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.