I am quoted in a Channel Four story on the questions regarding the number of voters registered at an property owned by Senator Lena Taylor. Of course - as is always and necessarily the case with televison newcasts - what could be included in the broadcast is only part of a longer interview. It is my view that the matter needs to be investigated.
In my opinion, the best reading of the law is that a person, to properly register from that address, must have sheltered there for at least ten days prior to the election or, arguably, to have once established a domicile there and not yet acquired a new one. Given the capacity of the building and the large number of registrants and voters from that address, it is reasonable to question whether this was in fact the case. This is particularly so in light of Senator Taylor's reported statement that her mother allowed the address to be used for voting purposes for people who "come and go" and the large number of voters who were "vouched for" by the elder Taylor.
This is not to say - and I emphasized during the interview and on this blog - that anything untoward occurred. We don't know that yet. It is possible that there is a benign explanation for what appears to be an unusually high number of voters at the address. Nor do I think we should rush to suggest that anyone involved acted with malicious intent. We only know that there are reasons to ask questions. Further detail on how I think the answers to those questions should be evaluated can be found here.
On the other hand, the incident can be seen as an example of why voter registration and practice needed to be tightened.
Wednesday, November 30, 2011
Tuesday, November 29, 2011
Some lessons from PolitiFact on staffing reductions
Two things struck me about PolitiFact's evaluation of claims by Governor Walker and WEAC on the impact of the Walker budget and collective bargaining reforms.
First, is the willingness of WEAC to attribute retirements to collective bargaining reform. Continuing to work would not diminish the retirement benefits of any teacher or other public employee. The only reason that one might decide to retire as a result of reform is a judgment that having one's take home income reduced by approximately 5.8% makes continued work no longer worth it.
I am prepared to believe that may happen in some - albeit perhaps not many - cases. Part of the reason that it may, of course, is the generous retirement compensation and early eligibility that has become so problematic. Still, I am glad to see our friends on the left finally come to recognize the impact of changes in marginal returns on incentives. For just as another 5.8% to the pension might cause some people to prefer retirement, an additional - let's say 5.8% added to the marginal tax rate - might cause some people to prefer leisure to work.
Second, the biggest problem with the WEAC ad is one that the Journal Sentinel misses. The paper argues that it was false to claim that nearly 4000 "educators" lost their jobs as a result of reform because some of these persons held administrative or support positions, some retirements and other staff reductions might have other causes and it could be wrong to assume that district who did not respond the the survey had the same experience as those that did. Fair enough.
But here's a more fundamental problem.
There was a net staffing reduction of approximately 3400 in responding districts. Roughly half that reduction comes from one district - Milwaukee - where the Governor's reforms were not implemented. Although one might say that these reductions were still attributable - at least to some degree - to reductions in state aid, they also seem to have had a lot to do with the districts' inability to use the Governors' tools for dealing with aid reductions. Those layoff are on the MTEA and other unions, not the need to balance the budget.
First, is the willingness of WEAC to attribute retirements to collective bargaining reform. Continuing to work would not diminish the retirement benefits of any teacher or other public employee. The only reason that one might decide to retire as a result of reform is a judgment that having one's take home income reduced by approximately 5.8% makes continued work no longer worth it.
I am prepared to believe that may happen in some - albeit perhaps not many - cases. Part of the reason that it may, of course, is the generous retirement compensation and early eligibility that has become so problematic. Still, I am glad to see our friends on the left finally come to recognize the impact of changes in marginal returns on incentives. For just as another 5.8% to the pension might cause some people to prefer retirement, an additional - let's say 5.8% added to the marginal tax rate - might cause some people to prefer leisure to work.
Second, the biggest problem with the WEAC ad is one that the Journal Sentinel misses. The paper argues that it was false to claim that nearly 4000 "educators" lost their jobs as a result of reform because some of these persons held administrative or support positions, some retirements and other staff reductions might have other causes and it could be wrong to assume that district who did not respond the the survey had the same experience as those that did. Fair enough.
But here's a more fundamental problem.
There was a net staffing reduction of approximately 3400 in responding districts. Roughly half that reduction comes from one district - Milwaukee - where the Governor's reforms were not implemented. Although one might say that these reductions were still attributable - at least to some degree - to reductions in state aid, they also seem to have had a lot to do with the districts' inability to use the Governors' tools for dealing with aid reductions. Those layoff are on the MTEA and other unions, not the need to balance the budget.
Monday, November 28, 2011
Recall challenge may have legs
In yesterday's Journal Sentinel article on the challenge to holding recalls in old Senate districts, Loyola Law Professor Justin Leavitt is quoted as saying that a recent summary affirmance of a district court decision in Mississippi by the Supreme Court "mirrors" what happened in Wisconsin such that the challenge is likely to fail.
Maybe not.
As I argued here and here, courts have not required immediate redistricting after completion of a decennial census. This reflects a pragmatic judgment that state legislatures ought to have some time to complete a difficult task. In that sense, the recent affirmance in Mississippi State Conference of NAACP v. Barbour is not surprising.
But, as I also argued (albeit in posts written before the Mississippi State Conference decision), it is not clear that the same pragmatic concern applies to recalls held after redistricting occurs. That is not what happened in Mississippi and thus it is unclear what impact the case will have here. Because it was a summary affirmance (i.e., the Court issued no opinion and did not explain its rationale), the issue is unresolved.
Maybe not.
As I argued here and here, courts have not required immediate redistricting after completion of a decennial census. This reflects a pragmatic judgment that state legislatures ought to have some time to complete a difficult task. In that sense, the recent affirmance in Mississippi State Conference of NAACP v. Barbour is not surprising.
But, as I also argued (albeit in posts written before the Mississippi State Conference decision), it is not clear that the same pragmatic concern applies to recalls held after redistricting occurs. That is not what happened in Mississippi and thus it is unclear what impact the case will have here. Because it was a summary affirmance (i.e., the Court issued no opinion and did not explain its rationale), the issue is unresolved.
Statute of Limitations (and this blog) balance competing goods
My column in Friday's Journal Sentinel and blogging social worker Chris Liebenthal's response were featured on WisOpinion.
I think Liebenthal's criticisms were anticipated and responded to in the column. He fails to acknowledge that I defended the current - very long - limitations period for such victims precisely because it can take a long time to bring an action.
But a long period within which to bring suit doesn't mean that there should be no cut off point. He does nothing to refute my point that testing the veracity of allegations about things that happened over twenty years ago is difficult (which is one of the reasons limitations periods are usually a fraction of what they are in child sex abuse cases) and doesn't address the inefficiencies inherent in imposing liabilities - often vicarious - on organizations for actions that happened on the watch of those who are long gone. He doesn't acknowledge that "flashbacks" and "recovered memories" can be wrong. On the merits of the question called, her offers little.
But there is this to say.
Mr. Liebenthal (in a parenthetical) totally misses the point of this blog's title.
He writes that the "shark" "is supposed to represent his skills as a lawyer"* and "[t]he shepherd is supposed to involve his alleged Christian values."*
Completely wrong.
As my reference to Private Joker in Full Metal Jacket makes painfully obvious, the shark and shepherd refer to competing tendencies to competition and cooperation, aggression and conciliation, charity and holding others accountable - in the same person. We are all varying degrees of shark and shepherd and both characters have their own strengths and weaknesses.
Liebenthal's lack of subtlety is reflected in his assumption that someone who thinks that permitting actions to be brought 20-30 years after the fact is a reasonable policy is "a lousy Christian and even worse human being." This equation of his preferred resolution of the tradeoff between finality and fairness to the accused on the one hand and permitting potentially meritorious claims on the other to whether someone is a good person reflects his own inability to appreciate the paradoxical nature of life and the fact that so much of our policy differences are about resolving competing goods.
We can agree that it is good to allow people to recover from people who wronged them. But it is also good to prevent people who did no harm from being held liable. Liebenthal's sense of moral self righteousness reflects an inability to recognize the shark and shepherd in his own soul.
But here's a question for Mr. Liebenthal. School districts and other public entities have a variety of legal protections against claims of child sex abuse including a $ 50,000 damages cap and qualified immunity. Does he support repealing them forthwith? Will he publicly urge Sen. Lassa and Rep. Pasch to introduce legislation repealing these obstacles to bring school districts and other public agencies who have sheltered sex offenders (who are no more likely to be found in the church than in the schools) forthwith? If he doesn't, can I say that he's a lousy human being?
*Gracious to the end, Liebenthal takes a shot at both my legal abilities and moral character. On the former, while, of course, deeply wounded by the judgment of an over the top political activist who has repeatedly embarrassed himself with his intemperate blogging and professional misconduct. I'll take solace in my professional reputation, resume and the fact that I have to turn away work. As to the latter, I make no claim of moral superiority (and certainly not over my political opponents) and do not even say that I am a good Catholic or good Christian. I try. I can do better.
.
I think Liebenthal's criticisms were anticipated and responded to in the column. He fails to acknowledge that I defended the current - very long - limitations period for such victims precisely because it can take a long time to bring an action.
But a long period within which to bring suit doesn't mean that there should be no cut off point. He does nothing to refute my point that testing the veracity of allegations about things that happened over twenty years ago is difficult (which is one of the reasons limitations periods are usually a fraction of what they are in child sex abuse cases) and doesn't address the inefficiencies inherent in imposing liabilities - often vicarious - on organizations for actions that happened on the watch of those who are long gone. He doesn't acknowledge that "flashbacks" and "recovered memories" can be wrong. On the merits of the question called, her offers little.
But there is this to say.
Mr. Liebenthal (in a parenthetical) totally misses the point of this blog's title.
He writes that the "shark" "is supposed to represent his skills as a lawyer"* and "[t]he shepherd is supposed to involve his alleged Christian values."*
Completely wrong.
As my reference to Private Joker in Full Metal Jacket makes painfully obvious, the shark and shepherd refer to competing tendencies to competition and cooperation, aggression and conciliation, charity and holding others accountable - in the same person. We are all varying degrees of shark and shepherd and both characters have their own strengths and weaknesses.
Liebenthal's lack of subtlety is reflected in his assumption that someone who thinks that permitting actions to be brought 20-30 years after the fact is a reasonable policy is "a lousy Christian and even worse human being." This equation of his preferred resolution of the tradeoff between finality and fairness to the accused on the one hand and permitting potentially meritorious claims on the other to whether someone is a good person reflects his own inability to appreciate the paradoxical nature of life and the fact that so much of our policy differences are about resolving competing goods.
We can agree that it is good to allow people to recover from people who wronged them. But it is also good to prevent people who did no harm from being held liable. Liebenthal's sense of moral self righteousness reflects an inability to recognize the shark and shepherd in his own soul.
But here's a question for Mr. Liebenthal. School districts and other public entities have a variety of legal protections against claims of child sex abuse including a $ 50,000 damages cap and qualified immunity. Does he support repealing them forthwith? Will he publicly urge Sen. Lassa and Rep. Pasch to introduce legislation repealing these obstacles to bring school districts and other public agencies who have sheltered sex offenders (who are no more likely to be found in the church than in the schools) forthwith? If he doesn't, can I say that he's a lousy human being?
