Le·gal In·sur·rec·tion

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I would gladly suffer through a mini-Ice Age if it proved them all wrong:

What may be the science story of the century is breaking this evening, as heavyweight US solar physicists announce that the Sun appears to be headed into a lengthy spell of low activity, which could mean that the Earth – far from facing a global warming problem – is actually headed into a mini Ice Age.

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And they complain that Sarah Palin is "stupid" and unfit to be President? 

Obama recently expressed a view of the economy in which technological innovation is viewed as a threat to jobs:

President Obama explained to NBC News that the reason companies aren't hiring is not because of his policies, it's because the economy is so automated. ... "There are some structural issues with our economy where a lot of businesses have learned to become much more efficient with a lot fewer workers. You see it when you go to a bank and you use an ATM, you don't go to a bank teller, or you go to the airport and you're using a kiosk instead of checking in at the gate."

This is a perfectly static view, which would have protected jobs in the buggy whip industry by preventing the creation and expansion of the auto industry; would have protected jobs at glass tube manufacturers against the advent of flat screen televisions; would have barred the creation of the cell phone industry because of all the jobs lost in the land line business, and so on and so on.

This is your modern union mentality at work, in which the preservation of the economic status quo takes priority over innovation and creation.  Job losses in old industries make for good 30-second political ads, while the creation of new and more vibrant industries which create more jobs takes too long to explain on television.

He really, truly doesn't understand.  It's frightening. 

The reason employers are not hiring is due in large part to fear of Obama's economic policies which raise the cost of hiring. 

Anyone who ever owned a business (I did both with others and alone for 20 years) understands how government employment mandates make hiring the last choice.  You don't have to pay unemployment insurance and workers comp on a computer, and when you fire the computer you are not going to get sued.

(P.S., someone tell him there were ATMs and kiosks at airports long before he became President, so he can't blame those innovations for the lack of job growth on his watch)



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In my post yesterday about the Wisconsin Supreme Court overturning Judge Sumi, I opined:

This is a sweeping victory for Republicans and Gov. Scott Walker. (And for my prior legal anaylsis, but that's another matter. I'll be spiking the football, for sure.)

....

Okay, analysis done, now I spike the football by referencing my prior posts...

In response, I received this email (emphasis mine):

Dear Professor Jacobson:

Do you hail from Wisconsin (as I do)? I'm perplexed by your interest in Wisconsin constitutional and administrative law. Surely everybody else at Cornell could not care less.

My views upon your espoused opinions aside, your comments about spiking footballs seem distinctly un-professorial, but I suppose matters of style are not for me to judge.

Curiously yours, Professor _______

Adjunct Professor
U.C. Hastings College of the Law

Reaction?

Here's mine:

Ya see, this is what blogging does to the mind. It's not my fault. I'm a victim.

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I saw this interview of Rick Perry yesterday afternoon, and I was impressed. 



I'm not willing to commit yet, because the field is not complete and I don't know enough about him, but I'm intrigued by Rick Perry.  (Thanks for all your prior comments, give me more.)

We cannot rest with those who were on the stage for the New Hampshire debate.

I like Tim Pawlenty the most of those on the stage, but he needs to break out of his shell. I could like Michele Bachmann, but not as long as she has an Andrew Sullivan as her campaign adviser; its a non-starter for me. Mitt Romney is the guy I want to like, a decent chap, but I'm not sure he shares my view that better big government is not the goal, better smaller government is the goal.

Give me more. And as he says, faster please.

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The Wisconsin Supreme Court has just released a decision (here) overturning Judge Sumi's ruling invalidating the Wisconsin collective bargaining bill.

Some key language from the ruling, which overturned Judge Sumi's rulings both procedurally (for interfering in the legislative process) and substantively (there was no violation of the Open Meetings Law)(emphasis mine):

¶6 IT IS FURTHER ORDERED that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio. State ex rel. Nader v. Circuit Court for Dane Cnty., No. 2004AP2559-W, unpublished order (Wis. S. Ct. Sept. 30, 2004) (wherein this court vacated the prior orders of the circuit court in the same case).

¶7 This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature....

¶9 Although all orders that preceded the circuit court’s judgment in Case No. 2011CV1244 may be characterized as moot in some respects, the court addresses whether a court can enjoin publication of a bill. The court does so because whether a court can enjoin a bill is a matter of great public importance and also because it appears necessary to confirm that Goodland remains the law that all courts must follow. State v. Cramer, 98 Wis. 2d 416, 420, 296 N.W.2d 921 (1980) (noting that we consider questions that have become moot “where the question is one of great public importance . . . or of public interest,” or “where the problem is likely to recur and is of sufficient importance to warrant a holding which will guide trial courts in similar circumstances”). Accordingly, because the circuit court did not follow the court’s directive in Goodland, it exceeded its jurisdiction, invaded the legislature’s constitutional powers under Article IV, Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act.

