Wednesday, February 23, 2011

Shark on Fox News

This afternoon I appeared on Fox News with Megyn Kelly on our lamming legislators. Nothing I haven't said here and elsewhere. It's pretty hard to justify.

Shark on WPRR

Last Friday I was a guest on Joy Cardin's show on Friday morning. The archive is here. I mention it, in part, because I got an email from an employee of the UW Hospital who said I "lied" because I denied that the bill was abolishing public employee unions and said that it restricted rather than eliminated collective bargaining rights.

I stand by what I said but it's worth qualifying. She was concerned because the bill apparently does eliminate collective bargaining for certain employees of the UW and UW Hospital. I haven't worked through all of the amendments to chapter 233 but fair enough. We were talking about the bill as a whole but she is entitled to be raise her own particular situation.

A Fireside Chat for the Twenty-First Century

The "fireside chat" is associated with Franklin Delano Roosevelt. Scott Walker, who gave his own version last night, may share some things in common with FDR. For those of you in Dane County, stay with me.

It's not that FDR was "really" a conservative. I dislike Presidential revisionism and FDR was a conservative as much as Reagan was a liberal, i.e., not at all. FDRs was quite clearly - in American terms - a man of the left - someone whose views would probably render him unelectable today.

It's not simply that he was FDR of collective bargaining in the public sector. He wasn't but that point has been made and Walker's opponents are determined to ignore it and the reasons behind it.

No, it's that Walker - like FDR and Reagan - appears to believe that he was elected to do something other than secure another term. That's rare in a politician. (Incidentally, I give Obama credit for the same quality even as I disagree with what he wants to do.) Walker has diagnosed a problem and proposed a solution that creates the structural reform that his diagnosis calls for.

Unions are an effort to grant labor near-monopoly power and move the supply curve up. The result - in almost every case - is as follows. First, unemployment happens. Employers will hire fewer people if they must pay more. Second, for those lucky enough to keep their jobs, compensation will be higher. If you regard the world as a Dickensian place made up of greedy and powerful employers exploiting defenseless workers, this might be a good thing. If employers are earning greater than competitive profits, the job loss may be small and the wage gain may be high.

I would argue that this dark satanic world is no longer the one we live in. But it is almost certainly not the world in which public employees live. Management is unlikely to play Scrooge to WEAC's Cratchits because WEAC members pool their resources and exert a disproportionate influence on whether Scrooge stays in charge of the counting house.

Collective bargaining in the public sector simply isn't adversarial in the same way that it is in the private sector. This is why Democrats - who are elected to represent the government's "management" - support collective bargaining. You will find almost no manager in the private sector who wants anything to do with unions. Yet Democrats seem to want to pay state employers more of the taxpayer's money.

The reason is simple. There is no special interest that is more important to keeping Democrats in business. In supporting public employee unions, they are simply doing the honorable thing. Having been "bought," they are staying "bought," i.e., they are supporting the folks who put them where they are. The problem is that when you combine this with collective bargaining protection - essentially the right of employees to try to fix the price of labor, you run the risk of collusion.

Of course, these collusive results are not popular with the rest of us so they tend to be made opaque - hidden in the form of work rules, fringes and promises to retirees. Walker understands this and knows that closing the immediate budget gap is only the beginning of the fiscal challenge that Wisconsin is facing. In limiting the nature of collective bargaining agreements that states and local units of government can agree to, he is attacking the structural problem. He is actually doing something that might, for better or worse, make a difference.

Monday, February 21, 2011

Madison Parties Like it's 1939

There is something almost retro about the drama in Madison. If there is a future for the Democratic Party in Wisconsin (and there certainly is), I would not think that it is rooted in support for labor unions - entities that have become all but irrelevant in the economy at large for reasons that are unlikely to change. I had this vision of Pete Seeger coming to the rotunda and croaking about Joe Hill and the copper bosses. I actually saw a sign calling upon the "Workers of the World to Unite." Note to Madison: The Revolution crapped out.

Madison has all the drawbacks of a company town. People in Dane County actually think that this collective temper tantrum is working. They are proud of themselves. The rest of us are not proud of them. One of the most amazing things was to see doctors openly engaged in - it's not too strong a word - fraud and justify it on the grounds of "social activism." One of my favorites was the doctor who thought that his decision to whore out was protected by confidentiality. Lawyers famously love doctor clients. Something about them is irredeemably clueless.

