Warning:

I remember watching the 1960 World Series on television, but the first year that I really followed major league baseball was 1961, the year of Roger Maris and Mickey Mantle’s historic assault on Babe Ruth’s single season home run record. When the baseball season was over, my new-found enthusiasm for sports led me to become a pro football fan as well.

The 1961 season was the second in which the National Football League faced competition from the upstart American Football League. Although everyone I knew and everything I read viewed the NFL as the superior league, no one seemed to deny that the AFL was a major league. As with baseball, my two primary sources of sports information were the sports page of our daily newspaper, the Roanoke Times, and sports cards that came packaged with bubble gum, the purchase of which consumed most of my meager resources.

The local drug store from which I purchased most of my football cards carried the 1961 Fleer Pro Football set, which contained 220 player cards representing all 8 AFL teams and 14 NFL teams, including the expansion Minnesota Vikings. (There were only seven Viking cards, and the player pictured on each was shown in the uniform of his previous NFL team.) Cards came five to a pack with a piece of bubble gum. AFL and NFL cards were never mixed together, so you knew immediately whether you had gotten an AFL or a generally-perceived-to-be-much-more-valuable NFL pack.

For me, picking a favorite football team in 1961 was a real challenge. My home town in southwest Virginia was more than 300 miles from any city with a team; neither of my parents was a professional football fan, and my family, having always lived in rural Virginia and West Virginia, had no connection to any large city. In baseball, I had rooted for the New York Yankees and the Milwaukee Braves (the former because of Maris and Mantle and the latter because my youth league team was called the Braves).

However, these baseball connections did not automatically transfer into my becoming a New York Giants or a Green Bay Packer fan. (I now regret not picking up on the coolness of the Packers until I came to Marquette in 1995. I think the Green and Gold uniforms, which closely resembled those of the Narrows Green Wave, my town’s arch rival, eliminated them as a rooting interest.) I did root for the New York Titans (now Jets) in the AFL, but the AFL counted for very little among my circle—my friend Tommy Powell once offered to trade me his entire collection of AFL cards for my one Johnny Unitas card, but I refused the offer.

The ability to follow an NFL team in Pearisburg, Virginia, in 1961 was restricted in several ways. One was the limited number of television and radio options for following the NFL generally. The one local radio station did not carry any football games at all, and the options available on the one television station that we received were, needless to say, fairly restrictive.

Although the Sports Broadcasting Act was passed in the fall of 1961, the 1961 season was the last in which the previous broadcasting rules applied. Basically, because of judicial interpretations of the Sherman Act’s application to the NFL, the league was prohibited from negotiating a collective broadcasting contract with an individual television network (of which there were then three). As a result, individual teams negotiated with the networks or with independent stations for the rights to their home games. (Allowing the collective sale of broadcast rights was the major change brought about by the Sports Broadcasting Act.)

Throughout the 1950’s, most NFL teams sold their broadcast rights to CBS, but for the 1960 and 1961 seasons, the rights to the home games of the Colts and Steelers were acquired by NBC. In contrast, the AFL games had been sold as a block to ABC shortly after the league’s founding in 1960, apparently on the assumption that the Sherman Act did not apply to the AFL in the same way it applied to the NFL. (Presumably, this was rooted in the notion, given the nature of its founding where teams were started from scratch, that the AFL constituted a single economic entity whereas the NFL was a combination of teams, most of whose economic existence predated their membership in the NFL.

Unfortunately, because of the location of our house (and probably because of the technological limitations of our television antenna which had been purchased in 1955 or 1956), we could only pick up the signal of one television station, WSLS-TV in Roanoke, which was an NBC affiliate. Consequently, the only games I could watch featured either the Colts or the Steelers and whomever they might be playing. (The two teams, which were in different divisions, did not play each other in 1961.) Some people in the town with a better location (or a better antenna) could pick up a CBS station, but no one got ABC.

The other factor affecting the object of my fandom was the enormous popularity of the Baltimore Colts in southwestern Virginia. As far as I could tell, all of the pro football fans in my home town rooted either for the Colts or the Washington Redskins (which was the closest team.) Older adults could probably remember when the Redskins were a top team, but in the recent past they had been dreadful. (Just ask Professor Kossow, who even then was a season ticket holder.) In 1960, the Redskins were 1-9-2, and the year before that, which to me in 1961 seemed like ancient history, they were only 3-9-0. It was also clear to me that most Colts fans were of the view that only life’s losers rooted for the Redskins.

In contrast, the late 1950’s and early 1960’s were the Golden Age of the Baltimore Colts. The Colts had won NFL championships in 1958 and 1959, and the names of their star players—Johnny Unitas, Lenny Moore, Kenosha’s Alan Ameche, Raymond Berry, Gino Marchetti, Eugene “Big Daddy” Lipscomb, L. G. “Long Gone” Dupre, and Art “Fatso” Donovan—were as well known in the Mid-Atlantic region as the Lombardi Packers would be in 1960’s (and later) Wisconsin. The Colts appeared to be on their way to a third straight championship in 1960 until they mysteriously lost their last four games of the season, and were replaced as Western Division champions by Vince Lombardi’s upstart Green Bay Packers, which, before Lombardi’s arrival, had spent most of the 1950’s competing with the Redskins for the title of “sad sack” of the NFL.

So I began the season unsure of which team I liked best. My next door neighbor, Tom Givens, convinced me that I should be rooting for the Redskins, so I started off trying to be a Redskins fan, but after the still all-white team started the season 0-9-0 while being outscored 245-68, I sort of gave up on them. As it turned out, it didn’t get much better for the Skins, who finished the season 1-12-1 with a tie and a final game victory over the Dallas Cowboys, which were in their second year of existence.

Watching the Steelers on television on a regular basis made me sort of a Steelers fan, and they did have some very cool players: halfback Tom “the Bomb” Tracy (who specialized in the halfback option pass, although he only rarely completed his tosses), fullback John Henry Johnson (presumably named after the legendary railroad worker who was a local hero where I grew up), and quarterback Bobby Layne, whom the announcers treated like some revered elderly figure and who kicked extra points, but not field goals.

However, the Steelers didn’t do that well either. They lost their first four games—only one of which was televised–before finally getting their first win of the season, a shutout of the Redskins. (Who else?) Plus, Bobby Layne was injured and missed the middle half of the season, and even though the Steelers won four of their next five games after the 0-4 start, they dropped three of their last five to finish 6-8-0. By mid-season, I was basically a Colts fan.

But the Colts also had problems. The shortcomings that had plagued the team at the end of the 1960 season, which were probably personnel related, continued in the early part of the 1961 season. After opening with a narrow 27-24 victory over the Los Angeles Rams, the Colts lost four of their next six games, including losses to the Packers and Lions, which along with the Colts had been the preseason favorites in the NFL West, and two defeats at the hands of the Chicago Bears in the space of 15 days.

At mid-season, the Packers were in first place in the West with a 6-1-1 record while the Colts were in fifth place, trailing not just the Packers, but also the surprising Bears, the 49ers, and the Lions.

The Colts appeared to be on the verge of rallying in the second half of the season when they pasted the Packers, 45-21, in a November 8 game in Baltimore. Unfortunately, the Colts dropped their next game to expansion Minnesota Vikings, by an embarrassing score of 28-20. This loss left them three games behind the Packers (who that same day bested the Bears 31-28 in Wrigley Field) with only five games to play.

Although the Colts won four of their last five games, the Packers continued to win and actually clinched the West Division championship at the end of Week 12, two weeks before the end of the regular season.

The race in the NFL East Division was much closer, and basically featured a three-way contest among the defending champion Philadelphia Eagles, the New York Giants, and the Cleveland Browns that lasted until the final day of the regular season. The Eagles either held or shared first place for 10 of the first 12 weeks of the season, but at the end of Week 12, the Eagles and Giants were tied for first with records of 9-3-0, with Cleveland a game behind at 8-4-0.

On Sunday, December 10, the Division leaders squared off against each other in Philadelphia. The Eagles led 10-7 after the first quarter, but the Giants then replaced starting quarterback Y.A. Tittle with his aging back-up Charlie Conerly. Conerly rallied his teammates, throwing three touchdown passes and no interceptions as the Giants held off their rivals to the south and came away with a 24-20 victory. This put the Giants one game up on the Eagles with one game to go, assuring them of at least a tie for first place. That same day, the Browns were eliminated by a close 17-14 loss to the Bears in Chicago in a game in which the Browns had led 14-0 in the 4th quarter before faltering.

To retain the East Division title, Philadelphia had to defeat the Lions in Detroit the next weekend and hope that Cleveland could travel to New York and win out over the Giants. In that case, the two teams would play a 15th game to determine the division champion.

The Eagles defeated the Lions, but it was for naught as the Giants and Browns battled to 7-7 in Yankee Stadium. With a record of 10-3-1, the Giants edged the 10-4-0 Eagles by a half game.

Two weeks later, on New Year’s Eve, the Packers and Giants met in Green Bay for the 1961 NFL Championship. Although the Packers had played in the 1960 championship game, their last NFL title had come in 1944, when they bested the Giants 14-7 in New York’s Polo Grounds. The Giants were not strangers to the title game either; in fact, although their last NFL title had come in 1956 when they trounced the Chicago Bears, 47-7, Gotham’s team was playing in the championship tilt for the fourth time in six years.

The 1961 championship was played in 17-degree weather with a 10-mph wind in the Packers still new stadium, which had opened in 1957. Known originally as “City Stadium” or “New City Stadium,” the structure would not be renamed Lambeau Field until 1965. The game was televised on NBC, which held the exclusive rights to broadcast the NFL championship game from 1955 through 1963.

The game itself was a complete anti-climax. After a scoreless 1st quarter, Packer halfback Paul Hornung, the NFL’s leading scorer, ran the ball over the goal line from six yards out. Quarterback Bart Starr then tossed TD passes to wide receiver Boyd Dowler and tight end Ron Kramer. When the next Packer drive stalled at the 10-yard line, Hornung finished off the 24 point quarter with a 17-yard field goal. (In 1961, NFL goal posts were positioned on the goal line, hence the 17 yard field goal.)