¶10 Article IV, Section 17 of the Wisconsin Constitution vests the legislature with the constitutional power to “provide by law” for publication. The legislature has set the requirements for publication. However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper, pursuant to Wis. Stat. § 14.38(10)(c). Due to the vacation of the circuit court’s orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c).

¶11 IT IS FURTHER ORDERED that we have concluded that in enacting the Act, the legislature did not employ a process that violated Article IV, Section 10 of the Wisconsin Constitution, which provides in relevant part: “The doors of each house shall be kept open except when the public welfare shall require secrecy.” The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied.[1] There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees.

The Court adopted the argument I had made here many times, that the Courts had no business questioning the legislature's interpretation of its own rules:

¶13  It also is argued that the Act is invalid because the legislature did not follow certain notice provisions of the Open Meetings Law for the March 9, 2011 meeting of the joint committee on conference.  It is argued that Wis. Stat. § 19.84(3) required 24 hours notice of that meeting and such notice was not given.  It is undisputed that the legislature posted notices of the March 9, 2011 meeting of the joint committee on conference on three bulletin boards, approximately 1 hour and 50 minutes before the start of the meeting.  In the posting of notice that was done, the legislature relied on its interpretation of its own rules of proceeding.  The court declines to review the validity of the procedure used to give notice of the joint committee on conference.... 

This is a sweeping victory for Republicans and Gov. Scott Walker.  (And for my prior legal anaylsis, but that's another matter.  I'll be spiking the football, for sure.)

This also is a vindication for the legal strategy of not backing down to the unjust, unwise, uncalled-for, unlawful rulings of Judge Sumi, who engaged in clearly unsound legal reasoning which -- whether intended or not -- took on the appearance of political posturing.

Okay, analysis done, now I spike the football by referencing my prior posts:

• Judge Sumi's Mess ("Judge Maryann Sumi preemptively issued a Temporary Restraining Order (TRO) which she thought ... would stop the publication of the budget repair bill, and therefore prevent the bill from becoming law.  This was an unprecedented move, and none of the legal arguments which attacked the validity of the law necessitated such interference in the legislative process.")
• Judge Sumi Throws Out Wisconsin Collective Bargaining Law ("It is one thing for a court to rule on the validity of a law, but quite another thing for a court to stop the legislature from making law. Judge Sumi gives short shrift (at pp. 13-14) to the key Wisconsin case which says courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman. Judge Sumi summarily dismisses the import of Goodland by stating that it was a pre-Open Meetings law ruling. Well, chronologically yes, but the principle is the same; courts rule on legislation, courts do not stop legislation from being made.")

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Glad I didn't have to watch the whole thing last night.  The Democratic National Committee's Rapid Response Team has produced this 42-second version to save me time:



Not having watched the whole thing, I can't say myself that is was misleading.

So I'll rely on this report by Jake Tapper, one of the few mainstream media reporters on whom I'm willing to rely, Obama Campaign Sends Around Misleading DNC Video on GOP Debate:

... the video, which Messina calls a “highlight reel” and the DNC titled “What in the world are they talking about?” selectively uses clips from the 2-hour forum suggesting that the candidates were focused on idiotic issues, or battles from the past, when all of the topics the video hammers the Republicans for talking about were ones they were asked about at the forum.

So maybe the new Democratic Party talking point should be, Why does CNN want to go back to the failed policies of the past? (And by failed policies, they mean only Republican failed policies, not the failed Democratic policies which led to the housing bubble and crash.)

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A week ago The Guardian reported that Margaret Thatcher was refusing to meet with Sarah Palin, attributing a quote to an "ally" of Thatcher as follows:

Lady Thatcher will not be seeing Sarah Palin. That would be belittling for Margaret. Sarah Palin is nuts.

The blogosphere, including some conservative and libertarian haters of Palin, erupted in joy, with loads of snark and derision directed at Palin.

It turns out that the Guardian story was a hoax, as reported by Nile Gardiner

I have spoken to Lady Thatcher’s Private Office regarding the story, and they confirm that the attack on Sarah Palin definitely did not come from her office, and in no way reflects her views. As a former aide to Margaret Thatcher myself, I can attest that this kind of thinking is entirely alien to her, and that such remarks would never be made by her office. She has always warmly welcomed like-minded figures in the United States, and has in the past met with numerous US presidential candidates and political dignitaries when they have visited London. But at the age of 85 she is now able to receive very few visitors at all.

There was never any snub of Sarah Palin by Lady Thatcher’s office. However, there has been a great deal of mischief-making and unpleasantness from sections of the liberal press in a vain and futile attempt to use Margaret Thatcher’s name to smear a major US politician

So now all these people who used a fictitious account of Margaret Thatcher refusing to meet with Palin to belittle Palin now will apologize to Palin, right?

