Cats and Dogs, Libertarians and Social Conservatives

Posted on Categories Political Processes & Rhetoric, Public, Religion & Law1 Comment on Cats and Dogs, Libertarians and Social Conservatives

There’s been an interesting exchange among libertarians in response to the Catholic Church’s kick-off of a campaign against application of the HHS mandate on contraception and “morning after” pills to certain religious institutions without an adequate conscience exception.

Jay Carney, writing in the Washington Examiner, began the conversation by suggesting that social conservatives recognize big government as an enemy of religion and calling on libertarians to reassess their political alliances. Walter Olson of Cato responds, observing that libertarians have been out front in opposing state impositions on religion, but pointing out that there are limitations to co-operation between libertarians and social conservatives to the extent that the latter support state intervention as an instrument of the culture war. Walter’s Cato colleague, David Boaz, argues that social conservatives have often called for impositions on liberty to advance a particular moral view, citing a number of historic examples.

Two things.  First, it is always heartening to see libertarians understand that freedom requires resistance to impositions on voluntary associations as well as restrictions of individuals.   Continue reading “Cats and Dogs, Libertarians and Social Conservatives”

Money and the Recall

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System2 Comments on Money and the Recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.

Paul complains of the “8 to 1” spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court’s decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the “8 to 1” figure.

As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn’t reflect the situation on the ground.  Continue reading “Money and the Recall”

The Individual Mandate: A Rejoinder

Posted on Categories Business Regulation, Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, Health Care, Public17 Comments on The Individual Mandate: A Rejoinder

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

Continue reading “The Individual Mandate: A Rejoinder”

The GAB’s Duty of “Careful Examination”: Why Judge Davis Got It Right

Posted on Categories Election Law, Public, Wisconsin Law & Legal System11 Comments on The GAB’s Duty of “Careful Examination”: Why Judge Davis Got It Right

I have written a few things on my personal blog about the GAB’s authority and duty to conduct a more thorough review of recall petitions than it apparently intends to conduct. Last Thursday, Judge Mac Davis ordered a more extensive review. Ed Fallone thinks that the judge got it wrong. I disagree. Here’s why.

Ed argues that “there are no explicit provisions in the statutes that direct the GAB to look for and eliminate duplicate, fictitious or unrecognizable signatures. Just a direction not to count signatures that are insufficient under Section 9.10(2)(e).”

I see two problems with this statement. First, the GAB’s obligation upon the filing of a petition is not limited to the elimination of signatures for the reasons set forth in § 9.10(2)(e). To the contrary, the obligation imposed on GAB is to “determine by careful examination whether the petition on its face is sufficient.” Wis. Stat. § 9.10(3)(b). Whatever that duty is, it is nowhere limited by § 9.10(2)(e). Second, as we will see, even if it is so limited, § 9.10(2)(e) does not relieve GAB of the obligation to do what Judge Davis ordered it to do.

So what does this duty of “careful examination” entail?

Continue reading “The GAB’s Duty of “Careful Examination”: Why Judge Davis Got It Right”

New Ventures and Old

Posted on Categories Election Law, Marquette Law School, PublicLeave a comment» on New Ventures and Old

As some members of the Law School know, last winter I received a grant from the Bradley Foundation to form a nonprofit law center that has come to be known as the Wisconsin Institute for Law & Liberty. WILL engages in public education and litigation in the public interest with respect to issues of constitutional government, individual liberty, and the preservation of a robust civil society. We currently have a staff of four, including Tom Kamenick (L’09), and look forward to expanding as we complete our first year of operation this July. You can read more about us here.

I am excited by WILL but also happy to be able to return to the Law School on the adjunct faculty and teach Election Law this spring. When I proposed the class and first taught it a few years ago, I thought it would be something that could be offered every two years for the politicos in the student body. I had no idea that it would be delivered during a time when Wisconsin had become a virtual election law laboratory. But that’s where we are and that’s where I’d like to go in my next blog post.