In the third quarter it was more of the same, with Horning kicking a 22 yard field goal, and Starr tossing another TD pass to Ron Kramer. The only scoring in the final quarter was a third field goal by Hornung, this one from 19 yards out, giving him a total of 19 points for the game (one touchdown, four extra points, and three field goals)

For the game, the Packers outrushed the Giants 181 yards to 31, with Hornung and Jim Taylor leading the way with 89 and 69 yards, respectively. Starr passed for 164 yards and three touchdowns, compared to a combined 119 yards for Tittle and Conerly. Ron Kramer led the Packers in receptions with four (two for TDs), and both Dowler and Hornung pulled in three catches. Popular wide receiver Max McGee was shut out in the receiving department, but no one really noticed.

The Packer defense was particularly effective that day, as the 37-0 score suggests. In addition to holding the Giant running backs to 31 yards on 14 carries, the defense sacked Tittle twice for losses of 20 yards and intercepted him four times. As in the earlier Giant-Philadelphia game Charlie Conerly was brought in off the bench when Tittle faltered, but in the championship game there would be no magical comeback, as Conerly was able to complete only four of eight passes for a paltry 54 yards.

The names of the starters for the Packers in the 1961 NFL championship game still resonate deeply for many Wisconsin sports fans. The offensive backfield that day included Bart Starr (QB), Paul Hornung (HB), Jim Taylor (FB), and Boyd Dowler (FL). The ends were Max McGee and Ron Kramer, and the offensive line included center Jim Ringo, guards Fuzzy Thurston and Forest Gregg, and tackles Norm Masters and Bob Skoronski. (Starting guard Jerry Kramer missed the game with an injury, forcing Forest Gregg to move to guard from his normal starting tackle position.)

The Packer defensive line was made up of defensive ends Willie Davis and Bob Quinlan and defensive tackles Henry Jordan and Dave Hanner. The starting linebackers were Bill Forester, Dan Currie, and middle linebacker Ray Nitschke, while the defensive backfield included cornerbacks Hank Gremminger and Jess Whittenton, strong safety John Symank, and free safety Willie Wood. Wide receiver Boyd Dowler handled the punting, and Hornung did the place-kicking.

The 1961 NFL season did not actually end, however, until January 14, 1962, the date of the post-season all-star game officially known as the East-West Pro Bowl game. It too was televised by NBC.

I can still remember listening to the game sitting on the floor in our den. I say listening because some time after Christmas 1961, a tube blew out in our television set, a fairly common occurrence in the pre-printed circuit era of electronics. Although the sound continued to work, the screen remained completely blank, effectively turning the television into a radio. When this happened, my parents invariably treated it as a kind of divine signal that my brother and I needed to take a break from TV, and they usually waited a few weeks before getting the tube replaced.

Consequently, I was forced to listen to the game and imagine in my mind what turned out to be the most exciting professional football all-star game of all time. The West led for most of the game, jumping out to a 14-3 lead in the first quarter. However, the East regrouped and managed to narrow the gap to 17-10 at the half. At the end of the third quarter, the West still led, 24-16, as both teams scored touchdowns, but the East’s extra point attempt was blocked by Green Bay Packer (and University of Virginia graduate) Henry Jordan.

However, the East offense caught fire in the final quarter, and put a quick 14 points on the scoreboard when Title passed two yards to his team Alex Webster for one touchdown and fullback Jimmy Brown ran 70 yards for another.

With the East now in the lead, 30-24, the West offense continued to sputter, and with less than two minutes to go in the game, the East had the ball with the intention of running out the clock with a series of rushing plays. However, a crushing tackle by Chicago Bear linebacker Bill George caused an uncharacteristic fumble by Jim Brown, which was recovered by George on the East’s 42 yard line, providing the West with one final shot at winning the game.

West quarterback Johnny Unitas quickly completed a pass of 14 yards to tight end Mike Ditka of the Bears, and then on the next play, one of 15 yards to his Baltimore Colt teammate Lenny Moore. However, a second pass to Moore fell incomplete, and with only seconds remaining, the West had the ball on the twelve-yard line. On the game’s final play, Unitas hit Los Angeles Ram halfback Jon Arnett in the back of the end zone for a game tying six points, and with time expired the West converted the extra point for the victory.

In spite of his fumble, Jimmy Brown was named the player of the game while top lineman honors went to Henry Jordan.

It was a great way to end a great season. We talked about it the next day in my Fourth Grade class, and a half century later, I still remember the 1961 season.

This was, of course, not always the case. Until 1996, all Major League Baseball post-season play-off games were on free television. That year, ESPN won the right to broadcast any first round play-off games not aired by NBC or FOX, then Major League Baseball’s primary broadcast partners. Since that time, the number of play-off games on pay television has been steadily creeping upward.

In Australia and in many European countries, the local equivalent of Major League Baseball’s playoff games would be required by law to be broadcast on free television. Called anti-siphoning statutes, these laws dictate that certain sporting events must be made available for broadcast on free, open-air stations, if they are broadcast at all.

In Australia, for example, every regular season and play-off match played in both the Australian Football League Premiership (Australian Rules Football) and the National Rugby League—the country’s two most popular sports leagues—are on the anti-siphoning list. On the list as well are a host of other sporting events, many of which take place outside of Australia, ranging from the FIFA World Cup to the U.S. Masters Golf Tournament to all test matches played by Australia’s senior representative cricket team.

In the European Union, the 2007 Audiovisual Media Services Directive encourages individual members to adopt similar protected lists, and guarantees legal immunity from any other EU rule or regulation that might arguably apply. Such guarantees exist in a variety of European countries, including Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, and the United Kingdom.

The failure of Arab countries to adopt such statutes meant that the vast majority of Arab citizens were not able to watch, at least legally, the 2006 World Cup, because the exclusive broadcast rights were sold to a single satellite broadcaster that charged exorbitant rates for its signal. (I have written about this issue in some detail in an article entitled “The Over-Protection of Intellectual Property Rights in Sport in the United States and Elsewhere” that appeared in the Winter 2011 issue of the Journal of the Legal Aspects of Sport.)

Almost twenty years ago the United States Congress expressed concern about the migration of high profile sporting events to pay television when it adopted the Cable Television Consumer Protection and Competition Act of 1992, which authorized the FCC to study the issue. To date, most of the major sporting events in the United States—the World Series, the NCAA Final Four, the NBA Finals, and the Super Bowl—remain on free television, but that may soon change.

In recent years, a variety of popular sporting events have been shifted to pay television, including most of the races constituting NASCAR’s Chase series, early round play-off games in the NBA and NHL, as well as Major League Baseball, two of the four tennis majors, and one of golf’s four majors. Moreover, last year the BCS championship game was, for the first time, broadcast exclusively on cable television (ESPN), and will be for the foreseeable future.

That there has not been more uproar over the recent shifts may reflect that fact that an estimated 75% of the United States population now has access to basic cable or satellite television, placing those of us who do not in a distinctively minority position.

Furthermore, whether an American anti-siphoning law could withstand First Amendment scrutiny is an interesting question. Early on in the history of cable television in the United States, the FCC issued a draconian guideline that essentially prohibited cable television broadcasters from airing any live sporting events at all (as well as prohibiting original programming not first shown on free television). This rule was struck down by the D.C. Circuit Court of Appeals in Home Box Office v. FCC, 567 F.2d 9 (D.C. Cir. 1977), but that directive was far more restrictive than any modern anti-siphoning statute, all of which permit the simultaneous broadcasting of events on free and pay television. However, given the solicitude shown for commercial speech by the current United States Supreme Court, the fate of such legislation is hard to predict.

As a baseball fan, I feel aggrieved by not being able to watch the Brewers games on free television. However, so far I do not feel aggrieved enough to subscribe to cable television or, for that matter, to complain to my Congressman. For the time being, I will just have to root for the Brewers to make it to the World Series, which, thankfully, is still on regular television.

But the current test-score cheating scandal in Atlanta is a different matter. It is pretty much the most disturbing and shocking single episode in American education that I can think of in the last decade. This is a case of teachers and administrators being shown in real life to have engaged in vividly discrediting educational practices. 

I heard or read often in recent years about the successes of the Atlanta public schools. Test scores had risen, the elected school board was a model case for those who opposed mayoral control of schools, and Superintendent Beverly Hall was one of the most honored and respected school leaders in the country. I remember then-MPS Superintendent William Andrekopoulos telling me several years ago what a great person Hall was, and that view was definitely in the mainstream of educators.

All of that makes the scandal that has been unfolding in Atlanta for months all the more stunning. The Atlanta Journal Constitution deserves a lot of credit for pushing hard to bring to light a sweeping culture among teachers and their superiors, right up to Hall, in which doctoring students’ test scores sheets was done routinely, almost openly, and with indifference to both the rules and to children’s actual education needs. A culture of cheating, with a partner culture of intimidation of those who might resist it, pervaded Atlanta’s school system.  Hall has resigned and is now considered highly discredited, the school district has fallen into turmoil, and criminal charges may lie ahead.

The Journal Constitution’s story about a special investigative report released by the governor’s officeTuesday, summarizes the scandal in revolting detail.

Critics have long argued that standardized testing is a bad way to judge kids and, among other problems, leads to cheating by educators who have strong incentives to show good results for their students. My guess is even few of the critics thought there was a scandal of the dimension now unfolding in Atlanta. From now on, the word “Atlanta” is going to be to debate about high stakes testing what the word “Columbine” is to discussions of student violence.

Will the Atlanta situation change the course of the movement that has made standardized testing a key part of accountability around  the US? My guess is that overall, it won’t. But it certainly should cause everyone to think deeply about how to make testing a constructive step. That includes more work on improving test security, creating climates of ethical practices around testing, and monitoring the pressures being put on educators to come up with good results.

Results on state standardized tests for Milwaukee school children may be discouraging, but at least they are, to the best of my knowledge, generally honest. I’m only aware of one real cheating scandal in Milwaukee Public Schools in the last decade or so. It involved one school a few years ago, and, while MPS succeeded in keeping most of the details from public view (it was labeled an employee discipline matter), best as I could tell, the district dealt with it reasonably well.  (By the way, speak up if you know differently, not only with MPS but any school or district.)

I used to think it would be nice if Milwaukee had Atlanta’s record when it came to rest results. Obviously, it is time to think the reverse, especially when it comes to integrity.

The case is still another example of the way the prosecution of a rich and/or famous person can be and frequently is presented to the public as a type of contemporary morality play, that is, as a dramatic allegory about temptation, sin, and – in the end – either damnation of salvation.  Comparable media packaging of cases involving O.J. Simpson, Michael Jackson, and Eliot Spitzer spring to mind.

