Saturday, June 30, 2012

Experts & the Constitution

Last week I promised a post (the post, really) on the interplay between expert opinions and judicial opinions. Here you go.

Winning the wrong way?

I just got a fundraising email from Barack (as friends like me call President Obama):
We might not outraise Mitt Romney. 
But I am determined to keep the margin close enough that we can win this election the right way.
So what happens if we can't keep it close enough to win the right way? Apparently, there is a Plan B: winning it the wrong way.

Friday, June 29, 2012

"This is the end of America as we know it. No exaggeration."

The most hysterical response to the Obamacare decision.

Unfortunately, democracy already died back on June 6th, so that guy is a little late to the party.

Did Judge Posner bury the lede?

Judge Posner's lastest thoughts about the Obamacare decision are up on Slate.  They are very interesting and I recommend you go there and read them in their entirety. 

However, the judge kind of buried the lede (assuming one can do that in an opinion piece) at the bottom of his post.  At the very end of, Judge Posner writes:
And speaking of dissenters: Would they have had the courage of their convictions had they been able to pick up a fifth vote? Or would they have been like the dog that barks ferociously when it's behind a fence, but open the gate and it slinks away timidly?

Yowza.  Nothing like telling four of the judges who review your decisions that you think they are probably cowards.

Thursday, June 28, 2012

Walter Dellinger drank the Kool-Aid

Over at Slate, Walter Dellinger has been writing things that annoy me.

First, yesterday he said this, about the challenge to the individual mandate as an exercise of the commerce power:

Torvik and Gillette are smarter than Klein and Toobin‽

The Supreme Court has upheld Obamacare.  Mr. Torvik and I were right on the result but wrong on whether Justice Kennedy would be in the majority.  I was right that Chief Justice Roberts would write the opinion (I do not believe Mr. Torvik made a prediciton on this point but maybe he did.  I am too lazy to look.).  Kennedy, Scalia, Thomas, and Alito filed a joint dissent so my prediction about the tone of Scalia's dissent is probably wrong. 

In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous.   Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.

"Ultimately, I think the Supreme Court will uphold the bill on at least the taxing power ..."

--Gillette-Torvik Blog, July 18, 2010, "Constitutionality of the 'individual mandate' in the health insurance reform bill."

Always trust content from the Gillette-Torvik Blog.

Please ignore our other predictions.

Hiring friends for a prison inmate?

I am quite certain that this would not happen in the United States.

Wednesday, June 27, 2012

Obamacare predictions

I was going to title this post "D-Day," but then I saw that Linda Greenhouse already has a post by that title up at the New York Times. That would have been embarrassing.

Anyhow, tomorrow is going to be a fun day for followers of the Supreme Court, like us, with the Obamacare decision coming down at around 9:15 central time. I thought I would point out that a few of the very first posts on this blog—almost two years ago, now!—were about the individual mandate. Back then we agreed that the Court would likely uphold the law—Mr. Gillette opined that he thought the individual mandate is "really a fairly straightforward application of Wickard v. Filburn," and I predicted the Court would reach for the Necessary and Proper clause but "there's no way Justice Kennedy is going to sign on to a decision that strikes down this bill."

Of course, what do we know? Devoted reader(s) of the blog know the answer to that question all too well. But at least Linda Greenhouse agrees with us.

For what it's worth, I'm sticking to my guns. Also, I'll reveal a policy preference. I hope the Court upholds the law on very narrow grounds. What I'm hoping for is an opinion that recognizes that the individual mandate presents a novel question of federalism, but finds that it passes muster because of the unique characteristics of the health insurance reform. That way, the decision could act as a check on federal power (by explaining that broad individual mandates will be subject to searching review) and reaffirm that the federal government has broad power to fix problems of national scope in creative ways.

Any last thoughts, Mr. Gillette? Are you going to change your prediction?


Maybe summary reversal of the Montana Supreme Court was for our benefit.

Seventh Circuit Court of Appeals Judge Richard Posner has a different perspective on the Supreme Court's summary reversal of the Montana Supreme Court's campaign finance decision.  His thoughts are at the end of this post about Miller v. Alabama.

