Category Archives: politics

Sex Has Thrown A Bomb Into Business

This article, written in 1927 by the psychoanalyst Smith Ely Jeliffe (a dude) has a take on workplace sexism that is, to me, startlingly contemporary.

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Landlord rights and Wisconsin home rule follies

The era of small government remains over in Wisconsin, as the state legislature continues to chew away at municipal self-governance.  This time:  cities are prohibited from requiring regular inspections of rental properties.

Just to remind you again what the Wisconsin Constitution says on this point:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.

Over the years, the state has accorded to itself the power to declare just about anything a city might do “of statewide concern,” rendering the Home Rule Amendment essentially null.  The statewide effect of Beloit requiring landlords to subject their rental properties to safety inspections every once in a while seems pretty minor to me.  I guess that’s why I’m not on the Wisconsin Supreme Court.

And yes, I get that there’s lots of interpretation of the Commerce Clause that runs roughly along the same lines.  And yes, I get that a strong interpretation of home rule would keep states from invalidating discriminatory municipal ordinances unless they ran afoul of federal law.  But these judges say they’re pure custodians of the Constitutional text.  It gets up my nose when they act as if it doesn’t exist.

Good piece about the erosion of home rule from the League of Wisconsin Municipalities.

Previous blog post where I complain at length about previous SC-WI home rule jurisprudence.



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Are Alabama’s House seats gerrymandered?

This map has a lot of people saying so:


Here’s what I think:  Alabama’s House maps might well be gerrymandered, but the Moore-Jones numbers aren’t very strong evidence.

First of all, about that weirdly shaped District 7 where so many Democrats live.  That’s a majority-minority district.  The Voting Rights Act requires the creation of some such districts, and that provision has increased the representation of racial minorities in Congress.  But most people agree they hurt Democrats overall.  You might be able to draw a district map for Alabama, Republican though it is, with two districts where Democrats have a chance instead of one.  But you’d also increase the likelihood of Alabama sending an all-white delegation.

Alabama, without District 7, is about 78% white, and white people in Alabama are about 85% Republican.  It’s not gerrymandering that Dems don’t have a chance in those six districts under normal conditions; it would happen just about any way you drew the maps.

But the Moore-Jones election was anything but normal conditions!  Did the party draw a map designed to withstand a historic Democratic turnout wave?

I doubt it.  Suppose you wanted to draw a map that would keep your big House majority even if just over half of Alabamian voters chose the Democrat.  You’ve got no chance in AL-7, and in the other 6 districts combined, the Republican is winning by 10 points.  Well, the last thing you’d do is draw an ultra-Republican district like AL-4; that makes the other districts way too close.  You’d take some of those wards and move them over to shore up AL-5, which Moore won by less than half a percent.  You might also try to concentrate the more Democratic parts of AL-1 and AL-2 into one, creating a district you might lose in a wave but leaving the rest of the state so solidly Republican that even an election more disastrous than this one for Republicans would leave five seats in GOP hands.

Outside district 7, Alabama is a very Republican state, even when offered the weakest Republican candidate in recent memory.  That’s the simplest explanation for why Moore finished ahead in districts 1-6, and it’s the one I favor.

Update:  Some people have communicated to me that in their view district 7 is more majority-minority than the Voting Rights Act requires, and that the district was drawn this way on purpose in order to increase Republican margin in the other 6 districts.



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“Worst of the worst maps”: a factual mistake in Gill v. Whitford

The oral arguments in Gill v. Whitford, the Wisconsin gerrymandering case, are now a month behind us.  But there’s a factual error in the state’s case, and I don’t want to let it be forgotten.  Thanks to Mira Bernstein for pointing this issue out to me.

Misha Tseytlin, Wisconsin’s solicitor general, was one of two lawyers arguing that the state’s Republican-drawn legislative boundaries should be allowed to stand.  Tseytlin argued that the metrics that flagged Wisconsin’s maps as drastically skewed in the GOP’s favor were unreliable:

And I think the easiest way to see this is to take a look at a chart that plaintiff’s own expert created, and that’s available on Supplemental Appendix 235. This is plain — plaintiff’s expert studied maps from 30 years, and he identified the 17 worst of the worst maps. What is so striking about that list of 17 is that 10 were neutral draws.  There were court-drawn maps, commission-drawn maps, bipartisan drawn maps, including the immediately prior Wisconsin drawn map.

That’s a strong claim, which jumped out at me when I read the transcripts–10 of the 17 very worst maps, according to the metrics, were drawn by neutral parties!  That really makes it sound like whatever those metrics are measuring, it’s not partisan gerrymandering.

