folks don't see God as an anthropomorphic father figure in the sky and "don't accept all religious dogma as revealed truth ...." "If they value scripture at all," he says, "they do so selectively and read it metaphorically, not as history or as an infallible guide to morality."

The difficulties with such a "faith" are well rehearsed. It amounts to what some have called "Sheilaism" - which threatens to become a reification of whatever one happens to feel at the moment without much regard for the wisdom of others, particularly of one's ancestors. Because it can mean anything, it means nothing.

But more fundamentally, Goldberg has missed much of the Judeo-Christian tradition (I can't comment on Islam) which has always read the Bible as something other than literal history or moral statutes. For Goldberg, people like Augustine, Aquinas, Luther, Barth, etc., must never have existed. He obviously doesn't know - or at least care to acknowledge - that people wrestle with the issues that they wrestled with every day.

To say that the Bible is something other than the literal word of God (something that Roman and Anglo Catholicism and the mainline Protestant denominations and Judaism largely do say) does not render it irrelevant. To acknowledge moral complexity is not to slide into moral relativism. To recognize that our images of a personal God are metaphorical because God as God exists cannot be fully known ("we see through a glass darkly") is not to render God the equivalent of some groovy form of Dark Matter.

Feingold for Supreme Court ? Probably Not

And what about Russ Feingold as a candidate for the Wisconsin Supreme Court as suggested by the Progressive's Matt Rothschild?

He'd be a very serious candidate. I don't have much sense of him as a lawyer. My recollection is that he was a few years ahead of me at Harvard Law School where I think he was an average student. We worked briefly at the same law firm but he was in Madison and pretty clearly more interested in politics than practicing law. My guess is that he would be a very attractive candidate for those on the legal left.

As a result, he'd attract powerful independent opposition. Because he's never been a judge - or, for that matter, much of a lawyer - there'd be little in the way of a record concerning actual cases as will be the case with Justice Prosser and his current opponent. But Feingold has been fairly adamant in adopting a view of the Bill of Rights that emphasizes the rights of criminal defendants and that is always a tough sell in a judicial election. I think he'd lose in a hugely expensive race and that would probably make a race for the Senate in 2012 highly unlikely.

More than that, it may be a mistake to come back to a statewide race so quickly. The voters just said no. It may be best to wait a while before you ask them again.

Second Annual Supreme Court Conference

For those of you lawyers out there in BlogLand, one of the best deals on Continuing Education that you'll ever see is the Second Annual Conference on the Wisconsin Supreme Court: Review and Preview to be held on December 3 at Marquette University Law School. I mean 5 credits plus lunch for $ 40. That, ladies and gentlemen, is insane.

This year, we will be joined by national scholars such as James Sample and Brad Smith to discuss the ongoing recusal issues before the Court in a panel including me and moderated by the Hon. Diane Sykes. Other panelists include Michael O'Hear, Dan Blinka, Jack Kircher, Tom Shriner and a host of other stars of the bar. You really have to be there.

Myths About "Job Creation"

Some of us like to say that the state can spend a large sum of money - say $ 810 million on a train - and "create" jobs. As statements go, this one is fairly meaningless. The only thing we can say for certain is that it has employed - directly or indirectly - however many people that amount of money has hired. Want 8100 jobs paying $ 100,000 in 2011? Give me that money. I'll find something for those folks to do - or not. To say that I created jobs is, in one sense of the word, a truism but a meaningless one.

In another sense of the word, it is almost certainly a false statement. It is false if you mean by "create" a net addition of 8100 jobs. That $ 810 million must come from somewhere. Had it remained where it was, it would save for the rare possibility of something like a Keynesian "liquidity trap") have been put to some use. That use also would have resulted in people being hired. I have not, therefore, added jobs to the economy in the numbers that I have claimed for I have also caused other jobs not to be created.

This is why statements about how many people would be hired (jobs "created") by some public works project are, if not entirely meaningless, not particularly helpful. The relevant question is whether the project creates additional value, i.e., gives people something they desire or increases the productivity of the economy, in an amount greater than some alternative use of the funds expended upon it.

Sharp readers will note that this statement implies that there are circumstances in which government might "create" jobs in the sense of causing there to be more jobs than there otherwise might be. This is true. Public education can create jobs although this does not mean that every dime spent on public education does so or that any additional spending on public education is justified. Highways may create jobs but, again, this doesn't mean that all highways are justified. Even consumer rail might create jobs but, given its cost and the demographics in most parts of the United States, that is unlikely.

The real test of any expenditute of public funds is whether it constitutes a better use of dollars than alternative uses - including private ones. In addition, that question must take into account the fact that state expenditures involve coercion. One does not have to be a Randian or regard private property rights as absolute to believe that regard for the intrinsic value of human beings and their autonomy creates a certain presumption against taking the fruits of their labor.

Of course, a presumption can be overcome but it is also true that, in the great run of cases, market mechanisms are ging be more efficient in directing funds to the most productive or desired use than centralized bureaucracies.

Not always, but mostly.

Return of the Shark: Walker hits the ground running

This has probably been my longest hiatus from blogging but I didn't want to have take sides in the recent midterm elections.

Or, of you don't believe that, I have just completed a month or so of a series of outside events and dead tree writing, including talks in Southern California, western Virginia and New York City. Throw that in with the ordinary course of business and some personal issues and there has been no time to blog. I am happy to report that the polity seems to have thrived without me.

Still, its time to come back. My impressions on the rise of the Tea Party and its influence on the midterms will be forthcoming in the WI Interest. What I find intriguing is that, before the celebratory hangovers had even subsided, Scott Walker made high speed rail the first issue of his nascenct administration.

I've written in the Journal Sentinel that the debate over high speed rail frustrates me. Advocates are almost never willing to address the real economic issues in proposed systems. Analyses have shown that commuter rail is almost never economically justified on a wide variety of measures. This is not the same as saying that it does not "pay for itself." Generally speaking, what it costs (from all sources) exceeds its benefits (to all beneficiaries).

This shouldn't surprise us. Rail is an outmoded technology. It is good at moving large quantities of people or things between two fixed points. It may still work well when there are large numbers who wish to travel between those two points and then, upon arrival, go nowhere other than to another fixed point served by the rail line or some extended system of transportation that it is not too inconvenient or inexpensive.

In contemporary America, this is rarely so. So advocates must accept magical numbers regarding ridership or economic benefit to justify proposed systems.

Or, as with the train proposed to run from Milwaukee to Madison, they regard federal funds as free money. We don't hear much about why it makes sense to spend over $ 800 million dollars on a train that few people can be expected to ride. It is, we hear, "free money" since it comes from the federal government.

I suppose, although there is still the almost certain cost overruns and operating expenses (which may or may not be subsidized). But there is a certain peversity in that view. I tis precisely what leads to unchecked and irresponsible spending as every one wants to get part of the money that no one would actually spend were it her own.

That Scott Walker is refusing to play this game suggests that he may be a different type of Governor.

More Bad Economics

Tom Foley just can't understand why PolitiFact would pronounce Russ Feingold's assertion that free trade deals have cost Wisconsin 64,000 jobs to be half true.

Neither can I. I would call it "false" or, were I given that option and inclined to be more charitable, wholly unsubstantiated.

I would direct Tom to Frederic Bastiat who observed that the difference between a good and bad economist is the ability of the former to recognize the unseen.

Feingold's protectionism is the economic equivalent of young earth creationism. Virtually no serious economist buys it. If jobs are moved to where they can be performed more cheaply, the money that is saved does not disappear. We may no longer build typewriters or pay unionized workers premium wages for turning lug nuts, but the difference is invested and new jobs are created. This is true even if other countries engage in protectionist practices.

