All aboard the disinformation train

I really hate to do this, but the disinformation in the state Supreme Court race comes from all sides. It's one thing for folks to disagree about the significance of particular cases and the interpretive philosophies of the candidates.
It's another thing to characterize those with whom one disagrees as liars or uninformed.

Tom Foley, the blogger sometimes known as Illusory Tenant, is someone that I like and who often has interesting things to say. Most recently he accused Charlie Sykes of cluelessness ("riding the disinformation choo choo") and dishonesty ("why do these people lie?) with respect to a case called Ferdon v. Patients Compensation Panel and its announcement of a standard called rational basis scrutiny "with teeth" that is not "toothless" and that "has bite." Ferdon struck down limits on noneconomic damages in medical malpractice cases. Some of my criticism of the case can be found here.

This is the Sykes statement with which Tom takes issue. Referring to the Ferdon decision, Charlie wrote:

[Wisconsin Supreme Court Chief Justice Shirley Abrahamson] changed the court's standard for reviewing legislation to something called "rational basis with teeth" which essentially allows the justices to second-guess laws they don’t like ...

Not true, says IT, rational basis scrutiny has never been toothless. There is nothing to see here. Sykes statement is, he says, nonsense.

Actually, it's spot on.

Let me put this as gently as I can. The point, as Tom surely knows, is not whether anyone else has ever used dental imagery to describe equal protection analysis, but what the Court actually did in Ferdon. If Tom is suggesting that it was not an extraordinary decision that is wholly irreconcilable with the way in which courts usually treat equal protection challenges to distinctions drawn on the basis of a nonsuspect class and not involving the exercise of a fundamental right (and both of those things are legal terms of art, so lay commenters ought to watch where they tread), then he is thoroughly and flagrantly wrong.

Now, we can argue about whether the Ferdon approach is a good idea or a bad idea. We can argue about whether it adopts a standard that leaves judges with no coherent guidance as how to apply Article I, section 1 of the Wisconsin Constitution (although I don't think we can argue long about that). We can even argue - as some have - about whether the courts' traditional formulation of three tier scrutiny in equal protection cases adequately explains what they do.

But the notion that the legislature did not have a "rational basis" for enacting the malpractice caps that it did - as that term is traditionally understood and applied -is nonsense. One can only conclude the caps were "irrational" by engaging in a close analysis of and making a series of contestable empirical and policy judgments about whether these caps serve their intended purpose. This is why the Ferdon decision is so long. It doesn't spend page after page discussing legal standards. It spends page after page discussing the intricacies of malpractice caps. As Judge Diane Sykes put, if a law were truly irrational, it would would be easier to explain why.

But this type of analysis is precisely what courts do not do when applying rational basis scrutiny. They do not substitute their own judgment about what constitutes good public policy for that of the legislature.

It should be May Day, but ...

When I return to this space, I might start my "Obamaphobic" reservations about the need to radically transform, at least in American terms, the size and scope of government. A good crisis ought not to be wasted when it can bring back lost dreams; when it can allow us to once again chase ghosts. But, for today, just a musical tribute. After a month of scholarly care, I need to get my partisan on and, in any event, I have a love/hate relationship with the olden days..

We got a Revolution.



So we can share the land.



Because, you know, the old sign said "private property" but "on the back side it didn't say nothing/That side was made for you and me."



So let's get back to the garden.



And, for the less patient among us, roll down Rodeo.

Same old stuff

As I place my last law review article of the spring submission season, its time to return to the blogosphere. I want to pay a little attention to the state Supreme Court race, as anticlimactic as it has turned out to be. I think I have been fairly consistent in suggesting that much of the angst that has been expressed about the "ethics" of judicial campaigning is simple partisanship.

When conservatives accuse a liberal justice of "siding with criminals" or not standing up for the victims of crimes, they are making a consequentialist argument about a real philopsophical difference. In the case of the current race, the Chief Justice's views on the law and her interpretive philosophies make her far more likely than most other members of the Court to grant relief to criminal defendants. To say that she "sides with criminals" is, of course, an oversimplification but then so is most campaign rehetoric.