The added twist in the Strauss-Kahn drama is that the featured player in the morality play is a wealthy and worldly European who found out the hard way about down-to-earth American norms and values.  The best comparison might be to the mass media’s packaging of the attempt to extradite the Polish filmmaker Roman Polansky, who allegedly raped a teenager in California.  Lionized by the French artistic community, Polansky squirreled himself away in Switzerland and in the end avoided the grasp of the American authorities.  Strauss-Kahn, meanwhile is under house arrest in Manhattan and waiting trial.  Might Attica be his hellish fate?

The Il Foglio article appears on the front page of the “Martedo, 24 Maggio 2011” edition, but since the article is in Italian, most of us will require the good services of colleague Irene Calboli in order to read it . . . .

Are people ready and willing to pay to get stories from the Times? How about from other news organizations – the Washington Post, the Los Angeles Times, the Milwaukee Journal Sentinel, CNN, or whoever you turn to for information?

A long-awaited major moment is at hand for the news industry: The Times’ Web site is the premier American site for world and national news. And they’re about to start charging serious users for access. .

This is, in some ways, a great period to be a reporter for a major news organization. Readership is very strong, if you include both Internet readers and traditional print readers. The reach of a story is fabulous – a piece published in Milwaukee can be (and often is) read immediately on the other side of the globe.

But, of course, it is also an extremely threatening time for news organizations and reporters. The business model, so to speak, of conventional news media, especially large newspapers, is broken. With a few exceptions, all those readers on the Internet are getting the news for free.

No circulation revenue arises when I get on the New York Times Web site, which I do often. The huge cash cow of major newspapers, classified ads for homes, cars, jobs, and a million other things, has been almost totally replaced by free Internet sites such as Craig’s list. Major display advertising is a fraction of what it once was. Those ads you see on Web pages don’t bring in anywhere near the revenue that traditional advertising generated.

So the question that has been the focus of intense interest in the news industry has been how to get people to pay money for stories and other content on the Web in something that resembles the way the declining number of people pay for the newspaper when it is delivered to their door. How do you turn all those Web hits into cash?

People expect Internet news to be free and have generally been emphatic in holding on to that practice. Some previous efforts to get people to pay for news content, including the Times’ own “Times Select” effort of several years ago, have failed. People will simply go elsewhere or find ways around pay walls. There are a few exceptions, usually involving a particular niche (much of the Journal Sentinel’s coverage of the Green Bay Packers) or a highly-sought specific publication (the Wall Street Journal) where demand is so strong that people will pay.

Now comes the New York Times with a new plan:  As of March 31, people will be able to get glimpses of the news and a handful of stories (20 a month) for free. But broader access to the paper’s Web site will cost at least $15 every four weeks. That’s $195 a year.

Will a large enough number of people go along with this to make it work? If so, will that be a break through for other news organizations to start charging? If not, is there a fallback plan to keep the enormous Times’ news operation fueled? A step into a more solid future for major news organizations or another step on the path of decline? (A glance at some industry commentary offered both opinions.)

For me personally, I just don’t know. I like the NYT Web site. But $195 a year. I gotta think about that. Wonder what the Washington Post will do.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.   Even after the dust settles on the particular aspects of the budget bill that have engendered controversy (collective bargaining rights, public school funding, control over state health care programs, etc.), there will remain three broad issues that call out for reform, both in Wisconsin and nationwide.  Everyone in Wisconsin (and that includes Democrats, Republicans, and Independents) shares an interest in preserving a system of government in which it is the voters of the state who hold the ultimate political power.  Overlooked amidst the partisan bickering between Governor Walker and the Democratic 14 are serious fault lines that threaten the long term stability of the democratic process.

1. Political Accountability

The Supreme Court has often stressed that our system of government only works when elected officials are accountable to the voters.  The Court’s interpretation of the U.S. Constitution has elevated the idea of political accountability into a basic structural component of both the separation of powers and federalism.  For example, in the case of Clinton v. City of New York, the Court struck down the Line Item Veto Act.  Justice Kennedy wrote a separate concurrence stressing the manner in which the technique of the line item veto impermissibly allows Congress to avoid being held politically accountable for its spending decisions.  Similarly, in Printz v. United States, the Supreme Court struck down certain provisions of the Brady Bill that required local law enforcement to perform background checks on handgun purchases.  Justice Scalia’s majority opinion stressed the manner in which the Brady Bill acted to shift unpopular enforcement responsibilities away from the federal government and onto the shoulders of state officials.    

From this perspective, the Walker administration’s budget bill was objectionable, on process grounds.  The budget bill incorporated fundamental policy provisions into a fiscal bill that was required in order to fund the state government.  Both political parties in Wisconsin have engaged in this practice in the past, and it is easy to see why.  First, the exigencies of passing a budget, and the desire to keep state government’s services and benefits flowing, work to create time pressures that preclude any reasoned deliberation and debate over the policy changes.  Second, the inescapable need to pass a budget bill in some form typically creates political “cover” for politicians who can vote in favor of the bill in its totality while still claiming to have privately opposed the passage of specific policy provisions.  The result of combining basic policy provisions with budgetary provisions, however, is that it allows elected officials to avoid taking responsibility for their votes.

The number of significant policy changes contained within the Wisconsin budget bill is sufficient to lead to the conclusion that the entire bill was designed to allow Republican legislators to avoid political accountability.  A false sense of urgency was created, using the fiscal needs of the government as an excuse, and the vote on the bill was fast tracked in order to limit public debate.  In addition, items that clearly would have generated a storm of controversy if introduced as a stand-alone bill were quietly buried in the budget bill.  This move allowed nervous Republicans to vote for the entire bill while maintaining plausible deniability with constituents who opposed the controversial provisions.

It is only due to the actions of the Democratic 14, who left the State in order to deny the Senate a quorum, that the issue of collective bargaining rights for public employees was separated from the overall budget provisions in the minds of the voting public.  As a result, and much to their chagrin, individual Republican legislators were forced to take a position on the issue in the face of public scrutiny.  All of these legislators, Democrat and Republican, are now accountable to the voters, who can exercise their power to recall legislators on either side as they see fit.  Contrary to today’s bizarre editorial in the Milwaukee Journal Sentinel, criticizing the recall efforts already underway, the accountability of elected politicians to the voters is a good thing.      

Procedural tricks designed to protect nervous lawmakers from being held accountable for their votes have no place in a democracy.  The Supreme Court is correct: the desire of the Framers to place the ultimate political power in the hands of the voters is meaningless unless political accountability is rigorously enforced.  “Handshake” agreements between the two political parties, whereby they make vague promises to keep policy proposals out of the biennial budget, are too easy to avoid.  Informal practices should be replaced with strong proscriptions that enforce such separation.

2. Money Matters (A Lot)

Even Wisconsin’s Senate Majority Leader admits that the collective bargaining provision contained in the budget bill strikes at the Democrats’ fundraising capability.  The vast sums of money needed to run a modern statewide campaign (primarily due to the cost of mass media advertising) has created an arms race between the two political parties in which both sides endeavor to raise ever increasing sums of cash.  Much of the money raised goes to pay for mass media advertising that solicits even more contributions, and for the salaries of professional fundraisers.    

Both political parties have become dependent upon collective entities, as opposed to individual contributors, for their financial needs.  Unions are the collective entity that provides the Democrats with a large portion of their funding.  Corporations are the collective entity that provides the Republicans with the bulk of their funding.  Both sides attempt to restrict or eliminate the source of their opponent’s funding, while preserving their own.

In the context of public employee unions, some people have complained that the unions are funded by taxpayer-supported salaries, and that these unions merely recycle those dollars to advance self-interested objectives that many taxpayers oppose.  That may be true to a certain extent, but the same point applies to corporations as well.  Corporations spend monies for political purposes that would otherwise flow back to the owners of the corporation.  In the case of publicly traded corporations, a large percentage of the company’s shareholder-owners are pension funds investing the retirement money of teachers and other government employees.  I doubt that the beneficiaries of these pension funds appreciate the fact that profits in companies that they own are being used to fund political speech (oftentimes hostile towards unions) rather than being paid out to them as dividends.

Rather than spend their time and energy plotting to defund their opponent’s main source of campaign dollars, our legislators should enact meaningful campaign finance reform.  This would entail limitations on the disproportionate influence exerted by collective entities on both sides, and force candidates for office to rely more heavily on individual contributions.  Campaign finance reform would also make public financing available for candidates who wish to forego contributions from collective entities (thereby allowing the emergence of candidates who are not financially beholden to either unions or corporations).  We are fortunate to have a national expert on campaign finance reform, Senator Russ Feingold, as a Visiting Professor here at Marquette.

If you include “issue ads,” such as the message advertising that Governor Walker alluded to in his phone call with the pseudo-David Koch, the general public already ends up footing most of the bill for campaign spending by collective entities.  For some of us, these funds are collected from our paychecks in the form of mandatory union dues.  For others, these campaign funds are derived from the cost of goods that we purchase from the dues paying members of Wisconsin Manufacturers & Commerce or members of other corporate lobbying groups.  A process that forces us to indirectly support the political spending of collective entities merely allows the middlemen to leverage our own dollars in exchange for their political influence.  The public should have the right to decide to cut out the middleman, and to support political candidates directly through publicly funded campaigns. 

The roadblock here is the United States Supreme Court.  I have already posted on this Blog concerning the case of Citizens United v. FEC.  I find the majority opinion in that case to be extremely misguided.  The Supreme Court has taken an absolutist view of the First Amendment in the context of campaign finance.  As a result of the Court’s holding in Citizens United, lawsuits have been filed challenging not only legislation seeking to limit the influence of collective entities on the political process, but also challenging the constitutionality of laws that provide for the public funding of candidates.  In essence, the voting public is being told that we are not allowed to regulate the electoral process, and that we have no choice but to accept the status quo.  I continue to maintain that the First Amendment was not intended to provide collective entities with a constitutional right to participate in the electoral process.     

3. Legislative Districting Reform

The third and final area that calls for reform involves the manner in which legislative districts have been drawn so as to amplify the power and influence of the extremes of both major political parties at the expense of the “moderate middle.”  An interesting post from the Washington Post blog looks at the congressional districts in Wisconsin, and considers whether the state legislature can re-district in order to increase the number of safe Republican seats.  The answer, apparently, is that current districts are already gerrymandered to the maximum extent possible.

