Packers and Cardinals Announce Joint Game Plan

In an unusual move, Green Bay Packer coach Mike McCarthy and Arizona Cardinal coach Ken Whisenhunt held a joint press conference later today to announce their game plans for the almost certainly meaningless game between the two teams this coming Sunday - a game that is very likely to be followed by a matchup between the same two teams in the first round of the playoffs.

"We'll be taking a knee," said McCarthy. Whisenhunt agreed. "I'm with Mike. We, as a football team, need to fine tune our victory formation going into the playoffs."

Pure Holiday Magic

... or what I got for Christmas.

The Esenberg Family (perhaps joining the ranks of the Carter Family) has released some seasonal music. You can hear it here. Listen to my daughter-in-law turn a little clay toy into an object of an ominous obsession. "And when my dreidel's tired/It drops and then I win" sounds as if she killed it. Hear my son's rather dark version of God Rest Ye Merry Gentleman. (Actually the original meaning - God keep you strong - is a bit less frothy than our current understanding.)

Little Aidan's reading of Rudolph is, however, more traditional.

Songs for New Year's Week

It's New Year's Week. Can you believe it? You run, you run to catch up with the sun, but it's sinking.



You're not the cat you used to be.



You have no resolutions for self assigned penance for problems with easy solutions.



Offer you solutions, offer you alternatives ... and you decline.



But you've killed your pride.

We Elect Judges, Don't We?

It is hardly a revelation, but the Laurel Walker of the Journal Sentinel has done a study demonstrating that a bit more than half of the circuit judges in the five county area assume the bench by appointment, rather than election. This is an important aspect of judicial selection in our state and the paper does a service by informing the public (and, I suspect, much of the bar) of the fact that many of our judges are selected, in the first instance, by the Governor and not the electorate.

My colleague, Peter Rofes, is certainly correct to note that, in some sense, this demonstrates that a "harsh dichotomy between so-called elector systems and appointment doesn't really exist."

But, while I agree that the dichotomy may not be harsh, it remains significant. While the Journal Sentinel is correct to note that challenges to sitting judges are rare, they are more frequent (although still probably not very frequent) when the incumbent is a sitting judge who has not yet faced the electorate. I supervised a study of that a number of years ago in defending a challenge to Wisconsin's system of electing judges under the Voting Rights Act. My sense is that things haven't changed much.

This is where the dichotomy reasserts itself and does so in at least three ways. First, governors know that their appointees are subject to electoral challenge and the electability of prospective judges is a consideration in choosing appointees. Second, although incumbency in and of itself confers certain advantages, it is not as strong for new appointees. Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work. Third, while challenges are not frequent, they are not unknown and they do happen. Appointed judges get beat. Everyone knows this and that has - for better or worse - an "accountability" impact on newly appointed incumbents.

So, if the study were to be used to argue that we don't "really" elect judges anyway and so we should accept Sandra Day O'Connor's invitation to drop our electoral system, I think that the situation of the ground is far more nuanced. In any event, there is, rightly or wrongly, a strong public commitment to electing judges. I do not see our system changing any time soon.

Although it is beyond the scope of the Journal Sentinel's study, I think it would be interesting to consider why so many circuit court vacancies occur. We don't see half of other public offices becoming open during the incumbent's term of office.

Cross posted at Marquette University Law School Faculty Blog

Part of the answer, I think, would be that new branches have been created during this period so the number of vacancies is less than half. Still, the vacancy rate would remain well above what we see for other elected offices.

Is their just more career dissatisfaction among circuit court judges leading to more resignations? Is it the length of a judge's term? Does the fact of gubernatorial appointment create incentives for sitting judges to time their retirement in order to create an opportunity for lawyers of the same party?

Green Bay Agonistes Revisited

Back when the Packers were 4-4, I thought that it would take a miracle to save Mike McCarthy's job. He just about has it, having won six straight including wins over Dallas, San Francisco, Baltimore and at Chicago which is always meaningful for the Packers. They almost beat a desperate Pittsburgh team at Heinz Field. They would have, had Dom Capers remembered that prevent defenses generally prevent victory and had Ben Rothlisberger not thrown a perfect pass to a guy who was almost perfectly covered and who managed to make a perfect play.

But McCarthy's not out of the woods yet. The Packers really have to make the playoffs, particularily having come this close. There is a significant chance that they won't.