But overly simple reliance on consequences comes from the other side as well. The Abrahamson campaign's claims that she stands up for victims and helps people are also consequentialist claims that ignore the complexity of the issues in, say, the lead paint decision. The Greater Wisconsin Committee's latest ad attacking Randy Koschnick is just the left's spin on last year's ads attacking Louis Butler by emphasizing some decisions in which he ruled in favor of the claims of some people who did bad things. It gets at what is a real philosophical difference in a ham handed way. That's what attack ads do.

There is part of me that remains annoyed that neither side will engage in the debate that the public deserves. But perhaps I expect too much.

The train to nowhere

One of the frustrating things in the debate about rail in southeastern Wisconsin is the tendency of folks to be either for it or against as a matter of first principles. Rail is either, for opponents, the foolish desire of someone's inner child for a choo choo (it's actually far less innocent than that) or, for proponents, something we need to enter an imagined 21st century.

Take, as an example, my former Backstory colleague Jim Rowen who is an intelligent. decent and charming person. I don't mean to pick on him (well, actually I do) but it has always seemed to me that Jim has an innate preference for cities and (although I'd suspect he'd differ)collective solutions. He is a bear on the environment and a bull on the environmental movement's preferred solutions. He tends to support any rail project, arguing that even those that don't make sense in and of themselves "build momentum" (or at least that is how I understand his argument on why we need a train downtown that goes in a circle and that nobody really expects to attract significant ridership).

It seems to me that rail is an old technology that still has appropriate applications. It can work when lots of people want to go from point A to point B and, for the most part, stay at point B once they arrive. If these things aren't true, i.e., if A and B are collection and dispersal points for further travel, then rail won't work because it has been superseded by a later technology that offers the ability of the traveler to take multiple routes that rail cannot. Under those circumstances, rail is attractive only when something prevents effective auto travel like highly congested roads. High speed rail might attract auto traveler but its going to have to much faster to overcome the inconvenience of moving to and from the collection and dispersal points.

This is why Amtrak's Hiawatha service is attractive to travelers and generally full. There are a lot of people who want to go to downtown Chicago and the roads into the city are very congested.

But I can't, for the life of me, figure out why anybody thinks the proposed high speed train from Milwaukee to the Madison area makes sense. It is conceivable to me that a train that ran from Milwaukee to downtown Madison might make sense. There are a lot of people who will want to travel between these points and it would be a relatively easy thing to run a shuttle bus or street car to the university which is another high volume destination. Whether it would make sense financially is another matter, but at least it makes sense to think that it would be used.

But the proposed train - said to cost $519 million dollars - doesn't do that. It terminates at the Dane County Regional Airport. I can't tell you how many times I have been to Madison. I can't tell you how many times that I have flown in and out of Wisconsin. I can tell you how many times I have been to the Dane County Regional Airport.

Never. I don't even know how to get there although I have some sense that it's not far from American Family's headquarters.

Now, of course, there are some folks who may want to travel that route and I understand that people will argue that we can run buses to other destinations. But taking people to where they do not want to go before they are taken to where they do want to go is what will make the rail connection less desireable than driving to Madison.

It seems to me that supporters are in some type of denial. This line is supposed to carry 1.08 million passengers as opposed to the 766000 that currently use the Hiawatha line because ... why? Is there something at the Dane County Regional Airport that I don't know about. Could be, I suppose, since I have never had a reason to go there.

Maybe the key to success is at the eastern end of the line - connecting Brookfield and Oconomowoc to Milwaukee for commuters. That's a case that someone could try to make (I am skeptical that there is enough traffic to justify it, but I could be wrong), although it it terminates at the Amtrak station I don't think it will be very attractive.

But even if a southeastern route makes sense that still wouldn't tell us why we need to go all the way to the Dane County Regional Airport

The Daily Sideshow

The confrontation between Jon Stewart and Jim Cramer was a game with no one to root for. I have never seen Jim Cramer but I get the picture. Hyperactive stock touting. I have always agreed with Megan McArdle about those shows. If they tell you to buy a stock, even if they are right, it's probably too late. But then I am the ultimate buy and hold (don't even think about it again)guy and likely to be working until I am 80, so don't follow me.

I have no doubt that financial journalists have been tempted to try to manipulate the market and that some have done so. But its (relatively speaking) nickel and dime. It's not the cause of the current economic malaise and Stewart's posturing ("f*** you")is of a piece with the notion that there are bad guys to blame. It's a natural human tendency to want to believe that, if things have gone wrong, someone must have behaved badly. It's what makes good plaintiffs' lawyers rich. But it is often not true.