Another View on the Merits of Judge Sumi’s Decision

Posted on Categories Constitutional Interpretation, Judges & Judicial Process, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Another View on the Merits of Judge Sumi’s Decision

It should come as no surprise that Professor Fallone and I disagree on Judge Sumi’s decision in Ozanne v. Fitzgerald. I particularly take issue with his suggestion that criticism of the decision is the product of “sloppy lawyering.” In my view, that characterization is unfair and inaccurate. Nor is the legal – as opposed to political – criticism of Judge Sumi based on something other than the merits of this particular case. I have commented extensively on this case in the national and local media and have refused  to question Judge Sumi’s character or competence. Of course she did her job. But there are multiple reasons for “fuss” about the merits of the decision. Let’s try one.

Criticism of the notion that a court may invalidate an act of the legislature (as opposed to acts of local units of government subordinate to the legislature) is not based on “sixty year old” precedents. The Zimmerman and Goodland cases go to whether a court can enjoin publication of an enacted bill. That’s a different issue.

The idea that a court may not invalidate an act of the legislature for failure to comply with a statutory (as opposed to constitutional) restriction on legislative procedure is based on a long and unbroken string of cases beginning with McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891) and most recently restated in the very case that Judge Sumi now relies on, Milwaukee Journal Sentinel v. Department of Administration, 2009 WI 79. The rationale for the rule was stated in State ex rel. La Follette v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1983):

Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute.  This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute, Baker v. Carr, 369 U.S. 186, 215, 82 S.Ct. 691, 709, 7 L.Ed.2d 663 (1962).  Although since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by  the constitution.  73 Am.Jur.2d Statutes, sec. 49, p. 296.  If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.  The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.

Id. at 364-365.

Thus, even if – as everyone agrees – the Open Meetings law applies to the legislature – failure to comply with it may not result in invalidation of a legislative action (as opposed to, say, sanctions against individual legislatures). Indeed, the very case relied on by Judge Sumi for the proposition that the Open Meetings Law applies to the legislature –State ex rel. Lynch v. Conta, 71 Wis.2d 662, 239 N.W.2d 313 (1976) – recognizes that very distinction. It could issue declaratory relief as to the actions of individual legislatures and impose forfeitures upon them because it was not interfering with “the functions or separate power of the legislative branch,” id. at 698, and expressly stated that “[t]he case is accepted, as not contrary to separation of powers, in that it concerns application of the forfeiture penalty to members of a body, not to the branch of government.”  Id. at 700.

Ed – and Judge Sumi – want to suggest that this line of cases was somehow broken by Milwaukee Journal Sentinel. As I explained on my personal blog, Judge Sumi flatly misstates what happened in Milwaukee Journal Sentinel. Ed agrees, but argues that what he calls a “regrettable error” has no impact on the validity of the analysis. I respectfully disagree. Here’s why. Continue reading “Another View on the Merits of Judge Sumi’s Decision”

Published and Effective: Another View

Posted on Categories Wisconsin Law & Legal System7 Comments on Published and Effective: Another View

In an interview with Fox Cable News this morning, reporter Mike Tobin asked me if what we were seeing in Wisconsin was “lots of politics and little law.” While I began my answer in disagreement, I concluded by saying there was a sense in which he was right. The heat generated by the budget repair bill has caused people to behave in ways that are unusual and without substantial precedent.  For a profession that often relies on precedent to resolve textual ambiguities and conflicts, this creates not inconsiderable difficulty.

My own view on whether the budget repair bill is different than that offered by Professor Fallone. My best answer is that it is “probably” in effect. Here’s why.

Continue reading “Published and Effective: Another View”

Debating Discovery

Posted on Categories Civil ProcedureLeave a comment» on Debating Discovery

As I noted last week, I recently had the privilege of participating in a panel on the need for further amendments to the Federal Rules of Civil Procedure related to E-discovery. A video of the event can be found here. (It actually took place at the National Press Club and not the Mayflower Hotel.) For those who like this kind of thing, there’s some interesting stuff.  My argument is that we essentially provide an e-discovery safe harbor for “neutrally” adopted and consistently applied systems for the retention and retrieval of electronic information. Marty Redish wants to reconsider 1938 and, in particular, to place the cost of discovery on the requesting party. I agree but Ron Allen does not. Don Elliott wants to do it only in certain types of cases but, more provocatively, thinks that Rule 4 is unconstitutional.