*Gracious to the end, Liebenthal takes a shot at both my legal abilities and moral character. On the former, while, of course, deeply wounded by the judgment of an over the top political activist who has repeatedly embarrassed himself with his intemperate blogging and professional misconduct. I'll take solace in my professional reputation, resume and the fact that I have to turn away work. As to the latter, I make no claim of moral superiority (and certainly not over my political opponents) and do not even say that I am a good Catholic or good Christian. I try. I can do better.
.
Tuesday, November 22, 2011
A framework for evaluating the Taylor story
We have had a series of reports about potential voting irregularities in the past week. Part of the desideratum of those who oppose vigilance on fraud is that it can't happen and has never been proven. That view is wrong but one might point out that jumping all over reports of things that raise the appearance of impropriety and then arguing that impropriety never occurs is a little dicey.
So let's review where we are. The more important story is the report that 36 people are registered to vote from a property owned by Sen. Lena Taylor at which many fewer than 36 people could legally reside.
This does not, in and of itself, establish that anything untoward was going on here. Maybe there was a great deal of turnover at the property. It may well be that no one who voted from that address was not residing (in the legal sense) at that address.
But that's the question, isn't it? I take from media reports that Sen. Taylor's mother vouched (as the law used to permit) that a number of voters resided at the property. In the terms of prior law (since repealed by the photo ID law), she was a corroborator and signed a statement affirming that the registrant was who he or she claimed to be and resided where he or she claimed to reside.
This is where it becomes legitimate to raise questions. A corroborator must know that what she is corroborating is true. Sen. Taylor's own statements - at least as reported by the media - suggest that her mother may have allowed people who were homeless to "use" the address for voting purposes.
Is that legal? Let's look at the law. Residency for voting purposes is defined in Wis. Stat. sec, 6.10. There is no provision that directly address the residency of homeless persons but two that may be thought to apply.
Sec. 6.10(4) provides that:
Of course, a homeless person is not "in a transient vocation" and there are reasons to believe that the issues presented by someone who is - and, for that reason, a person "in motion" - are different than they would be someone who is homeless.
More helpful, perhaps, is sec. 6.10(7) which provides that:
We normally would not regard a homeless person as a "patient" but perhaps we could use this section to argue that a homeless person resides where he or she shelters.
This is the position that the GAB takes. It also permits homeless persons to use "nontraditional" addresses such a a park or street corner that he or she frequents. It is also possible for a homeless person to use his or her last domicile if he or she has not acquired a new one and intends to return to the old one. That approach is consistent with the outcome of litigation in other states.
But this requires some connection with the address. The GAB, for example, permits an address to be used "where a homeless individual may spend time or return to when absent." It says that a homeless person who has "established a residence, ... may continue to claim that residence as a voting address, even if they no longer physically reside at that location, if they have intent to return." (emphasis supplied) This does not mean that one can simply "use" whatever address one wishes to use.
More fundamentally, under prior law, a corroborator was attesting to an individual's residence. That may mean a number of things. It could mean that the registrant stays in a park that he or she now lists as an address. It may mean that the registrant had established the address as his or her domicile and has not acquired a new one. It may mean that the address is a shelter where the registrant stays. But it does not mean that "I am simply permitting a registrant to use my address because he or she says there is no other."
There is no proof that this is what happened at the Taylor building. But the large number of active registrations there does warrant further inquiry - particularly in light of the fact that a number of the persons voting from that location seem to have used other addresses in relatively contemporaneous court documents. It was not wrong for Media Trackers to raise the issue and not unreasonable to expect an elected official to offer an adequate explanation of what went on.
* As our friend Mr. Foley points out, the version of 6.10(4) in effect at the time of last April's election referred to that place that the person considered his or her residence "10 days" (as opposed to 28 days) before an election. I do not mean to suggest otherwise. My concern here is how to determine whether persons resided at the Taylor building and not whether they were resident there for a sufficiently long period of time. The part of the law defining what constitutes the residence of such a person hasn't changed.
While I don't think sec. 6.10(4) is very helpful, I should point out that, in general, the period during which one had to be resident at a place in order to vote from there was 10 days prior to Act 23 (the voter ID bill). This eighteen day difference could be significant here but I have no reason to think that it is, i.e., the question I'm posing is whether these voters resided at the Taylor property and not whether they resided there "long enough."
So let's review where we are. The more important story is the report that 36 people are registered to vote from a property owned by Sen. Lena Taylor at which many fewer than 36 people could legally reside.
This does not, in and of itself, establish that anything untoward was going on here. Maybe there was a great deal of turnover at the property. It may well be that no one who voted from that address was not residing (in the legal sense) at that address.
But that's the question, isn't it? I take from media reports that Sen. Taylor's mother vouched (as the law used to permit) that a number of voters resided at the property. In the terms of prior law (since repealed by the photo ID law), she was a corroborator and signed a statement affirming that the registrant was who he or she claimed to be and resided where he or she claimed to reside.
This is where it becomes legitimate to raise questions. A corroborator must know that what she is corroborating is true. Sen. Taylor's own statements - at least as reported by the media - suggest that her mother may have allowed people who were homeless to "use" the address for voting purposes.
Is that legal? Let's look at the law. Residency for voting purposes is defined in Wis. Stat. sec, 6.10. There is no provision that directly address the residency of homeless persons but two that may be thought to apply.
Sec. 6.10(4) provides that:
The residence of an unmarried person in a transient vocation, a teacher or a student who boards at different places for part of the week, month, or year, if one of the places is the residence of the person's parents, is the place of the parents' residence unless through registration or similar act the person elects to establish a residence elsewhere. If the person has no parents and if the person has not registered elsewhere, the person's residence shall be at the place that the person considered his or her residence in preference to any other for at least 28 consecutive days [formerly ten days] before an election. If this place is within the municipality, the person is entitled to all the privileges and subject to all the duties of other citizens having their residence there, including voting.* (Clarification added.)
Of course, a homeless person is not "in a transient vocation" and there are reasons to believe that the issues presented by someone who is - and, for that reason, a person "in motion" - are different than they would be someone who is homeless.
More helpful, perhaps, is sec. 6.10(7) which provides that:
A guest at a national or a state soldiers' home in this state, a guest at a home for the aged supported by benevolence, or a patient of any county home or other charitable institution, resides in the municipality where the home is located and within the ward where the guest or patient sleeps, unless before becoming a guest or patient at the home the guest or patient elects to maintain his or her prior residence as his or her voting residence.
We normally would not regard a homeless person as a "patient" but perhaps we could use this section to argue that a homeless person resides where he or she shelters.
This is the position that the GAB takes. It also permits homeless persons to use "nontraditional" addresses such a a park or street corner that he or she frequents. It is also possible for a homeless person to use his or her last domicile if he or she has not acquired a new one and intends to return to the old one. That approach is consistent with the outcome of litigation in other states.
But this requires some connection with the address. The GAB, for example, permits an address to be used "where a homeless individual may spend time or return to when absent." It says that a homeless person who has "established a residence, ... may continue to claim that residence as a voting address, even if they no longer physically reside at that location, if they have intent to return." (emphasis supplied) This does not mean that one can simply "use" whatever address one wishes to use.
More fundamentally, under prior law, a corroborator was attesting to an individual's residence. That may mean a number of things. It could mean that the registrant stays in a park that he or she now lists as an address. It may mean that the registrant had established the address as his or her domicile and has not acquired a new one. It may mean that the address is a shelter where the registrant stays. But it does not mean that "I am simply permitting a registrant to use my address because he or she says there is no other."
There is no proof that this is what happened at the Taylor building. But the large number of active registrations there does warrant further inquiry - particularly in light of the fact that a number of the persons voting from that location seem to have used other addresses in relatively contemporaneous court documents. It was not wrong for Media Trackers to raise the issue and not unreasonable to expect an elected official to offer an adequate explanation of what went on.
* As our friend Mr. Foley points out, the version of 6.10(4) in effect at the time of last April's election referred to that place that the person considered his or her residence "10 days" (as opposed to 28 days) before an election. I do not mean to suggest otherwise. My concern here is how to determine whether persons resided at the Taylor building and not whether they were resident there for a sufficiently long period of time. The part of the law defining what constitutes the residence of such a person hasn't changed.
While I don't think sec. 6.10(4) is very helpful, I should point out that, in general, the period during which one had to be resident at a place in order to vote from there was 10 days prior to Act 23 (the voter ID bill). This eighteen day difference could be significant here but I have no reason to think that it is, i.e., the question I'm posing is whether these voters resided at the Taylor property and not whether they resided there "long enough."
Monday, November 21, 2011
Doctors behaving badly
Tom Foley seems to think that I was playing "fast and loose" with legal terms of art when I suggested - last February - that doctors who passed out sick notes to protesters on the Capitol Square who were not sick were engaged in fraud. He is so sure that he repeats it again and again and again.
In fact, he even suggests that I accused doctors of fraud "even though" there was "no finding of fraud" in a stipulation approved by the Medical Examining Board last week. This suggests that I misrepresented the action of the board. In fact, the post he refers to was written in February and was based on video evidence and press reports (including interviews with the doctors who were writing the notes). I stand by what I wrote (and I'll explain why in a moment) but any suggestion that I misrepresented or ignored a "finding" by the Medical Examining Board is wrong.
Let's review the bidding.
The Medical Examining Board accepted a stipulation (in other words, a settlement) disciplining certain physicians for failure to keep adequate records for those that they gave notes to on the square.
The board did not find, as Foley implies, that the allegations that fake sick notes were written were "baseless." The Chair of the board was quoted as saying that there may be "other issues" but that it was not possible to tell what level of evaluation of the patients was done by the physicians before it. She expressed the view that disciplining the doctors before the board for failure to keep records would be enough to ensure that this would not happen again.
In any event, there was no finding one way or another on fake sick notes because the parties decided not to litigate that. Even if they had, people might well draw different conclusions from whatever facts were presented. So let's proceed to what we know.
I express no opinion on the culpability of any particular doctor. I don't know which doctors wrote fake notes or whether any of the doctors before the board last week did so. Nor do I dismiss the possibility - as unlikely as it might be - that some of the notes written for strangers on the Capitol Square were legitimate, i.e., were written for people who did suffer from a medical condition of sufficient severity that they should not work. There is, moreover, a difference between concluding that some members of a group engaged in certain conduct and which members of the group did it in which cases.
But I have no problem with saying that doctors writing notes stating that persons who were well enough to protest at the Capitol were too ill to come to work were engaged in conduct that fits the legal definition of fraud. I have no problem saying that doctors who wrote notes based on no more than some one's representation that they had called in sick were engaged in conduct that meets the legal definition of fraud.
We usually use the word "fraud" in connection with intentional misrepresentation. (There are circumstances under which one can be liable for negligent or strict liability misrepresentation, but it would be less common to refer to that as "fraud.")
Establishing a claim for intentional misrepresentation requires one to establish that (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment.
Writing a note misrepresenting that people who are both psychologically and physically well enough to stand out in the February cold marching, holding signs and chanting are "sick" and unable to work is a misrepresentation of fact. It seems reasonable to infer (and, in fact, videos taken at the time include admissions) that these notes were intended to be used by the recipient of the note to induce an employer to excuse that person's absence thereby depriving that employer of its contractual right to withhold pay or otherwise enforce contractual rights (by, for example, firing or taking other action with respect to someone who has refused to come to work).
There is video evidence that strongly suggests those things happening. (And it now appears that some of those notes are going to be released.)