I have blogged on this topic before as well.  The problem is that legislative districts are specifically designed to amplify a particular political affiliation among the voters, thereby providing a disproportionate influence to the extreme wing of that party.  Politicians elected from politically gerrymandered districts are often warned that they can expect a primary challenge if they stray too far from the extreme position, even though a majority of the voters who self-identify with that party would prefer a more moderate approach to the issue.  Superior organization and fundraising, coupled with lower turnout numbers in primary elections, combine to give a small number of energized activists the ability to mount successful challenges to the incumbent from the extreme wing of the party.  However, this is only possible because districts are drawn on a partisan basis so that the victor of the primary is highly likely to win the general election. 

If legislative districts were not gerrymandered along political lines, then politicians would have a greater incentive to appeal to moderate voters as opposed to “the base.”  Politicians might even recognize that their constituents hold a variety of different views on the issues, instead of dividing the electorate into two categories: opponents versus “one of us.”  Compromise and progress might even replace gridlock and frustration in both the state and national legislatures.  Instead, we find that our elected officials are increasingly polarized.

In 2004, the Supreme Court had the opportunity to do something about this in the case of Veith v. Jubelirer.  Instead, the majority of the Court ruled that the nature and extent of districts gerrymandered on a partisan basis raised a political question that the Supreme Court could not resolve.  As a result, the only way that partisan gerrymandering will end is if the politicians elected via that very process decide on their own to end it.

Contrast this result with the Supreme Court’s 1962 decision in Baker v. Carr .  There, the Court ruled that state legislative districts that resulted in some voting districts having greater representation than others did not present a political question and could therefore be challenged in court.  As recounted in a recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, Justice Clark, who had been tasked with researching alternative ways other than litigation in which the advocates for electoral reform might accomplish their objectives, concluded in a note to his colleagues: “I am sorry to say that I cannot find any practical course that the people could take in bringing this about except through the federal courts.”  Justice Clark’s vote was the crucial fifth vote in the case.  As a result, the Supreme Court created a mechanism whereby an electoral process that had become petrified and detached from the interests of the voters could be challenged in court, struck down, and reformed.             

We are at a similar impasse today with legislative districts that are drawn in order to favor the two extremes of the political spectrum at the expense of the majority of the voters (who reside well within the ideological middle).  However, this time the only institution capable of reforming the system has decided to sit on the sidelines.

The democratic process needs certain fundamental characteristics in order to work.  These necessary components include: holding legislators accountable for their votes, curbing the influence of collective entities so that the interests of individuals can take precedence, and drawing legislative districts in such a way that candidates can successfully appeal to moderate voters.  An electoral process that lacks these three features is doomed to become captured by special interests.  It may well be that we the voters are incapable of governing ourselves, and that my belief in the democratic process is just a myth.  But even so, it is a myth worth fighting for.

If anything, this current fight is only round one, with a second partisan fight over legislative re-districting yet to come.  The Voter ID bill, which previously was viewed by Democratic leaders as a dangerous assault on their electoral power, now in comparison seems to be a minor inconvenience.  While it is always entertaining to watch two political parties seek to destroy each other, one can’t help but feel that someone in Madison should actually be focused on governing the State.  Both Governor Walker, who picked this partisan fight, and the Democrats, who chose to grind government to a halt in order to defend partisan interests, share equal blame in my eyes.

Who will win this fight?  At this moment, public opinion polling shows broad opposition to the idea of ending collective bargaining rights for public employees.  Joe Conason has a liberal take on the polling data in this post at RealClearPolitics.

Over time, one might expect that public pressure in favor of collective bargaining rights might cause Governor Walker to compromise.  However, much money is being spent on advertising to sway public opinion, and many media outlets have reported on this story in ways that seem designed to influence public perception.  It is possible (and intended) that these efforts will eventually cause public opinion to shift.  As usual, George Lakoff has an interesting take on how the language that both sides are adopting in this political debate may ultimately end up influencing the political outcome as much as (if not more than) the merits of the debate.   He writes at the Huffington Post.  Visiting Assistant Professor Rick Esenberg takes issue with Lakoff’s attempt to frame the debate in this post over at Shark and Shepard.  He sees nothing noble in the actions of the Democratic 14.  Meanwhile, David Sirota at Salon has a post that takes issue with the whole idea that any government in possession of the taxing power can ever truly be called “broke.”  Read too much of this kind of analysis, detailing the way in which words influence our political choices, and you are likely to conclude that George Orwell’s novel 1984 should be shelved in the non-fiction aisle.            

Several legal questions have arisen among all of the partisan bickering.  Mike Ivey at the Capital Times looks at the manner in which the budget bill transfers reserves from the segregated health insurance fund, and uses them to offset costs elsewhere in the budget, and asks whether this part of the bill is illegal.  It does look kind of like the transfer of segregated funds by Governor Doyle in the 2009 budget that was ruled illegal, although in this case the offsetting costs are at least related to health care.  Which is more important in the eyes of the law, that the segregated funds are not being used for their intended purpose, or that the alternative use of the funds is similar to the intended purpose?

Milwaukee City Attorney Grant Langley believes that the Budget bill unconstitutionally interferes with home rule.  As Associate Professor Paul Secunda explains at Workplace Prof Blog, the Milwaukee Home Rule Charter places restrictions on the state government’s ability to alter pension rules adopted by the City.  Rick Esenberg questions Langley’s analysis in a post here.

The most recent legal controversy concerns whether the State Senate has the power to order that Democratic Senators be taken into custody if they are found within Wisconsin borders.  At first blush, the State Constitution would seem to provide explicit immunity from arrest for members of the state legislature.  However, Jim Lindgren at the Volokh Controversy has parsed through the history and the precedent in posts here and here.  He has convinced me that the constitutional immunity does not apply in this case.  Elie Mystal is worried that an arrest is possible, and in this post at Above the Law suggests that Republicans might employ “Dog” the Bounty Hunter to track down the missing Democrats.  My advice to Dog:  don’t do anything without an arrest warrant from a judge.    

Finally, Paul Secunda wrote an opinion piece outlining the policy arguments in favor of our society’s recognition of collective bargaining as a legal right.  It appears in the Capital Times here.  I tend to agree with Professor Secunda that collective bargaining advances both societal goals and individual human rights.  Actually, I have no choice but to agree.  My father was a longtime member of the Maryland State Teachers Union.

The Education Writers Association, a national organization of education journalists, named the project the best series of 2010 by a large publication. The series resulted from collaboration between the Law School; the Hechinger Report, an education journalism organization that is part of Columbia University; and the Journal Sentinel, including reporters Amy Hetzner, Erin Richards, and Becky Vevea.

Borsuk helped design the plan for the series and wrote three of the eight pieces. Borsuk, a longtime reporter and editor for the Milwaukee Journal and Milwaukee Journal Sentinel, joined the Law School staff in 2009. He writes and edits pieces for Marquette Lawyer magazine, writes for the Law School’s web pages, and is involved in a variety of public policy activities. He also writes a Sunday column on education for the Journal Sentinel.

The education writers’ contest is judged by experts who are independent of the publications that enter. This year’s judging was directed by Tamara M. Cooke Henry, of the Philip Merrill College of Journalism at the University of Maryland.

The series can be found at http://www.jsonline.com/news/education/111494694.html.

The Wisconsin Legislature showed some of that political bravery this month when it passed the state’s first reporter’s shield law (although some members still seem a little sheepish about it). The new statute, signed into law by Gov. Jim Doyle on May 20, gives “news persons” protection from certain subpoenas seeking their testimony, work products or confidential information, including the identities of their unnamed sources.

Journalists have been fighting for these statutory protections since 1972 when the U.S. Supreme Court refused to recognize a First Amendment reporter’s privilege in Branzburg v. Hayes. Wisconsin is now the 39th state to have responded by adopting concrete statutory protections for journalists.

As anchorman Ron Burgundy might say, this is kind of a big deal. But so far the response has been muted: no significant news coverage, no pubic outcry, no dancing in the streets.

There are a couple of reasons for this. One is that the new statute is not quite revolutionary, because Wisconsin courts are already reasonably attentive to reporters’ newsgathering rights, having recognized some protections under both the state and federal constitutions.

The other reason is that supporters of the new law have deliberately flown it under the radar and have presented more as a boon for citizen-watchdogs than reporters. As Sen. Pat Kreitlow insisted, the new law is “not about protecting the journalists so much as protecting the whistleblowers and their ability to come forward without the fear.”

Supporters of the law have also tried to recast it as a generic public-accountability law by calling it the Whistleblower Protection Act, even though its substantive provisions are parallel to those of most reporter shield laws.

The Milwaukee Journal-Sentinel reinforced this perception by describing the law as a shield for “[j]ournalists and whistleblowers who dig up waste, fraud and abuse.”

There are several problems with all of these characterizations.

First, the Journal-Sentinel description is misleading because it implies that the protection is reserved for people who are attempting to expose institutional graft. But there are no motivation-based triggers in the law. The strength of the protection depends more on the substantiality of the subpoenaing party’s need for the information than on the purposes or public value of the source’s disclosures.

Second, the name of the law seems like an artifice. The Whistleblower Protection Act does not protect whistleblowers; it protects reporters. It gives reporters the legal leverage they need to withhold confidential-source information, if they so choose. Nothing in the law compels them to protect their sources.

To some extent this is a distinction without a difference. Whistleblowers will certainly be empowered by this law, even if the protections flow to them indirectly. But they cannot invoke the law independently, so the name and all of these associated characterizations could give whistleblowers a false sense of security.

Third, much of the discussion about the law ignores the fact that it protects reporters even in the absence of a confidential source. The whistleblower law provides qualified protection for reporters when subpoenaed for nonconfidential information (e.g., notes, digital files, outtakes).

This is critical, because 90 percent of the subpoenas received by media organizations do not seek confidential information. This also illustrates that there is a macro purpose to the law, which is to preserve the strong, presumptive separation between the press and government and to guard against harassment, intimidation and the risk that reporters could effectively be turned into government investigators. All of those risks are present whether a subpoena seeks confidential information or not.

By framing the law as a protection for sources rather than reporters, proponents encourage people to view the law (and the reporter’s privilege generally) as a narrow, utilitarian device for eliciting leaks rather than a broader and more principled means of preserving the autonomy of the press.

This erodes and truncates the theoretical foundation for the privilege, leading lawmakers to favor more circumscribed shield laws – like the federal version being considered in the U.S. Senate, which is entirely focused on confidentiality – and leading judges to discount the need for rigorous scrutiny of nonconfidential subpoenas.

Despite these quibbles, the supporters of the new law should be commended. This statute will add an additional layer of protection for the state’s journalists, it will bring additional clarity to the law, and it will ultimately expand and quicken the free flow of information in the state.