Random thoughts and return

This may be the longest blog hiatus that I have ever had, but I have rarely been as busy as I have been for the past two weeks. More on that later.

Here are a few random thoughts that must get out.

1. Rush Limbaugh is an entertainer. Suggesting that he is the leader of, and somehow emblematic, of the conservative movement is like suggesting that Al Franken is someone who should be elected to important public office. Who would buy that?

2. President Obama signing the earmark-laden spending bill and announcing that the era of earmarks will now be over is a little like the guy at a bar knocking down boilermakers and announcing that he'll stop drinking tomorrow.

3. I don't understand why Charlie Sykes is making fun of Gwen Moore's energy plan. He has two dogs. I have three. We ought to sell her the right to harvest our backyards. I'll need her to send someone about everyday.

4. Rich Lowry describes Obama's economic policy as follows " more money to banks and industry, more unsustainable entitlement spending, more deficit spending, more uncertainty about how to handle the toxic assets in the banks — with promises of higher taxes layered on top." With the exception of taxes, how is this different from Bush administration policy? Are we supposed to believe that the only thing we need to do is raise marginal tax rates a bit for a small number of high earners?

5. I think that the only thing that Ted Thompson has to do to bring himself to the edge of the cliff is make one of his inexplicably obscure first round draft choices. He's going to do it. You know he is.

At least we're not facing relegation

We argue around here about the extent to which Wisconsin is a "tax hell" or has a bad business climate. Each side marshalls the facts that support its position. Our tax burden is extremely high, but our spending levels are closer to average. Part of that is that we tend not to employ users fees. On the other hand, the spending numbers have to be read in light of our low levels of federal aid and below average state income and so on.

William Ruger and Jason Sorens at the Mercatus Center at George Mason University have developed indices of what personal and economic freedom and compared all 50 states. Ihe economic index is, of course, value driven. They are looking for low taxes and spending, less regulation and a greater degree of local control over resources. They prefer user fees to taxes.

On this measure, Wisconsin does poorly. It is 42nd in fiscal policy, 35th in overall economic freedom and 37th in the overall freedom ranking.

Of course, folks with a different ideology would construct different indices and they would be fascinating to see. But the Mercatus work tends to support the traditional conservative critique of Wisconsin as a high tax and high regulation state.

The most free state in the union, according to Mercatus, is New Hampshire, all in keeping with Granite State license plates (Live Free of Die!").

The least free? New York.


H/T: Jonathan Adler

Cross posted at Marquette University Law School Faculty Blog.

Well that worked ... I guess

Bloggers on the left are upset that I used a running joke with a friend to poke fun at the President while making a serious point. While I said I do not believe that Barak Obama is a "freakin' moron," I am concerned that his economic policy is incoherent.

He is at once engaging in an incredibly ill considered orgy of spending while promising to cut the deficit. He is blaming the economic meltdown on too much debt while heading straight to the Chinese for a gigantic advance. He wants to jump start the economy but his stimulus package is oddly backloaded and much given over to long deferred pet projects that seem neither temporary or targeted. He wants people to spend while raising the prospect of significant tax increases. (There is, no way to get where he wants to go by taxing only the rich and, like it or not, taxing the rich is tomorrow is unlikely to prompt them to invest today.) He wants people to feel confident about the future but, until his speech earlier this week, ran around the country predicting doom unless Congress immediately pass a bill that it had not read or deliberated.

At the same time that he wants to raise the deficit and cut the deficit (an unreconstructed Keynesian might believe in that), he has, as Charles Krauthammer points out, promised a fundamental change in the nature of the US economy, seeking to substantially shift resources from the public to the private sector.

Of course, he's not a freakin' moron. I know what it takes to make the Harvard Law Review. I don't even claim that he is acting like one. But the markets are unimpressed and its hard to see why they should be.

It's easy, of course, to blame Bush and his supposedly "conservative economic policies." But I am still waiting for a convincing statement of that case.

One can accuse Bush of fiscal irresponsibility (conservatives were doing that all along), but the Democrats have decided to see him on the spending front and go all in.