Looking at the net gain or loss in manufacturing jobs tells us nothing. The new jobs may or may not be manufacturing jobs and, of course, pacts like NAFTA are hardly the only - and probably not the principal - impact on the growth and decline in these jobs. Manufacturing jobs have been declining from well before the passage of NAFTA.

This is the creative destruction that Feingold and his supporters pretend they cannot understand.

Last night's debate: John Galt v. Tom Joad?

It is is a common Democratic trope to call Republicans stupid. Conservatives are insufficiently informed about global warming and the implications of evolutionary science. They don't understand that embryos harvested at the blastocyst stage (before implantation) are just a clump of cells. They don't seem to understand that homosexuality is not a choice (even if its not a gene).

But the economic misunderstandings displayed by Democrats are often staggering. Russ Feingold is quickly becoming Exhibit A. He has taken a rather perceptive comment by Ron Johnson about creative destruction - one that virtually no mainstream economist would disagree with - represents some sort of heartlessness.

We can argue about the extent to which government might ameloriate the impact of creative destruction, but does Sen. Feingold really believe that it should be prevented? Should we tax every day people to prop up typewriter and film manufacturers? Should we have floated municipal bonds to save the blacksmith shop? Should those same every day Joes be forced to pay more for their flat screens to keep Zenith building televisions in the United States?

Feingold's misunderstanding of Atlas Shrugged is of a piece with that. The villians are not every day people who work, but the looting class that wishes to control - and profit from - the work of others; to reap where they did not sow and to rule the innocent by making them criminals.

I am not a Randian, but Johnson may have cited another Rand novel, The Fountainhead, to the effect that the upper class is a nation's past, while the middle class is its future. The difference between the two has to do with the way in which the middle class creates and sustains itself.

Does Russ Respect Rights

In the event that people feel that Charlie Sykes criticism of Russ Feingold's use of NFL footage in his ad is partisan hyperbole, it is not.

Those who know me may have heard me say that I think much of Intellectual Property Law is facism. But, in my capacity as General Counsel of a moderately sized multi-national corporation, I was faced - at least once and maybe more often - with questions of whether our marketing people could grab small bits of NFL video in marketing pieces - including one in which we had hired a former NFL player to promote one of our products and wanted to show the guy scoring a touchdown in the Super Bowl. Our IP guy told us - quite correctly - that we couldn't do that. He explained to me that it wasn't even a close question. He showed me that the law was clear and noted the NFL's well known vigilance in protecting its property rights. I didn't like it, but I accepted it.

It really is hard to see this as an honest mistake. Ad agencies and campaigns are lousy with lawyers and no lawyer or agency in business for more than a week and a half would have failed to recognize this issue.

When you combine this with Feingold's creepy attempt to make one of his ads look like a news broadcast, this campaign seems to be in need of some ethical guidance.

It's A Wonderful Life but Social Security? Not So Much

I have met Jay Bullock a few times. He seems like a nice enough guy and I am sure he is a very good English teacher. Heck, he might even the second best English teacher in MPS. (Sorry, Jay, but top honors go to Karra Esenberg at Hamilton.)

But, Jay, you're thinking about this social security thing all wrong.

He seems to think that his insurance company (and mine), American Family, operates its business like the government has operated social security. If I thought that were true, I'd be looking at the Gekko or the ditzy girl with too much make up.

Jay fundamentally misunderstands the analogy between social security and a ponzi scheme. It is not that the government should have kept excess social security dollars locked in a vault. That would have been better than what it did do, but would have been its own piece of mismanagement. Jay says I would have beaten George Bailey to death for putting the money in Joe's house.

Not hardly.

In fact, had good old George failed to do so, I would have taken my money over to mean old Mr. Potter. Lending to Joe is how George earns the money to pay me interest.

But the social security trust fund is no Bailey Building & Loan. It did not lend its money to Joe. Lending the money to Joe - and to the Kennedys and Mrs. Macklin and a hundred others - gave that broken down old Building & Loan a claim on someone else's assets (it carries a mortgage on Joe's house) and a right to be paid income on that claim. (Joe owes principal and interest). The trust fund could have invested its money (much like American Family invests its money)in a way that gave it a claim on a someone else's assets. But it didn't. Think of Uncle Billy losing or blowing the money and leaving George with nothing but his IOU. Now that would have truly meant bankruptcy, scandal and prison.

Now, to be fair to Jay, you could operate social security (although not an insurance company) on a pay as you go basis. Insurers don't do that because they can't compel policyholders to stay with the company and can't raise the rates to whatever is required to pay current claims (and because, for those and other reasons, regulators wouldn't let them). The government, of course, has a more or less captive customer base. Taxpayers can't take their business "elsewhere."*

But social security long ago abandoned a strict notion of "pay as you go" and for good reason. We have know for a long time that birth rates following 1964 were far lower than those between 1946 and 1964. We have long known that this was going to result in a reduced ratio of workers to retirees when the little darlings born between 1946 and 1964 hang it up.

Not very complicated math demonstrated that this would result in levels of taxation that would be politically - and perhaps even economically - unsustainable. (Taxpayers may be unlikely to go elsewhere but they can prefer leisure to labor.) So we decided to charge our current "customers" "extra" to fund the largely predictable costs that would be incurred when it came time for them, as a class, to submit their "claims."

The government should not have kept the money in a safe. It should have invested it in conservative investments outside the federal government. This is, after all, what both private and public pension funds do.

Indeed, Jay should probably be a bit more concerned with this than he is. MPS has promised over two billion dollars of unfunded benefits to future retirees. If, in the end, taxes are imposed on city residents to pay those benefits, we should just rename ourselves "New Detroit."

Jay argues that, well, if the government had not done this, every dollar invested would have been a dollar in additional deficit spending or taxes. Another possibility, apparently even too hard to imagine, would have been reduced spending. But to suggest that behaving responsibly would have been hard takes nothing away from Johnson's original point that social security has been operated as a Ponzi scheme.

In the end, Jay succumbs in the end to the Ultimate Stupid Blogger Trick of the left. Concern about social security is, in the end, reducible to fear of the "Brown Menace." He cites Charlie Crist's proposition that we could fix the problem by creating a "path to citizenship." Because some critics of social security don't do that, they are, implicitly, racists or cynical exploiters of racism. I hope he doesn't teach his students to be that intellectually lazy.

Crist's comments reflect a misunderstanding of the problem. He thinks the trust fund has assets. Beyond that, current levels of illegal entry won't fix the problem. Most illegal residents already pay social security taxes. There are many issues surrounding immigration about which reasonable people can differ. Playing the race card against conservatives in general (as opposed to some particular position that might be fairly characterized in that way) fouls, rather than advances, the conversation.

* Of course, increased taxation can result in a reduced tax base.

Just A Little on Vote Caging

A commenter in response to my earler post on our hapless (and now ex-) SEIU operative wanted to know if I would offer a "a similar critique about the just-exposed conservative voter suppression efforts ...." Faith will be rewarded.

One Wisconsin Now accuses certain conservative operates from running what they call "a vote caging" operation which, according to Bill Christofferson, is made illegal by the National Voter Registration Act.

The first thing to note is that "vote caging" is not a legal term. Some things that people call "vote caging" might be illegal, but not because of a direct legal prohibition against it.

By vote caging, most people mean a process in which potential voters are sent some type of mail that is either nonforwardable or requires a response and then some effort to remove these voters from the rolls when the mail is returned or there is no response.

The federal statute referred to by Mr. Christofferson is not, as he seems to think, an absolute prohibition against ever challenging a voter on the basis that they do not reside within the voting district, but a limitation on the circumstances under which states may remove registrants from the rolls based on failure to vote or change of registration. Thus, the state can't simply remove registrants on the basis of returned mail. But this doesn't preclude any further inquiry as to the eligibility of a voter. Compare, e.g., U.S. Student Ass'n Foundation v. Land
546 F.3d 373 (6th Cir. 2008) with Bell v. Marinko, 367 F.3d 588 (6th Cir. 2004).