I would just like to see more of an effort by journalists, judges and lawmakers to frame the privilege as an essential feature of our constitutional design rather than a simple and narrowly applicable policy preference. And I would like to see people start calling the law what it is instead of resorting to politically safe euphemisms.

Tech nerds and media junkies have been buzzing lately about Google’s announcement that it will soon rollout Google-TV — a new device/platform that will turn people’s televisions into portals for online video and other web content.

Google representatives unveiled the project last week at a developers conference where they staged a Steve Jobs-like showcase that included animated demonstrations and bold statements about the end of TV as we know it.

Much of this was puffery, of course, but there is no denying Google’s determination to expand its dominion over the communications universe, nor the inevitability of the web’s eventual absorption of traditional television.

These two things terrify broadcast and cable executives. But the advent of web television might benefit traditional TV businesses –- particularly cable companies –- in one important category: First Amendment protection.

Even though the courts have long acknowledged that cable television is a First Amendment-protected medium, they have assigned it a kind of second-class constitutional status, based on the premise that cable markets are not sufficiently competitive.

In 1994, the U.S. Supreme Court held in Turner Broadcasting v. FCC that cable companies operate as effective monopolies, creating bottlenecks for the dissemination of video content in the communities where they operate. As a result, most government regulation of cable is subject to only an intermediate level of First Amendment scrutiny.

In Turner, the Court upheld the constitutionality of the must-carry rules, which require cable operators like Time Warner and Comcast to add the signals of local broadcast stations to their channel lineups. In addition, cable operators must set aside channels for leased-access by third parties, and they can be compelled to subsidize and disseminate public, educational and governmental (PEG) programming, among other things.

These regulations are constitutional only because of the lack of competition that existed when the laws were adopted in the early 1990s. But a lot has changed since then.

Phone companies, such as AT&T and Verizon, now offer cable service (which they were not allowed to do until 1996), DirecTV and Dish Network offer DBS service to nearly every home in the country, and video content is now ubiquitous on the web, even without the seamless packaging of Google-TV. The bottleneck, in short, has broken.

The disconnect between these policies and their underlying premises is not merely a public policy problem; it is a constitutional problem. All of these regulations interfere with the expressive autonomy of cable operators and put special burdens on them that are not imposed on newspapers, magazines or web communicators. (Imagine how quickly the courts would strike down a must-carry law requiring newspapers to set aside a few pages of each issue for use by competitors).

These problems are acute when the government moves from what are arguably structural regulations to more content-based restraints and mandates. There are several of these, most of which target the programming practices of the cable networks (e.g., Comedy Central, ESPN, Nickelodeon).

The federal courts have shot down attempts by the government to regulate indecent content on cable, applying something close to strict scrutiny in those cases. But there are many other content-based restrictions that remain in effect.

Cable networks cannot accept tobacco advertising. They must limit the amount of advertising time during children’s programs. They must provide equal opportunities to political candidates whose opponents appear on those networks in non-exempt programming. And they must abide by the payola rules, which prohibit non-disclosed payments made by third parties in exchange for airtime.

None of these restrictions would be tolerated if imposed on print or web communicators. Yet they continue to be enforced against cable communicators, despite the absence of a cogent regulatory rationale.

It is probably hard for most people to get exercised about the rights of giant cable companies, with their ever-expanding rates and outsourced customer service. But they are constitutionally protected speakers, and the claim that they are differently situated than their competitors using other media just isn’t credible anymore.

It is time for Congress and the FCC to scrap the current regulatory scheme and for the courts to reconsider cable’s constitutional status in light of the new technological and market realities.

Maybe Google-TV will provide the impetus for the end of cable regulation as we know it.

The readers of this blog are undoubtedly familiar with the essential contours of the debate over televising the Court’s proceedings.  Proponents argue that cameras would provide the public with greater access to an important public institution.  They suggest following the mold of what C-SPAN has done for public debates and committee hearings in Congress.  Opponents, essentially, believe that what might have worked for Congress will not work for the Court.  They contend that cameras will alter the dynamic in the courtroom, allowing participants to play to a larger audience in a way that would diminish the value of oral arguments.  Litigants may address the Court with less candor, preferring to speak in platitudes designed for the evening news, and the justices themselves may be less willing to ask pointed questions, lest they be misconstrued by a larger audience. 

What is familiar to the readers of this blog, however, is likely foreign to most of the public.  And that makes me question the probity of a poll such as this.  If the crux of the debate is that the Court is somehow different than Congress, and in a way that will damage its integrity if its proceedings are televised, why are polls of random Americans, who likely do not appreciate those differences, helpful?  Asking an uniformed person a question yields an uninformed answer.

The data from this poll are illustrative.  Researchers asked the respondents whether they previously had heard or read anything about permitting cameras at the Court:  Forty-eight percent had heard “nothing at all,” and the knowledge of an additional twenty-eight percent was nearly as scant, having heard “just a little.”  In other words, a full seventy-six percent of those polled knew little, if anything at all, about the debate.

It’s impossible to conclude from all this that the poll’s outcome would be any different if more of the respondents had a greater appreciation of the issues (and no true statistician would venture to do so).  To be sure, research such as this does have its place; but it has its limitations also.

Permit me to suggest, therefore, that further polls might take a more insightful tack by using a not-so-random population.  (The random sample here was selected from a list of land-line telephone numbers generated by computerized random-digit dialing, proof of how far we have come since the days when a similar method produced a biased sample predicting Dewey’s victory over Truman.)  For example, one might use a survey of all those admitted to practice before the Court or (since I suspect that that population is skewed by the many that seek admission to the Court without ever practicing there) of all those that have argued or briefed cases before the Court.

The Court is different from Congress in at least one important respect:  It decides cases involving the rights and dispositions of individual litigants.  And before this debate proceeds much further, it might be more instructive to hear what those litigants (or their representatives) have to say.

For conflict resolution scholars, the idea of focusing on the media is a logical one. After all, the media is the primary method through which the public and political leadership perceive and understand conflicts at home and abroad. If we are working to better handle these conflicts, the way that these conflicts are explained and understood is a crucial part of that process. Do the media have a responsibility to report all sides, even if one side is “wrong”? Do the media share in responsibility for escalation of a conflict if the reporting is incendiary? (The conviction of certain media figures involved in the Rwandan genocide and the use of “Tokyo Rose” during World War II are only two stark examples of how media can be directly involved in conflict.) And what of the responsibility of conflict specialists — are those of us in the conflict resolution field ignoring the media at our peril?

The symposium issue includes not only general, theoretical articles, but also case studies of specific conflicts from Iraq to Tibet to Peru.  All of the articles can be downloaded from the Law Review’s website, as can video from the conference.  The full list of articles and authors is after the jump.  Congratulations to the editors of Volume 93 for a great first issue! 

International Media and Conflict Resolution: Making the Connection — Andrea Kupfer Schneider

Is Journalism Interested in Resolution, or Only in Conflict? — John J. Pauly

In the Global Village, Can War Survive? — Susan G. Hackley

The Impact of News Coverage on Conflict: Toward Greater Understanding — Richard C. Reuben

Media and Conflict Resolution: A Framework for Analysis — Eytan Gilboa

Derelict of Duty: The American News Media, Terrorism, and the War in Iraq — Douglas M. McLeod

Negative and Positive Roles of Media in the Belgian Conflict: A Model for De-escalation — Martin Euwema and Alain Verbeke

Eliminationist Discourse in a Conflicted Society: Lessons for America from Africa? — Phyllis E. Bernard

Tibet and the Media: Perspectives from Beijing — Andrew Wei-Min Lee

Political Violence and the Media — Robert G. Meadow

Observations from an American Conflict Resolution Professional in Serbia on the Effects of the Accessibility of International Media2 — Lynn M. Malley

Mediating Post-Conflict Dialogue: The Media’s Role in Transitional Justice Processes — Lisa J. Laplante and Kelly Phenicie

A Post-KSR Consideration of Gene Patents: The “Obvious to Try” Standard Limits the Patentability of Genes — Ying Pan

A Delicate Balance of Life Tenure and Independence: Conditional Resignations from the Federal Bench — Allison A. Luczak

In 2001, Marquette University presented Mister Rogers with an honorary degree. I was a  reporter for the Milwaukee Journal Sentinel at the time and I proposed going to Pittsburgh, Mister Rogers’ long-time home and the base for his programs, to do a profile story to run in conjunction with presentation of the degree.

 I don’t claim to have been professionally neutral in approaching this. My own children had watched the show almost daily when they were pre-schoolers and, overcoming my initial adult-based reaction, I had come to think the program was a work of genius. (I bet everyone who scoffs at that is not between three and five years old.)

If you looked at the show through a child’s eyes, it had very substantial content – over time, Mr. Rogers dealt with issues such as divorce, death, fear, loss, and a wide array of relationship matters. Sometimes very directly (“It’s such a good feeling to know you’re alive” or “People like you just the way you are”) and sometimes through the context of what he did (the gentleness, the way his fantasy characters treated each other, good and bad), his character education messages were healthy, well developed, and (I hope) formative to millions of children.

I spent an evening watching the real Mister Rogers speak to a group of planetarium officials from around the country who had come to Pittsburgh to see a program his organization, Family Communications, created for teaching children about the planets and stars, and I spent the next morning in a leisurely interview with him. In person, he was – well, Mister Rogers. He didn’t have a desk in his office, but had a table and some comfortable chairs because that’s how he worked. The office was somewhat cluttered with papers, props, and memorabilia, including his sweater and sneakers and a hand-made wood plaque that hung above where he sat, with the Hebrew word “chesed” on it. I commented on the sign. He said it was a gift, and added that “chesed” means more than just kindness, the usual translation. It’s a whole approach to treating others, he said. He talked at length about what he tried to accomplish in his work and his life both in front of the camera and outside the studio. 

It was not his style to criticize others, so he drew contrasts between his show and others, particularly “Sesame Street,” carefully. He didn’t like the shows where the pacing is so fast, where the action moves from one thing to another every few seconds, where the volume and the frantic pace comes at a child so forcefully.

He wanted his programs – which were developed in conjunction with child psychologists – to appeal to the quieter, more thoughtful side of children. That pace which seems so sluggish to adults was just right for young minds, he thought. In his shows, it was rare for a camera angle to be held only a few seconds. Sometimes they lasted for several minutes, an eternity you’d never see in “Sesame Street.” That wasn’t because the production was less sophisticated. In fact, I’d argue the opposite.