One can imagine regulations that might have prevented some of the stupidity in the housing market but those regulations would most definitely not been supported by the Democrats who, in fact, opposed belated Republican efforts to rein in Fannie and Freddie. Would Democrats have supported federally mandated tightening of lending standards?

Was the problem tax cuts for the rich? Why?

It does seem that Greenspan mismanaged monetary policy by overreacting to the bust of the Clinton era tech bubble and 9-11 and then overcorrecting too quickly. But overreaction seems to be the order of the day.

I, and others, have been accused of cheering the market declines. Hardly. I'm going to need that money some day.

At least I should be in the running for Jerk of the Week.

Barack Obama: Savior or freakin' moron?

Blogging has been slow and may continue to be as law review submission season begins. But if I can't be prolific, maybe I can be provocative.

I have a friend who has a tendency to refer to some of those with whom he disagrees as "freakin' morons." Although he is one of the very smartest people I know, I think he uses the term too often and tell him that God must have loved freakin' morons because, in his view, She made so many of them.

This guy has one of the world's great man crushes on Obama so let me be heretical.

Barack Obama just may be a freakin' moron.

Of course, I don't really think that, but his economic performance so far does not quite make it to dull average.

Let's put aside for a moment the debate over whether the past few months have revived Keynesian economics. What does classical Keynesianism tell us about debt financed responses to a recession which was brought on by, at least in the administration's view, too much borrowing? Really, who knows? Does it make sense to say, if people have borrowed too much and are now hunkered down, that the answer is to let the government borrow for them? If that idea is problematic, isn't it rendered more problematic by the coming entitlement crisis? What about the fact that, unlike times past, we are borrowing overseas and thus become dependent on foreigners willingness to continue? To quote the Boss, do we have debts no honest man can pay?

If that's so, one option is to inflate them away and John Cochrane has argued that, for stimulus to work, people must believe that is what will happen. They must believe that government does not intend to raise taxes to pay the debt back. Otherwise, they will save the injected funds in anticipation of the coming taxes and economic slowdown.

But Obama has announced that he is going do precisely that. Having blown the deficit through the roof, he now wants to talk about fiscal responsibility. Well, at least he's given himself a big target.

One way out of that trap is to use the stimulus money to create value, i.e., to make the economy more productive or to direct resources from less to more productive uses. But Obama outsourced the package to people like Nancy Pelosi, Henry Waxman and Dave Obey and got a grab bag of Democrats' pet projects tailored to total the $800 billion he wanted.

A certain type of unreconstructed Keynesianism says that this does not matter. We could, as Lord Keynes himself said, pay people to fill up bottles with old currency or as Larry Summers says, pay them to dig and then fill ditches. The idea is to get money in hands that will spend it. Now.

But that didn't happen either. Much of the package is backloaded. A moratorium on the payroll tax - giving moderate and low income earners a 7.5& raise after taxes - would have done that more effectively. But that was the GOP's proposal.

Off the stimulus package, there is no plan to address the underlying credit problem other than suggestions to nationalize banks. The proposal to spend huge amounts (more than the announced amount) to rescue improvident borrowers has been met with much deserved derision.

And, although finally got religion last night, the President has talked the economy down. Perhaps he is speaking words that are hard but true. Or maybe he is trying to play down expectations for political purposes. In any event, economics is, to a large degree, applied psychology and when the President tells us that catastrophe is imminent, folks do not feel good about spending and investing.

Back to that theme of fiscal responsibility. How do you reconcile it with last night's ambitious talk about what government can do you for just about anybody.

The result: The markets do believe that Obama is a freakin' moron. They were roiled. But since it became clear that he would win, they have tanked.

OK, Judge, you hit your number or die in this room*

Much of the attention following yesterday's decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb's decision seems to me, given the balance struck between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have pre-judicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a candidate is a Republican or Democrat. In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions. It's not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate's judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct's prohibition against the personal solicitation of funds by judges and judicial candidates. This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that - observing that the restriction may have had the "quaint" intent of protecting judges from the indignity of dialing for dollars - but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct and restrictions on contributions have been far more likely to be sustained. It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one's partisan affiliation (or, as in White, one's position on certain issues of public interest). Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd

Scott Walker - not so dumb

One of my pet peeves is the tendency of folks in the blogosphere and public discourse generally to contort themselves in order to suggest that their political opponents are not only wrong, but stupid. Such has been the case this week in a number of responses to Scott Walker's proposal to use federal stimulus money to suspend the state sales tax.