Techniques referred to as vote caging sometimes involve challenges at the polls, but it is unclear to me that the groups here were planning to do that. Such a practice has been challenged when specifically targetted at minority voters, but there is not, in my voew, a general prohibition against challenges that a voter is ineligible because he or she doesn't live within the district.

However, it seems fairly obvious that such a challenge is not going to succeed if it based on nothing more than returned mail. The documents seem to suggest that the groups were planning to do much more than that, but, if it was their intent to seek the removal of, or make challenges to, voters based on returned mail, it wouldn't have worked. It wouldn't have forced the casting of provisional ballots and, depending on how it was implemented, might have faced other legal challenges.

The "Sexting DA" and Attorney Discipline

There aren't many things that political bloggers of all stripes can agree on, but I suspect there is near unanimous support for the notion that Calument County District Attorney Ken Kratz has, on apparently more than one occasion, acted like a pathetic dweeb.

I suspect that there is almost as much support for the proposition that Kratz' behavior toward a victim of domestic abuse was worse than pathetic in that it showed an utter disregard for the victim's humanity. A woman who has been the victim of domestic abuse doesn't need to be hit on by a person charged with helping to protect her. In proposing an amorous relationship at a time when he was supposed to be prosecuting her abuser, Kratz placed her in an untenable position. She was not free to laugh in his face or even to let him down gently. She may well have felt pressure to accede to - or to at least play along - with his desires.

It would not be hard to see this as a form of "quid pro quo" sexual harassment. The problem was not the words he used, but what the words proposed. If he wanted a relationship with her (in violation of the rule that you ought not to date people who could be your children much less the overly generous "half your age plus seven" rule), he needed to wait until there was no longer a professional relationship.

People are now wondering why charges were not issued by the Office of Lawyer Regulation. OLR itself is prohibiting from commenting. Under SCR 22.40, investigations are confidential.

I should point out that I am part of the attorney discipline system. I serve as a referee, i.e., I am assigned to sit as the "trial judge" in discipline cases and make - not a decision - but a recommendation to the Court. I don't see the cases until they are charged. Because of that, I don't want to comment further on the investigation which may have included significant material not in the public domain.

But ... I suspect that the question will now arise as to why "lawyers regulate lawyers." There are nonlawyers in the system and no charge can issue without review by a committee that includes nonlawyers. Often, a committee including nonlawyers will be involved in an investigation, but the rules do not make this mandatory.

Maybe a charge should have been brought in the Krantz case, but the reason that it wasn't is not that OLR is soft on lawyers.

The short answer to the question I've posed is that it takes professionals to judge many forms of professional misconduct. But there is misconduct which is more evident (this case may well involve it) and I fear that some people may believe that the OLR "goes easy" on lawyers.

Based on my experience, that is simply not the case. While it may be somewhat understaffed, my impression is that the OLR takes its charge quite seriously and, in my experience, it does take positions that are, from time to time, harsher toward the lawyer respondent than I would take. While I don't believe it is overly harsh, neither do I think that it is an easy mark.

SEIU Operative Kicks His Own A**

One of the things about blogs is that they can extend stories that appear in the mainstream media. Yesterday, Dan Bice wrote on comments by a union operative who said that he was going to "kick Scott Walker's ass" over the O'Donnell Park tragedy and problems at the Milwaukee County Mental Health Complex. In describing the coming campaign, he referred to things that Tom Barrett planned to say in coming debates.

I was interviewed for the story and was quoted as saying that I "could see the labor union encountering problems if it ran ads on the O'Donnell Park tragedy now that an employee is on record saying he talked with Barrett's staff about hitting Walker on this issue." Retired Elections Board lawyer George Dunst apparently agreed.

That's exactly what I said. Here's the problem. The SEIU, in a post-Citizens United world, is perfectly free to run ads that say bad things about Scott Walker. What it can't do is coordinate those communications with the Barrett campaign. If it does, it runs the risk of violating, among other things, laws that forbid providing something of value to a campaign with, to generalize, "unregulated" money.

That a guy from SEIU says that he is discussing a planned attack campaign with the Barrett campaign suggests coordination. To avoid such a suggestion, sophisticated operatives don't have those conversations. Or, if they have them, they don't tell strangers on the street.

I don't know if there was coordination. But, if SEIU now spends money to run attack ads focusing on O'Donnell Park and the County Health Complex, regulators are almost going to have to investigate.

Ron Johnson Understands Social Security All Too Well

The urgency of portraying Ron Johnson as clueless leads smart people to make silly claims. Last week, local blogger Jay Bullock said that Johnson's reference to social security as a "ponzi scheme" means that he doesn't understand it.

If that's so, then Johnson has a lot of company. Referring to social security as a
"ponzi scheme" is quite common.

To do so is, of course, an analogy and analogies point to one thing that is like another in some significant ways even if they may differ in others. Social security is not a ponzi scheme in the sense that, unlike Charles Ponzi, the government promises nothing to those who pay into social security. You aren't supposed to get a return on your money and you have no right to a dime in benefits. The government will, in any event, probably be good for whatever it decides to pay out - perhaps even for what it currently says it will pay out - because, unlike Charles Ponzi, it has the right to take money from others.

But there is a way in which social security is very much like a Ponzi scheme. Social security has not, strictly, speaking been, as its defenders lole to say, a "pay as you go" system for a very long time. Back when Baby Boomers were young, it was absolutely predictable that paying benefits upon our retirement was going to be extremely difficult because of the absolutely predictable diminishment in the ratio of workers to retirees. In other words, there are a lot of us and less of those born after us. Demography is, in a very real sense, destiny. It is a future that has already occurred.

So, in 1986, it was decided to raise social security taxes beyond that required to pay current benefits and create a trust fund. The problem, of course, is that the money was not invested in a way that represented a claim on anything other than the government's promise to pay. It was invested in special government bonds and, essentially, used to fund current government spending. It's as if you saved for your own retirement by placing money in a piggy bank and then replacing it with IOUs to yourself so that you could spend the money.

Thus taxpayers have been paying in more than a "pay as you go" system would require in order to create a trust fund consists of nothing more than IOUs. That sounds an awful lot like a Ponzi scheme.

People like Jay who defend the system like to say that the government won't or can't default on those bonds. It certainly can. Congress could repudiate the bonds, although it likely won't. The problem - the one that Jay elides by saying that the trust fund "can pay" out benefits for a number of years - is what it would take to pay those benefits.

The trust fund can't just write a check. It must redeem those bonds, i.e., call in the government's IOU to itself. The government can't just write a check to honor the bonds because it doesn't have the money. It must either raise taxes or borrow more money. To the extent that this cannot be done, benefits must be reduced. Thus taxpayers who have paid "extra" as "we went" really have nothing to draw on. They must either forego benefits or impose even higher taxes on younger people. That sounds an awful lot like a Ponzi scheme.

Jay wants to argue that this happened because we have been "undertaxed." Johnson would presumably argue that it happened because we have "overspent." Those are value judgments about how the problem that Johnson describes could have been avoided. But the problem that he described is very real and "Ponzi Scheme" is not a bad way to describe it.

Shark at the Capitol

One important, but perhaps underreported, development in our legal world is the work of the Legislature's Special Committee on Judicial Discipline and Recusal. The committee grew out of a request from Justice Patrick Crooks for the legislature to consider amendments to statutes governing judicial discipline and disqualification. Both issues have been hot button items in the Wisconsin Supreme Court in the wake of hotly contested and exceedingly well financed campaigns for seats on the Court in the 2007 and 2008 election cycles. The committee, consisting of legislators and public members, is charged with studying both issues and, if appropriate, make recommendations to the legislature.