Judge Posner writes:
I would like to comment very briefly on the Montana campaign contributions decision. I think the court was right to do what it did. I don't say this because I agree with the Citizens United decision. I don't. But a presidential campaign is not the right time to revisit the issue. The prospect that the court might overrule the decision, or more likely modify it, would create enormous uncertainty at a time when the voters' and the politicians' circuits are already overloaded
I have not thought of this before.  Obviously, Judge Posner does not know whether the 5 justices who voted to summarily reverse the Montana Supreme Court were thinking about this issue.    But it is an interesting thought.  Presumably in light of the summary reversal no state is going to try to uphold a similar spending restriction and thus the presidential candidates and the PACs that support them all understand what type of spending is allowed.  If the Supreme Court had simply set the case for argument next term (which does not begin until October so no decision would be likely until after the election), it would have been unclear whether a state could limit the holding of Citizens United

On the other hand, given Mr. Torvik's point that the five justices who support Citizens United think that as a matter of law unlimited independent corporate expenditures on political messages do not create the appearance of corruption (a point on which they are surely wrong), it feels like Judge Posner is being too charitable to the Supreme Court.  Remember that for the Supreme Court to revisit the issue, someone has to appeal.  A summary reversal sends the message that such an appeal will be fruitless.  Perhaps some appellate lawyers will see this the same way that Judge Posner does and appeal to the Supreme Court the next time a state supreme court strikes down one of its campaign finance laws.  But that seems like a bit of a stretch.

Tuesday, June 26, 2012

Public opinion, expert opinion, and judicial opinions

In an excellent post, Mr. Gillette raises the topic of whether the Supreme Court should be swayed by public opinion. He makes a convincing case that it shouldn't be.

But is it?

Should public opinion matter to the Supreme Court

Slate's Dahlia Lithwick says the lesson of the Supreme Court's summary reversal of the Montana Supreme Court campaign finance decision is "that the sense of lingering public outrage over Citizens United—deserved or not—influenced the court not one little bit on this issue."  The articles headline (which I assume Ms. Lithwick did not write) is even more blunt:  "The court’s conservatives don’t care how much you hate Citizens United."

Setting aside the rather obvious point that nothing suggests that the justices who dissented in Citizens United care about how much people might dislike Citizens United, lesson Ms. Lithwick finds begs the question of should the Supreme Court care about the public outrage over its decisions. 

Monday, June 25, 2012

No Conversing Necessary

Today, as expected, the U.S. Supreme Court bench-slapped the Montana Supreme Court by summarily reversing— without briefing or argument—the lower court's decision to uphold Montana's restrictions on independent political expenditures by corporations. The Court, in a per curiam opinion, found that there was "no serious doubt" that the holding of Citizens United applied to the case, and the Montana law was therefore clearly unconsitutional.  

Devoted reader(s) of the blog may recall our five-part Gillette-Torvik Conversation™ on this topic. We obviously spent a lot more time conversing about this case than the Supreme Court did.


Prof. Rick Hasen has this interesting observation:

Last week of the Supreme Court's term.

A number of high profile decisions are expected from the Supreme Court this week as it concludes its 2011-2012 term.  I suspect Mr. Torvik and I will discuss some of them.  The first one that caught my eye is Miller v. Alabama, a 5-4 decision that says that the Eighth Amendment prohibits juveniles from being imprisoned for life without the possibility of parole.  The majority decision and dissents are here.  As will almost surely be the case in every 5-4 decision this week, Justice Kennedy is in the majority.  The decision actually involves two criminal defendants who committed heinous crimes when they were 14.  According to the majority opinion, the number of prisoners sentenced to life without parole for crimes committed as juveniles is around 2500.

Saturday, June 23, 2012

The People Who Want It All Are Hurting America

On Wednesday night, I read Anne-Marie Slaugher's thought-provoking and much-discussed Atlantic article, "Why Women Still Can't Have It All." I've been ruminating over it since, and figured I'd share my scattered thoughts here. 

Slaughter is of course correct that women still can't have it all. But no one can—at least not if you define "having it all" to mean achieving something more than tenure and deanship at Princeton without making significant personal-life sacrifices. Because it was only after Slaughter took a sabbatical from Princeton to work as a high-ranking State Department official that she had her epiphany that not every vector in life can be maximized simultaneously.