Prior to this weekend, it looked like a win over Seattle next week at Lambeau would clinch it. No more. With the wins by Dallas and the Giants, the Packers need to win their last two or, if they can only win one, will need a loss by either the Cowboys or the Giants.

If they were to lose one and Dallas and New York win out, they would tie for the last playoff spot with New York and lose on the basis of the third tie-breaker - record against common opponents. If, in a 10-6 Packer scenario, a Cowboy loss comnines with two Giant victories, there will be a three way tie for the two wild card spots. In that circumstance, the Packers benefit from the NFL tie breaking procedures in that a tie of three or more teams for the wild card requires that ties within divisions be broken first using divisional tie breaking procedures to eliminate all but one of the same division teams. The Giants swept Dallas and so Dallas would be eliminated. Green Bay would get the second spot and be seeded behind the Giants' based upon a poorer record among common opponents.

Note that this is true even if Dallas' one loss is at Washington and the Cowboys beat Philadelphia with Philadelphia losing this weekend at Denver and New York winning out. That would create a three way tie at the top of the NFC East but Dallas would be eliminated from the divisional race by the second tie breaker - its divisional record. We then turn to the tie breakers for a two way tie and the Eagles would win the division based on their sweep of New York.

We would then be back to the three way tie for the wild card which produces playoff berths for New York and Green Bay.

If the Packers lose both of their last two, they will need either New York or Dallas to lose their last two as well. One loss by each won't do it. The Cowboys would take on of the spots with a 10-6 record while the 9-7 Packers would lose the tie breaker to the 9-7 Giants. While Atlanta could match the Packers and Giants record in this scenario, it can win no tie breakers. They were completely eliminated when Dallas beat New Orleans.

The conventional wisdom is that the Packers should win both of the last two games. They certainly ought to beat Seattle at home and the season ending game at Arizona will be meaningless for the Cardinals. But we should be careful about placing too much emphasis on that. Teams who shut down for meaningless games at the end of the season often have a tough time turning it back on and the Cardinals coaching staff may do everything it can to prevent that.

Nor is it certain that the game will be meaningless for them. Although Arizona has wrapped up the division, it may still have a shot at a first round bye. Assume Arizona wins this week at home against the Rams (rather likely) and the Bears beat the Vikings this coming Monday night in the cold at Soldier's Field (less likely, but not implausible). The Cardinals will then have a chance to climb into a tie for the second best record in the league. The idea would be that they beat the Packers to finish 11-5 and the Vikings lose to the Giants and finish at 11-5.

They will have that shot as long as Philadelphia does not win the NFC East with a record of 11-5 or better. If they go 12-4, they will win the second spot out right. But - there appears to be no way that Dallas can win the tie breaker with an 11-5 Arizona team. Arizona will have a better record among common opponents. At 11-5, Arizona wins all potential tie breakers with an 11-5 Minnesota team.

But putting aside the outcome of the Arizona game, if the Packers have beaten Seattle and, next week, Dallas beats Washington and New York defeats Carolina, a Minnesota win over New York gives the Packers the wild card. A Philly win over Dallas will serve as well, but the games are being player at the same time. We may be spending the first Sunday of the "teens" waiting for the Packers and Cardinals to kick off and rooting for the Purple Gorgons.

Assuming the Packers make the playoffs, I wouldn't be so sure that they will be one and done. Their performance at Pittsburgh certainly suggests that they can win at Arizona, Philadelphia or Dallas. I'm not sure that Minnesota can get them again either. Favre is starting to show his age at the end of a long season and I can't believe that Capers won't find a way to bother him just a bit more. The offensive line seems to have improved enough so that Jared Allen will at least have to slow down a bit on his way to the quarterback. Jared Bush is turning out to be quite the problem, but he's a nickel (perhaps soon to be a dime)back and they seem to be able to use their defensive looks and pressures to push the play in another direction much of the time. I don't know that they will face a quarterback who is both as mobile and good as Rothlisberger. My guess is that Drew Brees would pile up big numbers but, then again, Rodgers would shred the Saints. One win is certainly possible and two is not out of the realm of possibility. Three - on the road - is extremely unlikely.