Yesterday, I had the privilege of being one of nine invited guests to testify before the Committee. Four of the nine witnesses were sitting Justices on the Court - Chief Justice Abrahamson and Justices Bradley, Crooks and Roggensack. The hearing can be viewed here. I am the last (or as I would prefer to say "clean up") witness.

Yesterday's hearing had to do with recusal although some of the speakers addressed matters of discipline, largely addressing issues concerning the deadlock in the Gableman matter and how that might be avoided in the future. Much of the discussion on recusal centered on whether the legislature should adopt an objective standard (presumably other than, as I pointed out, the one announced in Caperton v. A.T. Massey Coal Co.), how that standard should be enforced and what it should be.

More to follow.

Don't Get Smug

It's now official. Wisconsin will elect a Governor from Milwaukee for the first time since 1939. Nevertheless, I think anti-Milwaukee feelings will play a role in the election. If outstaters see Milwaukee as an ungovernable mess seeking favors from Madison, they may well prefer a candidate who they see as, while from Milwaukee, not "of Milwaukee." If anti-Milwaukee animus is rooted in a belief(whether right or wrong) that the city want to be bailed out by the rest of the state, then the small government candidate is likely to benefit.

At the same time, Scott Walker is in a position to make great inroads against the normal Democratic margin coming out of Milwaukee. The fact of the matter is that most people in Milwaukee County actually like the way that he has dealt with the financial mess he inherited. There is a reason that he continues to be re-elected.

Jim Doyle has not done Tom Barrett any favors. His financial juggling act may have gotten him a few points in 2006. But it's not going to help the Democratic candidate in 2010.

Add to that the Zeitgeist and a Democratic nominee who seems disengaged from the campaign, there is a strong opportunity for a change in the state house. But, for Republicans, I want to quote an old trial lawyer friend of mine. When things went well, he'd always remind us.

Don't get smug.

God and the Lieutenant Governor

Dan Bice is interested in Rebecca Kleefisch's appeal to evangelical Christian voters to pray for her. He suggests that there is, if not something wrong, at least unusual in Kleefisch's apparent intent to "rely on her conservative Christian principles and interpretation of the Bible when making decisions as a government official."

So? I would expect her to act on her sense of what is right and wrong and for most of us those concepts are religiously informed. In the absence of some indication that she is about to jettison the religion clauses of the federal and state constitution, why shouldn't she call moral questions as she sees them?

(Of course, Bice is right in suggesting that the Lt. Governor has only slightly more power than the guy who runs the Capitol newstand - at least not until the Governor becomes ambassador to Tonga.

Questions for a Tuesday

There is a great piece by National Review's editors defending the legal and cultural distinctiveness of "traditional" marriage. There is much to commend it, including its frank assessment of the notion that same sex marriage is necessary to avoid the devaluation of homosexual relationships. I was struck by the following:

Same-sex marriage would introduce a new, less justifiable distinction into the law. This new version of marriage would exclude pairs of people who qualify for it in every way except for their lack of a sexual relationship. Elderly brothers who take care of each other; two friends who share a house and bills and even help raise a child after one loses a spouse: Why shouldn’t their relationships, too, be recognized by the government? The traditional conception of marriage holds that however valuable those relationships may be, the fact that they are not oriented toward procreation makes them non-marital. (Note that this is true even if those relationships involve caring for children: We do not treat a grandmother and widowed daughter raising a child together as married because their relationship is not part of an institution oriented toward procreation.) On what possible basis can the revisionists’ conception of marriage justify discriminating against couples simply because they do not have sex?

Does this matter? Is there a response to it? Are reciprocal beneficiary schemes a response to the problems cited by advocates of same sex marriage?

Ron Johnson: A Good Kind of Scary

With the start of classes, I took an extended blogging break. But the main theme of the local political blogs on the left has continued to be saturation bombing of Ron Johnson. Ron is not a politician, lawyer or academic and has not yet mastered the art of phrasing his views in a way that will minimize the ability of his opponents to twist them with uncharitable interpretations.

His statement on global warming is an example. It is an overstatement to say that claims of anthropogenic global warming are crazy, but it is perfectly "respectable," i.e., there is lots of scientific support, for the proposition that the claim - or at least its more alarmist manifestation - is unproved. (In fact, I think you can argue that Al Gore's views on global warming are just as scientifically flawed as the weakest of the "deniers.") One might express that, off the cuff, by saying that the claim for AGW is confounded by other impacts on the climate such as solar activity or the very long term climate changes that we know occur but for which we have very little data. While it is unlikely that Greenland was "green" when Lief Erickson tried to sell beachfront realty in Baffin Bay, it was significantly warmer.

Much the same silliness has accompanied the irrelevant accusations regarding Johnson's company benefiting from industrial revenue bonds and his statement that they are not a "subsidy." There is, of course, a subsidy in the sense that, because the state will not tax the interest earned by bondholders, they are willing to accept a lower interest rate. But not everyone would regard the advantages that flow from an absence of taxation as a subsidy. My house undoubtedly has a higher value than it would if potential buyers could not deduct their mortgage interest.

One can argue that IRBs are a bad idea, but wrangling over the use of the word "subsidy" doesn't get us anywhere.

Yet another example is the uproar over Johnson's use of the term "creative destruction" - a phenomenon that all economists recognize - as if it were some radical and evil right wing plot. There is a reason that we don't have many blacksmith shops or typewriter manufacturers and it is a good thing.

Imprecise and hyperbolic statements are something that all politicians - heck all people - engage in. There is, for example, no reasonable reading of anything that Ron Johnson ever said that supports Feingold's claim that he would "turn the Great Lakes over to oil companies." Even if Johnson would support extraction of whatever fossil fuels are located in the lakes, that is a far cry from "turning them over" to "oil companies."

The point of this is to make Johnson seem stupid or scary. So far, it's not working and I doubt it will. Ron Johnson is scary in one sense, though. He's got Democrats petrified.

McCabe's "Dark Comedy" is Neither.

It's always dicey to comment on a case in which one serves as co-counsel, but I ought to at least correct the numerous errors in Mike McCabe's description of the state Supreme Court's actions in Wisconsin Prosperity Network v. Myse. These errors are quite apart from the merits of the claim.

First, it is not quite right to say that a federal court had taken the case and "started hearing it." It might have done so, but the status at the time of the Supreme Court's action is that the federal judge had declined to proceed, i.e., had refused to enter a stipulated order settling the case, until the parties had addressed certain concerns about his ability to proceed. I described those concerns here and, as someone who teaches Civil Procedure, I can tell you that they are not "mere" technicalities and are not readily dismissed.

Second, it is flat out false to say that the Supreme Court "overlooked a proposed settlement of a federal lawsuit ...." It did not. It expressly asked the parties to address how the pendency of two federal lawsuits affected the petition for original jurisdiction and both parties addressed the significance of those cases and the proposed settlement. We also addressed the fact that Judge Conley has declined to enter the stipulated order.

Third, it is flat out false to say that the Court's majority ignored "principles of comity" (although it is absolutely true that McCabe has little understanding of what those principles mean in this context). As noted above, it asked the Court to address the pendency of other cases. Beyond that, state courts do not defer to federal courts on matters of state law. It is, in fact, the other way around and one of the reasons that Judge Conley declined to enter the stipulated order was his concern that principles of comity required that the federal court stand down. (Without getting into the inside legal stuff, there is a doctrine called abstention that may well require the federal courts to step aside.)

Fourth, it is flat out false that the petitioners did not request a preliminary injunction. We did. Read our petition. The controversy was whether the Court might enter an injunction before deciding to exercise its original jurisdiction. Judge Prosser's concurrence explains why it may do so.