Giving people sick notes is not protected by the physician-patient privilege. The privilege protects things that people intend to keep confidential. Sick notes are, by definition, not that. Read the statute. If you put your health in issue (by calling in sick), your communications with your doc are not private.

Sunday, February 20, 2011

Sunday for Senators, part two

Take that ---- public!

We're gone

We're running

We're holed up

Cause we got debts no honest man can pay

And we're a bit confused

Sunday for Senators, part one

The lam is a lonely place. Oh, it may sound romantic and exciting. Staying one step ahead of the law, matching wits with the pursuit, living on the edge, evading your oath of office and becoming a national joke. But the reality is more quotidian. Empty hours, truck stop food, boredom. Just a lot of ennui, you know?

You sit on twin beds and watch movies. In the spirit of bipartisanship and in recognition of the possibility that, all things considered, having Lena Taylor and Fred Risser in Illinois may not be all bad, here is some suggested viewing.

A friend recommends All The President's Men, Benjie Returns, Ghost Dad and Escape to Witch Mountain. All good. I add the following:

The Godfather There's that scene between Marty Beil and Jon Erpenbach. Erpenbach has not treated Beil with respect. He has not offered friendship. He does not think to call Beil "Godfather." Beil can't remember the last time he was invited over for a cup of coffee. But they patch things up. Marty puts his arm around Erpenbach. "Some day, and that day may never come, I will call upon you to do a service for me." Good stuff. Reminds you of just why you're at the Quality Inn in Peoria. Then there's the part where Michael Corleone improves negotiations with Sollozzo by shooting him in the face.

The Warriors.If only for that scene at the end where Scott Walker clicks those little bottles together. "Democrats, come out and play - yay." But Local 36 of the Riffs get him!

Downfall. It sure ends badly for Scott Walker in that bunker in Berlin!

Then there's those movies that demonstrate the successes of organized labor. Like Norma Rae. If it weren't for women like Chrystal Lee Sutton (the real life "Norma") that shirt you're wearing would probably have been made in China! There wouldn't even be textile mills in North Carolina! Or maybe they could watch season two of The Wire which shows how labor unions saved the port of Baltimore from being turned into condominiums by season four. Or that great classic On The Waterfront. Watch Johnnie Friendly give that scab Terry Malloy a one-way ticket to palookaville! Face it, Malloy, a bum is what you are!

Thursday, February 17, 2011

If You Think Scott Walker Is Like Hitler, Your History Teacher Was Overpaid

I understand that everyone from Patrick Dorwin to Charlie Sykes to Jay Nordlinger has linked to the well done GOP video contrasting liberal concern over the rhetoric of the Tea Pary with the rhetoric of opponents of the Governor's proposals on collective bargaining in the public sector. The video is well done and makes a valid point, but there is one part in particular that deserves special mention.

Comparisons of Scott Walker to Adolf Hitler are surpassing ignorant and offensive. In this case, though, it hasn't just been overwrought protesters who indulged themselves. State Sen. Lena Taylor warns us that "Hitler abolished unions in 1933" and that's "what our Governor is doing today." The implication is that the Governor's limitation of collective bargaining by public employees (something that wasn't widely permitted until the sixties and seventies and still isn't in some states)is comparable to and somehow of a piece with the dangers and horrors of National Socialism.

She is, of course, wrong as a factual matter. Twice. Walker hasn't proposed the abolition of public employee unions - much less "unions" in general - and there actually were unions in the Third Reich. In fact, the national trade union organization, the Deutsche Arbeitsfront, was run by an alcoholic and corrupt socialist sympathizer named Robert Ley. It administered a wide variety of often elaborate worker benefits as part of a program called Kraft durch Freude ("Strength through Joy"). Ley ultimately hung himself before he could be tried at Nuremberg.

To be sure, the DAF was controlled by the state. But everything in Nazi Germany was controlled by the state and party pursuant to a policy of "Gleichschaltung" - or "coordination." That's precisely why the comparison - even were it true - would be so preposterous and shameful. In a very real sense, Hitler tried to abolish or transform every institution that is familiar to us (including the family).