There are persons who claim they were given notes without being examined. There is video of at least one doctor basing the length of an "excuse" on how long the patient says she was "sick" and how long "they" were planning "to go" - an apparent reference to her plans to stay out of work "through next Tuesday." There is someone in a lab coat - presumably a doctor - announcing that sick notes are being given to "anyone who needs them" because everyone is "sick of Scott Walker."
There is an example of a "patient" (actually Andrew Breitbart) getting a sick note. When asked whether he would get in trouble if he was "perfectly OK," he is told that he has "Walker pneumonia." (He is given the note without any corroboration of his condition other than his statement that he called in "sick" without even describing what his "illness" may have been.)
There are doctors saying that they are writing excuses for people who "need to be out here"for their mental health or for 'stress." There is another doctor who haltingly says that it is a "socially" OK thing to do because his parents were teachers. Beyond him, we see a line of doctors writing excuses for people who must have come to the Capitol because, hey where else can you get somebody to look at a scratchy throat?
There are persons who say that they, like Breitbart, were given notes without any inquiry as to their condition let alone the type of evaluation you would expect from a physician.
I am hardly the only one who was shocked and dismayed what happened at the Capitol and, in addition to the actions of the Medical Examining Board, some phyicsians have been internally disciplined by the UW.
Now I understand that some of the doctors who wrote the notes seem to think that being upset by the collective bargaining bill is a medical condition that is presumably ameliorated or in some way requires protesting. That doesn't bear scrutiny. While debilitating depression might be a basis for excusing someone from work, that doesn't appear to be the case here. The patients were obviously not "debilitated." That they would prefer - however strongly - protest over work is not the type of medical condition that most all of us - including most doctors - would regard as an illness.
Employers who excuse workers who have doctors' excuses expect that the doctors who write them will adhere to commonly understood meanings of illness and inability to work. They expect those physicians to make medical and not moral or political judgments. They expect physicians to do something other than simply write a note for persons who say they are sick.
And doctors know this. If you don't believe me, ask yourself whether any of these doctors would have written a note stating that Mr. Smith was so upset about a piece of legislation that he could not work and had to protest at the Capitol. And if they had written it, what do you suppose would have happened when Mr. Smith tried to use it.
Having said all of this, I don't think that the doctors should have lost their licenses or been charged with a crime or sued by the employers of those for whom they wrote fake notes. All of that seems disproportionate to me.
But neither do I think we should mince words about what was going on.
In fact, he even suggests that I accused doctors of fraud "even though" there was "no finding of fraud" in a stipulation approved by the Medical Examining Board last week. This suggests that I misrepresented the action of the board. In fact, the post he refers to was written in February and was based on video evidence and press reports (including interviews with the doctors who were writing the notes). I stand by what I wrote (and I'll explain why in a moment) but any suggestion that I misrepresented or ignored a "finding" by the Medical Examining Board is wrong.
Let's review the bidding.
The Medical Examining Board accepted a stipulation (in other words, a settlement) disciplining certain physicians for failure to keep adequate records for those that they gave notes to on the square.
The board did not find, as Foley implies, that the allegations that fake sick notes were written were "baseless." The Chair of the board was quoted as saying that there may be "other issues" but that it was not possible to tell what level of evaluation of the patients was done by the physicians before it. She expressed the view that disciplining the doctors before the board for failure to keep records would be enough to ensure that this would not happen again.
In any event, there was no finding one way or another on fake sick notes because the parties decided not to litigate that. Even if they had, people might well draw different conclusions from whatever facts were presented. So let's proceed to what we know.
I express no opinion on the culpability of any particular doctor. I don't know which doctors wrote fake notes or whether any of the doctors before the board last week did so. Nor do I dismiss the possibility - as unlikely as it might be - that some of the notes written for strangers on the Capitol Square were legitimate, i.e., were written for people who did suffer from a medical condition of sufficient severity that they should not work. There is, moreover, a difference between concluding that some members of a group engaged in certain conduct and which members of the group did it in which cases.
But I have no problem with saying that doctors writing notes stating that persons who were well enough to protest at the Capitol were too ill to come to work were engaged in conduct that fits the legal definition of fraud. I have no problem saying that doctors who wrote notes based on no more than some one's representation that they had called in sick were engaged in conduct that meets the legal definition of fraud.
We usually use the word "fraud" in connection with intentional misrepresentation. (There are circumstances under which one can be liable for negligent or strict liability misrepresentation, but it would be less common to refer to that as "fraud.")
Establishing a claim for intentional misrepresentation requires one to establish that (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment.
Writing a note misrepresenting that people who are both psychologically and physically well enough to stand out in the February cold marching, holding signs and chanting are "sick" and unable to work is a misrepresentation of fact. It seems reasonable to infer (and, in fact, videos taken at the time include admissions) that these notes were intended to be used by the recipient of the note to induce an employer to excuse that person's absence thereby depriving that employer of its contractual right to withhold pay or otherwise enforce contractual rights (by, for example, firing or taking other action with respect to someone who has refused to come to work).
There is video evidence that strongly suggests those things happening. (And it now appears that some of those notes are going to be released.)
There are persons who claim they were given notes without being examined. There is video of at least one doctor basing the length of an "excuse" on how long the patient says she was "sick" and how long "they" were planning "to go" - an apparent reference to her plans to stay out of work "through next Tuesday." There is someone in a lab coat - presumably a doctor - announcing that sick notes are being given to "anyone who needs them" because everyone is "sick of Scott Walker."
There is an example of a "patient" (actually Andrew Breitbart) getting a sick note. When asked whether he would get in trouble if he was "perfectly OK," he is told that he has "Walker pneumonia." (He is given the note without any corroboration of his condition other than his statement that he called in "sick" without even describing what his "illness" may have been.)
There are doctors saying that they are writing excuses for people who "need to be out here"for their mental health or for 'stress." There is another doctor who haltingly says that it is a "socially" OK thing to do because his parents were teachers. Beyond him, we see a line of doctors writing excuses for people who must have come to the Capitol because, hey where else can you get somebody to look at a scratchy throat?
There are persons who say that they, like Breitbart, were given notes without any inquiry as to their condition let alone the type of evaluation you would expect from a physician.
I am hardly the only one who was shocked and dismayed what happened at the Capitol and, in addition to the actions of the Medical Examining Board, some phyicsians have been internally disciplined by the UW.
Now I understand that some of the doctors who wrote the notes seem to think that being upset by the collective bargaining bill is a medical condition that is presumably ameliorated or in some way requires protesting. That doesn't bear scrutiny. While debilitating depression might be a basis for excusing someone from work, that doesn't appear to be the case here. The patients were obviously not "debilitated." That they would prefer - however strongly - protest over work is not the type of medical condition that most all of us - including most doctors - would regard as an illness.
Employers who excuse workers who have doctors' excuses expect that the doctors who write them will adhere to commonly understood meanings of illness and inability to work. They expect those physicians to make medical and not moral or political judgments. They expect physicians to do something other than simply write a note for persons who say they are sick.
And doctors know this. If you don't believe me, ask yourself whether any of these doctors would have written a note stating that Mr. Smith was so upset about a piece of legislation that he could not work and had to protest at the Capitol. And if they had written it, what do you suppose would have happened when Mr. Smith tried to use it.
Having said all of this, I don't think that the doctors should have lost their licenses or been charged with a crime or sued by the employers of those for whom they wrote fake notes. All of that seems disproportionate to me.
But neither do I think we should mince words about what was going on.
Ignoring the obvious for almost 50 years
One of the worst political writers in America is Frank Rich. He personifies the worst of the self righteous establishment liberal. Coming upon the 48th anniversary of the assassination of John Kennedy, he writes in New York magazine of the "hate" that "killed" Kennedy, arguing that the resentment directed toward Kennedy by (presumably) conservatives is "eerily familiar" to that directed at Obama today. That hate, he implies, comes from the right.
Kennedy was killed by a self avowed communist.
The knots that the left has tied itself into in order to avoid acknowledging this has always been fascinating. For most of the intervening years, it has tended to blame some unspecified "sickness" in American society. Rich wants to blame the right for the murderous act of a man of the left. Nowhere in the entire article does he tell us who Oswalkd was and what he believed.
Kennedy was killed by a self avowed communist.
The knots that the left has tied itself into in order to avoid acknowledging this has always been fascinating. For most of the intervening years, it has tended to blame some unspecified "sickness" in American society. Rich wants to blame the right for the murderous act of a man of the left. Nowhere in the entire article does he tell us who Oswalkd was and what he believed.
Sunday, November 20, 2011
DPI survey still looks partisan
Last week, I posted a quick and dirty reading of the DPI/WASD survey on the impact of the biennial budget on school districts. I thought that the survey needs a more thorough vetting but that it seemed to be a polemical document and did not support the claims of disaster that some are making in response to it.
Jay Bullock tries to defend the survey but I am afraid that he totally misses the mark. I have no reason to doubt that a number of districts had some kind of staff reduction. Most did not but it appears that somewhere in the neighborhood of 42% of the surveyed districts did.
But the doesn't tell us much. How deep were the reductions? How do they relate to changes in enrollment? What impact, if any, do they have on the delivery of services. Jay thinks that any reduction in staffing is a catastrophe, writing "[s]o, yes, a lot of districts were able to stave off disaster in this area but, you know, a full third didn't. " (emphasis in original)
Let's take a closer look at these "disasters." As I wrote in my original post, the mean "student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012. " Is that a disaster? Looking at median reductions, doesn't change the picture. For example, in the survey's comparison of districts that were "in" and "out" of contract, we see that the median loss for both groups were 1.2 and 1.0 FTE or, as human beings usually say "person." Is that a disaster?
I criticized DPI for excluding Milwaukee from its analysis of "in" and "out" of contracts districts. The defense for doing so was that Milwaukee is an "outlier" and doesn't affect the median teacher loss or "dramatically" impact the weighted average mean loss.
Well, of course (as I wrote), it wouldn't affect the median loss. You report medians to counteract the impact of outlying results. I would, however, like to see how it affects the mean average loss particularly since the mean average losses are so small.
The failure to show the impact is particularily curious since DPI begins its report by giving the aggregate losses across reponding districts which include reductions in Milwaukee. As the Journal Sentinel reports, almost half or the total staff reductions and 38% of teacher reductions were in Milwaukee. Thus, DPI uses the "outlying" district if it serves their anti-reform agenda and doesn't when it might not.
Beyond that, DPI tries to argue that the "reforms" did not help districts because those districts who were "in contract" were not all that different from those that were "out of" contract. But the survey seems to have counted as "in contract" districts who extended their contract by incorporating the compensation adjustments mandated by the reform bill. It is unlikely that those concessions would have been made in the absence of Act 10. A more meaningful concession would be between those districts who adopted the concessions and those (like Milwaukee) who did not. Jay himself concedes - albeit in a backhanded way - that this would have saved a lot of jobs in Milwaukee.
One of my specialites as a litigator is the cross examination of social science experts and results. A cursory examination suggests that a more complete vetting is in order.
Jay Bullock tries to defend the survey but I am afraid that he totally misses the mark. I have no reason to doubt that a number of districts had some kind of staff reduction. Most did not but it appears that somewhere in the neighborhood of 42% of the surveyed districts did.