Fifth, it flat out false that the Court went "above and beyond the relief sought by the petitioners." Our supplemental memorandum made clear to the Court that we did not believe that the proposed settlement resolved our claims.

Sixth, it is flat out wrong to suggest that any member of the Court has a conflict of interest. There is absolutely no authority for the proposition that a justice must recuse herself from a free speech case because she might, in a subsequent election, might expect to benefit from the challenged speech. Beyond that, the type of expenditures that McCabe does not like were made on both sides of the last three campaigns and there is no reason to expect that any particular Justice would, on balance, benefit or be harmed by such speech. (In fact, one could as readily argue that all seven Justices enjoy the advantages of incumbency and would be personally served by as little campaign speech as possible.)

Seventh, it is misleading to suggest that, in not deferring to a proposed settlement that may or may not be entered, the Justices are siding with "big interest groups." The settlement was agreed to by two of the biggest advocacy organizations around (who, in my view, were clearly entitled to the relief they requested. While such groups might certainly have problems with those portions of the rule that the settlement did not touch, it could be argued that the remaining regulations really hurt small grass roots speakers who will be engaged in forms of communication other than mass media adverts.

Eigth, it is shabby and classless to impugn the motives of any member of the Court. Each of these Justices (and I include those who dissented from the order enjoining enforcement of the rule) are just doing their jobs. Some of them may get it wrong (even spectacularly so)but there is no evidence that any of them are acting for their personal benefit.

Of Mosques in Lower Manhattan

I posted on the "Ground Zero Mosque" controversy over at the Marquette University Law School Blog. Essentially, I think that the illegality of the state blocking an Islamic Center because it is Islamic is absolutely clear. I do believe that there are legitimate reasons to question the wisdom of placing the project so close to Ground Zero, but I worry about the "precedent" (cultural not legal) that would be set by withdrawal of the project in the face of public pressure. I am not comfortable with people being forced to back down from the exercise of their rights of free speech or religion as a result of public pressure and that applies to the Cordoba project as well as systematic efforts to, for example, ostracize supporters of California's Proposition 8 or boycott persons or organizations who contribute to the wrong candidate.

Perhaps the controversy could have been avoided had Mayor Bloomberg and other NYC officials recognized the potential problem earlier and engaged the sponsors on the issue or if the project's sponsors were more attuned to the legitimate concerns that the project raises and more willing to take steps to defuse them. But, as things stand now, whatever the resolution of this controversy turns out to be, it will be less than ideal.

My own sense is that, rather than call for the relocation of the project, the project's sponsors ought to be called upon to acknowledge its symbolic dangers and to take steps to diffuse them such as incorporating into the project a prominent condemnation of the concept of violent jihad (explicitly linked to 9-11) and a call for those who engage in it to repent.

Who Played the Race Card Here?

I was wondering - really wondering - what got Mike Tate so upset. What did Scott Walker do that amounted to a "calculated defiance of our state's deep tradition of tolerance ...."

It turns out that someone in his campaign tweeted a music called "C'mon, Ride the Train" and the dancers in the video were African American. There's a postracial response for you. I get it. If there are black dancers, the video is supposed to reduce the President to his race, but that's an interpretive choice and not a very compelling one.

Given our sensitivity on racial measures, I wouldn't have done it but I hardly think that the fact that some one chose otherwise is racist or "in defiance" of our tradition of tolerance.

But to help things along, I suggest that the Walker campaign use the following video.

The Future's So Bright, I Gotta Wear Shades

Cue the derision for Ron Johnson has challenged orthodoxy. In a head posted last night, the Journal Sentinel claims that, in a meeting with the editorial board, Johnson supposedly claimed that "sunspots are to blame for global warming."

It's not clear that's quite what he said. He is quoted as stating that he does not believe that there is anthropogenic global warming and that "[i]t's far more likely that it's just sunspot activity or just something in the geologic eons of time ...."

But he threw the sunspots out there and, rather predictably, some local bloggers have started to chortle.

But here's the thing. That solar activity, as measured by sunspot activity, may have an impact on climate is not a new claim and not at all crazy. The claim is that sun activity is positively correlated with temperature increases. Some argue that this undercuts claims for AGW. Others say it does not, noting that sun spot activity cycles over the short term while temperature increases have been long term. (Although still others claim that the sun has had an unusually active century.) As seems so common in this field, they argue that the "solar advocates" (for lack of a better word)have been sloppy with data. Still others seem to say that solar activity is a confounding factor or may ameliorate the impact of AGW. Some (even the IPCC) think solar activity plays a role, but argue that it cannot explain more recent warming trends.

The fact that scientists differ does not, of course, mean that each side has a point. Sorting through all of this would take time and expertise and I will guarantee you that no local blogger has done the work necessary to definitively pronounce on this.

I take Johnson to be making a more general point. Questions around AGW are complex and multi-faceted. Data is limited. There is reason to doubt that we can be as certain about AGW as an existential crisis as some would claim. There is reason to doubt that we can control climate through policy choices.

Ironically, the Journal Sentinel, in providing Russ Feingold's take, catches him committing a cardinal sin according to the environmentalist canon. His take? ""Do you notice the heat lately, my friend?"

Please, Russ, WEATHER is not CLIMATE !!!!

MMSD As A Rohrschach Test

The recent debate over the deep tunnel is largely being waged between people who are committed to a particular view, not because of an assessment of the merits of the system, but because they want to use it as an example of either government competence or fecklessness.

Thus Milwaukee Magazine's Bruce Murphy calls the debate over the tunnel "phony" and he and other commentators on the left claim that the tunnel has "worked as planned."
Commentators on the right suggest that it has been a complete failure.

I used to know a lot about the deep tunnel. I represented MMSD in its battle with the FLOW communities over how the deep tunnel was to be paid for. We wound up trying the matter before the Public Service Commission in winter of 1996 (I think I spent the better part of January in Madison) and won.

Trying the case required paying a lot of attention to the process by which the deep tunnel was approved. The FLOW communities (suburbs who receive service from the district but who are not part of it - generally the closest suburbs outside Milwaukee County) argued that they had been promised that the cost of the tunnel would be paid on the basis of volume generated rather than the value of the property served. The difference cost them approximately $ 140 million. At a celebratory dinner, one of our clients asked the waitress if she could cash (a facsimile) of the check. (Adult beverages had been consumed.)

That was the right outcome. In legal terms, one cannot assert estoppel against the government and the FLOW communities, in any event, had little recourse. State and federal regulators would never have let them make other service arrangements.

But it has created an atmosphere of hostility and suspicion. The FLOW communities argued that the deep tunnel was an bad alternative to separating the combined sewers which, and this is important, would have been the responsibility of the cities of Milwaukee and Shorewood who "own" those sewers. The suburbs believed that Milwaukee had shifted the cost of its problem to the them.

I haven't gone back to those records (they are voluminous and anyone who hasn't spent days with them hasn't really studied them) but, suffice it to say, that the public was told a number of things and one of the things they were not told is that there could still be billions of gallons of untreated sewage released into the lake on an annual basis. Although Murphy and others emphasize that certain documents projected 1.4 annual overflows and there has actually been 2.6 - down from 50 or 60 before the tunnel's construction.

That is indeed a significant reduction. While MMSD's own figures show that the reduction is less dramatic in terms of volume released into the lake, it is still very substantial. The tunnel is not a complete failure.

On the other hand, no one really thinks that it works "as planned" either. 2.6 overflow events is almost twice as high as projected and the actual volume of sewage released into the lake may be even higher versus projections.

What people disagree about is why the tunnel hasn't been as effective as planned. MMSD wants to blame something called "infiltration" and "inflow" (there is actually a difference between these two that I used to understand far better than I do today), - the fact that sanitary sewers develop leaks and take on ground and storm water.

