Law & Neuroscience

The announcement of a joint degree program in law and neuroscience is fascinating and will be of great interest to a number of lawyers such as my friend Ralph Weber.

Further to our discussion about moderation, though, it seems to me that this is yet another battleground in the culture wars. Neuroscientists are increasingly likely - may even be hard wired - to see behavior as biologically determined. This has all sorts of implications for the law but may strike others as a reductionist materialism justified by a patina of scientific objectivity.

My bet is that there will be interesting things thrown out by this undertaking.

Political Rorschach Test

Speaking of the Sunday Times, this article about a tax on soft drinks is sort of a political Rohrschach test, no? If you wonder whether your instincts are "progressive" or conservative, read it and assess your reaction. The more silly you find it to be, the more conservative you are.

Against Moderation

As I've written before, one of my guilty pleasures is the Sunday New York Times = occasionally while sipping French wine. Mostly, it's the nonpolitical stuff and the ability to read a paper that still has the resources to produce content. But the Op-Ed section has its allure. In particular, the crew of Tom Friedman, Nicholas Kristof, Maureen Dowd and the recently decamped Frank Rich offer a parody of the liberal commentariat - so much so that I am occasionally startled that someone might write such things. (Paul Krugman's column does not run on Sundays and is past parody.)

Sunday's column by Tom Friedman declaring the end of two party system is a perfect example. It is Friedman's particular and consistent conceit that, if only we could get past politics, public policy could be made by the right people who attended the proper schools. One of the refuges for people who share that belief has always been hope for a third party that would somehow be free of the ideological divides that keep the obviously necessary from getting done.

Our recent political history is littered with the casualties of this delusion. See, e.g, John Anderson, Ross Perot, Colin Powell (who was smart enough not to actually try it), etc. The problem is that political conflict exists because there are real differences of opinion that are not simply the result of extreme and simple views. Republicans are resisting raising taxes because they believe that the spending cuts offered by Obama are illusory and that marginal tax rates are high enough. Democrats are resisting entitlement cuts because they don't think that benefits should be reduced. There is no "expert" solution to this.

Nor is it clear that a compromise approach is better. Friedman is touting the merits of something called America Elect which will allow the nomination over the internet of persons who, after being screened by someone, will be nominated for President in a virtual and secure convention. The winner must then run with a person of the opposite party.

Friedman takes pride in the fact that most of us will have heard of America Elect first through his column. I suspect the most of us will also hear of it for the last time through his column. If, in fact, it becomes a broad based phenomenom, it is far more likely to result in the nomination of a populist demagogue of either the right or the left than the gray expert that Friedman envisions.

But it might be even worse if it does work as he hopes. The presumption is that some solution "in the middle" is always better.

But sometimes, the middle is simply incoherent. It's not clear to me, for example, that ObamaCare - an ad hoc hodge podge of command and what are at least supposed to look like markets - is worse than a single payer system since it may wind up delivering its harms without its benefits. Compromise solutions often reduce to putting off intractable problems for another day.

Locally, Steve Jagler of the Biz Times commends to us the potential Senate candidacy of Bucyrus CEO Tim Sullivan. His principal qualification, in Jagler's view, is that he "has a problem" with both sides in our political debates. He is, in other words, knows better than the poor cretins who actually spend their lives worrying about public policy. Tim Sullivan may be a great guy but my guess is that, if he does run and win, he's in a for a rude awakening.

My point is not that compromise is a dirty word only that it is not inherently virtuous. My guess is that there will have to be compromise on the debt ceiling but this may not be - in fact is unlikely to be - the best solution. It will probably involve kicking the problem down the road and papering over differences with roseate economic assumptions and promises to do something in the future.

Sometimes conflict exists not because of the supposed power of extremists but because smart people acting in good faith see things differently. Occasionally we have to let those differences be resolved one way or the other.

Jagler complains of the nasty of our politics and seems to think that the answer is in the absence of strong views or in some set of eclectic views that cannot be identified with the traditional political divide. Friedman seems to agree. What I would prefer to radical moderation in policy is moderation in the conduct of our political debate. I would prefer that we recognize that someone can disagree with us and yet somehow not be a corrupt evil moron. That requires us to listen and it may lead to compromise but it certainly should lead to civility

Songs for 103 degrees

OK its better today but still ...

First, it's not a heat dome.



Fish are jumpin'




but living ain't easy




Because the pavement is burning

Silliness on WELS and Bachmann

I suspect that Michelle Bachmann will not get the GOP presidential nomination but the attempt to slam her as anti-Catholic because of her membership in the Wisconsin Evangelical Lutheran Synod is pure politics.

To be sure, WELS - as an institution - takes a rather harsh view of the Papacy. But it's not clear to me that most congregants take much heed of that or that, to the extent they do, that church doctrine concerning the papacy translates into any particular attitude about Catholics that affects one's relationship with people and groups that are Catholic. My brother-in-law, for example, is a member of WELS. You'll have a hard time finding a better guy.