I am not endorsing the idea and it's not going to happen, but it is hardly the knee slapper that some are claiming it to be.

Ken Mobile says that Walker has demonstrated his economic incompetency. The blogger known as the Recess Supervisor says he is an "greasy haired," a "whorish, no nothing," and possessed of "idiocy." State Democratic Party chair Joe Winecke says the proposal is "ridiculous," "pathetic" and consists of "fuzzy math."

Why is Scott Walker so clueless? It boils down to this:

1 Suspending the sales tax would require a change in the law. Well, yes. It is a policy proposal and these things often require changes in the law. Indeed, Walker called upon the Governor and legislature to enact his proposal into law. It may be that a change in federal law would be required (that would depend on the wording of the federal stimulus bill) but that hardly means that Walker ought not to propose what he thinks is a better idea.

2. He's using fuzzy math. Winecke, echoed by Mobile, jumps on Walker's claim that the sales tax costs the average household almost $3000. Ho, ho, they say, this cannot be. Does the average household spend $60,000 on taxable goods?
Ridiculous!

Except that it's apparently true. Walker is using a mean as opposed to a median or mode. In addition, sales taxes are imposed on all sorts of transactions that get built into the price of what you buy. According to the Tax Foundation, Wisconsin's collections of general sales and gross receipts tax in 2006 was ... $2834.00 - the overwhelming majority of which (apparently $1102 per capita out of $1131 per capita in sales and gross receipts taxes)most of which is the general sales tax.

3. The tax holiday would benefit flatlanders. Everyone from Illinois would come up here and buy stuff tax free, paying use tax back home. First, I suspect that few people would actually pay the use tax. Second, such an impact would presumably have a stimulative effect. Wisconsin businesses would sell that much more. It would be, in other words, a good thing and not a bad thing, even if it did result in some increase in Illinois use tax collections.

Third, it is not clear that this has to be true. The holiday could be limited to Wisconsin residents - enforced by displaying a driver's license or other proof of residency and, perhaps, a tax identification number in business transactions. There would be some administrative cost in doing this and some one may try to argue that it constitutes an infringement on the right to travel,a denial of equal protection or privileges and immunities, but the justification would be that this is a rebate of other taxes paid by residents, i.e., the state is forgoing this revenue and the need - if there is one - to replace it would fall on its residents. I'd want to look at this more carefully before reaching a conclusion but, as I said, it is not clear to me why such a limitation would even be desirable.

4. The feds are already picking up the sales tax on new vehicles. Says the Recess Supervisor, "Wisconsin would collect no tax, Illinois or Minnesota would, and the consumer would have their state sales tax refunded to them by the federal government. Illinois and Minnesota win! Wisconsin loses! Yay stimulus!"

Not quite. They are proposing to make the sales tax deductible. That's a huge difference. But once again, don't we benefit more from flatlanders coming north to buy $40,000 cars than by - for those who itemize - losing a tax deduction on sales tax that was not paid?

Sunday's Hymn for Her

This week one of the greatest rock bands ever is playing at the Potawatomi Casino, so this Sunday it's all Pretenders.

The early Pretenders had a mocking punk sound. This is "Tatooed Love Boys."



This song was popular when my son was born. I'm not the cat I used to be either.



The band has a new album. This is "Boots of Chinese Plastic."




But this is one of the sweetest songs you'll ever hear. Forgive the existential French introduction and artsy shimmering camera. It doesn't last long.



The title of the post is, of course, a reference to another Pretenders song.

Refuse to recuse

The Associated Press has raised the issue of contributions by Cannon & Dunphy to Chief Justice Abrahamson. I think its a nonissue.

Lawyers are going to contribute to judicial campaigns. They ought to. They presumably are specially interested in the administration of justice and in a strong position to evaluate the candidates.

The state supreme court is a collegial law developing court. The justices should be reluctant to recuse themselves because to do so will deprive the voters of the state of one of the people elected to resolve our state's most important legal disputes.

It does not surprise me that lawyers at Cannon & Dunphy would contribute to the Chief Justice. It is not, however, that they hope to influence her to vote in a way that she otherwise would not. It's far more likely that they find her judicial philosophy - which is more favorable to plaintiffs in tort cases - preferable to those of others, including, perhaps, Judge Koschnick.