And then to Lady Thatcher, right?

(h/t to reader Charles and Nice Deb)

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John Hinderaker of Power Line Blog has done an excellent job tracking down and debunking the serial lies of Think Progress regarding the Koch brothers.  I've chimed in too from time to time, but John really has led the charge.

In a post today, John demonstrates yet another Think Progress lie supposedly connecting the departure of David Koch from a Board position at the National Institutes for Health with the reclassification of a chemical used by Koch subsidiary Georgia Pacific as a carcinogen.  There is no truth to it.

John sums Think Progress up as follows (emphasis mine):

Everyone makes mistakes, but ThinkProgress is unique. It doesn't just get things wrong; it consistently fabricates lies out of whole cloth. Anyone who relies on ThinkProgress for information is asking to be deceived.

I think that is a fair assessment, except I'd go one step further.  Many of the people who rely on Think Progress for information, which they then republish, do so with full knowledge of the lack of truthfulness and thereby are complicit.

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Michele Bachmann should not be enjoying all the praise the Palin haters are throwing her way, for they don't really mean it, except as a tool to "shut the door" on Palin.  Example:

Doug Mataconis about last night's debate:

Bachmann is a much better public speaker [than Palin] and, say whatever one might about her ideas, she is able to present them in a much more polished manner than Palin has ever been able to.

Doug Mataconis previously:

Not From The Onion: Michelle Bachmann Mulling Presidential Bid

ABC News is reporting that one of the more bizarre members of the Republican House caucus is thinking about running for President .... Of course, “mulling” a Presidential bid is different from actually running, and even if she actually ran Bachmann would be, at best, a gadfly who got press attention for her outrageous statements. Good for entertainment value, not a serious candidate.

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A useful tool is still a tool.

In the aftermath of the Palin email media frenzy debacle, various media outlets who were publicly humiliated are spinning the crowdsourcing as a new investigative reporting technique.

The analysis of Sarah Palin's emails over the past few days may end up teaching us more about the future of journalism than about the former Alaska governor's past.

Drawing on methods used by both Wikileaks and social networks, traditional news organizations such as The New York Times and The Washington Post used the Palin email dump as an experiment in new media techniques. They sought collaboration from readers and posted massive volumes of documents online before reporters even had a chance to read most of the papers.

That sort of public coordination — often called "crowdsourcing" — has drawn increasing interest from many journalists. David Lauter, chief of Tribune Co.'s Washington bureau, said he and his colleagues have wondered whether it would be a more productive way of analyzing data.

"It's a concept that we'd been looking at," Lauter said. "This seemed like a great opportunity to test to see how it might work."

Of course, we all call BS to that explanation, because the crowdsourcing was used on Palin only because Palin was Palin, and the mainstream media organizations did not have enough manpower to do the hit job themselves.

A reader wrote to me and wondered whether the crowdsourcing potentially created union contract problems for the newspapers, since they were outsourcing what normally was an in-house reporting function for which the people performing the work were paid.

I don't know enough about newspaper union contracts, and whether reporters even are covered, to opine on the union contract aspect.

But it does strike me that WaPo, The NY Times and others have adopted the HuffPo model of bringing together ideologically sypmathetic people to work for free for the profit of the media corporation. 

In the case of HuffPo, it was a community of bloggers who worked mostly for free to build a liberal online community from which the corporation and Arianna Huffington profited, and in the case of WaPo, The NY Times and others, it was to outsource a reporting function for which the media organizations used to have to pay.

Crowdsourcing at major media organizations has a bright future, because people love getting free stuff, particularly the people who run WaPo and The NY Times.

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Seems like an appropriate blog post title.

The bloggers were neither Syrian nor lesbian nor female, and according to my readers, the Republican Debate was not a debate.

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I will continue to highlight blog rankings which show me in a good light.  I will vigorously expose as complete frauds any blog rankings which do not meet that objective standard.

So I am pleased to present the latest rankings of law professor blogs via TaxProf for the trailing 12 months ending March 31, 2011 (drop everyone by one spot since Instapundit no longer is on the list because it stopped showing its Sitemeter):


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I did not see the New Hampshire debate last night because I was traveling, but the various news reports, including from mainstream conservative blogs, seem to indicate that Romney appeared presidential and in command, Bachmann got attention and likely name recognition, Pawlenty missed an opportunity, and the others on stage were sideshows.

The narrative implicitly is that the race pretty much is over before it started, Romney is the nominee.  As much as you may not like the narrative, is it valid?

Is there anyone who was not on stage who could change that narrative?

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Spotted by a reader from the "wilds" of New Jersey.  Apparently it drives itself.


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