Slaughter makes clear that she is writing about only "highly educated, well-off women who are privileged enough to have choices." And what are their "choices"? Princeton or Yale? Nanny or au pair? Kidding aside, the choice is this: "Should I acknowledge that I have achieved enough, career-wise, and turn my attention to a more satisfactory personal life? Or should I attempt to absolutely maximize my career achievement, and hope against hope that somehow this will not involve significant sacrifices in my personal life?" 

When you spell it out, the answer seems rather obvious—and I think it is obvious to most women. The only people who get this question wrong are a small subset of robotic super-acheivers, almost all of whom are men. In other words, more men are career super-acheivers because only a buffoon would think that it is wise to make the sacrifices necessary to absolutely maximize career achievement—and almost all buffoons are men.

So men can't have it all either—they're just much more likely to think they can. The buffoon-robot-super-achievers end up going-for-broke, "achieve" the insane (literally) success they were seeking, and refuse to admit they've made a shambles of their life in the process. Since the human brain is essentially a machine that rationalizes whatever decisions we have made ("I have no regrets"), people rarely admit these kinds of fundamental errors in judgment ("Everything happens for a reason"). But from the outside, it's easy to see that most people who devote their lives to achieving maximum career achievement are absolutely wasting their lives. 

I espouse a mode of life that one writer has memorably called "the medium chill." The underlying insight is that maximizing achievement (or maximizing anything, really) is unwise, and not the route to the good life. I think most people (especially most women) actually agree. Most people (including most men) are unwilling to maximize career achievement at the expense of family life. The problem is that a majority of the buffoons who are willing to do so are men, so we end up being ruled mostly by men. Perhaps it would be better if more of these buffoons were women, but I tend to doubt it.

So how do we fix this? How do we change the world so that reasonable people are enticed to aspire to positions of leadership and high achievement? Slaughter argues that women have been able to achieve rather equal success at the highest levels of academia because of the flexible hours that an academic career permits, and points out that most other prestigious or powerful careers lack this feature. That's a great point, and it both explains the gender gap at the top of many professions and suggests a solution: flexibility and fewer hours. 

Especially fewer hours. Slaughter talks about "time macho," which is essentially the idea that he (always he, obviously) who puts in the most hours wins.  This is really the root of most of our problems. Even Slaughter sort of brags about how, as dean, she would tell student groups that she couldn't meet after 6:30 (because she had to go home to have dinner with her family) but that she was happy to come back after 8:00. That's still macho, Ms. Slaughter. The work day should just end at some reasonable point. If there's a job that requires someone to work 12 hours a day seven days a week, it doesn't take a mathematician to realize that that's actually two jobs. Two people should be doing it, not one.

The problem is that the buffoons are willing to work 200% of the hours for 175% of the pay. They're greedy—they want all that money. And they're arrogant—they think only they are capable of doing the work. Even though they are (supposedly) doing much of it at night after working all day, which is clearly not a recipe for good brain-based work. In fact, there's a real contradiction there: if these jobs are so mentally taxing that only the select few have the brain power to do them, then they are also too taxing for someone to do effectively for more than eight hours a day. On the other hand, if what really distinguishes these jobs is that currently they require a commitment to working very long hours, then it should not be a problem to simply split the job in half and have two people do it. Maybe we lose some efficiency, but probably not, and the other gains (increased employment, increased productivity) should more than offset the losses.

Culture is the problem. For example, in some professions people who try to work normal hours are thought by some people to be unserious about their work or lacking ambition. My response: "fuck 'em." When I worked at a big law firm, that was my advice to new associates wondering how to achieve work-life balance.  If you want a home life, you just have to go home at 6:00. If forces at the firm are pressuring you to stay later, you just have to accept that one of the consequences of having a life may be that you have to work at a different firm. Because if you don't, you end up sacrificing your personal life to keep working at a job you hate. The way to change the culture is for people, especially men, to stop making the idiotic choices that result in them sacrificing their personal lives in order to succeed at jobs they hate—choices that create a culture in which only the most insane can ultimately succeed. This really shouldn't be too hard. But it is!

Friday, June 22, 2012

"If they decide [the Obamacare case] by 5-4, then yes, it’s disheartening to me, because my life was a fraud. ..."

"...Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."

That's Yale Law Professor Akhil Reed Amar, emoting (perhaps sarcastically?) about the possibility that the Supreme Court will find the individual mandate to be beyond Congress's power under the Commerce Clause.