I hadn't appreciated that Scott Walker has proposed a totalitarian state or anything like it. I did hear that he wants public employees to pay amounts toward their retirement and health insurance that are higher than current levels but still much lower than the average for the rest of us. I guess I missed the part where people were going to be dragged from their homes and sent to concentration camps. I read that he has proposed a modification of the authority of state and local governments to enter into collective bargaining agreements and collect dues on behalf of unions, but must have overlooked the abolition of the rights of free speech and association. I saw that he wants voter approval of raises above the cost of living for unionized public employees (i.e., those represented by the unions that he hasn't abolished). But who knew that this was somehow the equivalent of forced sterilization and extermination camps?

I hadn't noticed that the budget adjustment bill sets up a WalkerJugend in which all children must be enrolled or that it establishes a paramilitary organization - maybe called the Leibstandarte SS- Rebecca Kleedfisch - to intimidate political opponents and "undesirables." I'll have to read it again.

It's funny, but it's not. All of us - across the political spectrum - are burdened by people who say foolish things. It is one thing for idiotic Hitler comparisons to be made by anonymous protesters holding homemade signs (although the probability tht they are public school teachers is frightening). After all, we on the right had to live down hairbrush moustaches drawn on President Obama.

But it's another thing for the same odious comparison to be made by someone who claims to be a community leader. Where ever she is hiding tonight, Lena Taylor should be ashamed. When she and her colleagues decide to come out and abide by their oath of office, she should apologize.

Senate Democrats:Down By Law?

Rumor has it that the Senate Democrats are holed up in a motel in Rockford, Illinois. If that's so, I'm disappointed. If you're going to lam it, why not head to some place fun?

What you may ask, are the legalities of the matter? Why are they hiding? Why have they left the state? Why not simply refuse to come to work?

The Wisconsin Constitution clearly authorizes each house of the legislature to compel the attendance of members in order to obtain a quorum. Each house may do so by whatever means or penalties it prescribes. In the case of the Wisconsin Senate, the Sergeant-at-arms is authorized to "bring in" absent members.

What does that mean? Can the sergeant-at-arms have them arrested? Apparently some people are taking the position that they can be "chased" but not "arrested." That's unclear. Legislators are normally immune from "arrest on civil process" during legislative sessions but that is only while they are "in actual attendance upon the duties" of their office. These legislators are in fact ignoring - actually fleeing from - the duties of their office. We are in uncharted territory, but its not clear to me that they can't be arrested, although that would be an extraordinary thing to do.

This is probably why they left the state. The Wisconsin State Police cannot arrest them in Illinois (if that's where they are) and the law enforcement authorities in Illinois are probably only too happy to stay out of this mess.

So what to do? Here's something to think about. A quorum is normally a majority of each house. The reason that the Republicans can't proceed without Democrats here is because the budget adjustment bill is a fiscal bill and the state constitution provides that, for a fiscal bill, the required quorum is three-fifths of each house.

Ironically, though, the provisions that are most objected to by the Democrats - the prospective limitation of collective bargaining rights - are not fiscal provisions. They could presumably be put in a separate bill and passed by the Republicans with no Democrats in attendance because, for that bill, a simple majority would constitute a quorum. I'm not suggesting that the GOP Senators would or should do this. But I think that they could.

Days of Rage? Why?

On Monday, I decided to write a column on Governor Walkers's proposal to restrict the collective bargaining rights of public employees. My point was to highlight the historic critique of pubic employee unionization and the insights into collective bargaining in the public sector provided by public choice theory.

The column ran in Tuesday's Milwaukee Journal Sentinel. I'll be discussing it tomorrow on Joy Cardin's show on Wisconsin Public Radio (in either the 7:00 or 7:30 segment). The basic point is that the traditional rationale for unions doesn't work well in the public sector.

Unions are supposed to empower workers in unequal bargaining situations. In economic terms, they are intended to move the supply curve for labor so that the equilibrium wage is higher than it otherwise would be.

But in the public sector, unions tend to, if not capture the employer, exert significant influence on it. This is because the interest of, say, a teacher's union on the composition of a school board and district policy - at least with respect to compensation - is far greater than that of the rest of us. Public choice theory suggests that this will result in unions having disproportionate influence on the public bodies that employ them - quite apart from labor negotiations. To put it bluntly, the officials who employ them may well owe their jobs to union support (or fear their ability to keep them without union support).