But the claim isn’t true.

(To be clear, I believe Tseytlin made a mistake here, not a deliberate misrepresentation.)

The table he’s referring to is on p.55 of this paper by Simon Jackman, described as follows:

Of these, 17 plans are utterly unambiguous with respect to the sign of the efficiency gap estimates recorded over the life of the plan:

Let me unpack what Jackman’s saying here.  These are the 17 maps where we can be sure the efficiency gap favored the same party, three elections in a row.  You might ask: why wouldn’t we be sure about which side the map favors?  Isn’t the efficiency gap something we can compute precisely?  Not exactly.  The basic efficiency gap formula assumes both parties are running candidates in every district.  If there’s an uncontested race, you have to make your best estimate for what the candidate’s vote shares would have been if there had been candidates of both parties.  So you have an estimate for the efficiency gap, but also some uncertainty.  The more uncontested races, the more uncertain you are about the efficiency gap.

So the maps on this list aren’t the 17 “worst of the worst maps.”  They’re not the ones with the highest efficiency gaps, not the ones most badly gerrymandered by any measure.  They’re the ones in states with so few uncontested races that we can be essentially certain the efficiency gap favored the same party three years running.

Tseytlin’s argument is supposed to make you think that big efficiency gaps are as likely to come from neutral maps as partisan ones.  But that’s not true.  Maps drawn by Democratic legislatures have average efficiency gap favoring Democrats; those by GOP on average favor the GOP; neutral maps are in between, and have smaller efficiency gaps overall.

That’s from p.35 of another Jackman paper.  Note the big change after 2010.  It wasn’t always the case that partisan legislators automatically thumbed the scales strongly in their favor when drawing the maps.  But these days, it kind of is.  Is that because partisanship is worse now?  Or because cheaper, faster computation makes it easier for one-party legislatures to do what they always would have done, if they could?  I can’t say for sure.

Efficiency gap isn’t a perfect measure, and neither side in this case is arguing it should be the single or final arbiter of unconstitutional gerrymandering.  But the idea that efficiency gap flags neutral maps as often as partisan maps is just wrong, and it shouldn’t have been part of the state’s argument before the court.

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Not to exceed 25%

Supreme Court will hear a math case!

At issue in Murphy v. Smith:  the amount of a judgment that a court can apply to covering attorney’s fees.  Here’s the relevant statute:

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.

To be clear: there are two amounts of money here.  The first is the amount of attorney’s fees awarded against the defendant; the second is the portion of the judgment which the court applies towards that first amount.  This case concerns the discretion of the court to decide on the second number.

In Murphy’s case, the court decided to apply just 10% of the judgment to attorney’s fees.  Other circuit courts have licensed this practice, interpreting the law to allow the court discretion to apply any portion between 0 and 25% of the judgement to attorney’s fees.  The 7th circuit disagreed, saying that, given that the amount of attorney’s fees awarded exceeded 25% of the judgment, the court was obligated to apply the full 25% maximum.

The cert petition to the Supreme Court hammers this view, which it calls “non-literal”:

The Seventh Circuit is simply wrong in interpreting this language to mean “exactly 25 percent.” “Statutory interpretation, as we always say, begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Here, the text is so clear that interpretation should end with the text as well. “Not to exceed” does not mean “exactly.”

This seems pretty clearly correct:  “not to exceed 25%” means what it means, not “exactly 25%.”  So the 7th circuit just blew it, right?

Nope!  The 7th circuit is right, the other circuits and the cert are wrong, and the Supreme Court should affirm.  At least that’s what I say.  Here’s why.

I can imagine at least three interpretations of the statuye.

  1.  The court has to apply exactly 25% of the judgment to attorney’s fees.
  2.  The court has to apply the smaller of the following numbers:  the total amount awarded in attorney’s fees, or 25% of the judgment.
  3.  The court has full discretion to apply any nonnegative amount of the judgment to attorney’s fees.

Cert holds that 3 is correct, that the 7th circuit applied 1, and that 1 is absurdly wrong.  In fact, the 7th circuit applied 2, which is correct, and 1 and 3 are both wrong.

1 is wrong:  1 is wrong for two reasons.  One is pointed out by the cert petition:  “Not to exceed 25%” doesn’t mean “Exactly 25%.”  Another reason is that “Exactly 25%” might be more than the amount awarded in attorney’s fees, in which case it would be ridiculous to apply more money than was actually owed.