Compared to nine years ago, when I talked to Mister Rogers, so many of the children’s television programs now have, if anything, even more wham-bam pacing, and even less of that gentle voice of someone talking seriously to a young child, right through the television screen. .

I’m not an expert, but I’d suggest that a lot of kids – and, ultimately, a lot of adults, a lot of schools, a lot of communities – would benefit from allowing that pensive, imaginative, gentle side of life to be nourished more. If Mister Rogers is fading down to appearing on local television only at 8:30 a.m. Sundays on Channel 10, maybe that puts the responsibility more on parents to find ways to grow that quiet side of kids, to be the one talking to kids seriously, eye to eye, about what is really on children’s minds. 

I hope parents who grew up on Mister Rogers will act on such thoughts. You don’t need a sweater and some hand puppets to be their Mister Rogers.

The Republican Party in America currently stands at a crossroads.  There has been a great deal of debate within the political punditry concerning whether the Tea Party movement is a positive or a negative development for the Republican Party.  Some observers have noted the friction between the rage being expressed by Tea Party activists at the government bailout of the financial markets and at the expansion of government regulation of the health care sector, on the one hand, and the more business and government friendly track record of establishment Republican officials on the other.  This friction was most evident last month, when conservative activists rejected the establishment candidate put forth by party leaders for the 23rd Congressional District in New York, split the Republican vote, and delivered the seat to a Democrat.   

Similarly, Sarah Palin’s book tour has engendered speculation about her future political plans.  Some have applauded her anti-Washington and anti-big government philosophy as reflective of the public‘s current attitudes.  In the wake of the Administration of President George W. Bush, who spoke like a “States’ Rights” Texas governor while simultaneously expanding the federal government in the name of education and national security, many conservatives look to the former Alaska governor as someone who might actually govern in accord with a political philosophy that promotes decentralized government.  However, other observers have questioned whether Sarah Palin’s appeal extends beyond regional and rural areas of the country.

Democrats have their own problems.  The liberal wing of the Democratic Party finds fault with much of what President Obama does (a troop surge in Afghanistan) and doesn’t do (end “Don’t Ask/Don’t Tell,” close Guantanamo Bay sooner).  Meanwhile, centrist Democrats struggle to find a recipe for health care reform that is neither too big nor too ineffective.  It is as if the Democrats, now in possession of the federal government, cannot decide what to do with it.    

My previous blog posts have often reflected a preoccupation with the role of federal power in our constitutional system.  Previous posts have sought to track the manner in which the debate between centralized federal power versus states rights has persisted and evolved throughout our nation’s history, and to offer a defense of a strong federal government as both faithful to the original intent of the Constitution and as vital to maintain our country’s economic and military security.  In this regard, I have tried to do my part to participate in a debate of ideas that is as timely today as it was in 1789.

What is noticeably missing from this ongoing debate is the expression of a Tory point of view.  Only a Tory can claim both to be culturally conservative and to love big government.  This combination of viewpoints, so alien to our modern ears, is unsurprising given that the Tory philosophy was born in England as a defense of the monarchy against republican reformers.  In the United States, we associate Tories with the Loyalists who supported King George, many of whom moved with their families to Canada after the Revolution.  If we remember American Tories at all, it is as aristocrats and persons of privilege who sought to maintain their elite positions within the status quo.

 However, Tories have a distinctive political philosophy.  As the historian Gordon S. Wood noted in his book The Radicalism of the American Revolution (1991), prior to the American Revolution “all government was regarded essentially as the enlisting and mobilizing of the power of private persons to carry out public ends” (p. 82).  True Tories embrace this view to this day, and in Great Britain they esteem the monarchy as a symbol of government power conjoined with a public purpose.  Tories recognize that the great accomplishment of representative democracy in America is to reverse the direction of this flow of power, in order to make government serve the ends of private persons.  However, Tories fear that the benefits of this change in the flow of power are derived at the expense of the common good.

While American conservatism has some of its roots in the Tory movement, it has evolved over the years in a way that glorifies private initiative and that diminishes the value of government.  George Will, who occasionally claims Tory sympathies, once noted disapprovingly that American conservatism “tends complacently to define the public good as whatever results from the unfettered pursuit of private ends.  Hence it tends to treat lasisez-faire economic theory as a substitute for political philosophy and to discount the importance of government.” (George Will, The Morning After (1986)).

 Undoubtedly, the most notable Tory voice in modern American life was the journalist Henry Fairlie (indeed, he may have been the only Tory voice in modern American life).  Over a career that included a column in the Times of London in the 1950s as well as stops at the Washington Post and The New Republic, Fairlie established himself as a unique observer of both British and American politics.  He passed away in 1990.  A collection of his essays, entitled Bite The Hand That Feeds You, was published earlier this year.          

Here is Henry Fairlie’s description of a Tory, from his 1976 essay “In Defense of Big Government”:

 The characteristics of the Tory, which separate him from the conservative, may briefly be summarized: 1) his almost passionate belief in strong central government, which has of course always been the symbolic importance to him of the monarchy; 2) his detestation of ‘capitalism,’ of what Cardinal Newman and T.S. Eliot called ‘ursury,’ of what he himself calls ‘trade’; and 3) his trust in the ultimate good sense of the People, whom he capitalizes in this way, because the People are a real entity to him, beyond social and economic divisions, and whom he believes can be appealed to and relied on, as the final repository of decency in a free nation.  The King and The People, against the barons and the capitalists, is the motto of the Tory.

(Bite The Hand That Feds You, p. 127-128). 

In general, Fairlie’s distrust of unfettered capitalism seems to anticipate the disgust with Wall Street that motivates the Tea Party movement, but this leads him to the conclusion that more government, not less, is necessary.  He wrote, “When the private power — of the barons, of the corporations — is necessarily as great as it is in modern society, it can be checked only by a dynamic assertion of public power” (p. 134).

Fairlie’s writings also identify a strong moral imperative behind big government.  He understands the desire of private citizens to be left alone by their government, but he equates that desire with selfishness.  His essay evokes ”the child of ‘affluence,’ cunningly saying that all he wants is to be left alone to ‘do his own thing,’ and he will leave others alone to do ‘their own things,’ which of course means that he will leave them alone to be poor, to be uneducated, perhaps even to starve” (p. 133).     

It would be interesting to hear Fairlie’s views on Health Care Reform, or the Financial Bailout, or (one smiles in anticipation) Sarah Palin.  Not necessarily because he would be correct, but rather because he would be true to his own instincts and beliefs instead of hewing to some established “party line.”

Henry Fairlie refused to allow himself to be boxed into any formal ideology.  He doesn’t fit into our neat boxes of liberal or conservative.  When he was alive, his column reminded us that there is little in our messy world that fits neatly into the ideological boxes that we construct to hold our reality.  Our nation’s typical left/right dichotomy is as confining as it is predictable.  Ultimately, Fairlie’s peculiar vision of Toryism may only have had himself for an adherent, but that is not necessarily a bad thing.

Fairlie is also memorable for other reasons.  He firmly believed in the indomitable American spirit.  He believed that the greatest quality of Americans was their genuine desire to help those less fortunate than themselves.  Fairlie was also the declared enemy of the smug, the self-satisfied, and of those who think that they have all of the answers.  He opposed such people even when the result was to bite the hand that fed him.  If someone were searching for a personal philosophy, they could do worse than to start with these elements.

 As we prepare to move into the new Law School building, take a moment to consider this particular Tory.  Henry Fairlie was, above all, an individual thinker.  We should all aspire to think for ourselves, no matter where that leads us.  There will be plenty of room for liberals and neo-conservatives, progressives and Tea Party members – and, yes, even Tories– on Tory Hill.

Sanford was describing how things were going in other cities where the foundation was involved. She was enthusiastic about the impact in Seattle of a program in which teachers worked to get parents more involved in schools.  It was having documentable positive effects on how kids were doing.

I said that I thought a lot of teachers do what they can in school to meet kids’ needs, but basically throw up their hands when it comes to doing something about kids’ lives at home or motivating parents to do a better job of being allies of their children’s success in school.

Sanford said she was convinced that things could be done, that they didn’t cost a lot, and they could be as simple as having teachers pay visits to children’s homes, just to establish rapport and give some tips on what helps get a kid ready for school.

It may make me sound naive, but this really had an impact on my thinking about teacher-parent relations. I just had kind of written that off. But maybe we don’t need to despair about this, and maybe schools in Milwaukee that have been too passive about reaching out positively and firmly to parents.

All of which is to say I was very pleased to see the Journal Sentinel series this week, “Beyond the Bell: Making the Home-School Connection.” I am not objective on this — I was involved in the initiation of this project last winter while I was a reporter at the newspaper, and Erin Richards, the author, is a friend.

But I also know how important it is to play every feasible card in helping children succeed in school, especially those coming from homes where life does not offer much that is conducive to educational achievement. I think Erin did a very good job of showing that it is feasible to do more than most schools here are doing, that this isn’t a major financial issue, and that the pay-offs can be substantial.

In an ideal world, teaching parents to do their jobs better wouldn’t be an issue for schools or teachers. Parents should do the parenting. But this isn’t an ideal world. Just about any teacher in any community can tell alarming stories about things some parents do that are negative influences on children. That is especially so in low-income neighborhoods where many of the parents themselves did not do well in school.

I hope the Journal Sentinel series prods school leaders, teachers and parents themselves to focus more on ways to build connections between parents, kids and teachers. Applause for Erin Richards, her editors, and the people at the Hechinger Institute on Education and the Media at Columbia University who provided support for Erin’s work.

Today Vice President Biden issued a statement marking the occasion:

Violence against women is found in every culture around the world. It is one of our most pervasive global problems, yet it is preventable.  When gang rape is a weapon of war, when women are beaten behind closed doors, or when young girls are trafficked in brothels and fields – we all suffer. This violence robs women and girls of their full potential, causes untold human suffering, and has great social and economic costs….

Indeed, it is hard to overestimate the impact of pervasive violence against women in the lives of women, men, and children all over the earth.  According to a Radio Free Europe/Radio Liberty report,

The UN Development Fund for Women estimates that one in three women around the world has been beaten, coerced into sex, or otherwise abused.

It describes domestic violence against women as perhaps the most pervasive human rights violation known today.

Women are more at risk of death or disability from violence than from cancer, road accidents, war, or malaria.