But could you imagine a Green Bay-Minnesota NFC Championship game? I don't think it will happen, but fourteen weeks into the season, it is a very real possibility. If it does happen, we are so there.

Music for Christmas Week

I haven't done this for awhile, so here are some songs for Christmas week.

The best new "seasonal" album this year is Tori Amos' Midwinter Graces. It includes some completely original material as well as a reworking of traditional Christmas carols. The latter is respectful of the Christian nature of the material but does try to emphasize the season as being about rebirth and the emerging of light from darkness. While I generally dislike efforts to interpret Christian revelation as metaphor, Tori Amos does not claim to be a Christian and the music strikes me as a recognition of these themes in the Christian story rather than an attempt to reduce it to them. In any event, I like her and the music is good. This is "A Silent Night With You."



The enormously talented Beth Hart, who is a Christian, wishes us a very Ozzy Christmas.




Of course, it is not yet Christmas. It's still Advent - a time for hope and waiting. I generally post live performances, but here is Enya's version of Veni, Veni Emmanuel.



You've got to have some Gospel and here are the incomparable Blind Boys asking the musical question "When Was Jesus Born?"




Sonny Boy Williamson (actually Sonny Boy II - Rice Miller), who actually lived in Milwaukee during a good part of his recording career (he followed his wife, Mattie Gordon, up here), explains a Christmas gift mishap.

Why I'd die on this hill, part 4

Before I plunge into grading more papers discussing the potential recognition of sharia law in the United States and exploring what the concept of conscience in Judaism might tell us about conscience exemptions to otherwise applicable law, I need to warm up.

So let's review the bidding. My point on Climategate has been two fold. The first is that certain aspects of climate science are what Jim Manzi calls "grey area" science. Paleoclimatalogy is one of these. You can't run controlled experiments to test hypotheses. When it comes to temperature (which is what we are trying to reconstruct and model), we have direct data for only a fraction of the period in which we are interested.

We do have proxy data which are more or less closely correlated with temperature - thinks like tree rings, air bubbles trapped in ice cores, sediment deposits - but these things are also correlated with a variety of other confounding variables including, possibly, temperature itself (i.e., the relationship between these things and temperature may change as temperature changes and because we have little direct temperature data, this further confounds things.)

In short, reconstructing temperature over the past 2000 years is a bit like the tale of the blind monks examining an elephant. They must describe a very big thing with very little information.

Now, certainly climate scientists working in this area - or at least, I assume, most of them - do their best. But the process is inherently speculative and fraught with uncertainty. There is ample opportunity for research and confirmation bias.

What the Climategate e-mails document is the presence of that bias and attempts to put on a public face claiming more certainty and fewer complications than paleoclimatology can, in fact, deliver. The attempt to hide the decline in the Biffra tree reconstruction is on example of that.

And there is no doubt that they tried to hide it in documents that would be used by policy makers. Nothing that my local interlocutors Tom Foley and Seth Zlotocha have said contradicts that.

But they have gone a step further and said that it really doesn't matter. The "decline" was explained away in the scientific literature and so it is irrelevant. There are other reconstructions that either do not use or are less dependent on the tree ring data.

To say that the decline has been explained away because some studies "point to" anthropogenic causes is a bit too facile. It is possible that the "decline" is a result of anthropogenic causes which may or may not be related to carbon emissions or related phenomena. But,as this recent review of the literature concludes, it is still uncertain.

But, beyond that, any divergence shows that the relationship is not robust from external influences and since we don't have detailed data about the climate and atmosphere (and, in fact, fewer sources of data) from 1000 years ago, it is is hard to know that the relationship we observe for 100+ years (because that it the period for which we must calibrate the data)also characterized the preceding 1900.

This is where Seth and Tom would say that the other proxies come in. If they all move the same way in relationship to each other, then perhaps we can infer that they all move the same way in relationship to temperature. In other words, if the six blind monks all say the same thing about the elephant, we have a different fable.

But can we say that? Again, this is where the Climategate emails are instructive. In this case, our scientist monks (and it really is a very small group of interconnected people who do this work) were not "blind" in the sense that they seem to have been very concerned with homogenizing their work and actively hostile to outsiders who asked questions. Folks like Keith Biffra who seems to have wanted to acknowledge the limited nature of claims that could be made with confidence (he seems to have believed that it is quite possible that temperatures were as warm 1000 years ago as they are today, although this recent paper takes a more somewhat more aggressive view) got tremendous pushback from people like Michael Mann who were strongly committed to the idea of a hockey stick and the claim that 1998 was the warmest in 1300 years.