The problem is that these concepts were not invented in 2010. The deep tunnel's planners were well aware of infiltration and inflow (I spent hours reading about it) and purported to take into account in planning the project.

The debate today over who is at fault for overflows matches the earlier controversy between the city and suburbs. Both sides are pointing the finger at the other when, actually, water is fungible. The district manages the system to try and ensure that whatever overflows occur are from the combined sewer area (you can't blame it for doing so; it's what their permit requires)but the truth is that the capacity of the tunnel is taxed by both sources of "excess" water.

So partisans of government tend to blame the suburbs and absolve MMSD. As Patrick McIlheran points out, they adopt a forgiving attitude toward the "inevitable" overflows that they generally don't show in other contexts. Imagine, for example, an argument that - given the enormous volume of oil extracted from the Gulf of Mexico - an occasional spill such as we saw with BP really reflects an admirable environmental record.

But those disposed to distrust the government overemphasize the tunnel's shortcomings. I think it's a step too far to say that it has worked as planned, but it's also wrong to suggest that it is a complete failure.

Perry And the Definition of Marriage

In response to my earlier post on Perry, Sean Samis suggests that the question is not "what marriage is for" but whether we can justify excluding same sex couples from its scope. My view is that you can't answer the latter without addressing the former. Writing in Commonweal, Rob Vischer puts it well:

More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what have we lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed non-negotiable by a broad swath of society spanning many otherwise disparate historical eras.

Of course, Judge Walker adopted a defintion of what marriage is for based, as Rob puts it, on the testimony of a singular historian. I have read her testimony. It describes certain changes in marriage law. It hardly resolves the question of what marriage is for. In fact, it would seem that the more current actions of the political brances - and of the voters of California acting by referendum - would be more significant on that question.

Perry Prognostications

In response to a post on the decision in Perry v. Schwarzenegger, a mini debate on same sex marriage has broken out in the comments. I really haven't had time to follow on them although I have started to read through the trial transcript in Perry. Since I developed a specialty in the cross examination and refutation of social science experts at Foley, I have been interested in the uses and misuses of social science in trials.

I haven't completed the transcript but the record hardly matches Judge Walker's bold pronouncements that social science has resolved a number of highly controverted issues "beyond a doubt." In fact, the transcript seems to reflect the fact that social science has resolved very few of the questions pertinent to same sex marriage.

Now the Judge has announced that he doesn't think that the defendant-intervenors can appeal. He might have been better served by declining to comment. He doesn't get to decide whether they can appeal and his pronouncement, while arguably relevant to the defendant-intervenors' request for a stay, just contributes to the general impression that he had this case decided before it started.

All of this suggests that the case is a mess. Those parties who one would have expected to defend the law of California - the Governor and Attorney General - declined to do so. The defendant-intervenors put on a curiously truncated case and the district judge relied on a very thin record to find some truly startling facts (e.g., gender is not central to the definition of marriage and has nothing to do with parenting)which, it will now be claimed, are entitled to deference on appeal. This flawed vehicle is supposed to be the basis on which the Supreme Court resolves - for all Americans everywhere - the question of same sex marriage.

The case actually reminds me a bit of Bush v. Gore. Quite apart from whatever legal doctrine required, it was an abomination with Florida proposing to conduct a partial recount calculated to favor the Democrats (even though, as it turned out, it would not have been enough to put Gore over the top). I just don't see Perry resulting in a SCOTUS determination that same sex marriage is constitutionally compelled. In fact, it wouldn't shock me if that position gets only two votes.

GAB Law Suit - What's Going On

Because I have joined as counsel in one of the cases challenging new GAB Rule 1.28, there is a limit to what I want to say on a blog. But recent developments around the attempt to settle one of the federal cases raise a set of issues not readily accessible to the general public. Here is where we are.

The plaintiffs in Wisconsin Club for Growth v. Myse entered into a stipulation agreeing that the judge could enter a permanent injunction against enforcement of part of the rule that essentially creates an irrebuttable presumption that ads containing certain types of communication are express advocacy. That part of the rule seems, as I have blogged, to be clearly at odds with Supreme Court precedent, although the stipulation did not include an admission of unconstitutionality, saying instead that the injunction would satisfy the plaintiffs claim that the rule was not authorized by the state legislature. The plaintiffs' consitutional claims would have been dismissed without prejudice (i.e., they could be filed later under proper circumstances).

For a variety of reasons, this outcome, while certainly welcome to our clients, did not go far enough to alleviate their concerns and we so informed the Supreme Court. But, at the same time, Judge Conley announced that he would not enter the injunction until the parties addressed four seperate concerns.

Two of these concerns are rather technical having to do with the subject matter jurisidiction of federal courts and the proper relationship between federal and state courts. The latter concern has to do with whether a federal court should act when there is a pending state court proceeding (our original action in the supreme court) in which important state interests are at stake and the pertinent consitutional claims may be litigated.

The second set of concerns are more related to the merits although Judge Conley's concerns suggest no particular view of the merits. The court expressed concern over whether it could enter an injunction against an administrative rule without a finding on its legality and whether he ought to do absent an opportunity for other parties to be heard.

Briefs on these questions are due next week. More to come.

State Court Challenge to GAB Rule

This afternoon, Jim Troupis (with his brother Christ), Michael Dean and I filed a petition for original action in the Wisconsin Supreme Court challenging the constitutionality of new GAB Rule 1.28. A copy of the filing is here.

The Problem With Perry

Last week, over at Point of Law, I posted on the limitations of social science evidence in the context of Perry v. Schwarzenegger. Judge Walker's decision strikes me as an obstinate refusal to understand what the advocates of Proposition 8 were trying to tell him. Yes, the decision is 138 pages but it is full of question begging and high spotting. A column over the week end by lawprawf Nelson Lund puts it well:

The judge in this case thinks it was proved at trial that same-sex marriage will not amount to a sweeping social change. He thinks it is "beyond debate" that same-sex marriages will have no detrimental effects on the institution of marriage. Can anyone really believe that such things can be proved by witnesses in a courtroom?

Lund notes, that in Walker's view, a majority of Americans, including our President and Vice President, are in the grip of an irrationality that is tantamount to bigotry.

In today's New York Times, Ross Douthat summarizes what the debate is really about:

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.

This makes same sex marriage a subject on which reasonable people can differ. The reductionism exhibited by Judge Walker obfuscates and coarsens our discourse.

Shark on Public TV

I recorded a brief segment on Wisconsin Public Television's Here and Now this afternoon. The topic was the new Governmental Accountability Board rule on issue advocacy. Mike McCabe of the Wisconsin Democracy Campaign took a differing view. By way of errata, I may have referred to the 2006 and 2008 elections, when I meant the 2006 and 2004 elections.

Suit Against GAB Is Serious

In a heartwarming union of the lion and the lamb, the Club For Growth and One Wisconsin Now have come together to sue the Government Accountability Board over a new rule requiring organizations and individuals to register and disclose the source of their funds if they spend more than $ 25 on communications for "political purposes" during a certain period prior to an election.

Mike McCabe of the Wisconsin Democracy Campaign pronounces the suit to be "baseless and frivolous." He's wrong and here's why.

It is absolutely true that the United States Supreme Court upheld disclosure requirements with respect to "express advocacy," i.e., communications that expressly call for the election or defeat of a named candidate or that can reasonably be construed in no other way.

But there are at least three problems with the application of that holding to this rule.

First, the authority of the GAB is limited by statute. It may only regulate what the legislature has said it may regulate. In this case, the statute places restrictions on communications for a political purpose which include, but are not limited to "communication[s] which expressly advocates the election, defeat, recall or retention of a clearly identified candidate.” The question becomes what else might be included in the category of communication for a political purpose.