7th circuit applied 2, not 1:  The opinion reads:

In Johnson v. Daley, 339 F.3d 582, 585 (7th Cir. 2003) (en banc), we explained that § 1997e(d)(2) required that “attorneys’ compensation come[] first from the damages.” “[O]nly  if 25% of the award is inadequate to compensate counsel fully” does the defendant contribute more to the fees. Id. We continue to believe that is the most natural reading of the statutory text. We do not think the statute contemplated a discretionary decision by the district court. The statute neither uses discretionary language nor provides any guidance for such discretion.

The attorney’s compensation comes first out of the damages, but if that compensation is less than 25% of the damages, then less than 25% of the damages will be applied.  This is interpretation 2.  In the case at hand, 25% of the damages was $76,933.46 , while the attorney’s fees awarded were $108,446.54.   So, in this case, the results of applying 1 and 2 are the same; but the court’s interpretation is clearly 2, not the absurd 1.

3 is wrong:  Interpretation 3 is on first glance appealing.  Why shouldn’t “a portion of the judgment (not to exceed 25%)” mean any portion satisfying that inequality?  The reason comes later in the statute; that portion is required to “satisfy the amount of attorney’s fees awarded against the defendant.”  To “satisfy” a claim is to pay it in full, not in part.  Circuits that have adopted interpretation 3, as the 8th did in Boesing v. Spiess, are adopting a reading at least as non-literal as the one cert accuses the 7th of.

Of course, in cases like Murphy v. Smith, the two clauses are in conflict:  25% of the judgment is insufficient to satisfy the amount awarded.  In this case, one requirement must bend.  Under interpretation 2, when the two clauses are in conflict, “satisfy” is the one to give way.  The 7th circuit recognizes this, correctly describing the 25% awarded as ” toward satisfying the attorney fee the court awarded,” not “satisfying” it.

Under interpretation 3, on the other hand, the requirement to “satisfy” has no force even when it is not in conflict with the first clause.  In other words, they interpret the law as if the word “satisfy” were absent, and the clause read “shall be applied to the amount of attorney’s fees.”

Suppose the attorney’s fees awarded in Murphy had been $60,000.  Under interpretation 3, the court would be free to ignore the requirement to satisfy entirely, and apply only 10% of the judgment to the attorneys, despite the fact that satisfaction was achievable within the statutory 25% limit.

Even worse:  imagine that the statute didn’t have the parenthetical, and said just

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.

It would be crystal clear that the court was required to apply $60,000, the amount necessary to satisfy the award.  On interpretation 3, the further constraint imposed by the statute gives the court more discretion rather than less in a case like this one!  This can’t be right.

You could imagine switching to an interpretation 3′, in which the court is required to satisfy the amount awarded if it can do so without breaking the 25% limit, but is otherwise totally unconstrained.  Under this theory, an increase in award from $60,000 to $100,000 lessens the amount the court is required to contribute — indeed, lessens it to essentially zero.  This also can’t be right.


2 is right:  When two clauses of a statute can’t simultaneously be satisfied, the court’s job is to find some balance which satisfies each requirement to the greatest extent possible in a range of possible cases.  Interpretation 2 seems the most reasonable choice.  The Supreme Court should recognize that, contra the cert petition, this is the interpretation actually adopted by the 7th Circuit, and should go along with it.



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Maryland flag, my Maryland flag

The Maryland flag is, in my opinion as a Marylander, the greatest state flag.

Ungepotch?  Yes.  But it has that ineffable “it shouldn’t work but it does” that marks really great art.

But here’s something I didn’t know about my home state’s flag:


Despite the antiquity of its design, the Maryland flag is of post-Civil War origin. Throughout the colonial period, only the yellow-and-black Calvert family colors are mentioned in descriptions of the Maryland flag. After independence, the use of the Calvert family colors was discontinued. Various banners were used to represent the state, although none was adopted officially as a state flag. By the Civil War, the most common Maryland flag design probably consisted of the great seal of the state on a blue background. These blue banners were flown at least until the late 1890s….

Reintroduction of the Calvert coat of arms on the great seal of the state [in 1854] was followed by a reappearance at public events of banners in the yellow-and-black Calvert family colors. Called the “Maryland colors” or “Baltimore colors,” these yellow-and-black banners lacked official sanction of the General Assembly, but appear to have quickly become popular with the public as a unique and readily identifiable symbol of Maryland and its long history.

The red-and-white Crossland arms gained popularity in quite a different way. Probably because the yellow-and-black “Maryland colors” were popularly identified with a state which, reluctantly or not, remained in the Union, Marylanders who sympathized with the South adopted the red-and-white of the Crossland arms as their colors. Following Lincoln’s election in 1861, red and white “secession colors” appeared on everything from yarn stockings and cravats to children’s clothing. People displaying these red-and-white symbols of resistance to the Union and to Lincoln’s policies were vigorously prosecuted by Federal authorities.