But the doesn't tell us much. How deep were the reductions? How do they relate to changes in enrollment? What impact, if any, do they have on the delivery of services. Jay thinks that any reduction in staffing is a catastrophe, writing "[s]o, yes, a lot of districts were able to stave off disaster in this area but, you know, a full third didn't. " (emphasis in original)
Let's take a closer look at these "disasters." As I wrote in my original post, the mean "student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012. " Is that a disaster? Looking at median reductions, doesn't change the picture. For example, in the survey's comparison of districts that were "in" and "out" of contract, we see that the median loss for both groups were 1.2 and 1.0 FTE or, as human beings usually say "person." Is that a disaster?
I criticized DPI for excluding Milwaukee from its analysis of "in" and "out" of contracts districts. The defense for doing so was that Milwaukee is an "outlier" and doesn't affect the median teacher loss or "dramatically" impact the weighted average mean loss.
Well, of course (as I wrote), it wouldn't affect the median loss. You report medians to counteract the impact of outlying results. I would, however, like to see how it affects the mean average loss particularly since the mean average losses are so small.
The failure to show the impact is particularily curious since DPI begins its report by giving the aggregate losses across reponding districts which include reductions in Milwaukee. As the Journal Sentinel reports, almost half or the total staff reductions and 38% of teacher reductions were in Milwaukee. Thus, DPI uses the "outlying" district if it serves their anti-reform agenda and doesn't when it might not.
Beyond that, DPI tries to argue that the "reforms" did not help districts because those districts who were "in contract" were not all that different from those that were "out of" contract. But the survey seems to have counted as "in contract" districts who extended their contract by incorporating the compensation adjustments mandated by the reform bill. It is unlikely that those concessions would have been made in the absence of Act 10. A more meaningful concession would be between those districts who adopted the concessions and those (like Milwaukee) who did not. Jay himself concedes - albeit in a backhanded way - that this would have saved a lot of jobs in Milwaukee.
One of my specialites as a litigator is the cross examination of social science experts and results. A cursory examination suggests that a more complete vetting is in order.
Tuesday, November 15, 2011
Recall is garden variety politics
In response to my post yesterday on Governor Walker, Lester Pines complains that the Governor's motivation was political based on the desire to destroy an institution that opposes the Republican Party and, although he doesn't say it, supports the Democrats. For Lester, collective bargaining reform "was motivated by a desire to eliminate the main opponents of the political and social agenda of the Republican Party, not to ensure that state and municipal budgets were balanced."
Two things. First, reforming collective bargaining is intrinsically tied with balancing state and municipal budgets. The contracts that labor unions negotiate cost money. They add cost not only by increasing wages and fringe benefits, but by imposing a panoply of work rules and limitations on the management of the public workforce that increase costs. If you make it harder to fire poor performers, change job duties and manage in a way designed to deliver the most service at the lowest cost, you make it more difficult to balance the budget.
Second, the political motivations for supporting or opposing collective bargaining as we have known it in Wisconsin cut both ways and, in my view, the fire side equities cut in the Governor's favor. To be sure, the Walker reforms will reduce the amount of money that unions have to contribute to the Democrats and spend in ways that promote the Democratic and left liberal agenda.
But why is that so?
It is so because the unions will now have to convince their members to support their political activities. In the past, unions could compel even those who did not wish to belong to unions to financially support their activities. While employees could ask that their fair share payments not include funds used for political activity, this is an enormously ineffective remedy. First, the amounts excluded as "political" are generally oonly a fraction of the amount that might be characterized as such. Second, money is fungible so even money used to support supposedly nonpolitical activities supports an infrastructure upon which political activities can be based. Third, it is enormously beneficial to the unions to require employees to "opt out." This makes it much easier to collect money than it would be if the unions - like every other organization that spends money on politics - had to convince members to choose to send them money and arrange to collect it themselves.
Eliminating these advantages will benefit Republicans and help Democrats just as retaining them would benefit Democrats and hurt Republicans. But there is no intrinsic right for unions to have them and, in fact, I would argue that retaining them is a serious imposition on the prerogatives of dissenting employees and confers an artificial advantage on Democrats.
Jim Rowen complains that Walker did not campaign on collective bargaining reform but it is unclear how that supports a recall. As George Mitchell asks, would Jim have thought it appropriate to recall Governor Doyle for not campaigning on a tax increase? Do we want a principle that says that public officials cannot implement any policy that they did not mention during their campaign?
I understand that Lester and Jim don't support the Governor and wish he was gone. Some of us had similar feelings about Governor Doyle (whose record of rewarding campaign supporters was every bit the equal - I would say much more blatant - than Walker's). Somehow we avoided an eternal campaign. But if recalls are going to become just another arrow in the political quiver, the Democrats may be sorry that they started this. Once a restraint on political combat is cast aside, it is almost impossible to go back.
Two things. First, reforming collective bargaining is intrinsically tied with balancing state and municipal budgets. The contracts that labor unions negotiate cost money. They add cost not only by increasing wages and fringe benefits, but by imposing a panoply of work rules and limitations on the management of the public workforce that increase costs. If you make it harder to fire poor performers, change job duties and manage in a way designed to deliver the most service at the lowest cost, you make it more difficult to balance the budget.
Second, the political motivations for supporting or opposing collective bargaining as we have known it in Wisconsin cut both ways and, in my view, the fire side equities cut in the Governor's favor. To be sure, the Walker reforms will reduce the amount of money that unions have to contribute to the Democrats and spend in ways that promote the Democratic and left liberal agenda.
But why is that so?
It is so because the unions will now have to convince their members to support their political activities. In the past, unions could compel even those who did not wish to belong to unions to financially support their activities. While employees could ask that their fair share payments not include funds used for political activity, this is an enormously ineffective remedy. First, the amounts excluded as "political" are generally oonly a fraction of the amount that might be characterized as such. Second, money is fungible so even money used to support supposedly nonpolitical activities supports an infrastructure upon which political activities can be based. Third, it is enormously beneficial to the unions to require employees to "opt out." This makes it much easier to collect money than it would be if the unions - like every other organization that spends money on politics - had to convince members to choose to send them money and arrange to collect it themselves.
Eliminating these advantages will benefit Republicans and help Democrats just as retaining them would benefit Democrats and hurt Republicans. But there is no intrinsic right for unions to have them and, in fact, I would argue that retaining them is a serious imposition on the prerogatives of dissenting employees and confers an artificial advantage on Democrats.
Jim Rowen complains that Walker did not campaign on collective bargaining reform but it is unclear how that supports a recall. As George Mitchell asks, would Jim have thought it appropriate to recall Governor Doyle for not campaigning on a tax increase? Do we want a principle that says that public officials cannot implement any policy that they did not mention during their campaign?
I understand that Lester and Jim don't support the Governor and wish he was gone. Some of us had similar feelings about Governor Doyle (whose record of rewarding campaign supporters was every bit the equal - I would say much more blatant - than Walker's). Somehow we avoided an eternal campaign. But if recalls are going to become just another arrow in the political quiver, the Democrats may be sorry that they started this. Once a restraint on political combat is cast aside, it is almost impossible to go back.
Was the DPI survey a half baked hatchet job?
I can't be sure but it may well have been.
One of the things that you learn as a lawyer is that a patina of reasonableness and respectability does not always withstand scrutiny. The DPI's Budget Survey Analysis reads like a document that might - at the least - list badly after closer examination. The survey reads like a piece of advocacy and presents as an established fact (lower clase sizes increase student performance) something that is, in fact, controverted and more complicated than the survey allows (reducing class size precludes other uses of resources).
Of course, I come to the question with a perspective. The risk of that is confirmation bias. The advantage is to insist that questions be asked and this survey seems to need a lot of work.
One issue is the need for a baseline. I would not argue - and I don't think the Governor has argued - that the greater flexibility achieved by collective bargaining reform obviates the need for all service reductions. The state's fiscal problems were too severe for that. The real question to ask is how much worse they might have been and whether, under the circumstances, they are tolerable. To that end, the Governor's comparison of these reductions with those that took place in earlier years is instructive.
DPI recognizes this and attempts to compare job reductions in 2009 and 2010-11 with those reflected in the survey. Larger losses in 2012 are shown. But, curiously, this part of the report comes right after a section that claims that some of the districts used remaining stimulus dollars to avoid cuts in 2012. Fair enough, but why not address the extend to which stimulus dollars avoided staff reductions in the prior years, pushing them into 2012?
But, more importantly, how severe were these staff reductions?Most of the survey is unconcerned with that, focusing on the breadth of reductions, i.e.. what percentage of districts reduced teaching staff. The answer seems to be less than half - about 42% and only 22% of those who experience increased enrollment. But is that the most important question? Don't we want to know the magnitude of staff reductions?
The bottom line: The student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012.
No. That is not a typo. It comes p. 15 of the DPI's analysis. The Governor of the state of Wisconsin largely closed a longstanding structural deficit without raising taxes and the student/teacher ration went up by a quarter of a body, i.e., by less than 2%.
Recall him now!
Another issue is the need to distinguish between those districts that utilized the reforms and those that did not. The DPI says that is has done that but there is reason to be skeptical. As the Journal Sentinel points out, a huge percentage of reduction in force came in Milwaukee. The DPI uses this to maximize the extent of the cuts when it chooses to present statistics on the number of students who attend a district in which something has happened.
But, when it attempts to show that it "didn't matter" whether or not a district extended its contract to avoid the reforms with respect to the loss of teacher positions, it excludes Milwaukee noting that Milwaukee was an "outlier" - in other word it did matter in Milwaukee. That looks bad. While DPI says that texcluding Milwaukee does not change the median job loss (of course it wouldn't) or dramatically change the mean (but it would be nice to see the number), this reflects the approach of an advocate and not an evaluator.
In addition, the argument that it doesn't matter whether one can reduce certain costs and more efficiently manage resources is counterintuitive.This is an area which would seem to be in need of more robust analysis. How exactly did DPI choose between "in contract" and "out of contract" districts? Is a simple measure of force reduction an adequate way of evaluating whether collective bargaining reform helped districts to cope with reductions in state aid?
Releasing what seems to be a half baked survey to coincide with the commencement of the petition to recall the Governor seems overtly politicial. There is nothing wrong with that, I suppose. The DPI has always been a highly politicized agency and Tony Evers seems to be doubling down on that after some easing in recent years.
But a great deal more work needs to be done.
One of the things that you learn as a lawyer is that a patina of reasonableness and respectability does not always withstand scrutiny. The DPI's Budget Survey Analysis reads like a document that might - at the least - list badly after closer examination. The survey reads like a piece of advocacy and presents as an established fact (lower clase sizes increase student performance) something that is, in fact, controverted and more complicated than the survey allows (reducing class size precludes other uses of resources).
Of course, I come to the question with a perspective. The risk of that is confirmation bias. The advantage is to insist that questions be asked and this survey seems to need a lot of work.
One issue is the need for a baseline. I would not argue - and I don't think the Governor has argued - that the greater flexibility achieved by collective bargaining reform obviates the need for all service reductions. The state's fiscal problems were too severe for that. The real question to ask is how much worse they might have been and whether, under the circumstances, they are tolerable. To that end, the Governor's comparison of these reductions with those that took place in earlier years is instructive.