This gives me something to be thankful for: whichever way the Supreme Court decides the Obamacare case, my life will not be rendered a fraud. This is one of the advantages, I guess, of actually practicing law instead of sitting around thinking about it all day.

Wednesday, June 20, 2012

How long before someone responds this way in a deposition?

So last week, nineteen-year-old baseball phenom and Nevada native Bryce Harper was asked by a reporter what beer he was going to drink to celebrate a long home run.  Mr. Harper responded by telling the reporter, "That's a clown question, bro." 

Tuesday, June 19, 2012

May I suggest that you use the stall?

This is ugly:
10. On or about May 28, 2010, Plaintiff ... was utilizing the urinal in the men's restroom when it caused a jet of steam to shoot forth from the urinal and burn [Plaintiff’s] genitals.
Via Lowering the Bar.

Update on the Case of the Infringing Cookies

Last September I posted about a patent infringement lawsuit filed against many large, multi-national food companies ... and one tiny Milwaukee bakery:
"I think it's got to be a mistake somehow." 
That's what the owner of East Side Ovens, a small wholesale bakery in Milwaukee, said about being sued for patent infringement. The allegation? That the bakery infringes U.S. Patent No. 5,843,497 by using a certain "fat composition" in its cookies, "including, but not limited to, cookies sold as East Side Ovens Cranberry Orange Cookies." That's right -- we're talking infringing delectables here.

East Side Ovens is one of about a dozen defendants in all.  But the other nefarious sweet-secret swindlers are giant corporations such as Keebler, Pillsbury, and Néstle.  So why is plaintiff Willy Wonka GFA Brands (doing business as SmartBalance) going after this small fry?  Are the Cranberry Orange Cookies selling like hotcakes? No. Are they an example of a particularly egregious example of the alleged infringement? No -- the complaint implies that all of the defendants purchase the allegedly infringing ingredient from the same source (though it isn't clear what that source is).

No, East Side Ovens' sin is simply that it is based in Wisconsin.  It's almost certainly the case that the only reason they were added as a defendant was so that the plaintiffs could file the case in the Western District of Wisconsin—a famous "rocket docket" for patent cases—and withstand a motion to change venue filed by the big multinational defendants (all of whom, along with both plaintiffs, reside outside of Wisconsin).
Instead of answering the complaint, most of the defendants filed motions to dismiss, to sever (that is, try the cases against each defendant separately), and/or to transfer the case to a different venue.

Resquiat in pace Mike Ford

Mike Ford, a former president of the Minnesota State Bar Association who practiced law at Quinlivan and Hughes, died unexpectedly over the weekend.  Mike and I were on opposing sides of a lawsuit where the emotions between the parties ran pretty high.  That sort of thing can charge the dynamic of how the lawyers deal with each other.  Mike, however, was a true professional.   I learned a lot from how he handled dealing with that dynamic.  I also picked up a couple good tips from  from watching how he took depositions.  He was a credit to the profession and our sympathies to his friends and family.

Monday, June 18, 2012

Williams v. Illinois

The other day, Mr. Gillette and I had a little back-and-forth in the comments regarding Bryan Garner's opinion that Justice Scalia is the court's "most principled" justice. Garner's claim seems to be that Scalia is the most likely to reach a decision that is at odds with his policy preferences.

Today the Supreme Court handed down a decision, Williams v. Illinois, that fits into the Garner / Scalia narrative. Eugune Volokh has a nice summary of the case:
In Williams, a woman was raped and robbed, and the defendant was caught with the help of a DNA test conducted on the semen left over after the attack, though there was other evidence, too: Once the DNA test pointed at the defendant (who hadn’t earlier been under suspicion), “the police conducted a lineup at which [the victim] identified petitioner as her assailant.” But the DNA evidence was important. 
The evidence, though, was presented by an expert who was working from a DNA profile of the semen, and the private forensic lab analyst who actually produced the profile did not testify in court. The legal question in the case was whether the Confrontation Clause barred the introduction of such evidence, given that the person who had personal knowledge of how the profile was produced was not present in court to be cross-examined. This is a complicated and [con]tested question of Confrontation Clause law, on which the Court split 5-4 as to the bottom line (which was that the state wins) and 4-1-4 on the rationale.
Scalia joined Justice Kagan's dissent on the Confrontation Clause issue, creating an unusual 5-4 lineup with Kagan, Ginsberg, Sotomayor, and Scalia together in dissent. The dissent would have found a broader right to confront the expert witness, would have required that the case be retried, and would generally have made obtaining convictions in these cases more expensive and therefore more difficult. Not exactly a "law and order" conservative's dream.