Given the absence of competititon in the public sector, this moves the demand curve as well. The distinction between management and labor which supposedly creates the unequal bargaining situation that justifies unions becomes blurred. The result is a tendency for public bodies to reward their union constituents in ways that aren't readily apparent to taxpayers. This is why collective bargaining agreements in the public sector tend to be heavy on fringe benefits and emoluments at retirement.

The response to Walker's proposal is making my point. The "uprising" at the Capitol is unlike the Tea Party. It is the yelp of a large special interest. The alarm with which Democrats are greeting the proposal is, in large part, fueled by concern over losing a large base of organizational and financial support. Walker's proposal is radical not because it is "mean" or will impoverish public workers. It will do neither. What it will do is reduce the influence of unions on public bodies and their ability to serve as political sponsors.

That's what these "days of rage" are about. The Walker proposal may be fiscally necessary but it is potentially a political game changer.

Saturday, February 12, 2011

Fighting the Last War in Supreme Court Race

The three challengers to Justice David Prosser seem to want Justice Michael Gableman the issue. Oh, to be sure, that's not what they say. It's not Gableman, it's the fact that Justice Prosser joined two other justices in voting to affirm a unanimous three judge panel recommending that Gableman not be disciplined for his infamous Reuben Mitchell ad.

Let's look at that. Our blogging friend Tom Foley seems to think that the problem is that the Prosser three are guilty of "exonerating Gableman from any wrongdoing ...."

Well, that's not right. The three concluded only that, if the ad violated the applicable disciplinary rule, it only violated the "aspirational" part of the rule (because they thought it was only "misleading" and not literally false). The law is clear that discipline may not be imposed for violation of an aspirational rule. That's hardly exoneration from "any wrongdoing. The three did not say that there was nothing wrong with the ad. In fact, they called it distasteful.

Candidate Marla Stephens addresses the issue, criticizing the conclusion that the ad violated only the aspirational part of the rule. The court was wrong because "[y]ou don't take a statement and parse it  . . . phrase by phrase. You take a statement as a whole," and then, presumably impose discipline - perhaps even overturn the results of an election - if you conclude that the statement was false.

I don't think she means it. At least I hope she doesn't. Do we want courts or legislatures (because the principle would apply in other contexts) that are often composed of hostile or interested parties to undermine the will of the voters by concluding that a campaign communication "really" conveyed a message that is false? Is she really willing to apply that standard across the board?

I hope not because there are few campaigns that do not run ads that can be characterized as objectively false.

There is another take on the Gableman ad that we don't hear as often and which is, I think, closer to the real objection. It seems to me that the problem with the Mitchell ad was not that it implied something that was false, i.e., that Butler got Mitchell released and he offended again. (In fact, he failed to get Mitchell released and the offense was committed after completion of his sentence.)

Imagine that this part was true or that the ad had made clear what actually happened. Would critics of the ad be any happier? As one of those critics, I would not. It was Butler's job to represent Mitchell and he ought not to be blamed for what Mitchell's sunsequent crimes if it turns out that he was wrongfully convicted.

There are some who would argue that Gableman should be disciplined - or at least criticized - for such an ad because it misleads the public about the nature of the legal system. But once again, it's unclear that they are willing to apply such a standard across the board. In her latest reelection campaign, Chief Justice Abrahamson ran ads in which she was lauded as an "ally of law enforcement." Not as provoctive, to be sure, but also misleading.

Friday, February 11, 2011

Candor in the Supreme Court Race

Yesterday I had the opportunity to appear as a guest on Charlie Sykes show, Vickie McKenna's Madison program and a morning show in Fort Atkinson discussing the Supreme Court primary. Throughout the day, I had occasion to think about how much we lawyers and legal academics try to hide the ball on questions of judicial selection.

On the one hand, we have charges of judicial activism largely hurled by conservatives at liberals. I have done it and its not all wrong. In the modern era, the development of methods of interpretation that maximize a judge's discretion, i.e., give her greater leeway to depart from unambigiuous text or some notion of its original meaning has most often been championed in the course of reaching or advocating for results that we would call "liberal" or "progressive." It hasn't always been that way and there is no ironclad rule that it has to be that way (text and original understanding will not always lead to "conservative" results), but that's been the general lay of the land.