The GAB will undoubtedly point to statutory language that says that an act is done for political purposes when "done for the purpose of influencing the election or nomination for election of any individual to state or local office ...." The problem is that, in Wisconsin Right to Life v. FEC, the United States Supreme Court rejected the idea that the presence or absence of regulation might turn on an examination of the intent or the speaker or the effect upon the audience. The uncertainty of whether a form of speech is in or out might chill protected speech.

While the regulation at issue here involves disclosure and not a limitation on the source of the funds, a court might well say that the GAB is authorized to regulate only those communications that meet the meaning of express advocacy as clarified by the United States Supreme Court.

Perhaps recognizing that, the GAB tries to both adopt and expand the WRTL's definition of express advocacy. First, it says that a regulated communication is one that meets WRTL's definition. Then, perhaps in response to the concern that such a definition would cover almost no independent communications that are actually made in the real world, it says that a communication is within that definition if it references or depicts a candidate within the relevant period and"

1. Refers to the personal qualities, character, or fitness of that candidate;

2. Supports or condemns that candidate's position or stance on issues; or

3. Supports or condemns that candidate's public record.

That is arguably inconsistent with WRTL's definition of express advocacy. While it's true that the ad in WRTL did not restate and criticize a candidate's position, it seems inconsistent with the notion behind separating issue from express advocacy to say that the former may not call upon a candidate for public office to change his or her position.

Second, assuming that the GAB is within its statutory authority, the question turns to whether the disclosure requirements burden speech. Citizens United informs, but doesn't resolve the question, in that it dealt with WRTL express advocacy. The state's interest in identifying those who are expressly advocating the election or defeat of a candidate may not be as strong as the interest in identifying those engaging in issue advocacy. CU can be used to argue that it is, but it didn't resolve the question.

One might also argue that disclosure does not burden speech. That seems wrong. The law imposes administrative costs on the speaker and subjects donors to the risk of public ostracism. We know that this burden does not render disclosure requirements facially unconstitutional when we are dealing with express advocacy. But issue advocacy is another matter.

Third, the reach of the rule is extraordinary. It doesn't merely apply to persons or or organizations who buy airtime but to bloggers and writers and people who print up handbills.

Silly Issues

The 24/7 news cycle and the pressure for pundits and operatives to produce content leads to the raising of increasingly silly issues. Here are a few.

1. Scott Walker didn't finish his last year of college. For the life of me, I can't understand why anyone who has actually experienced the last year of college would find this persuasive. Would Walker be more qualified had he spent one more year of his life doing beer stands and acing "The Goldberg Canon: Making Whoopi" and "Underwater Basketweaving."

2. Ron Johnson liked Atlas Shrugged but Ayn Rand Was Creepy Yes, she was and Bill Douglas was a jerk, Margaret Sanger favored eugenics and Clarence Darrow bribed jurors. So if you believe in the penumbral right to privacy, support Planned Parenthood or liked Inherit the Wind, don't be running for office.

3. Ron Johnson invited Charles Murray to speak about education in Oshkosh. Murray was to speak about a recent book in which he argues that education of the academically gifted in the US is deficient and that many students who are encouraged to go to college might be better served by technical education. To even suggest this apparently gives some people the vapors. So much for free inquiry and discourse.

4. Ron Johnson won't sell his BP stock. Because if he would now sell low after he bought high, that would mean that the Deep Horizons accident ... didn't ... or wouldn't ... happen or won't happen again ... because ... otherwise it's been a good deal for BP. Or maybe BP stock has the cooties. Let's all lose money on BP stock. That'll show Tony Hayward.

Local Blogger Succumbs to Stockholm Syndrome

The MMSD spent over two billion dollars to prevent the dumping of sewage into Lake Michigan without letting it into people's basements.

The deep tunnel was designed to withstand everything but the rare "100 year storm."

Turns out that storm turns out to be weekly.

MMSD now says it will take years to do what the deep tunnel was designed to do.*

But Cory Liebmann is so happy.

When he returned to the city after last week's storm, almost all of the water had drained from his basement. And, then, it took the city only hours to haul away all the stuff that got ruined. His heart is warmed by what his tax dollars have done for him.

Thank you, sir, may I have another?




*Don't even try to tell me that this is an new problem attributable to "leaks" into privately owned sanitary sewer lines. Every one was aware of infiltration and inflow when the deep tunnel was designed.

The Battle of Shirley Sherrod

The Shirley Sherrod fiasco has proven to be a story with legs and combines many of the dysfunctions in our conversations about race.

The clear villain in the story seems to be Andrew Breitbart or whomever edited the tape to leave out parts making clear that Sherrod got over her initial racial hostility and helped the farmer. Although Breitbart says he wanted to show that the crowd was reacting favorably to her description of that hostility, that doesn't justify what was done.

What Breitbart did was refuse to acknowledge the complexity of what Sherrod was saying. That's characteristic of conversations about race which generally end whenever someone decides to hurl allegations of racism.

And that is precisely what happened. The White House (and it was the White House) fired Sherrod with no questions asked. The NAACP denounced her without investigation.
Both undoubtedly did so because, while willing to charge others with racial bad faith, neither wants to be accused of it. Having contributed to a our general hysteria on matters of race, both were hoisted on their own petard.

The media - and not just the conservative media - did the same thing. Here is someone who seems to have said something that is racist. We don't let her explain. We don't consider the context. We jump all over her.

Fortunately for Sherrod, this time the story ended a bit differently. Most of the time one is accused of racism, the charge is practically irrefutable. Here the accusers quickly retreated.

That should be good news, but the hysteria continues. Now Sherrod - with her own participation - has become a political football. Two new narratives are developing. The first is that the improper accusations leveled at a black woman reflect a lack of racial progress. They do, but not in the way that this narrative wants to say. I am certainly am not prepared to declare America's racial wounds to be healed. Intemperate accusations of racism - including the NAACP's own attempts to smear the Tea Party Movement - are all too frequent.

But I'd say they reflect a reluctance to acknowledge the ways in which there has been racial progress and old paradigms of racial oppression are not as useful as they once were.

The second narrative - indulged by the NAACP, Sherrod and folks like Frank Rich - is that the whole affair was a product of the "conservative media" (not just Breitbart) and, in particular, of Fox News. But the facts don't support that. Fox was not the only network that ran with the story and it did not run it until after Sherrod was fired. If the White House and NAACP were "snookered," so was Fox News.

A Lawyer's Lesson on Johnson and Great Lakes Drilling

Some local bloggers just don't want to give up on the notion that Ron Johnson advocated drilling in the Great Lakes and then (horror or horrors!) "flip-flopped" when Russ Feingold ran an attack ad.

A little trial advocacy might help here. Johnson was asked the following question:


"

Do you want to open up more of the United States — the continental United States — to drilling. I mean, would you support drilling like in the Great Lakes for example, if there was oil found there, or using more exploration in Alaska, in ANWR, those kinds of things?"

Were this question to be put to a witness in a deposition or at a trial, many lawyers would object. The question is, we would say, "multiple," i.e., it asks a number of things - should we open up more of the Continental United States, drill in the Great Lakes, drill in Alaska generally, drill in ANWR specifically or do "those kinds of things" in general. In fact, the portion of the question about the Great Lakes is, additionally, hypothetical - would you support drilling in the Great Lakes if oil was found there?

Now a person can certainly answer all of those things, but the idea is that - in an oral exchange - it is unfair and untidy to combine too many questions into one. We can't be sure that the witness will answer all portions of the question and that results in ambiguity.

That ambiguity existed following the WisPolitics interview. Johnson answered generally - saying, without particulars, that we have to go where the oil is. Does that include the Great Lakes? Does Johnson contend that there is recoverable oil in the Great Lakes? We don't really know. Yes, the Great Lakes was specifically mentioned (albeit in a contingent way)but the answer did not specifically address them.