Do not hold grudges for more than 50 years.

I do not remember much about what my life was like in high school.  High school is starting to be a long time ago and as a general matter I do not dwell on the past much.  One guy who dwells on the past is Carl Ericsson, a 73-year-old man living in Madison, South Dakota.  As CBS news reports, on Friday Mr. Ericsson was sentenced to life in prison for murdering Norm Johnson in January.  Mr. Johnson was one of Mr. Ericsson's  high school classmates.  Mr. Ericsson, who pleaded guilty, said he killed the classmate because while in high school, the deceased placed a jock strap on Mr. Ericsson's head. 

Sunday, June 17, 2012

Largest Employers in Chicago

According to Crain's Chicago, the top four employers in Chicago employ a total of about 150,000 people. That's 1 out of every 18 Chicagoans—man, woman, and child. Interestingly, the four organizations are all in the same sector, raising concerns that this industry might have too much influence.

Can you guess what the sector is?

(Answer after the break.)

Friday, June 15, 2012

Citizens United and the Wisconsin Recall

What effect did the Citizens United ruling have on the Wisconsin recall election?

Many Democrats blame Scott Walker's victory on Citizens United, pointing out that anti-recall forces vastly outspent the pro-recall forces. This flood of out-of-state money was made possible, they argue, by the Citizens United decision, which struck down certain limits on corporate electioneering. In short, Citizens United made possible the rise of the pernicious "super PACs" that bought the election for Scott Walker. As a result, Scott Walker was able raise nearly eight times as much money as Tom Barrett ($30.5 million to $3.9 million.)

Republicans disagree. For one thing, they argue, things would have been even worse for the recall efforts prior to Citizens United, because Citizens United also makes possible unlimited electioneering expenditures by labor unions, which made the most of this new freedom and spent heavily in support of the Wisconsin recall effort. Indeed, when you look at the independent expenditures, it turns out that pro-Barrett forces spent $1.6 million more on the recall election than pro-Walker forces did.  When these independent expenditures are included, Walker's money advantage shrinks considerably.

Moreover, Republicans argue, the vast majority of the independent expenditures made on Scott Walker's behalf were made by individuals—not corporations or super PACs—and individuals have been free to spend as much as they like on independent electioneering activities since the Supreme Court decided Buckley v. Valeo in 1976. In other words, without Citizens United, the wealthy individuals would have been free to spend their millions in support of Walker, but the labor unions would have been powerless to respond in kind.

Also, the disparity in the amount Scott Walker directly raised ($30.5 million) versus the amount Tom Barrett raised ($3.9 million) is largely explained by a quirk of Wisconsin law. Walker, as the incumbent, was allowed to receive unlimited direct contributions from individuals, while Barrett was hamstrung by the general $10,000 per-person cap. So Walker had a huge fundraising advantage under Wisconsin law, and this advantage had nothing to do with Citizens United.

One easy answer about the effect of Citizens United on the Wisconsin recall election would be to say it had no effect, because that case dealt with a federal election law that concerned only federal elections. But that would be wrong: state election laws have been struck down in light of Citizens United. Pertinently, the Seventh Circuit relied on Citizen United to strike down a Wisconsin law that previously imposed a $10,000 yearly cap on the amount that individuals could make to "independent expenditure committees" of PACs and the like. But since individuals were permitted to make unlimited contributions directly to Walker's campaign, it's hard to see how a cap on indirect contributions would have changed anything.

Ultimately, it seems hard to maintain that Citizens United really played much of a role in the Wisconsin recall election. But I'm interested in your thoughts, Mr. Gillette (if you have any).

One final point. Tom Barrett raised only $3.9 million in direct contributions. But he ended up spending only $2.9 million. If money is so important in elections, failing to spend 25% of what you raised seems like a pretty stupid thing to do. (All I can think of is that perhaps he was saving money for a recount, or something?)