Of course, the allegation of activism and call for something like strict construction is an oversimplification. No one - at least no one since Bill Douglas - thinks that judges can do whatever they want and no one really believes that judging (at least at the level of law development) is a technical exercise from which all value and ideological judgements can be excluded.

If that's so, we are all, to a greater or lesser degree, judicial activists. So there is some truth in the standard liberal rejoinder that charges of "activism" can be misleading. But to say that the concepts of "activism" and "restraint" are meaningless or that judges don't differ in interpretive method is also an oversimplification. Both sides draw caricatures.

But there is an ironic twist to this.

Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.

Candidates who abjure charges of activism - generally because they believe that judges must resort to their own values and ideology to a greater extent than is commonly supposed - tend not to tell us what values and ideology they hold. They deny being activists. They may even say that they believe the charges of activism is meaningless.

But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals.

This isn't because they are dishonest people or because they fail to understand how ideology matters. It is because it would be political suicide. Voters tend not to want "liberal" or "progressive" judges, largely because of concern about criminal justice issues and the left's postwar project of judicially mandated social change.

Although I dislike the word "activism," I believe that it does make some sense to talk about the degree of a candidate's commitment to judicial restraint. But I also recognize that ideology - at least at the level of the Wisconsin Supreme Court - still matters. There is often room for a judge's values to influence a decision. In fact, it is sometimes impossible to make a decision without them. So when I hear candidates say that their ideology is irrelevant, I roll my eyes. They are hiding the ball.

Wednesday, February 09, 2011

Packers Postscript

As post Super Bowl euphoria begins to subside, I note that we are already thinking about next year. There's a certain irony in that. Teams struggle and their fans sweat blood over the course of a season in the unlikely hope that they can win it all. And then - a few days later - the question turns to the next struggle. That tells us something about life (or at least human nature) and may prompt some questions as well.

I have to admit that I didn't think the Packers could do it this year. I thought that the loss of Finley and Grant took just enough way from the offense and I couldn't get away from the fear that someone would eventually exploit a defense that had become increasingly populated by guys that were entering sales trainee programs at the beginning of the season. But I guess Dom Capers really is a genius.

People have commented to death on the idea that Brett Favre's Wisconsin star has fallen in a way that no one could have predicted. Bart Starr did not fall as far after an uninspired turn as Packer coach ended by an utter brain freeze that gave the last game of the season - and the playoffs - the Bears in 1983. My son still remembers how incensed I was. He was not to be born for another month.

But the real miracle is that we now love Ted Thompson. We know that his draft will leave us scratching our heads. He'll be reaching and passing over media favorites. He won't sign a free agent. He'll explain nothing. But, for now and for a while, we will follow.

Wednesday, February 02, 2011

Why Do Out of State Persons Contribute to State Supreme Court Candidates?

So wonders our friend Tom Foley. After all, he says, "[i]t has no jurisdiction beyond these borders."

I don't blame Tom for blotting out memories of first year Civil Procedure (and, depending on one's practice, the question may not come up much in the daily life of a lawyer), but this is not quite true. Remember International Shoe and the rise of "minimum contacts? C'mon, say it with me. It'll only hurt for a moment. A state's courts may exercise jurisdiction over an out of state defendant who has minumum contacts with the state such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.

So Wisconsin courts can do all sorts of things that affect persons who reside outside of the state but have the requisite contacts. Consider that wonderful Milwaukee company, Rite Hite, who I still have the privilege of serving as general counsel. We do business in every state in the union and can probably be sued in every state. Thus, those with an interest in Rite Hite have lesser or greater interests in the quality of jurisprudence in every state. I don't know that anyone associated with the company has ever contributed to a judicial campaign outside the state, but there would be nothing illegitimate and nefarious if someone did.

As for Tom's hope that the new public financing law will put an end to the influence of out of state donors, he's going to be disappointed. In many races, it will have little effect in that the public grant - at least for the general election - is more than most candidates can raise. But it is not enough to run a state wide race and is a small fraction of what the independents are willing to spend on a competitive race. So the funding for this race is going to come - on both sides - largely from out of state interests. The Impartial Justice Act makes that more, rather than less likely. Even for candidates like Marla Stephens who turn down public funding - "reform" has made it impossible for candidates to raise money for their own campaigns (It was already nearly so as Butler and Gableman's own fundraising showed) and the public grants are woefully inadequate for a state wide race. The independent groups will fill the void.