Part of this is that it serves the firm's economic interest (although I suspect tht these lawyers also believe that such a philosophy reflects a better reading of the law and good policy), to be sure, but that is their motivation and not the Chief Justice's. She is more inclined to interpret the law in a way that shifts losses to parties that she believes are better able to bear them and tends to be more concerned with the adequacy of compensation than its costs.

Of course this doesn't mean that she is going to find for the plaintiff in every case or that those who take a different view are always going to find for the defendant. It just means that there are differences of opinion on these matters and that persons interested in judicial races are smart enough to figure those out and act accordingly.

Should she disclose the contributions? I suppose, although they are matters of public record and, if she did disclose them, she (and every other justice) ought to be very careful about recusal. If she truly believes that she can approach the case impartially (and she does), then she ought to hear it.

Hope and flailing

Sage advice on the stimulus from the always intriguing Jim Manzi. In a related post, he makes the obvious point that there is no appealing to authority on this matter. We've got Nobel laureates who support and Nobel laureates who oppose the stimulus package.

Under these circumstances, the manner in which President Obama has handled this is highly questionable. Outsourcing the content of the bill to people like Nancy Pelosi and Dave Obey while rushing it through without much in the way of disclosure - let alone debate - and virtually nothing in the way of concessions to a party that, notwithstanding its current nadir, has won most of the elections around here for the past 15 years, almost guarantees embarassing post passage disclosure of items that few knew about or wanted, waste, fraud for which he must take all the blame.

Some have speculated that Obama is either very committed to 1930s style Keynesianism or things that the economy is going to approve anyway (perhaps in response to monetary policies now in place). That's the thing about government policy and the economy. It's hard to know what difference it has made. Did the New Deal improve or deepen the Great Depression. Seventy years later, we still argue about it.

MPS: Beyond a bailout

The Wisconsin Taxpayers Alliance report on MPS is, beyond your political persuasion, disturbing. It is quite apparent (and my daughter-in-law and son and sister are beneficiaries) that its current labor contract and compensation policies are unsustainable. Educating inner city children is a challenge but MPS is quite clearly doing less with more and the reason is unaffordable benefits packages. No one who pays competitive wages (and MPS does) can survive with a burden rate of almost 60%. The district's 2.4 billion dollar unfunded liability to retirees is going to bankrupt it. There isn't the tax capacity in the city to fund that without turning it into Detroit and the state isn't going to come to the rescue. For conservatives or liberals, the process will not be pretty.

Barney Frank's bad question

My earliest recollection of Barney Frank is circa 1979. He was, I think, a Massachusetts state legislator at the time and had a cameo role in the Harvard Law School student musical which, as I recall, was entitled "Supraman." I can't recall the context but his one line was something like "don't be talking down to the working man." (The other thing I recall from the show was my Property professor saving Supraman from kryptonite because nothing had penetrated him for 30 years.)

Barney has, however, been talking down to people for 30 years. One of his more ridiculous moments came this week in the bankers' Walk of Shame being conducted in Congress.

"What would you do differently if you didn't get a bonus?"

The rationale behind the question is apparently Frank's belief that "[t]his notion that you need some special incentive to do the right thing troubles me."

I have some problems with the bonus structure in the financial industry. In the company that I came from, bonuses were structured in a way that the company had to do well for the bonus to be paid and it made little sense to game one year because that would increase the bonus target for the next year. At the same time, senior managers were given a deferred compensation plan that was tied to the company's long term success.

But Frank's inability to understand incentives is startling. Management of a complicated enterprise is extraordinarily difficult and not simply a function of doing some well defined "right thing." Businesses understand that giving people a stake in the enterprise's outcome motivates them to reach beyond merely doing the "right thing" and to find ways to do accomplish things that, at first look, seem unlikely.

Of course, it doesn't always work and there is a well known problem of "short termism" (my colleague Nadelle Grossman has some emerging work on this). Wall Street bonuses seem to have been poorly structured to avoid the later problem. But Frank's question, championed by TPM and local blogger Keith Schmitz, reflects ignorance and not insight.

Supraman would have been disappointed.

Graduation in churches?

When I was in first grade, there was a Lutheran church next to the Catholic school we attended. The nuns told us that it was the devil's workshop. I still remember standing across the street and trying to look inside. What was Satan up to in there?