DPI recognizes this and attempts to compare job reductions in 2009 and 2010-11 with those reflected in the survey. Larger losses in 2012 are shown. But, curiously, this part of the report comes right after a section that claims that some of the districts used remaining stimulus dollars to avoid cuts in 2012. Fair enough, but why not address the extend to which stimulus dollars avoided staff reductions in the prior years, pushing them into 2012?
But, more importantly, how severe were these staff reductions?Most of the survey is unconcerned with that, focusing on the breadth of reductions, i.e.. what percentage of districts reduced teaching staff. The answer seems to be less than half - about 42% and only 22% of those who experience increased enrollment. But is that the most important question? Don't we want to know the magnitude of staff reductions?
The bottom line: The student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012.
No. That is not a typo. It comes p. 15 of the DPI's analysis. The Governor of the state of Wisconsin largely closed a longstanding structural deficit without raising taxes and the student/teacher ration went up by a quarter of a body, i.e., by less than 2%.
Recall him now!
Another issue is the need to distinguish between those districts that utilized the reforms and those that did not. The DPI says that is has done that but there is reason to be skeptical. As the Journal Sentinel points out, a huge percentage of reduction in force came in Milwaukee. The DPI uses this to maximize the extent of the cuts when it chooses to present statistics on the number of students who attend a district in which something has happened.
But, when it attempts to show that it "didn't matter" whether or not a district extended its contract to avoid the reforms with respect to the loss of teacher positions, it excludes Milwaukee noting that Milwaukee was an "outlier" - in other word it did matter in Milwaukee. That looks bad. While DPI says that texcluding Milwaukee does not change the median job loss (of course it wouldn't) or dramatically change the mean (but it would be nice to see the number), this reflects the approach of an advocate and not an evaluator.
In addition, the argument that it doesn't matter whether one can reduce certain costs and more efficiently manage resources is counterintuitive.This is an area which would seem to be in need of more robust analysis. How exactly did DPI choose between "in contract" and "out of contract" districts? Is a simple measure of force reduction an adequate way of evaluating whether collective bargaining reform helped districts to cope with reductions in state aid?
Releasing what seems to be a half baked survey to coincide with the commencement of the petition to recall the Governor seems overtly politicial. There is nothing wrong with that, I suppose. The DPI has always been a highly politicized agency and Tony Evers seems to be doubling down on that after some easing in recent years.
But a great deal more work needs to be done.
Avoiding Hard Questions on Walker
I spent most of last week in DC. In reviewing the responses to my column opposing the recall of Governor Walker, those opposing my position fell into three camps. First - and, unforunately, largest - were those characterized by unadorned name calling. I am, it turns, out full of s***, un-American, a**-licking, etc. Not a few commentators wanted to say that I am un-Christian and mired in sin for failing to accept the Gospel of the Democratic Party.
But there, thank God, people willing to make an argument and their responses were largely focused on the unfairness of a paycut for public employees (who they claim make less than those in "comparable" positions) and Governor Walker's failure to detail his budget reform proposal during the campaign.
What opponents did not do is challenge the notion that the state had a serious fiscal problem and that the reforms allow services to be provided for less money. No one can question that this at least reduces the needs for service cuts and sometimes eliminates it all together.
And no one did. They either argued as if fiscal questions can be addressed by deciding whether or not a bit of spending or cut is "good" in some absolute sense without regard or whether or how it can be paid for. State employees are paid, on average, far more than the average worker. Studies that purport to show that this is, nevertheless, less than the pay for "comparable" jobs are, I think largely worthless because there often are no "comparable" public sector jobs. Pay is determined by market forces - not by some aggregation of educational background, experience and hours worked - and the former is not readily controlled for in a study.
So a general tax increase to pay higher salaries to public workers is not easy to justify. Some commenters wanted to focus on taxing "the rich" and this will become the Holy Grail of American politics in 2012. The idea will be to avoid hard choices by imposing the cost on someone who is not us and seems to have more than what he or she "needs" already.
This is a temptation in American politics as old as the Constitution itself - famously warned against by Madison in Federalist No. 10. While I depart from some of my conservative colleagues in the belief that, say, repealing the Bush tax cuts for the truly wealthy or even minimizing the spread between the taxation of ordinary income and capital gains might not be disastrous, paying for things by "soaking the rich" is difficult and does not have a great historical pedigree. Wealthy people have the ability to engage in substanital tax avoidance behavior and there is a point at which tax rates become serious disincentives and impediments to capital formation. The problem is even worse at the state level because rich people don't, for the most part, have to live in Wisconsin.
Warren Buffett may have abased our public discourse as much as he informed it. Millions of Americans now believe that rich people pay a lower effective rate than the rest of us (on average and in the vast majority, they do not) and pay something less than their share of national income. (In fact, they pay much more.)
One can certainly wonder about the ballooning incomes of economic "superstars." But it is a mistake to think that fiscal challenges can be paid for by someone else.
But there, thank God, people willing to make an argument and their responses were largely focused on the unfairness of a paycut for public employees (who they claim make less than those in "comparable" positions) and Governor Walker's failure to detail his budget reform proposal during the campaign.
What opponents did not do is challenge the notion that the state had a serious fiscal problem and that the reforms allow services to be provided for less money. No one can question that this at least reduces the needs for service cuts and sometimes eliminates it all together.
And no one did. They either argued as if fiscal questions can be addressed by deciding whether or not a bit of spending or cut is "good" in some absolute sense without regard or whether or how it can be paid for. State employees are paid, on average, far more than the average worker. Studies that purport to show that this is, nevertheless, less than the pay for "comparable" jobs are, I think largely worthless because there often are no "comparable" public sector jobs. Pay is determined by market forces - not by some aggregation of educational background, experience and hours worked - and the former is not readily controlled for in a study.
So a general tax increase to pay higher salaries to public workers is not easy to justify. Some commenters wanted to focus on taxing "the rich" and this will become the Holy Grail of American politics in 2012. The idea will be to avoid hard choices by imposing the cost on someone who is not us and seems to have more than what he or she "needs" already.
This is a temptation in American politics as old as the Constitution itself - famously warned against by Madison in Federalist No. 10. While I depart from some of my conservative colleagues in the belief that, say, repealing the Bush tax cuts for the truly wealthy or even minimizing the spread between the taxation of ordinary income and capital gains might not be disastrous, paying for things by "soaking the rich" is difficult and does not have a great historical pedigree. Wealthy people have the ability to engage in substanital tax avoidance behavior and there is a point at which tax rates become serious disincentives and impediments to capital formation. The problem is even worse at the state level because rich people don't, for the most part, have to live in Wisconsin.
Warren Buffett may have abased our public discourse as much as he informed it. Millions of Americans now believe that rich people pay a lower effective rate than the rest of us (on average and in the vast majority, they do not) and pay something less than their share of national income. (In fact, they pay much more.)
One can certainly wonder about the ballooning incomes of economic "superstars." But it is a mistake to think that fiscal challenges can be paid for by someone else.
Tuesday, November 08, 2011
Educational reform comes in many forms
My column in the Milwaukee Journal Sentinel on the Walker recall is here. Along the same lines, I recommend a piece in National Review by Reihan Salam and Tino Sandandaji. ( I would warn those liberal readers tempted to dismiss NR as a place where people preach to the choir to be careful and actually read the magazine.)
Salam and Sandandaji start with an interesting observation. Supporters of teachers' unions and the traditional views of the educational establishment ("money solves all probelems"), such as Paul Krugman, were quick to point out that students in unionized Wisconsin do better on standardized tests that students in non-unionized Texas.
They proceed to blow up the implications of that claim with the following observations:
White students in nonunionized Texas do better than white students in unionized Wisconsin.
Black students in nonunionized Texas do better than black students in unionized Wisconsin.
Hispanic students in nonunionized Texas do better than Hispanic students in unionized Wisconsin.
How can this be?
The answer is simple. Texas has a much higher proportion of black and Hispanic students than Wisconsin. Across the country, white and Asian students (as a group) outperform black and Hispanic students (as a group). So states with lower percentages of the underperforming groups will outperform states with higher percentages such as Texas, notwithstanding the fact that Texas may be doing a better job of educating each group.
This leads to a clarification, a warning and a challenge.
The clarification is that there is nothing "racist" about this observation. It is an incontrovertible fact and does not require that one buy into any sort of theory about innate racial differences. Different ethnic groups have had different experiences resulting in differing levels of social capital. (And, of course, group differences tell us nothing about any particular individuals.)
The warning is that America in the future will look a lot more like Texas. If Texas is doing a better job of educating minority kids (better being distinct from adequate) then we ought to take a look at what Texas is doing.
Finally, the challenge gets us to Scott Walker and collective bargaining reform. The preferred solution of the Educational Establishment is to "fully fund" public education. More money (and more teachers) will solve all. But as Salam and Sanadaji point out, spending on public education - in real terms - has gone through the roof (a 250% increase since 1970) while reading and math scores have remained flat and high school graduation rates have slightly declined. Much of the that money has gone into better pay for teachers and more teachers without impact, (In fact, the authors suggest that hiring more teachers has reduced teacher quality.)
How can we have spent more money with so little too show for it. A major part of the problem is teacher unions who quite naturally (that's what they are there for) privilege the interests of their members over the interests of students. Their objective is consistently to shift money to their members in a way that does not increase the burdens placed on their members. Thus, the consistent call for more money tied to length of service and not performance.
In conferring collective bargaining power in teacher unions, the state creates a cartel. Solving our educational challenges may require eliminating or weakening the cartel.
Salam and Sandandaji start with an interesting observation. Supporters of teachers' unions and the traditional views of the educational establishment ("money solves all probelems"), such as Paul Krugman, were quick to point out that students in unionized Wisconsin do better on standardized tests that students in non-unionized Texas.
They proceed to blow up the implications of that claim with the following observations:
White students in nonunionized Texas do better than white students in unionized Wisconsin.
Black students in nonunionized Texas do better than black students in unionized Wisconsin.
Hispanic students in nonunionized Texas do better than Hispanic students in unionized Wisconsin.
How can this be?
The answer is simple. Texas has a much higher proportion of black and Hispanic students than Wisconsin. Across the country, white and Asian students (as a group) outperform black and Hispanic students (as a group). So states with lower percentages of the underperforming groups will outperform states with higher percentages such as Texas, notwithstanding the fact that Texas may be doing a better job of educating each group.
This leads to a clarification, a warning and a challenge.
The clarification is that there is nothing "racist" about this observation. It is an incontrovertible fact and does not require that one buy into any sort of theory about innate racial differences. Different ethnic groups have had different experiences resulting in differing levels of social capital. (And, of course, group differences tell us nothing about any particular individuals.)
The warning is that America in the future will look a lot more like Texas. If Texas is doing a better job of educating minority kids (better being distinct from adequate) then we ought to take a look at what Texas is doing.
Finally, the challenge gets us to Scott Walker and collective bargaining reform. The preferred solution of the Educational Establishment is to "fully fund" public education. More money (and more teachers) will solve all. But as Salam and Sanadaji point out, spending on public education - in real terms - has gone through the roof (a 250% increase since 1970) while reading and math scores have remained flat and high school graduation rates have slightly declined. Much of the that money has gone into better pay for teachers and more teachers without impact, (In fact, the authors suggest that hiring more teachers has reduced teacher quality.)