I might be more impressed by the matter if so many Democrats weren't perfectly willing to absolve Democrats of belonging to churches with what they consider to be objectionable doctrine. For example, the Catholic Church teaches that homosexuality is intrinsically disordered and that abortion is murder. Yet Democrats seem perfectly able to understand that a politician - such as Joe Biden, Nancy Pelosi or John Kerry - may belong to the Church and not share those views. Barack Obama belonged to a church headed by a race baiting, conspiracy mongering nut who he claimed was some form of father figure and transformational influence in his life, yet his supporters were perfectly able to distinguish the President from Reverend Wright.

In fact, when it comes to Democrats criticizing others for being anti-Catholic, recognition of a certain degree of irony is in order. Many on the left believe that being pro-life is to be "anti-woman" or that opposing same sex marriage is bigotry. These are, of course, attacks on faithful Catholics in a way that WELS rejection of the papacy is not. In other words, the left wants to hang Bachmann for being an anti-Catholic bigot for belonging to a church that takes a theological position she has repudiated, while it argues that Catholics who follow the teaching of the Church are immoral.

If that doesn't persuade you that the criticism of Bachmann for her former membership in WELS is cynical political posturing, please direct me to the criticism of Democratic politicians who belong to the WELS. We needn't go far to find one. How about Ron Kind (D-Wis.)?

Shark on WPR

I will be on Wisconsin Public Radio in the morning to discuss redistricting. Seven am.

More on Redistricting

So I understand Peter Earle, a lawyer from Milwaukee, was "befuddled" by my testimony before the Joint Committee that the GOP redistricting plan is not vulnerable to legal challenge. In the midst of what was largely a partisan speech committed to political - as opposed to legal - argument(more of that "shame on you" schtick), Peter was asked about my conclusion that the plan would pass legal muster. In response, Peter said that he, as a "responsible lawyer" who adheres to the ethical standards of his trade(apparently unlike me) , does not understand how I could know that without taking more time to crunch the numbers.

I don't know Peter Earle. I think I met him for the first time when he introduced himself as I was leaving the hearing room. I know who he is and I think he may have been tangentially involved in a voting rights case that I handled a number of years ago. Although I'll put my legal chops up against Peter any day of the week, I won't question his competence or responsibility or adherence to the "ethical standards of the trade." I'll assume that he didn't really intend to question mine.

But if he is truly befuddled, he didn't listen very well. Peter doesn't bother to address anything I said about the redistricting plan so let me review why I can say what I did "responsibly" and "ethically." It is apparent, as we say in the law, that there are no material issues of fact.

I addressed three potential legal challenges. There is no question that the plan meets the requirement to equally populate districts. That's simple math.

But isn't a partisan gerrymander? That's the second area that I addressed. As I explained to the committee, I don't know the extent to which the plan favors the GOP or whether a more competitive plan could be drawn. I assume that it does favor Republicans and that one could draw more competitive districts. But, as I carefully explained with reference to controlling precedent, I don't need to know. Challenges to plans as partisan gerrymanders are effectively nonjusticiable. If Peter is even remotely familiar with the law in this area (and I'm sure he is), he knows that to be true and a complete response to the question he was asked would have included that concession.

Of course, I know his response will be that he wasn't talking about that - that he is only concerned about districts in the Hispanic community and whether there is a possible voting rights violation. That is the final area I addressed. I explained to the committee what the law is in that area, noted that the plan seemed to create an extraordinary number of African American majority districts and, depending on which of three alternatives are adopted, will create two Hispanic majority assembly districts for the first time. Because it seems unlikely that one could create more, I pointed out that, unless someone can demonstrate that additional majority minority districts could be created that are compact, contiguous and justified under the three part test that the courts use under section 2, the plan would not be susceptible to challenge.

And Peter Earle knows that. He also knows that the GOP has been in negotiation with the Hispanic community as to the precise contours of the majority Hispanic districts. His claim that he is unable to assess the possibilities for lack of access to publicly available census data and a software package strains credulity. He suggests that maybe it would be possible to create an Hispanic influence district, but, as he knows, there is no legal obligation to do so.

Beyond all that, this is a huge feint. As Peter knows, the GOP is more than happy to create majority minority districts. One of the ironic impacts of the manner in which doctrine under the Voting Rights Act has developed and of the political strategy of minority communities is that redistricting often results in alliances of Republicans (in whose interest it is to pack Democratic voters) and minorities who want to create magority minority districts (which, according to most experts, must actually contain a supermajority of minority voters) to be effectively majority minority.

Street Car Reflects Desire

I'll say this much. The new street car plan is better conceived than the big square that Mayor Barrett originally wanted. And, by way of full disclosure, it may well benefit me personally in that it may (sort of) connect my office to places that I frequently visit but can be a bit far to walk if weather and time are an issue. If the anticipated operational costs and ridership are correct, it might be financially justified.

But, given the history of mass transit projects, I doubt that they are. And when one adds in the capital costs (particularly the "free" federal contribution)it starts to look pretty sketchy. If we add in the apparent cost of relocating utilities, it's close to a white elephant. It's not clear whether the extensions would hurt or help cost effectiveness.