Americans United has objected to the practice of several Wisconsin school districts to hold graduation at a local church. I have three reactions.

The first is that the fact that AU expends resources on an issue like this should reassure us that theocracy is a long way off.

Second, under existing law, AU may well be right. The Supreme Court has held that a bland nondenominational prayer at graduation violates the rights of those who do not wish to hear it. To listen to a state sponsored prayer as a condition of attending graduation constitutes, at least in the view of Justice Kennedy and four other justices in Lee v. Weisman , may be seen by a reasonable dissenter as participation in a religious exercise. It is certainly not inconceivable that entering a church could be seen as some sort of affirmation of its beliefs or, as Justice O'Connor would have put it, a dissenter might see the choice of Elmbrook Church as an endorsement of religion that makes here feel like a disfavored member of the political community. While I believe that Lee was wrongly decided, I think that there are still five votes for it on the Court and, of course, even justices who would not have joined Lee might be reluctant to overturn it.

On the other hand, perhaps Justice Kennedy would see this case differently. Perhaps entry into a church with religious symbols on display is not the same as standing or remaining silent during a prayer that is part of the graduation ceremony itself. That doesn't strike me as a particularly persuasive distinction but then I wasn't persuaded by Justice Kennedy's opinion in Lee so I may not be in the best position to plumb his thinking on the matter.

There is, incidentally, Wisconsin precedent on the matter. In State ex rel. Conway v. Joint School Board No. 6, a 1916 decision, the Wisconsin Supreme Court held that holding graduation ceremonies in a church does not violate Wisconsin's version of the religion clauses, Art. I, sec. 18 (which is worded differently than the federal provisions). Should this issue go to court, the United States Supreme Court's interpretation of the United States Constitution will take precedence.

Third, I think Conway is nevertheless instructive. As I have argued here, the (understandable) desire to protect dissenters from discomfort cannot be implemented neutrally. The Conway court seemed to recognize this when it said that "[t]he fact that certain persons desire to attend graduation exercises with their children, and that they say that being compelled to enter a church of a different denomination from that to which they belong is violative of their assured rights of conscience, does not make it so" - at least not in a way that the law must recognize. In attempting to do so, our current Establishment Clause jurisprudence is overly ambitious. As I argue in a forthcoming paper, because it is overly ambitious, it has become asymmetrical, i.e., it fails to protect religious dissenters from the comparable harm that arises from certain forms of secular speech and this infringes upon religious liberty in ways that ought to concern us. My solution is to both expand and contract the idea of nonestablishment. If the state must be sensitive to the claims of religious dissenters who believe they are coerced or made to feel disfavored by the state's secular messages, we cannot provide the type of exacting protection called for by Justice Kennedy's opinion in Lee.

Cross posted at Marquette University Law School Faculty Blog

To disagree is not to misunderstand

I suspect that most of the controversies that arose during last year's Supreme Court election will arise again, even as the campaign itself draws less attention. Challenger Randy Koschnick wants to talk about State v. Knapp, a case in which the court held that a sweatshirt worn by the defendant and stained with the victim's blood should not have been admitted into evidence because it was the "physical fruit" of an intentional failure to provide the warnings required by the United States Supreme Court's Miranda decision.

It's natural that Judge Koschnick would emphasize the case because it is one that has been emphasized by critics of what seemed to be emerging trends on the court prior to last year's election and because he was the trial judge in the case.

Tom Foley, the blogger known as Illusory Tenant, has tried to argue that the criticism of Knapp is inaccurate. Last spring he attacked my former student and RA Daniel Suhr for making the same criticism and now he suggests that Judge Koschnick himself does not "understand" the law.

Putting aside whether Judge Koschnick formulated the problem correctly in the Wisconsin Lawyer interview that Tom cites, Knapp does raise legitimate questions. As I explained in greater detail here, there are two Knapp decisions. In Knapp I, the Wisconsin Supreme Court relied on the US Constitution in throwing out the sweatshirt. Because it had relied on federal grounds, the state was able to ask the US Supreme Court to review the case. That Court remanded the case with instructions to the state supreme court to reconsider in light of a recent Supreme Court decision that had held that the physical fruits of a Miranda violation need not be excluded.