How can we have spent more money with so little too show for it. A major part of the problem is teacher unions who quite naturally (that's what they are there for) privilege the interests of their members over the interests of students. Their objective is consistently to shift money to their members in a way that does not increase the burdens placed on their members. Thus, the consistent call for more money tied to length of service and not performance.
In conferring collective bargaining power in teacher unions, the state creates a cartel. Solving our educational challenges may require eliminating or weakening the cartel.
Monday, November 07, 2011
If you want a permit, take a good class
But I am not in favor of attempts to minimize training requirements for concealed carry permits. Regardless of what the legislature does, I feel comfortable saying this. If you carry without adequate training including hands on with your fire arm, you are an idiot and far more likely to harm yourself than an attacker.
My own concern is that the four hour classes are inadequate to the extent that they lack adequate intruction in handling, maintaining and actually firing a gun. Let Dad29 tell me if I'm wrong.
Much ado about Castle Doctrine
I don't have strong feelings about the "castle doctrine." The very thing that makes it attractive cuts against its necessity. Under current law, juries are unlikely to second guess the judgment of people who have had to make split second decisions in the face of a home invasion. Prosecutors, knowing this, may be reluctant to bring charges.
But this observation, while suggesting that the need for the doctrine is not great, also undercuts the arguments against it. If no one gets convicted for defending themselves in the event of a home invasion, then it is unlikely that a change in the legal standard will allow more people to get away with murder. (The idea that a change in a legal doctrine that few are even aware of will change people's behavior in a time of crisis is too contrived to take seriously).
Recognizing this, the Criminal Law section of the state bar association tries to argue that the doctrine will facilitate spousal murder. The argument is not persuasive.
In a floor memo authored by Greg O'Meara, the section says that a husband might now shoot his wife and then falsely claim that there was a home invasion. The reasonableness of his decision to use force cannot be examined and he is more likely to evade prosecution. The memo states that "AB 69 requires a jury instruction in every criminal case that the jury should find that, if the crime took place in the defendant’s home, vehicle, or place of business, the actor reasonably believed that he was the victim of an imminent attack with deadly force and that his own use of deadly force was presumptively necessary."
But that's not true. The bill requires that presumption only in the event of unlawful or forcible entry. While, its true, as the section's memo points out, that a defendant might argue that he was reasonably mistaken about the fact of an unlawful or forcible entry but, in order for the new law to be outcome determinative, a the jury is going to have to buy the mistake defense first. In other words, for the section's horrible to come true, we need a case where a jury would accept the defendant's story about a nonexistent home invader or whatever is supposed to have caused him to be mistaken will be accepted by the jury (at least so as to create reasonable doubt), but then conclude that the degree of force against this (actually) nonexistent behavior was unreasonable.
Such a scenario is possible but implausible. The perpetrator's story is always going to portray the "invader" as hell bent for mayhem or his mistaken reaction to some indication of an invasion as harrowing. If the jury buys it (or can't dismiss it so readily as to dispel reasonable doubt), it's hard to imagine a a case where it would not also conclude that the use of force was reasonable.
Consider the notorious murder of Barbara Anderson by her husband Jesse outside a restaurant at Northridge, Anderson falsely claimed that he and his wife were attacked and that he was wounded and she was killed in the attack. In fact, he killed her. The case doesn't involve a home invasion and the law afforded him no presumption of reasonable force, but I think it's still instructive. Anderson needed to sell - at least well enough to raise a reasonable doubt - that there was an attacker. If he had been entitled to use a presumption of reasonable force, it would have done him no good unless the prosecutor, or if he was charged, the jury gave the story sufficient credit to create reasonable doubt..
Assume they believe him, i.e., they conclude that there was an attacker. How likely is it that they will be able to conclude that his use of force was unreasonable?
A more plausible case is the homeowner who kills an invited guest and then falsely claims that he or she entered unlawfully. But in that case as well, the castle doctrine defense is determinative only in a scenario in which the jury buys the fabricated story of an invasion but would have concluded that the use of force in response to that nonexistent invasion was unreasonable. It strikes me as more plausible because there is likely to be physical evidence of what the victim was or was not doing apart from the perpetrator's lie (which both hypotheticals require us to assume that the jury at least does not disbelieve), but still pretty unlikely.
I can't help but think the castle doctrine debate is more about ancillary messages that is opponents and proponents want to send. It's proponents want to make a statement about property rights and self defense. It's opponents want to make a statement about subordinating property rights and the dangers of self defense. But i wonder whether the bill is likely to have a great deal of real world impact.
Tuesday, November 01, 2011
Smile when you say that
Wisconsin became the 49th state to permit concealed carry today and Eugene Kane is one frightened fellow. He's going to have to tread lightly because who knows when a casual encounter might lead to gun play? He's worried it's going to be like the OK Corral out there. Given the ways in which people get worked up over what they read in the paper, he is thankful that Journal Sentinel won't allow guns on its premises. I do suppose that anyone who is hell bent on busting a cap in a newspaper columnist will be deterred by the fact that guns aren't allowed on the premises.
That's all to be expected. I could have read that column without him having to write it. But the interesting thing is that he refutes himself without appearing to have recognized. Mr. Kane allows how he has traveled to other states that permit concealed carry (that would be everyone other than Illinois) and "most times" (I suspect it's more like all times) doesn't "think about it." This is, he says, because the fact that other people may be carrying does not give him an added sense of security.
But, if he doesn't think about it, there is something else that the laws in those states aren't giving him either - a heightened sense of apprehension.
And they shouldn't. Kane writes that "[p]ro-gun advocates insist concealed carry laws lead to a decrease in crime, but statistics don't bear that out in any discernible way." That sentence proves more than he wants it to. Some scholars claim that concealed carry reduces crime. Others attack studies that purport to show that criticizing their methodology. So he could be right. We don't know if concealed carry reduces gun crime.
But there is precious little evidence that even suggests an. A few years ago, at Marquette, I moderated a debate between John Lott, author of a book called More Guns, Less Crime and an Richard Withers, who used to run a handgun violence center at the Medical College of Wisconsin and is anadvocate of handgun control. They agreed about little. But the one they thing that they agreed upon is that concealed carry cannot be shown to lead to increases in gun crime. I am aware of a few people who argue that there may be a modest negative impact, but it is pretty hard to say that concealed carry has, as Kane would put it, a discernible effect on crime. The spontaneous shootouts that Kane fears don't happen.
So he can relax.
Monday, October 31, 2011
More on who gets to recall
Further to my post on whether to hold recalls in what are, for all practical purposes, defunct Senatorial districts, Mary Lazich (R - New Berlin) has introduced a bill making the new Senatorial districts effective immediately while keeping Assembly districts in place until November 2012.
This is the wrong way to address the concerns expressed in my post.
There is nothing wrong with allowing elected representatives to serve until their current terms expire. Nor do I think it is wrong to defer electing representatives in new districts in which there is now no incumbent legislator because the new lines have "paired" two or more incumbents in a single district. While it might seem important to hold a special election immediately to fill the resulting "vacancy," it won't work without also holding elections in, at least, all of the districts in which two incumbents now reside. Doing the former without the latter would result in a number of legislators exceeding the number reserved in the constitution. Because we don't want redistricting to result in an immediate cascade of elections, practical concerns justify waiting until the next regularly scheduled general election.
A different set of circumstances applies when one is dealing with an extraordinary election - a special election taking place because of the loss of an incumbent or recall taking place between the completion of redistricting. Since there is going to be an election anyway, the practical justification for deferring implementation of the new district is attenuated. The legislative solution would seem to be to specify that any recall or special election occurring after the district lines have been drawn should take place in the new district but that no district shall be deemed to be vacant because no incumbent currently resides within its boundaries.
This is not a one-sided solution. While some districts have become more Republican after redistricting, others have become more Democratic. My proposal would prohibit both parties from taking advantage of the transition period by going after incumbents who represent districts that are about to become more favorable to the opposition. It also avoids the unseemliness of legislators being recalled by people they no longer represent and without the participation of people that they now do represent.
This is the wrong way to address the concerns expressed in my post.
There is nothing wrong with allowing elected representatives to serve until their current terms expire. Nor do I think it is wrong to defer electing representatives in new districts in which there is now no incumbent legislator because the new lines have "paired" two or more incumbents in a single district. While it might seem important to hold a special election immediately to fill the resulting "vacancy," it won't work without also holding elections in, at least, all of the districts in which two incumbents now reside. Doing the former without the latter would result in a number of legislators exceeding the number reserved in the constitution. Because we don't want redistricting to result in an immediate cascade of elections, practical concerns justify waiting until the next regularly scheduled general election.
A different set of circumstances applies when one is dealing with an extraordinary election - a special election taking place because of the loss of an incumbent or recall taking place between the completion of redistricting. Since there is going to be an election anyway, the practical justification for deferring implementation of the new district is attenuated. The legislative solution would seem to be to specify that any recall or special election occurring after the district lines have been drawn should take place in the new district but that no district shall be deemed to be vacant because no incumbent currently resides within its boundaries.
This is not a one-sided solution. While some districts have become more Republican after redistricting, others have become more Democratic. My proposal would prohibit both parties from taking advantage of the transition period by going after incumbents who represent districts that are about to become more favorable to the opposition. It also avoids the unseemliness of legislators being recalled by people they no longer represent and without the participation of people that they now do represent.
Friday, October 28, 2011
Who gets to recall?
We've heard a lot of misplaced criticism about proposals to hold recall elections in newly drawn districts. Here's the crux of the problem.
Those legislative districts that existed before this year's redistricting are unconstitutional in the sense that they violate the principle of "one man, one vote." In keeping with that principle, the United States Supreme Court has made clear that legislative districts must be equal (or nearly so) in population. The old districts - drawn following the 2000 census - are no longer equal.
But the courts have recognized that it makes no sense to have district lines continually redrawn to keep the number of voters in each equal. So they have required this to be done only every ten years after the census. They have also recognized that it takes some time after the census to accomplish redistricting so they have permitted a certain passage of time before elections must be conducted in the newly drawn districts. There is even some authority for conducting special elections in old districts (if, for example, a legislator dies, retires or takes a new job) after the new lines have been drawn but before the first election cycle to which they have been made applicable. Whether that authority is correct or could be applied to a series of recall elections is a question that may be litigated some day, but my purpose here is not to comment on whether the recall elections must be held in the new districts (or even whether they can be) but whether they should be.
The newly enacted redistricting law states that it, as to special or recall elections, it "first applies" to "office filled or contested concurrently with the 2012 general elections." That is awkward language. The GAB reads it to mean that any recalls that take place prior to November 6, 2012 must take place in the old districts. There is, however, potential ambiguity in application of the statute to "offices." One might, for example, read the statute to mean that the statute first applies to any recall or special election for an office that is to be filled or contested in the November 2012 general election. If that's so, then any Senator who is up for reelection in November 2012 or thereafter would be subject to recall in the new district. Nevertheless, I should note, and the GAB relied in part upon, the fact that Governor Walker ordered in September that a special election in the 95th District take place in the old district.
But if the redistricting bill was written to apply for the first time to the November 2012 elections that doesn't mean that it cannot or should not be changed. To be sure, as long as this is what the law says, the old district lines should be used absent a finding that it would be unconstitutional to do so (see above), but we're interested here in what ought to be rather than what currently is. The legislature and Governor can change the law if they want to.