This year, the UN’s campaign includes a new emphasis on men’s contributions to the efforts to eliminate violence against women, including the establishment of a new Network of Men Leaders, whose members include a wide range of prominent politicians, activists, and other leaders, including Archbishop Desmond Tutu, Spain’s President Jose Luis Rodriguez Zapatero, and author Paulo Coehlo.

The Network of Men Leaders in some ways hearkens back to the White Ribbon Day campaigns that preceded the establishment of the IDEVW in the UN. (You can read a history of White Ribbon Day here at Womankind’s website.)  The Radio Free Europe article explains that today, the international White Ribbon Day campaign “urges men to wear a white ribbon on their lapel to show that they oppose violence against women and children. Started in Canada, the campaign has spread to 50 countries, including Russia, Georgia, Armenia, and Azerbaijan.

Campaign organizers are particularly eager to recruit the support of leading athletes from such “macho” sports as rugby, on the grounds that they can set a positive example for young men to follow.”  For instance, today eighteen teams of New Zealand men ran a race, tied together with white ribbon, to mark this day of protest against violence against women.

Along similar lines, in his remarks today UN Secretary General Ban Ki-moon said that “men must teach each other that real men do not violate or oppress women – and that a woman’s place is not just in the home or in the fields but in schools, offices and boardrooms.”

Broadening the appeal of the campaign to men seems wise to me, and not only because violence against women cannot be reduced without men joining in the effort.  Also because, of course, as one commenter wrote in to Australia’s White Ribbon Day campaign blog, “children, women and men are all entitled to their inalienable human rights and . . . all violence against all people is wrong.”

The exchange in that blog post and the comments that follow, on the question of whether emphasizing the elimination of violence against women does harm to men and boys, is an interesting one, and there are valid points on both sides of that debate. But, in the end, the focus on violence against women, for a part of the year, seems logical, given that there is disproportionately so much more impunity for the perpetrators of violence against women, than for the perpetrators of many other forms of violence. Acts that would be recognized as horrific, anti-social violence when perpetrated against strangers, or for reasons recognized as political, are not viewed as so terrible if perpetrated in the contexts we call “private” or “personal”–within families, intimate relationships, workplaces, even rape.  Focusing world attention on why that’s so can only be for the good.

Of course, lawyers aren’t the only ones whose livelihood is affected by their online postings.  There’s this, and this, and this.  Having one’s online activity be the basis of dismissal has increased so much that a new phrase – “Facebook fired” – has entered our lexicon. 

But being a lawyer means something more.  Lawyers have long been held to a higher standard of conduct than other members of society.  As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.”  Thus, criticizing the court or revealing client details online – even if the lawyer thinks she’s veiled the true subject – can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility.

Similarly, when a lawyer’s online activity belies what he’s told his superiors or the court, trouble can follow.  According to the New York Times article, a lawyer asked a judge for trial delay because there was a death in his family.  The judge granted the delay, but noticed on the lawyer’s Facebook page that while there was indeed a death in the family, there were also a number of posts by the lawyer about partying and motorbiking.  When the lawyer asked for a second delay, the judge denied his request and notified his firm.  Repercussions for such conduct may be not only the loss of one’s job, as it might be for others in society, but also fines and discipline by the state’s board of bar examiners or other office of lawyer regulation.  In fact, some lawyer licensing organizations are considering or adopting policies whereby they examine applicants’ social networking sites as part of the licensing process.    

This topic, which can be broadly categorized as the professionalism of the younger generation of lawyers, is a topic that is often talked about in the legal academy, particularly among those of us who teach legal skills.  Our students are of a generation that has grown up with email and the Internet, with reality television shows, and a penchant for revealing to the public their personal lives and thoughts. 

However, most practicing lawyers grew up in generations that emphasized a certain formality of one’s conduct, and law has always been a more conservative profession than most.  The influx of a younger, more open generation into the profession means that there will inevitably be a difference in how each defines what it means to be a professional.  A younger lawyer would likely see nothing unprofessional with posting a rant about the partners at his firm, especially if he doesn’t expressly name them (e.g., “Suffered through a two-hour meeting today with the boring partner and the a-hole partner.”), whereas an older lawyer, who may think the exact same thing, would find such a public disclosure wholly unprofessional. 

 There are, I believe, positive aspects of social networking.  When life is so hectic, it’s nice to quickly catch up with family and friends all over the country by checking status updates on Facebook.  But not everything that goes on with my family and friends is something that I want to know – or think I should know.  There comes a point when what’s posted is too much information (TMI).  And most of the time, TMI often translates into “unprofessional,” especially if you’re a lawyer or lawyer-to-be.

As I read the text of President Obama’s speech, I find it hard to discern “socialist ideology” or even “paid political advertising.”  (Let us remember that pretty much everyone to whom his remarks are addressed is unable to vote!)  His remarks seem more “Republican” than not.  The themes of personal responsibility and hard work pervade the speech.  He says, “But at the end of the day, we can have the most dedicated teachers, the most supportive parents, and the best schools in the world – and none of it will matter unless all of you fulfill your responsibilities”? He exhorts students to avoid making excuses about their role in their education.  “[T]he circumstances of your life – what you look like, where you come from, how much money you have, what you’ve got going on at home – that’s no excuse for neglecting your homework or having a bad attitude. . . . That’s no excuse for not trying.” And he reminds students that success is hard work and that they should learn from their failures.  “[Y]ou can’t let your failures define you – you have to let them teach you.”

How could any parent find fault in such advice?  Is it simply because the messenger is from a different political party or is it something else entirely?  Barack Obama is the president of the United States.  A demanding job, to be sure, but also a job that is heavy with symbolism.  There shouldn’t be anything inherently political in the simple fact that the county’s figurehead wishes to press upon the country’s future – its school children – that they ought to do their best in school and work hard.

  We are very far removed from the time when the residents of a small New England town could gather together on an occasional basis and make communal decisions that governed their daily lives.  Today, members of congress are expected to use these forums to report back to their constituents, to answer questions and solicit concerns, and then to return to Washington, D.C. with a greater sense of the priorities of the voters.  This is not exactly direct democracy in action, along the classic New England model, but it is the closest that most of us can claim to actually participating in the machinery of our own government.

 At many of these town hall meetings, ostensibly intended to address the topic of health care reform, the proceedings have been anything but an exemplar of participatory democracy.  I am not referring to the “exaggerations and extrapolations” of the pending health care reform legislation that some attendees and some Republican opponents of the bill have espoused.  Trying to prove that something is a lie is like chasing your tail.  The task of separating truth from fiction is simply a never ending part of the human condition.  Nor am I particularly concerned over the shouting and the ill manners of many attendees.  I cannot think of any period in our nation’s history when politeness was the norm in political debate.

 Instead, my concern is with the future of democracy itself.  In 1922, in his book Public Opinion, Walter Lippmann presented a pessimistic view of the public’s ability to govern itself through our nation’s democratic process.  Three years later, he followed up his critique in the book The Phantom Public.  If anything, the sequel held out even less hope for the meaningful participation of the general public in the shaping of the government policies that have such a dramatic impact on their lives.

 Ideologically, Walter Lippmann was a difficult person to pigeonhole.  He began his journalistic career as an avowed liberal, and over his long life he supported and advised presidents of both political parties.  After his death, his books were reprinted by the “Library of Conservative Thought.”  He was Jewish, but he embraced the concept of natural law and wrote admiringly of the moral authority of Catholicism.  Ronald Steel, in his magisterial biography Walter Lippmann and the American Century, points out the “deep vein of conservatism running through [Lippmann’s] brand of liberalism.” (Steel, p. 233).

 Here is how Steel summarizes Lippmann’s central critique of the modern political process:

 Political science [had previously] focused on how decisions were made – by political parties, voting, the branches of government.  In Public Opinion, Lippmann went behind such mechanics to scrutinize the centerpiece of democratic theory: the ‘omnicompetent citizen.’  That theory assumed that the average citizen, being rational, could make intelligent judgments on public issues if presented with the facts. . . .

  Now, however, [Lippmann] had to abandon that faith. . . .  People see what they are looking for and what their education and experience have trained them to see. ‘We do not first see, and then define, we define first and then see,’ Lippmann wrote.  Since no man can see everything, each creates for himself a reality that fits his experience, in effect a ‘pseudo environment’ that helps impose order on an otherwise chaotic world.  . . . 

 Steel goes on to explain the connection that Lippmann made between his insights about human nature and the mechanical operation of the political process:

 . . . For most people, the world had become literally ‘out of reach, out of sight, out of mind.’  This posed no serious problem in a small community where the decisions each citizen had to make rarely went beyond what he could directly experience.  This was the world that the eighteenth-century fathers of democratic theory had written about.  But modern man did not live in that world.  He was being asked to make judgments about issues he could not possibly experience firsthand: the tariff, the military budget, questions of war and peace.  What was reasonable in a Greek city-state was impossible in a modern technological society.  The outside world had grown too big for the ‘self-centered man’ to grasp.  This posed a political dilemma, for classic democracy ‘never seriously faced the problem which arises because the pictures inside people’s heads do not automatically correspond with the world outside.’  They did not correspond for a number of reasons—stereotyping, prejudice, propaganda.  The result was to erode the whole foundation of popular government. . . .

 . . .  The Enlightenment conception of democracy—based on the assumption that every man had direct experience and understanding of the world around him—was totally inadequate to a mass society where men had contact with only a tiny part of the world on which they were being asked to make decisions.  What was possible in an eighteenth-century rural community was unworkable in great cities.  

Steel, pp. 180-182.

 Lippmann concluded, therefore, that the general public was incapable of directing the course of events on any rational basis and that it was folly to attempt this.  At best, the public had the ability to identify those persons or groups who were capable of making important decisions by either voting them in or out of power.  It is not so much that the members of the general public lack competence, it is that the general public lacks sufficient information with which to exercise any sort of rational thought process.

 Lippmann’s theories gave rise to the entire industry of public relations, they revolutionized the concept of advertising, and they greatly influenced every interest group who has since sought to influence the public’s desires and beliefs by “putting pictures in our heads.”  All of these forces in our society eschew rational argument in favor of molding opinion through the use of the symbols and the stereotypes that they believe the general public uses to understand reality.

By and large, the Republican Party has embraced Lippmann’s theories of political science more than the Democrats.  When Gary Wills wrote that Ronald Reagan asked the public to “reject historical record for historical fantasy” (Innocents at Home p. 387), or Henry Fairlie charged that Reagan offered voters an “escape from the present to the idyllic past” (Bite the Hand That Feeds You, p. 190), they were both marveling at Reagan’s ability to glide above the facts and connect with voters on a symbolic level.  One can interpret the political rise of Sarah Palin as a similar achievement.