In the past three years, it has been my privilege to participate in academic discourse. I work in rather contentious areas of public law. In my experience, one does not threaten to beat up persons that one disagrees with. One does not boycott journals who publish work that one does not like. One does not discuss hiding or destroying data. One does not fight, tooth and nail, like Mann did, to withhold data from critics. One does not talk about presenting a "tidy picture" when the picture is, in fact, not that tidy.

But Tom and Seth would ask who cares if Michael Mann is a jerk as long as he is right? But it is not clear that, on the most important point, he is. Mann, of course, is the author of the hockey stick which he has repeatedly undertaken to illustrate using multiple proxies (not just the tree rings). In 2003, two AGW skeptics published a paper - in a peer reviewed journal - that essentially argued that the "hockey stick" was the result of improper statistical techniques. Mann took great umbrage, arguing that the critics, McIntyre and McKittrick, were the ones who had got it wrong.

Two investigations followed. A congressional report requested by AGW skeptic Congressmen Joe Burton was largely a statistical review of the hockey stick reconstruction lead by a professor of statistic named Edward Wegman. That report concluded:

It is important to note the isolation of the paleoclimate community; even though they rely heavily on statistical methods they do not seem to be interacting with the statistical community. Additionally, we judge that the sharing of research materials, data and results was haphazardly and grudgingly done. In this case we judge that there was too much reliance on peer review, which was not necessarily independent. Moreover, the work has been sufficiently politicized that this community can hardly reassess their public positions without losing credibility.
Overall, our committee believes that Dr. Mann’s assessments that the decade of the 1990s was the hottest decade of the millennium and that 1998 was the hottest year of the millennium cannot be supported by his analysis.'
Our committee believes that the assessments that the decade of the 1990s was the hottest decade in a millennium and that 1998 was the hottest year in a millennium cannot be supported by the MBH98/99 analysis. As mentioned earlier in our background section, tree ring proxies are typically calibrated to remove low frequency variations. The cycle of Medieval Warm Period and Little Ice Age that was widely recognized in 1990 has disappeared from the MBH98/99 analyses, thus making possible the hottest decade/hottest year claim. However, the methodology of MBH98/99 suppresses this low frequency information. The paucity of data in the more remote past makes the hottest-in-a-millennium claims essentially unverifiable. (Emphasis added.)

Another review was conducted by the National Academy of Sciences. It's report is often claimed to have validated Mann and the hockey stick but that seems to be an overstatement. This is what the NAS report concluded as summarized in a press release accompanying the report:

There is sufficient evidence from tree rings, boreholes, retreating glaciers, and other "proxies" of past surface temperatures to say with a high level of confidence that the last few decades of the 20th century were warmer than any comparable period in the last 400 years, according to a new report from the National Research Council. Less confidence can be placed in proxy-based reconstructions of surface temperatures for A.D. 900 to 1600, said the committee that wrote the report, although the available proxy evidence does indicate that many locations were warmer during the past 25 years than during any other 25-year period since 900. Very little confidence can be placed in statements about average global surface temperatures prior to A.D. 900 because the proxy data for that time frame are sparse, the committee added.

In the report itself, the NAS committee claimed that it was "plausible" that temperatures are the highest in the last 1000 years. But that's not saying much. Everyone seems to agree (well, not Mann, but many others) that there was a Medieval Warm Period (MWP), a Little Ice Age (LIA) and warming over the past 400 years coming out of the LIA. If it was as warm during the MWP as it is today, it calls into question the idea that we have unique anthropogenic warming. It doesn't mean that AGW does not exist, but throws a wrench into the idea that we have unique warming that can only be explained by anthropogenic causes.

To be sure, I can't see that it disproves the hypothesis of AGW. We could have a nonanthropogenic cause of the MWP (must have - unless there were a lot of smokestacks or urban heat islands in the lost civilization of Atlantis)and an anthropogenic cause of current warming out of the LIA. The latter may be less likely to reach equilibrium.