We can readily dismiss Mike Tate's complaint that this would amount to "changing the rules." So what? Redistricting always changes the rules. Changing the rules in this way is, in fact, constitutionally required - at least for the November 12 election cycle and thereafter. Changing them sooner is arguably more faithful to the constitutional guarantee of "one man, one vote" and, even if a court would not require it, it may well be a good thing to do. More on this later.
Blogger Tom Foley says that it shouldn't be done because there is a challenge to the current redistricting plan pending in federal court relying on a three judge panel's refusal to dismiss the case last Friday. But this doesn't get us far. The decision in Baldus v. Brennan was in response to a motion to dismiss the complaint. Without getting into procedural niceties, it does not tell us whether the challenge is strong or weak - only that it might prevail if the plaintiffs can prove their allegations. The survival of a motion to dismiss alone provides no basis for holding the recalls in the old districts.
For the Baldus case to be relevant, the plaintiffs would have to show that they have a reasonable probability for success on the merits. That hasn't yet happened and for reasons I'll get to when I post on that case, they are unlikely to be able to do so.
So the question becomes one of policy. Is it right or wrong to use the new districts? Is the question one of anything other than who is able to exercise their political will?
The answer comes to us - albeit unintentionally - from Jay Bullock (who I understand met my daughter-in-law recently). Jay thinks it wrong that the Republicans are trying to prevent the Democrats from flipping districts in 2011 so that the winners will have the advantage of incumbency in 2014. This, I'm guessing he'd say, frustrates the will of the people. He's wrong for at least two reasons.
First, the exercise of popular sovereignty that Jay wants to defend would be undertaken in a district that is no longer in compliance with the principle of one man, one vote. We allow the incumbent to continue to represent the district - i.e., we don't require that all legislators immediately face reelection - for practical reasons. But that doesn't mean that there is a right to that continuity or that it would be wrong to move up the effective date for the new districts.
Second, when there is an interim election, there may be - if not actionable equal protection problems - a peculiar bit of unfairness at work in permitting recalls in the old districts. The new districts are, the GAB tells us, "in effect" in the sense that each legislator now represents the constituents in the newly formed districts (and, thus, can use state funds to communicate with are represent them). The "new" residents in an incumbent's district has no other representative. He or she is no longer a constituent of his or her old state Senator and one could not expect that old Senator to be responsive in the way that politicians are responsive to their constituents.
So let's use an example. Senator Leah Vukmir now represents the people of her newly drawn district. Why should only some of her constituents get to vote on whether she will be recalled? Why should people that she no longer represents get to vote on that question. We allow her to continue to serve without facing the voters until 2014as a pragmatic matter but it is not "fairer" to do so and, in fact, may be unfair. If we are going to hold a new election, the defense from pragmatism is weakened if not eliminated altogether.
Those legislative districts that existed before this year's redistricting are unconstitutional in the sense that they violate the principle of "one man, one vote." In keeping with that principle, the United States Supreme Court has made clear that legislative districts must be equal (or nearly so) in population. The old districts - drawn following the 2000 census - are no longer equal.
But the courts have recognized that it makes no sense to have district lines continually redrawn to keep the number of voters in each equal. So they have required this to be done only every ten years after the census. They have also recognized that it takes some time after the census to accomplish redistricting so they have permitted a certain passage of time before elections must be conducted in the newly drawn districts. There is even some authority for conducting special elections in old districts (if, for example, a legislator dies, retires or takes a new job) after the new lines have been drawn but before the first election cycle to which they have been made applicable. Whether that authority is correct or could be applied to a series of recall elections is a question that may be litigated some day, but my purpose here is not to comment on whether the recall elections must be held in the new districts (or even whether they can be) but whether they should be.
The newly enacted redistricting law states that it, as to special or recall elections, it "first applies" to "office filled or contested concurrently with the 2012 general elections." That is awkward language. The GAB reads it to mean that any recalls that take place prior to November 6, 2012 must take place in the old districts. There is, however, potential ambiguity in application of the statute to "offices." One might, for example, read the statute to mean that the statute first applies to any recall or special election for an office that is to be filled or contested in the November 2012 general election. If that's so, then any Senator who is up for reelection in November 2012 or thereafter would be subject to recall in the new district. Nevertheless, I should note, and the GAB relied in part upon, the fact that Governor Walker ordered in September that a special election in the 95th District take place in the old district.
But if the redistricting bill was written to apply for the first time to the November 2012 elections that doesn't mean that it cannot or should not be changed. To be sure, as long as this is what the law says, the old district lines should be used absent a finding that it would be unconstitutional to do so (see above), but we're interested here in what ought to be rather than what currently is. The legislature and Governor can change the law if they want to.
We can readily dismiss Mike Tate's complaint that this would amount to "changing the rules." So what? Redistricting always changes the rules. Changing the rules in this way is, in fact, constitutionally required - at least for the November 12 election cycle and thereafter. Changing them sooner is arguably more faithful to the constitutional guarantee of "one man, one vote" and, even if a court would not require it, it may well be a good thing to do. More on this later.
Blogger Tom Foley says that it shouldn't be done because there is a challenge to the current redistricting plan pending in federal court relying on a three judge panel's refusal to dismiss the case last Friday. But this doesn't get us far. The decision in Baldus v. Brennan was in response to a motion to dismiss the complaint. Without getting into procedural niceties, it does not tell us whether the challenge is strong or weak - only that it might prevail if the plaintiffs can prove their allegations. The survival of a motion to dismiss alone provides no basis for holding the recalls in the old districts.
For the Baldus case to be relevant, the plaintiffs would have to show that they have a reasonable probability for success on the merits. That hasn't yet happened and for reasons I'll get to when I post on that case, they are unlikely to be able to do so.
So the question becomes one of policy. Is it right or wrong to use the new districts? Is the question one of anything other than who is able to exercise their political will?
The answer comes to us - albeit unintentionally - from Jay Bullock (who I understand met my daughter-in-law recently). Jay thinks it wrong that the Republicans are trying to prevent the Democrats from flipping districts in 2011 so that the winners will have the advantage of incumbency in 2014. This, I'm guessing he'd say, frustrates the will of the people. He's wrong for at least two reasons.
First, the exercise of popular sovereignty that Jay wants to defend would be undertaken in a district that is no longer in compliance with the principle of one man, one vote. We allow the incumbent to continue to represent the district - i.e., we don't require that all legislators immediately face reelection - for practical reasons. But that doesn't mean that there is a right to that continuity or that it would be wrong to move up the effective date for the new districts.
Second, when there is an interim election, there may be - if not actionable equal protection problems - a peculiar bit of unfairness at work in permitting recalls in the old districts. The new districts are, the GAB tells us, "in effect" in the sense that each legislator now represents the constituents in the newly formed districts (and, thus, can use state funds to communicate with are represent them). The "new" residents in an incumbent's district has no other representative. He or she is no longer a constituent of his or her old state Senator and one could not expect that old Senator to be responsive in the way that politicians are responsive to their constituents.
So let's use an example. Senator Leah Vukmir now represents the people of her newly drawn district. Why should only some of her constituents get to vote on whether she will be recalled? Why should people that she no longer represents get to vote on that question. We allow her to continue to serve without facing the voters until 2014as a pragmatic matter but it is not "fairer" to do so and, in fact, may be unfair. If we are going to hold a new election, the defense from pragmatism is weakened if not eliminated altogether.
Wednesday, October 26, 2011
The legislature and legal fees
One of the bills being considered in the legislature's special session is AB 12. It would place certain limits on the ability of state courts to award attorneys' fees in cases in which some other law, say, a consumer protection statute or the open meetings law, provides for an award of fees. It specifies factors that a court ought to consider in approving a fee request and that part of the law is a good development and ought to be uncontroversial.
The more challenging issue is AB 12's cap on an award of fees at three times compensatory damages. The cap would be presumptive in cases in which compensatory damages are combined with some other form of relief (say an injunction or declaratory judgment) and mandatory in cases where only compensatory relief is to be granted.
The poster child for the bill was a case involving a dealership in Racine. The issue was whether the plaintiff had authorized $ 5000 in repairs. The plaintiff claimed that he did not, thinking that the work was covered under warranty. The dealership said that he did and made some legal arguments regarding whether the plaintiff could recover even if the repairs were not authorized. The dealership won at the trial court on these legal arguments but the case was reversed by the Court of Appeals. Shortly before trial, the dealership settled for a payment of $12500 in damages and interest and over $ 150,000 in attorneys' fees plus a bit over $5000 in costs.
That's a pretty unreasonable and wasteful outcome. Part of the reason for it was the parties' insistence on litigating a legal issue through the Court of Appeals, but even that shouldn't explain such a ridiculous result. I can't say it who it was but someone (or someones) did not cover themselves in glory here. (For my conservative friends, you ought to wonder why the dealer agreed to pay the fees in that amount. Not a good sign.)
Still it makes sense that a litigant's behavior be disciplined by economic reality. Requiring some connection between the amount at issue and fees is a good idea and, even prior to AB 12, courts making awards of fees under the Consumer Protection Act were to consider it. This bill tightens that up.
Still, in may go just a bit too far. I can imagine circumstances in which fees in excess of three times compensatories might be warranted either because of the litigation behavior of one side or the need to resolve some uncertain point of law. I always tell clients that once you have commenced litigation, you lose a great deal of control. It is a thing that goes of itself and you can't command the extent to which the other side might make you work.
I'd make the "three times compensatory" rule only presumptive in all cases, including those in which only compensatory relief is sought. I think we can trust our circuit court judges to handle that properly.
Thumbs down, however, for Rep. Gary Hebl (D-Sun Prairie) for suggesting that the bill was occasioned by the dealer's campaign constributions to Republicans. This is just ad hominem garbage. The issue is a real one and the bill won't save the dealer one penny.
A friend of mine takes great umbrage at another bill that will limit prejudgment interest in only certain types of cases. I can't get excited about it but I also can't see any reason to have a different rate in different types of cases.
The more challenging issue is AB 12's cap on an award of fees at three times compensatory damages. The cap would be presumptive in cases in which compensatory damages are combined with some other form of relief (say an injunction or declaratory judgment) and mandatory in cases where only compensatory relief is to be granted.
The poster child for the bill was a case involving a dealership in Racine. The issue was whether the plaintiff had authorized $ 5000 in repairs. The plaintiff claimed that he did not, thinking that the work was covered under warranty. The dealership said that he did and made some legal arguments regarding whether the plaintiff could recover even if the repairs were not authorized. The dealership won at the trial court on these legal arguments but the case was reversed by the Court of Appeals. Shortly before trial, the dealership settled for a payment of $12500 in damages and interest and over $ 150,000 in attorneys' fees plus a bit over $5000 in costs.
That's a pretty unreasonable and wasteful outcome. Part of the reason for it was the parties' insistence on litigating a legal issue through the Court of Appeals, but even that shouldn't explain such a ridiculous result. I can't say it who it was but someone (or someones) did not cover themselves in glory here. (For my conservative friends, you ought to wonder why the dealer agreed to pay the fees in that amount. Not a good sign.)
Still it makes sense that a litigant's behavior be disciplined by economic reality. Requiring some connection between the amount at issue and fees is a good idea and, even prior to AB 12, courts making awards of fees under the Consumer Protection Act were to consider it. This bill tightens that up.