In that case, Patane, five of the nine justices agreed that the physical evidence need not be excluded but they didn't agree on why.

Three of the five said it was unnecessary to exclude such evidence even if it was obtained as a result of a Miranda violation and two other justices (Kennedy and O'Connor)thought it unnecessary to determine whether Patane's rights were violated or whether there is "'anything to deter' [by excluding the evidence] so long as the unwarned statements are not later introduced at trial." They said that "[a]dmission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused's coerced incriminating statements against himself" and expressed doubt that the exclusion of reliable physical evidence could be justified by the need to deter violations of a defendant's self incrimination rights.

Now, it is possible that the Justices Kennedy and O'Connor might have ruled differently had the Miranda violation been intentional, but it seems doubtful. The Siebert case - that Tom regards as important - dealt with admitting the unwarned statement itself.

Still, that's not what made Knapp interesting. On remand, the state supreme court, which had initially based its decision to exclude on federal grounds, switched to state grounds and by doing that insulated its decision from further review in the Supreme Court.

Now, the state supreme court has every right to do that although it usually doesn't. The point is whether it ought to do it and, even if it should, when they should. In this case, the switch to state grounds seems to have been motivated by a desire to avoid what seemed to be the likely application of Patane to allow the evidence. There are rather powerful arguments that state courts ought not to do this, i.e., that they should depart from federal interpretation of cognate provisions only when there is some reason other than disagreement with the court. Others have a different view.

Now, in public debate, all of this is necessarily simplified (i.e., Judge Koschnick's statement that the court "made up" the law)and with simplification, it is always the case that some pertinent fact will be left out.

But that doesn't mean that the criticism of Knapp - or even the way that criticism is discussed in general discourse - reflects some form of ineptitude or misunderstanding.

Not so stimulating

The stimulus plan will pass with minimal GOP support and that's as it should be. The plan presents a radical departure from what the Republican Party is supposed to stand for and the best it can do now is to provide principled opposition or, as the President of Unity calls it, "distractions and politics as usual."

There is a sense, however, in which the plan is neither fish nor fowl. It is certainly not animated by supply side principles but neither does it seem to be a coherent effort to make the type of social investments that the left believes will lead to economic growth. There is, to be sure, a little bit for everybody but that's the problem. The Dems are managing to blow through a trillion dollars without coming close to solving any of the supposed "crises" that have come from years of GOP neglect.

We are left then with a sort of unadulerated retro classic Keynesian priming of the pump. Spend money. Spend it on anything. All will be well.

There are two problems. The first is that a stimulus justification would require that the spending be temporary. I suspect that the welfare spending in the bill will not be - at least not without substantial GOP gains in 2010.

The second is that this type of pump priming doesn't work. It didn't end the Great Depression. It didn't work during the post war period. It didn't work for Japan in the 90s.

A friend recently suggested that, well, the problem with the New Deal is that it was too small but WWII, when we really kicked out the jams, shows the power of deficit spending. That, he says, finally ended the Great Depression.

Maybe. But if we wanted to make this like WWII, we'd have to not only engage in massive deficit spending (more than what this package calls for) but we would have to prevent people from spending the money for four years so there would be substantial deleveraging and pent up demand and we'd have to blow up a good chunk of the EU. There would be no transfer payments and no spending on social programs.

When pressed to make a case for the plan, Obama invokes panic (we'll have a "catastrophe) and says "I won." But, as Rich Lowry says, "[i]f he had pledged in October to double federal domestic discretionary spending in a matter of weeks—including increasing the budget of the National Endowment for the Arts by a third, spending hundreds of millions more on federal buildings and throwing tens of billions on every traditional liberal priority from job training to Pell Grants—he’d have been hard-pressed to win at all."

The current economic downturn is serious but it is not - at least not yet - the worst since the Great Depression. The notion that because we have to do something we should do anything is where disasters begin.

As for transfer payments, if you believe in the liquidity trap, then transfer payments are the last thing you want because people won't spend the money. You have to spend it for them.

I'd be shocked if there isn't some improvement in the short run, but it's the longer run that concerns me.

Songs for Valentine's week

A number of years I asked my son where the happy songs went. He didn't know or, at the time, much care. I could have asked where the love songs went. Like this:



But sometimes love was spurned.



Or couldn't be resisted.



Struggled.



And won.