Bryan Garner and Justice Scalia are getting the band back together

Continuing their interesting collaboration, legal writing guru Bryan Garner and United States Supreme Court justice Antonin Scalia have a new book coming out. It is entitled, "Reading Law: The Interpretation of Legal Texts," and it appears to be addressed to judicial readers. Their previous collaboration, "Making Your Case," was aimed at litigators.

Tony Mauro of the National Law Journal has the scoop, including this tidbit:
Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. "That is a false charge," Garner said Thursday, adding that Scalia is probably "the most consistent and principled" justice in terms of following the text wherever it leads him. 
In the preface, Scalia and Garner address that point. "If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it." Describing himself as a "confessed law-and-order social conservative," Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but "finds nothing in the text of the Constitution that mandates these policies."

Thursday, June 14, 2012

Judge Easterbrook‽

Eugene Volokh points out that a recent Seventh Circuit opinion (authored by Judge Frank Easterbrook) appears to include an interrobang:
We have mentioned that Booth Trust and Gross did not make a demand on the directors before filing suit, and that neither plaintiff nor any other investor (in his role as investor) suffers antitrust injury. Plaintiffs say that investors still can gain from this suit, because removing interlocking directors from the board will eliminate any chance that the United States will file a §8 suit to remove them. We don’t get it. In order to avoid a risk of antitrust litigation, the company should be put through the litigation wringer (this suit) with certainty
I confess that after reading this paragraph several times I actually have no idea what it is supposed to mean, and I haven't read the whole opinion to find out. So I can't say whether the interrobang was intentional or a bizarre typographical error. But the italics (in original) make it seem intentional.

And that's a good thing‽ 

Tuesday, June 12, 2012

Will North Dakota eliminate property taxes?

North Dakotans are voting today.  Or, more accurately, some North Dakotans are voting today.  Among the items on the ballot is a ballot initiative called "Measure 2" that would prohibit property taxes in North Dakota.  The initiative is the result of a group called "Empower the Taxpayer."  The group believes that the power to tax property means that the citizens of North Dakota do not own their homes.  Instead, the various entities that can tax property own the homes of everyone in North Dakota.  Mr. Torvik has more of a background with philosophy so he may understand this point better than I.

Thursday, June 7, 2012

"Maybe if I press this button..."

I'm sure you've seen this, Mr. Gillette:

It's a bona fide viral video. But, watching it, my thoughts turned to this great post of yours. Suffice it to say, I am not made of sterner stuff than you.

What Can We Learn From Germany?

Over at The Atlantic, Prof. James R. Maxeiner has an interesting post comparing and contrasting the American and German systems of civil justice. His conclusion is that that German system is vastly superior:

The virtues of German civil justice are clear. In the German system, judges are narrowing issues in dispute from the beginning. By the time they are ready to decide the case, the parties know upon which disputed facts the decision will turn. With each step forward, the decision of the case becomes increasingly predictable. Parties may read the handwriting on the wall and settle the case, not because the costs of going forward are too high but to avoid the litigation risk of an adverse decision. Throughout the process, an engaged and empowered judiciary ensures a speedy, reasoned, and equitable resolution. 
What the United States needs are judges that decide. The job of judges is not to superintend contests -- it is to judge. Through taking an interest in applying law to facts from the very beginning of lawsuits, American judges may help Americans realize at long last the right that they have claimed since 1776: that everyone "ought to have remedy by the course of the law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the law of the land."
As a future judge, what are your thoughts, Mr. Gillette?

Wednesday, June 6, 2012

Texas Executes Corporations All The Time

A popular trope among a certain set is, "I'll believe corporations are people when Texas executes one."

This is a clever and amusing way to point out that human beings are alive and corporations are not. It also insinuates that conservatives in Texas like to kill people even while they worship at the altar of corporate personhood.

But, in fact, Texas does execute corporations all the time. In this context, however, the death penalty is called "involuntary dissolution." Indeed, among the many bases for a court-ordered involuntary dissolution is when a Texas corporation is convicted of a felony. In other words, a corporation faces the death penalty whenever it (or a "high managerial agent" acting on its behalf) is convicted of a felony.