Still, in may go just a bit too far. I can imagine circumstances in which fees in excess of three times compensatories might be warranted either because of the litigation behavior of one side or the need to resolve some uncertain point of law. I always tell clients that once you have commenced litigation, you lose a great deal of control. It is a thing that goes of itself and you can't command the extent to which the other side might make you work.
I'd make the "three times compensatory" rule only presumptive in all cases, including those in which only compensatory relief is sought. I think we can trust our circuit court judges to handle that properly.
Thumbs down, however, for Rep. Gary Hebl (D-Sun Prairie) for suggesting that the bill was occasioned by the dealer's campaign constributions to Republicans. This is just ad hominem garbage. The issue is a real one and the bill won't save the dealer one penny.
A friend of mine takes great umbrage at another bill that will limit prejudgment interest in only certain types of cases. I can't get excited about it but I also can't see any reason to have a different rate in different types of cases.
State liability rules and jobs
In today's Milwaukee Journal Sentinel, Henry Greenspan criticizes a Wisconsin bill that would provide manufacturers of drugs and medical devices with an "FDA defense." If the FDA approves sale of the device, the manufacturer cannot be held liable in a civil suit.
I think that reasonable people can differ on the bill but a few of the claims made by Mr. Greenspan are substantially off the mark. First, he claims that a similar law in Michigan has contributed to the decline of the pharmaceutical industry there because a robust liability system creates more accountable and better companies.
The latter assertion is debateable - at least among the range of policy choices that are actually in play in the United States. But even if true, Michigan's law could not have had the slightest impact on Michigan manufacturers. Let me explain.
For over ten years, I advised a Wisconsin manufacturing firm (not drugs and medical devices but I don't think that matters) on issues of product design and liability. When a new product or modification was in development, we'd talk about whether it might create liability issues. I never gave advice based upon the particulars of Wisconsin law.
Why not, you ask?
Because we were a national firm. Given that Wisconsin is an average sized state, we could expect about 2% of our sales to be here. (Maybe a little better because we were based here but,then again, so was our principal national competitor for much of that period.) If there was an accident in one of the other 49 states where we sold 98% of our stuff, it would be governed by the law of that state. So even if Wisconsin had passed a law strongly favorable to manufacturers (and it hasn't), we could not base our decisionmaking on the law in Wisconsin.
Given that very few, if any, pharmaceutical companies manufacture for local distribution, I suspect that the same dynamic was at work there. A change in Michigan law was unlikely to make the manufacturers any more or less accountable - although it might affect the willingness of both Michigan and non-Michigan firms to sell into Michigan and pricing to Michigan customers.
Astute readers will ask whether this means that the bill pending in Wisconsin is unlikely to create jobs here for the same reason. It's a fair question.
Mr. Greenspan also asserts that "physicians agree" that a robust tort system is a good thing. The evidence he cites does not support such a broad statement and my experience sure doesn't. I have yet to discuss the "tort system" with a doctor and get anything other than a diatribe against lawyers.
So is the bill a good idea? Liberals who don't like it might be interested to know that it represents a more European approach to product safety and liability. In Europe, we were less concerned about what would happen in court because liability litigation is pretty rare. We were very concerned about obtaining EU certification.
Is Europe less safe than the US?
I think that reasonable people can differ on the bill but a few of the claims made by Mr. Greenspan are substantially off the mark. First, he claims that a similar law in Michigan has contributed to the decline of the pharmaceutical industry there because a robust liability system creates more accountable and better companies.
The latter assertion is debateable - at least among the range of policy choices that are actually in play in the United States. But even if true, Michigan's law could not have had the slightest impact on Michigan manufacturers. Let me explain.
For over ten years, I advised a Wisconsin manufacturing firm (not drugs and medical devices but I don't think that matters) on issues of product design and liability. When a new product or modification was in development, we'd talk about whether it might create liability issues. I never gave advice based upon the particulars of Wisconsin law.
Why not, you ask?
Because we were a national firm. Given that Wisconsin is an average sized state, we could expect about 2% of our sales to be here. (Maybe a little better because we were based here but,then again, so was our principal national competitor for much of that period.) If there was an accident in one of the other 49 states where we sold 98% of our stuff, it would be governed by the law of that state. So even if Wisconsin had passed a law strongly favorable to manufacturers (and it hasn't), we could not base our decisionmaking on the law in Wisconsin.
Given that very few, if any, pharmaceutical companies manufacture for local distribution, I suspect that the same dynamic was at work there. A change in Michigan law was unlikely to make the manufacturers any more or less accountable - although it might affect the willingness of both Michigan and non-Michigan firms to sell into Michigan and pricing to Michigan customers.
Astute readers will ask whether this means that the bill pending in Wisconsin is unlikely to create jobs here for the same reason. It's a fair question.
Mr. Greenspan also asserts that "physicians agree" that a robust tort system is a good thing. The evidence he cites does not support such a broad statement and my experience sure doesn't. I have yet to discuss the "tort system" with a doctor and get anything other than a diatribe against lawyers.
So is the bill a good idea? Liberals who don't like it might be interested to know that it represents a more European approach to product safety and liability. In Europe, we were less concerned about what would happen in court because liability litigation is pretty rare. We were very concerned about obtaining EU certification.
Is Europe less safe than the US?
"Compassion" for felons may have been misdirected.
Wisconsin is one of a relatively small number of states which restrict consideration of past felony convictions in employment decisions. Put simply, such consideration is forbidden unless the conviction was for a crime substantially related to the circumstances of the job in question.
A bill pending in the Assembly would bring the law here back into line with the law in the overwhelming majority of states and allow employers to consider past felony convictions whether or not related to the circumstances of the job in question.
Eugene Kane is, there's no way around it, playing the race card and sharing Rep. Barbara Toles (D-Milwaukee) assessment that this will be "bad for the community." To be sure, Kane won't directly accuse the bill's sponsors of racism. No, he would never do that but the bill does make it "hard to convince some people - particularly African-Americans - the new GOP-run Legislature isn't filled with a bunch of white politicians who have no problems passing laws that negatively affect African-Americans and Latinos without any thought to the consequences." See, it's not what Gene thinks. It's those other folks.
Let's take a breath. If Wisconsin's law helped convicted felons get jobs then the state would be a Mecca for convicts. It would be a place where released prisioners find it much easier to get work, perhaps even attracting parolees from other states. It may even be that there is evidence that demonstrates this, but I don't think so.
Having practiced law for 30 years and both advised on and litigated hiring decisions, I think the best thing that you could say about existing law is that it has no impact. Anti-discrimination laws tend not to work unless and until there is a broad consensus that discrimination on a forbidden basis is, in fact, wrong. The law then brings those who do not share that consensus into compliance (although the market would do much to accomplish that even in the absence of a law).
But when people don't really believe that a form of discrimination is wrong, the law can do little to stop it. Age discrimination, for example, is illegal. Has been for years. It is also rampant because people don't think it's wrong. Whatever the merits of that belief, it is relatively easy for employers to indulge it - particularily at the hiring stage. Just about any older person who has been forced to seek a non-leadership position can confirm this.
Nor do people believe that it is wrong to take into account a person's past felony conviction regardless of it's "substantial relationship" to the job. The conviction tells them something about a person's character and decision-making. Perhaps you think that others should be untroubled by a child abuser working in a back office or a rapist manning the phones in customer service (I actually had that case) but most folks won't agree.
This isn't to say that others are unwilling to give convicted felons a second chance but this is where the perfidious nature of current law comes into play.
It may well hurt the job prospects of convicted felons.
How can that be? Consider this. Providing a convicted felon with a second chance is almost always going to be a risky proposition. It is going to require that the employer live with a higher than normal chance of a bad outcome. If the employer can rectify a mistaken decision to provide that second chance, i.e., by firing the person in question if things go badly, the chance may still be worth taking.
But if the law makes that convicted individual part of a protected class, the cost of taking a risk that doesn't pan out becomes higher. Now the employer can fire someone who hasn't worked out at the price of having to convince someone else that it wasn't done "because of" that person's membership in the protected class (i.e., convicted felons). At best, this will entail additional costs and, at worst, the employer runs the risk that his or her judgment will be second guessed.
Under those circumstances, perfectly rational and good hearted people will be (quite rightly) more reluctant to provide risky persons with a second chance. It is much easier to find a reason to avoid hiring them in the first place than it is to assume the risk of having to justify firing them to people who were not there, who don't understand the employer's business and who may be pre-disposed to find against them.
A bill pending in the Assembly would bring the law here back into line with the law in the overwhelming majority of states and allow employers to consider past felony convictions whether or not related to the circumstances of the job in question.
Eugene Kane is, there's no way around it, playing the race card and sharing Rep. Barbara Toles (D-Milwaukee) assessment that this will be "bad for the community." To be sure, Kane won't directly accuse the bill's sponsors of racism. No, he would never do that but the bill does make it "hard to convince some people - particularly African-Americans - the new GOP-run Legislature isn't filled with a bunch of white politicians who have no problems passing laws that negatively affect African-Americans and Latinos without any thought to the consequences." See, it's not what Gene thinks. It's those other folks.
Let's take a breath. If Wisconsin's law helped convicted felons get jobs then the state would be a Mecca for convicts. It would be a place where released prisioners find it much easier to get work, perhaps even attracting parolees from other states. It may even be that there is evidence that demonstrates this, but I don't think so.
Having practiced law for 30 years and both advised on and litigated hiring decisions, I think the best thing that you could say about existing law is that it has no impact. Anti-discrimination laws tend not to work unless and until there is a broad consensus that discrimination on a forbidden basis is, in fact, wrong. The law then brings those who do not share that consensus into compliance (although the market would do much to accomplish that even in the absence of a law).
But when people don't really believe that a form of discrimination is wrong, the law can do little to stop it. Age discrimination, for example, is illegal. Has been for years. It is also rampant because people don't think it's wrong. Whatever the merits of that belief, it is relatively easy for employers to indulge it - particularily at the hiring stage. Just about any older person who has been forced to seek a non-leadership position can confirm this.
Nor do people believe that it is wrong to take into account a person's past felony conviction regardless of it's "substantial relationship" to the job. The conviction tells them something about a person's character and decision-making. Perhaps you think that others should be untroubled by a child abuser working in a back office or a rapist manning the phones in customer service (I actually had that case) but most folks won't agree.
This isn't to say that others are unwilling to give convicted felons a second chance but this is where the perfidious nature of current law comes into play.
It may well hurt the job prospects of convicted felons.
How can that be? Consider this. Providing a convicted felon with a second chance is almost always going to be a risky proposition. It is going to require that the employer live with a higher than normal chance of a bad outcome. If the employer can rectify a mistaken decision to provide that second chance, i.e., by firing the person in question if things go badly, the chance may still be worth taking.
But if the law makes that convicted individual part of a protected class, the cost of taking a risk that doesn't pan out becomes higher. Now the employer can fire someone who hasn't worked out at the price of having to convince someone else that it wasn't done "because of" that person's membership in the protected class (i.e., convicted felons). At best, this will entail additional costs and, at worst, the employer runs the risk that his or her judgment will be second guessed.
Under those circumstances, perfectly rational and good hearted people will be (quite rightly) more reluctant to provide risky persons with a second chance. It is much easier to find a reason to avoid hiring them in the first place than it is to assume the risk of having to justify firing them to people who were not there, who don't understand the employer's business and who may be pre-disposed to find against them.
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