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.