But recognizing the limited nature of these climate reconstructions ought to give us some perspective. It should remind us that the climate can change rather significantly for natural reasons. On a highly complex question, it would seem to lower our confidence in - at least - the more alarmist views of AGW.

Now, of course, all of this is accompanied by more complexity and inside baseball than I can relate here or that I can - to be honest - fully understand no matter how many "primary resources" I read. There are, apparently, issues surrounding the extent of local variations. Some folks want to say that the reconstructions are supported by observable phenomena (like the artic ice shelf) while others want to say that there is anectodal evidence that supports a strong MWP. There have been additional reconstructions. But we have to try to understand the scientific debate as best we can. My point, up to now, is that what paleoclimatology can tell us seems to be limited and uncertain. That uncertainty is exacerbated by the evident biases of some of the key researchers.

So I think we have to move on. Now I can read about the ethics of embryonic stem cell records and justifications for same sex marriage. More to come after I get tired of that.

MPS "Denializing"

It's not really news, but Don Bezruki has done an excellent report on MPS' unfunded liability for retiree health care for the Wisconsin Policy Research Institute.* Over at One Wisconsin Now (where they've apparently moved on from threatening the livelihood of lawyers based on the pro bono clients they represent), Scot Ross is in a state of denial. He characterizes the report as saying simply that "[h]ealth care costs for retirees in Milwaukee Public Schools are going to increase." We should get the health insurance companies to charge less, maybe by increasing competition.

I do feel for Scot. There is really no good way for the public employee unions - who I suspect fund OWN and with whom I suspect Scot's sympathies genuinely lie - to respond to this. MPS's unfunded liability for retiree health care benefits currently stands at $2.6 billion and growing. Paying the health care benefits of people who no longer work for the district (and my sister is likely to be one of them) will grow to 20% of payroll costs in 2016. MPS' current burden rate (the amount spent for the inaptly named fringe benefits) is 68.7%. A generous private employer will typically have a burden rate of less than half that.

So there was no good thing for a guy like Scot to say. But what he did say is replete with irony. Here's the first. Scot thinks that WPRI's report should have called for increased competition among insurers. But competition among insurers is precisely what OWN's comrades-in-arms at WEAC have fought tooth and nail, preferring that school districts contract with its captive insurer. While I do not believe that MPS' benefits are provided by the WEA trust, competition in health care looks a bit like a new commitment and I hope that OWN will continue to push for in school districts across the state.

Of course, it won't help MPS all that much because even if increased competition can decrease costs, it is unlikely to solve much of the problem. Health care costs in Milwaukee are 9% above the Midwest average. Let's assume that some unspecified way of increasing competition (which I presume, for Scot, would not include increased deductibles that might encourage some price competition)would bring us back to the average. That unfunded liability would shrink right down to ... $ 2.3 billion. Why were we even worried?

Here's the second irony. Scot inexpiclably says that WPRI wants money to go to insurance companies rather than kids. Actually the report seems to want money to go to educating kids rather than to retirees. It would seem to be the MTEA (of which the lovely young Karra Esenberg is a member) that wants the money to go to insurance companies. But that's a nit. there is a real threat here to the provision of education in Milwaukee. That 20% that will go to paying for my sister's Cadillac health insurance while she pursues her wine business could have bought $ 130 million in education.

There is even a third irony. Scot goes after the mild-mannered and quite moderate George Lightbourn for engineering what he calls the largest state budget deficit in state history. That isn't true, but the mess in Milwaukee may wind up contributing to that state's fiscal woes. There is, I think, no way that Milwaukee can tax itself out of the problem. There just isn't room for that type of increase and current revenue limits would, in fact, prohibit it. The state is responsible for providing a uniform education throughout the state (see Art. X, sec. 3 of the state constitution)and a majority of the state Supreme Court (although not of its current members) have held that this creates a judicially enforceable right to an adequate education.

Although I don't imagine that outstate legislators will rush in to save MPS, the courts might. And here's a fourth irony. Might a court invalidate the outsized benefits to retirees because they have rendered the provision of a uniform and adequate education impossible? My sense is that it is unlikely but there are a number of possible end games here. But, at the risk of disappointing Scot, business as usual or the villification of insurance companies are not among them.

* I write - for compensation - for WPRI's journal WI Interest and have discussed several other projects with them and, yes, Mr. Foust, George Lightbourn bought me lunch - more than once I think.