During the war, Maryland-born Confederate soldiers used both the red-and-white colors and the cross bottony design from the Crossland quadrants of the Calvert coat of arms as a unique way of identifying their place of birth. Pins in the cross bottony shape were worn on uniforms, and the headquarters flag of the Maryland-born Confederate general Bradley T. Johnson was a red cross bottony on a white field.

By the end of the Civil War, therefore, both the yellow-and-black Calvert arms and the red-and-white colors and bottony cross design of the Crossland arms were clearly identified with Maryland, although they represented opposing sides in the conflict.

In 4th grade, in Maryland history, right after having to memorize the names of the counties, we learned about the flag’s origin in the Calvert coat of arms

but not about the symbolic meaning of the flag’s adoption, as an explicit gesture of reconciliation between Confederate sympathizers and Union loyalists sharing power in a post-war border state.

The Howard County flag is based on the Crossland arms.  (There’s also a sheaf of wheat and a silhouette of Howard County nosing its way through a golden triangle.)  The city of Baltimore, on the other hand, uses the Calvert yellow-and-black only.

Oh, and there’s one more flag:

That’s the flag of the Republic of Maryland, an independent country in West Africa settled mostly by free black Marylanders.  It existed only from 1854 to 1857, when it was absorbed into Liberia, of which it’s still a part, called Maryland County.  The county flag still has Lord Baltimore’s yellow, but not the black.





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Intersectionality as nonlinearity

I wonder if the idea of intersectionality would be better-understood in STEMmy circles if we called it “nonlinearity” instead.  Put that way, e.g.

“the condition of being queer and disabled isn’t the sum of the condition of being queer and the condition of being disabled, or even some linear combination of those, it’s just its own thing, which draws input from each of those conditions in some more complicated way and which has features of its own particular to the intersection”

it’s something I think most mathematicians would find extremely natural and intuitive.


The past was bad

It’s looking tonight like the GOP will manage to pass some version of the AHCA, a bill repealing the Affordable Care Act and creating some kind of return to the pre-ACA status quo; hard to know exactly what, since the vote will be taken without the bill being publicly released, and the House has decided not to wait for the Congressional Budget Office to estimate just how much this bill will cost Americans.

GOP fans will say: “How can this be such a big disaster, crying liberals?  Ten years ago there was no Obamacare, and people did fine.”

Some people did fine!  Some people didn’t do fine.

You’ll hear people say, in the same sad snappish tone of voice, “Parents today are obsessed with safety, in my day kids rode in the way back of the station wagon, they didn’t wear seatbelts, they crossed the street by themselves, and they were fine.”

Some kids were fine!  But just so you know:  in 1975, about 1600 kids 13 and under were killed by cars as pedestrians, and another 1400 were killed in crashes while riding in cars.  In 2015, those numbers were 186 and 663.  Throw in teenagers and that’s another 8700 dead passengers in 1975; down to 2715 in 2015.

People did fine, except for the thousands of kids who got killed back then who wouldn’t get killed now.

A while ago I was reading the reunion book for the Harvard class of 1893, the people who graduated exactly 100 years before me.  You know what you notice in their bios?  A lot of people’s children died.  In 1920, about 8% of American babies died before the age of 1.  It’s now 0.6%.

People were fine!  They had a baby, the baby died, they got on with their life.

But I like it better when babies hardly ever die, when thousands of children don’t get killed in car crashes, and when Americans have access to affordable health insurance even if they’ve been sick before.  The past was fine.  But it was also bad.



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AB for President

AB was talking about being President this morning.

Me:  I think you could be a really good candidate; you’re funny, and you get along with almost everybody.

AB:  And I have great hair!

She gets it.

Vacuum cleaner on sale

I was explaining the “regular price” scam to CJ the other day. A store sells a vacuum cleaner for $79.95. One day, they put up a sign saying “SALE! Regular price, $109.95; now MARKED DOWN to $79.95.” The point is to create an imaginary past that never was, a past where vacuum cleaners cost $109.95, a difficult past from which the store has generously granted you respite.
This is what Trump’s team is doing. They’re trying to create an imaginary past in which the last 5 years of life in America was characterized by ubiquitous street crime, unchecked terrorism, and mass unemployment. So that life in America in 2017 and 2018 will seem comparatively placid, safe, and prosperous. Look how much I saved you on this goddamn vacuum cleaner. You’re welcome.

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