My remarks begin at 26:00 with a shout out to this blog.

Best of the Blogs: Time Waster Edition

Posted on Categories UncategorizedLeave a comment» on Best of the Blogs: Time Waster Edition

At Concurring Opinions, Kaimipono Wegner directs our attention to an article by Adam Zimmerman in the Duke Law Journal explaining why we waste time. It turns out that we make decisions over time horizons that are too short. Five minutes of watching a parody video on You Tube may bring more pleasure than the productivity gain from five minutes of grading papers. If we were to choose four hours of You Tube, we’d see it differently. But we keep slacking in five minute intervals. 

At the Faculty Lounge, Jacqueline Lipton brings us academic humor. Reminds of the answer to whether one has read some one’s new article. “Read it? I haven’t even cited it yet!”

At the Conglomerate, Gordon Smith, following Ann Althouse, links to the site Subzin. It allows you to search for phrases and words (like your own name) in movie scripts. Don’t start if you have something to do. Those five minute blocs will turn into hours.

Finally, Above The Law announces its’ second annual contest for the best law firm holiday card with links to some of last year’s winners. Not as much fun as Subzin. Seriously, dude, do not start.

Proposed Amendments to the Federal Rules

Posted on Categories Federal Civil LitigationLeave a comment» on Proposed Amendments to the Federal Rules

OK, I admit to not being the biggest fan of NPR but I do listen and have always heard various events introduced, in dulcet tones, as coming from the National Press Club. Where was this club and how do you join? Can someone like me ever get in?

Well, I still don’t suppose that I can join, but at least I’ll be able to get in this Thursday when I’ll have the privilege of joining several others for a discussion on proposed amendments to the Federal Rules of Civil Procedure – at the National Press Club in DC. My paper discusses limitations on e-discovery as informed by generally applicable and neutrally established document retention and retrieval policies. The notion is informed by a philosophy that I tried to follow as general counsel of Rite Hite Holding. We should try not, I used to say, run our business for purposes of litigation. Something about the tail wagging the dog.

I am sure that this event at the National Press Club will not be broadcast. Even public radio has some required threshold of excitement.

Most Important Election Law Decision: It’s Not Citizens United

Posted on Categories Constitutional Interpretation, Election Law, First Amendment3 Comments on Most Important Election Law Decision: It’s Not Citizens United

In late October, I had the privilege of speaking at Chapman University’s Nexus Symposium on Citizens United – article to follow. For the four of you that haven’t heard, Citizens United held that corporations may use general treasury funds to finance independent communications that expressly advocate the election or defeat of a candidate – even during times proximate to the election.

The response to Citizens United has been, in my view, overstated.  Continue reading “Most Important Election Law Decision: It’s Not Citizens United”

More on An Ethic of Professional Satisfaction

Posted on Categories Legal Ethics, Legal Practice1 Comment on More on An Ethic of Professional Satisfaction

I rather liked Rebecca Blemberg’s post on lawyer happiness and virtue ethics and would like to extend the discussion. I agree that one of the mistakes a lawyer can make is to follow the lure of a consequentialism that is divorced from her knowledge of herself and what that tells her about the way in which she should practice law.

We normally associate this with pursuit of the shimmering rewards of legal practice such as money or glory. Rebecca is right to suggest that these things, in and of themselves, will not make for a happy career. I know plenty of lawyers who love the practice while making tons of money and winning lots of cases, but their happiness as lawyers (and perhaps their success) has another source.

But it seems to me that one can become unhappy in the law by pursuing what might be seen as selfless objectives as well. Thus the picture of Al Pacino as Milton in The Devil’s Advocate. Continue reading “More on An Ethic of Professional Satisfaction”