When a corporation is involuntarily dissolved the capacity it formerly had to prosecute a cause of action is vested in its shareholders. In other words, the corporation vanishes and nothing is left but the human beings who owned it. Human beings that, presumably, Texas can go ahead and execute.

"Democracy died tonight."

"The end of the USA as we know it just happened":

I guess that makes Mr. Gillette a murderer, given his pro-Walker sentiment.

On the other hand, to stay abreast of the memes of the moment, perhaps the proper sentiment to Wisconsin Democrats is "good job! good effort! good job! good effort!":

Thought(s) on Wisconsin's Recall.

I am writing this on the morning of the Wisconsin recall election.  However because I want to make that nothing suppresses the vote of our Reader(s)™, I am not posting it until midnight.  By then, I assume everyone will have voted.  

The folks at the 538 election blog are not officially predicting that Governor Scott Walker will win but are suggesting that it seems likely that Governor Walker will win.  This strikes me as a good result.

I do not think that it is a good result because I think that Governor Walker has good policies.  Actually, I think he has bad policies.  To be fair, I do not know every one of Governor Walker's policies so there may be some that are good policies.  I can say that Wisconsin's state government has done a lot of things since Governor Walker took office that made me glad I no longer live in Wisconsin.  Also, there are allegations which suggest that Governor Walker's stint as Milwaukee County Executive involved breaking the law and that Governor Walker is the target of criminal investigations.  So, between bad policies and possible law breaking, if I were still living in Wisconsin I would probably not vote for Scott Walker.  In the interest of full disclosure, I did vote for Scott Walker when we were in college together.  That did not work out too well for him.

Given this, why would I think a win by Governor Walker would be a good thing?  Mostly because I think that recalling elected officials because you disagree with their policies is no way to run a state.  Elections are supposed to have consequences.  If they do not, because the losing side simply starts a recall effort as soon as possible, governments will be paralyzed from taking any action ever.  Presumably even the most ardent advocates of limited government would agree that there are some circumstances where action needs to take place.  Wisconsin's recall craze calls to mind California's obsession with ballot propositions.  As the Economist notes, this sort of direct democracy has been disastrous for California.  At a certain point, people need to let their elected representatives govern.

According to this, there have only been 3 recall elections of governors in U.S. history.  Does anyone think that if Tom Barrett won this election, the number would not change to 4?  A Mayor Barrett win would encourage people unhappy with that result to start a recall election of him as soon as they are allowed to do so. Wisconsin taxpayers are paying $18 million to fund this recall and would undoubtedly be paying a similar amount in 2013 or 2014 if Governor Walker loses.  Wisconsin has better ways to spend its money.

While a loss by Governor Walker will undoubtedly lead to another recall, I suspect that if Governor Walker wins, then the recall mania in Wisconsin will stop.  In the long run, Wisconsin will be better off with that result.

Tuesday, June 5, 2012

Judge Easterbrook on ideology at the Supreme Court

Some interesting comments from Judge Frank Easterbrook's commencement speech at Swarthmore:

We have about a month to go in the Supreme Court's current term. Many 5-4 decisions are impending. The press will bemoan the Justices' inability to agree and assert that the Justices' ideology explain the divisions. Those of you who have encountered the attitudinal model in class will nod sagely. You, and the press, will be wrong. 
Suppose the Justices who are usually called "conservative" were to resign tomorrow and be replaced by President Obama. The reconstituted Court still would find lots of cases to be hard. It would grant review of those hard cases and decide many of them five to four. Cases that the Roberts Court finds hard and decides 5-4, this hypothetical Court would find easy and decide 9-0; lawyers would stop presenting those disputes. But they would bring more and more of the disputes that divide the new Court. 
To those who specialize in economic analysis of law, the effect is known as selection pressure in litigation. The choices made by lawyers, and the judges themselves, ensure substantial disagreement even when there is no ideological difference among the judges - which also makes it hard to blame politics for the disagreement we actually observe. The rate of disagreement among the Justices has been stable for more than 70 years.1 The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President. Selection pressure is responsible for this stability.

Justin Blackmon incriminates himself.

Mr. Torvik normally handles the sports news around here but I noticed this story about former Oklahoma State Cowboy and future Jacksonville Jaguar Justin Blackmon.  Mr. Blackmon was arrested in Stillwater, Oklahoma.  Stillwater, of course, is the home of Oklahoma State University.