There are other problems as well. Will a downtown steetcar actually add to traffic congestion? Who will benefit? Not, I think low income folks but downtown professional and upscale residents.

This is always the problems with rail projects. Rail advocates seem to want to spend almost any amount of money on just about anything that runs on a fixed course in order to build "momentum." They hurt themselves in the process. By focusing on a train that did not work - the semi-express to that hub of civilization know as the Dane County Regional Airport - they arguably cost funding for one that does - the Hiawatha to downtown Chicago.

Rail can be a good idea but it is not always - and probably, given its limitations, not often - a good idea.

Overdramatization of Redistricting

Yesterday, I had the opportunity to testify before a joint legislative committee on redistricting. My purpose was not to address the political merits of the plan (although it strikes me as fine) but to address whether it would be susceptible to court challenge.

Not at all, say I say. The criticisms I hear are that it reduces competition, favors Republicans "too much" and changes some things that have in place for a while. Even if these things are true, they will not result in judicial invalidation of the law. Allegations of partisan gerrymanders are effectively nonjusticiable and there is no obligation to draw lines in order to maximize competition or keep something the same. To be sure a legislature might seek to further competition (although they rarely do) or to accomplish what is sometimes called "core retention" (minimizing the movement of voters into a district represented by another incumbent) but it need not.

In fact, other commonly accepted redistricting principles might cut against doing these things. Let's take an example in the GOP plan that has been frequently brought up. The proposed plan combines the cities of Racine and Kenosha and this results in dividing both Racine and Kenosha counties. There are certainly arguments against doing this. It splits counties (which was once, but is no longer, thought to be prohibited by the state Constitution) and - or so I am told - creates one safe Republican district and one safe Democratic district.

But there is also at least one major reason to do it - principally that it arguably groups a community of interest into one district. The cities of Kenosha and Racine - particularly with respect to their relationships with state government - have more in common with each other than the city of Racine has with, say, Wind Lake.

It is because redistricting involves the application of conflicting values subject to a rather rigid constitutional imperative of equal population that drawing lines is seen as an innately political process that, in Wisconsin, is the constitutional prerogative of the legislature. As I told the committee, courts will disturb a plan drawn by the legislature for a limited number or narrow reasons and allegations of partisanship - something akin to discovering that there is gambling going on at Rick's in Casablanca - is not one of them.

There have been a number of overheated claims. This blogger seems to think that the plan plunges Wisconsin into a constitutional crisis. In his rush to repeat all of the cliches of the current canon on the left (Fitzwalkerstan, money, etc.), he doesn't really say why but the gist seems to be that the legislature has taken longer to do this in the past (indeed the legislature has been unable to do it since the 1930s because we have had divided government) and contemplated taking more time now. So what? He - and others - also claim that current law is written in a way that results in municipal wards being drawn first - although the legislature may subsequently change them. Legislation has been introduced to make alterations in that process. If the legislature chooses to make those changes, the result is not a constitutional crisis. It is legislation.

The elephant in the room is the pending recall elections. Democrats seem to think they have a right to defer redistricting until after the recalls hoping that they can flip the Senate and create divided government, pushing redistricting into the courts. But there is no legal or ethical requirement for the GOP to go along. In fact, there is a certain irony in the Democrats pushing for elections in districts that are no longer in compliance with the dictates of the equal protection clause (because they are no longer of equal population) in order to influence the process by which those districts are brought into constitutional compliance. I am not suggesting that the recalls would be subject to constitutional challenge on those grounds (my thought is that they would not), but the fireside equities are muddled and it lies ill in the mouths of legislators who fled the state to avoid exercising their constitutional responsibilities to suggest otherwise.

Noah Bruce Esenberg

Noah was born last Thursday at 23 inches and 11 lbs, 1 oz. Shark Jr tells me that he has been taking the other babies' lunch money.

Obama and Harvard

A friend (and fellow Harvard alum) sends a link to what he calls an "excellent" piece by Frank Rich suggesting that Obama's problems are bound up with the values of Harvard. Obama's problem, according to Rich, is that he hasn't Strauss-Kahned a bunch of bankers and added a system called ObamaBanking to ObamaCare.

But his refusal to do so is one of the few areas in which he hasn't succumbed to what I think is a "Harvard" problem.

"Excellent" and "frank rich" are a jarring - even oxymoronic - combination. I don't know that the problem with Obama is that he hasn't perp walked more bankers or presumed to be able to predict and therefore prevent the next financial crisis. The notion that the financial crisis can be readily explained by a "lack of regulation" is not persuasive. There was certainly regulation that could have prevented some of what happened but no one wanted it - particularly not the Democrats and Barney Frank who famously did not want to make a "fetish" out of things like soundness and creditworthiness.

I do think Obama has a Harvard problem but that problem is his overweening intellectual arrogance reflected in the belief that he and people like him can somehow order the health care system from above of remake the economy through cap and trade schemes. The Tea Party movement was a product of revulsion at that. But, of course, Frank Rich shares those particular prejudices.