 The Administration of George W. Bush unabashedly employed Lippmann’s theories of politics.  When reporter Ron Suskind quoted a senior advisor to President Bush speaking dismissively of the “reality-based community,” which embraced the illusion that solutions to problems arise from a study of discernible reality, the advisor was channeling Lippmann.  ”That’s not the way the world really works anymore,” the advisor told Suskind. “[W]hen we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.”  The main political sin of George W. Bush was not his attempt to manipulate reality, but his failure to successfully hide what he was doing.  

 While Lippmann’s genius has been universally recognized, there has always been a large contingent of liberals and progressives who have rejected his pessimistic conclusions.  For decades, they chose to focus instead on the expansion of the coalition of democratic interest groups– through the addition of women, minorities and the gay and lesbian community– as the key to enacting liberal legislative reforms.  More recently, liberal elements within the Democratic Party have seized upon technology, and the internet, as the key to building broader support for their agenda.  The “Great Health Care Debate” may finally convince these doubters that Lippmann was right all along.

 The town hall meeting experience demonstrates that many liberals continue to cling to the idea of an objective reality.  The Obama Administration approached the issue of health care reform as a process of rational decision-making, where a variety of interest groups would reach an accommodation based upon mutual self-interest.  While President Obama did not initially plan on using town hall meetings in order to promote health care reform, no one in his Administration seemed overly concerned over the prospect of the general public weighing in during the congressional recess.  Lo and behold, when the views of many of the attendees at the town hall meetings were solicited, these views revolved around death panels and the fact that any form of government sponsored health care is inherently evil (unless it is offered by Medicare or the Veterans Administration, both of which are sacrosanct).

Health care reform is too complicated an issue for any lay person to understand.  As a result, the general public falls back on the pictures in our heads to make sense of it all.  This facet of human nature makes us all vulnerable to powerful groups who gain and hold on to their power precisely because they are exceedingly good at creating those pictures.  Lippmann also recognized that when government policy gets too complicated for the average person to understand, it risks letting loose “all the submerged antagonisms within the state.” (Steel, p. 227). 

Corporate America, in contrast to the general public, participates in the legislative process quite successfully via the lobbying process.  It can afford to hire specialists with the knowledge and experience to direct legislative priorities and to influence the votes of legislators.  Without any real competition from a general public seeking to advance its own interests, it is clear that the legislative process has been captured by corporate interests.  Reform measures intended to address this imbalance, either by decreasing corporate influence through limits on campaign contributions or by increasing lawmaker independence through redistricting efforts, are too complicated themselves for the general public to understand.  If the general public cannot think rationally on the question of health care reform, what hope is there that it can rationally address a reform of the political process itself?

The fundamental question is whether we still have the capability to govern ourselves or whether we the people are destined to have our fates determined by elite interest groups.  Lippmann thought that the modern world was too complex for the former alternative.  He placed his hope in the education and morality of the elite, confident that they would act for the common good and not selfishly.  If that is where our nation’s best hope lies, then I am truly depressed.

Professor Mazzie contributed another column, in June of this year, entitled, “Conciseness in Legal Writing.” Past legal writing columns from Marquette’s legal writing faculty also included Jill Koch Hayford’s November 2008 piece, “Style Books, Websites, and Podcasts:  A Lawyer’s Guide to the Guides,” as well her March 2009 advice, “Update Contract Language to Meet 21st Century Readers.” A column about split infinitives, “Dispelling Grammar Myths:  ’To Split’ or ‘Not to Split’ the Infinitive,” by Rebecca K. Blemberg, appeared in the December 2008 issue.

The legal writing faculty will continue to write about legal writing for Wisconsin Lawyer magazine during the coming year.

If anyone is curious, here’s the full list:

1. “L.A. Law” (1986-94)
2. “Perry Mason” (1957-66)
3. “The Defenders” (1961-65)
4. “Law & Order” (1990-present)
5. “The Practice” (1997-2004)
6. “Ally McBeal “ (1997-2002)
7. “Rumpole of the Bailey” (1978-1992)
8. “Boston Legal” (2004-08)
9. “Damages” (2007-present)
10. “Night Court” (1984-1992)
11. “Judging Amy” (1999-2005
12. “Owen Marshall: Counselor at Law” (1971-74)
13. “JAG” (1995-2005)
14. “Shark” (2006-08)
15. “Civil Wars” (1991-93)
16. “Harvey Birdman, Attorney at Law” (2000-9)
17. “Law & Order: Criminal Intent” (2001-present)
18. “Murder One” (1995-97)
19. “Matlock” (1986-1995)
20. “Reasonable Doubts” (1991-93)
21. “Law & Order: Special Victims Unit” (1999-present)
22. “Judd for the Defense” (1967-69)
23. “Paper Chase” (1978-79, 1983-86)
24. “Petrocelli” (1974-76)
25. “Eli Stone” (2008-09)

Copyrights in India? Cool! But hang on a second—what’s that about “brands”?

Ah, I see, it’s another journalist confused about the difference between patents, copyright, and trademarks. (The title of this post is the punchline of a joke told by Paul Goldstein about this problem.) It matters, to me at least, because copyright has enough of a public image problem without getting blamed for patent and trademark controversies as well.

But there is one up there as we speak from the Lehighton (Pa.) Time-News reporting my comment on the Supreme Court’s decision in Ricci v. DeStafano. I did issue some comments on Ricci through the Heartland Institute where I am a Policy Advisor.

But I didn’t say what was quoted in the article.

The quoted statement actually came from Chris Hage who is the President of the Chicago Lawyers’ Chapter of the Federalist Society of Law and Public Policy. I said this:

“Today’s decision in Ricci v. DeStefano makes clear that employers may not use fear of litigation to justify hiring decisions based on race. If fear of a disparate impact claim under Title VII would permit employers to abandon nondiscriminatory hiring methods whenever those methods failed to produce an ‘acceptable’ number of minority hires, then the distinction between disparate treatment claims and mandatory quotas would be blurry at best. To allow the fear of litigation to justify racially based hiring in order to ‘get the numbers right’ would undermine the principle of racial evenhandedness that both Title VII and the Fourteenth Amendment are intended to guarantee.”

I don’t know if they wanted Mr. Hage’s statement and attributed it to me or wanted my statement and took Mr. Hage. I am sure, in any event, that Professor Secunda probably disagrees with my real remarks as much as what I didn’t say. But accuracy — both here and in Lehighton — is important.

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

 I also presume that a large segment of the public is already persuaded to either support or oppose the Sotomayor nomination.  This segment of the public is not likely to be swayed by my arguments.  Therefore, the tone and the specific arguments that I adopt are specifically designed to appeal to persuadable Republicans and/or wavering Democrats.  This leads to a focus on mainstream issues such as crime and away from “hot button” issues such as Affirmative Action.

 Establish Connection Between Reader and Subject Matter: Hispanics can be perceived as the “other” in our society, which immediately renders Hispanics as objects of suspicion or distrust in the media.  By opening with a Spanish phrase, I attempt to confront this perception by bringing it to the foreground.  However, I reveal that the Spanish phrase I invoke actually reflects a shared, non-threatening value (people should treat each other with common decency).  This invites the reader to focus on the commonalities between Hispanics and non-Hispanics, rather than on the differences.

 Maximize the Gender Gap:  Among my target audience, women are more likely to be open to persuasion given Judge Sotomayor’s position as the third woman nominated to the Supreme Court.  In my conversations with women about the nomination, I have noticed that the first subject that comes up is invariably the excellent qualifications of Judge Sotomayor.  Many women in the workplace feel that male co-workers ignore or minimize their qualifications, focusing on their gender rather than their talent.  These women will respond to arguments that Judge Sotomayor is being treated the same way.

 On the other hand, the “empathy” argument invoked against Judge Sotomayor plays on gender stereotypes.  Women are often portrayed in the media as nurturing and caring, and therefore not strong enough to protect society from threats such as violent crime.  At the same time, a fear of violent crime is often used as a rhetorical device to prevent wavering women voters from abandoning a political party’s preferred candidate (i.e., the Willie Horton example).

 By focusing on Judge Sotomayor’s “tough-on-crime” reputation, I anticipate and counter both the negative aspect of the “empathy” charge as well as a particular wedge issue of concern to many women.

 Appeal to the Reader’s Emotion: The piece makes a very clear and specific appeal to the emotions of the reader.  The words “shame” or shameless” are employed three times-twice in the opening paragraphs and again in the final paragraph.  The reader is asked to conclude that Judge Sotomayor is being subjected to unfair criticism, and to feel sympathy towards her.  

 Appeal to Authority: I do not expect the reader to believe my arguments based solely upon my own authority.  Therefore, I appeal to other sources of authority in order to support the point that Judge Sotomayor is a moderate judge.  I refer to objective reviewers of her record, and in fact there are many such objective reviews available on the internet (on SCOTUS Blog or from the Congressional Research Service).  I also consciously include a sentence that summarizes the results of a review of 100 opinions in which Judge Sotomayor participated involving race-based claims.  Used judiciously, numbers and statistics can impart an aura of objectivity to a piece of persuasive writing.  I also appeal to endorsements of Judge Sotomayor by national law enforcement organizations and by other appellate judges.        

 Do Not Dodge Your Opponent’s Best Argument: I do not find the “wise Latina” debate to be particularly interesting or significant.  However, given that those opposed to Judge Sotomayor’s nomination have made this the centerpiece of their campaign, it is necessary to raise and respond to this argument.  The most effective way to do this is to simply place her words back into the context from which they were severed.   I also try to turn the “empathy” criticism into a positive by invoking Judge Sotomayor’s empathy towards the victims of crime.  This signals to the reader that a judge’s empathy can benefit groups that are not defined along racial or gender lines, and that empathy can be a desirable attribute in a judge.

 Turn Your Opponents Rhetoric on Its Head:  The task of Judge Sotomayor’s opponents is to argue that she is an extremist and that the evidence supports this characterization of her record.  I argue that by opposing a true moderate, it is her opponents who are extreme.  I invite the reader to question the very ideological framework that conservative critics are using when they evaluate Judge Sotomayor.  If she is not acceptable to them, who is?

 Persuasive writing is a skill that is learned, and not a talent that comes naturally.  Go back and re-read the piece in light of this deconstruction.  By revealing the anatomy beneath my opinion piece, I hope that our students will understand why this is a skill worth developing.