What Feingold did was to take this ambiguity and run with it. That isn't unusual in politics but it is hardly to be commended. What is hard to overlook is that Johnson has now resolved the ambiguity. He did not mean to endorse drilling in the Great Lakes. He does not believe that there is enough oil in the Great Lakes to justify it.

But Feingold continues to feature an ad claiming Johnson does support Great Lakes drilling.

I ask again - why isn't that a lie?

SCOWIS To Doyle: Put It Back

The merits of today's decision in Wisconsin Medical Society v. Morgan requires too much legal inside baseball for a general interest blog. The question was, essentially, whether the legislature, having said that the assessments paid by health care providers into the patient compensation fund will be held irrevocably in trust and used only for purposes of the fund and for no other purpose, can retroactively change the rules and grab the money for another reason. The immediate issue was whether this gave the providers a "property interest" in the fund that cannot be taken without just compensation.

There are, I think, doctrinal and policy reasons, based in the enacting statute and its amendments, to say that it did. I think the five justice majority got it right, although I don't think that the dissent had a few points to make.

A couple of things interest me. First, would the consequence of failing to overturn the legislative action been to justify a tax imposed only on health care providers for purpose of the general treasury. Is that OK?

Second, I am interested in the contrast between the dissent of the Chief Justice and Justice Bradley in Morgan and Justice Butler's majority opinion in Doyle v. Dairyland Greyhound Park in which both justices joined. In this case, they would have permitted the legislature to revoke an explicit legislative promise to use funds only for a specified purpose. In Doyle, they held that interpretation of a constitutional amendment to limit a right to renew gambling compacts to which neither party had any contractual right would violate the contracts clause. I am not claiming that the two opinions are irreconcilable but they suggest a tension that must be reconciled.

But these questions probably belong in another forum.

On a less esoteric level, the decision will most certainly make the legislature more skittish about raiding similar funds. And that may require a tad more honesty in the budgeting process. This would be a good thing.

And, although this foolishness, was enacted with a few GOP defections from a Republican controlled Assembly, it's going to be seen as a Doyle manipulation that came up short. Now we have another $ 200 million to make up. It will resonate because it is consistent with the public perception of the Governor. It will hurt the Dems in November.

Shark In Other Places

I never did get around to linking to my op-ed on Elena Kagan. It was another in the series of dueling op-eds with my colleague Ed Fallone. A letter to the editor last week says that I think nomininating a legal progressive is "breaking the rules." I said no such thing. It is exactly what I would expect from a liberal President. My point was simply that we ought to be clear about what is going on and, in my view, the Senate is not obligated to defer to the President's choice.

Nor did I link to my column on transit in last week's Journal Sentinel. I got a lot of e-mail on that one. The best critical points were that the economics of rail could be changed by significant increases in oil prices (agreed) and that there are reasons that rail and highways might not be privately provided. Although I agree with that too. The point is whether the benefits outweigh the cost, not whether rail is publicly or privately provided.

Finally, here is my latest Culture Con column in WI Magazine, deconstructing the President's commencement address at the University of Michigan.

Drilling, lies and videotape

It has long been my firm conviction that most political advertising is conducted in bad faith. GOP Senate candidate Ron Johnson has been drawing criticism for running an ad criticizing Russ Feingold for voting against a ban on drilling in the Great Lakes. Feingold did that, but he also voted for bans on drilling. A fair reading of his record, he claims, would show that he is an opponent of drilling. That's probably so.

But Feingold doesn't have clean hands here. He's run an ad stating that Johnson would "turn over" the Great Lakes to oil companies. The support for the claim is an answer that Johnson gave in an interview with WisPolitics.com in which he essentially said that, since we are currently dependent on fossil fuels and are likely to be for some quite time, we must extract needed resources from where those resources are. His answer did not mention the Great Lakes but the question to which he was responding is said to have used the Great Lakes as an example - although I have yet to see anyone reproduce it and it now seems to be behind WisPolitics pay wall.

It is, I think, a bit of a stretch to turn that into a stated intent to turn the Great Lakes over to oil companies. There is oil under the lakes but not enough to justify drilling for it - so they are not a place where, as a practical matter, oil "is" and so presumably not within those areas where Johnson says we must be willing to go. (Natural gas may be another matter but drilling for natural gas cannot result in oil spills which is what the Feingold ad is scaring us about.)

And even if it was fair (it is certainly legal and customary) to take an isolated remark and pack it to the ceiling, Johnson has now clarified his position. Whatever you might take from his WisPolitics interview, he's made clear that he is against Great Lakes drilling. Yet Feingold continues to feature the ad claiming that he is for it on his campaign website.

Tell me. Why isn't this a lie?

How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.
I don’t know how broad Judge Randa’s holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don’t know that.

A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa’s decision (I’ll do that later), let’s assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here’s where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not “ripe” because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa’s decision is affirmed by the Seventh Circuit (also a “lower” federal court) all federal judges in the Wisconsin will follow Judge Randa.

Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court – if not reviewed by SCOTUS – would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

The Barrett Plan: What Isn't There

Tom Barrett’s proposal for “nonpartisan” redistricting may reduce the degree of “incumbent protection” that takes place in the redrawing of legislative districts, but I think it is more interesting for what it does not do.

There is a movement in the country to have redistricting by commission according to what are generally though to be neutral redistricting principles, i.e., the creation of compact and contiguous districts that, to the extent possible, respect municipal and county boundaries and (perhaps) geographical barriers that seperate one community from another. See. e.g., California’s Voter First Act. These principles restrict discretion in redistricting and, or so the theory goes, minimize the opportunity for political maneuvering. This doesn’t eliminate contention but the establishment of physical requirements reduces the opportunity for gerrymandering to protect incumbents or to maximize the opportunities for the party in power.

That’s not what Barrett wants to do and that’s not surprising. As a general matter, Democratic voters are more concentrated that Republican voters. Contiguous and compact districts will tend to create a smaller number of heavily Democratic districts.
So Barret wants to gerrymander to “maximize” competitive districts. Depending on your theory of representation, this may or may not be a good thing. If you see a legislator as representing people who are in what is, in some sense, an organic community, then membership in that community would seem to be a fairly important principle of districting. If you view legislators as simply a vote in a national or state wide community, then trying to reflect the political balance of that community becomes more important – although that is not the objective of the Barrett plan either.

However, you do that, once you depart from physical criteria and permit gerrymandering for “competition,” the political game is back with a vengeance. There are ikely to be many ways in which competition can be claimed to be “maximized” and these ways are probably unlikely to be politically neutral.

But, more than that, Barrett wants to make sure that districts are drawn with an eye toward creating majority minority districts and this normally results in Democrat majority districts. It would, essentially, operate as an exception to the mandate to create competitive districts by permitting the packing of Democratic voters. This may or may not be required by the Voting Act and may or not operate to the detriment to the Republicans (indeed, sometimes Republicans support it because it draws Democratic voters out of surrounding districts).

My point is that it, along with requirement of “competition,” contributes to, rather than constrains, legislative discretion in the drawing of districts and that opens the door for the political battle that has traditionally been redistricting.

Another curious feature of the Barrett plan is placing the final decision – should the politicians not agree – with the Government Accountability Board. Under current law, a legislative impasse is resolved by the courts. This is not a theoretical matter. State legislative districts in Wisconsin have not been redrawn without going to court since the 1930s. Why the GAB – which is assembled for a different purpose and consists of members appointed by the political branches – is prefereable is not obvious. Why it can be expected to have the resources or expertise to

If past is prologue, the GAB will be redistricting and, under existing doctrine, will be largely immune from judicial review.

Cross posted at Marquette University Law School Faculty Blog