Monday, March 28, 2011

Micromanaging in the Wrong Direction

Credit buying is much like being drunk.  The buzz happens immediately, and it gives you a lift.  The hangover comes the day after.         -- Dr. Joyce Brothers
Many of us have felt the effects -- both positive and negative -- of a buying binge.  Sometimes, we spend wisely.  At other times, our decisions are rational, but circumstances change, or we just get in a bit too deep.  Regardless of the reasons or the outcomes, we make these decisions voluntarily, ourselves.  No one puts a gun to our heads and says, "Buy this fridge on credit or else!"

Our credit histories can affect us in many ways, not least of which is in our efforts to find new employment.  Over recent years, employers have grown more sophisticated in screening employment applications and using all of the tools available to them, include credit reports.

Apart from the ongoing attack on using criminal histories to screen applicants, about which I will write more in the near future, there is a new bill pending in the Michigan House of Representatives, sponsored by the usual suspects, that would prohibit employers from using credit histories to screen potential employees.  Well, some employers would be prohibited.  The bill's drafters have apparently discerned that, in some cases, it might be a bad idea to have an employee with credit problems.

Under the bill, HB 4363, banks, credit unions, accounting firms, casinos, and insurance companies are largely exempted and thus able to use credit histories to screen employees.  All other employers are prohibited from doing so.


There are a couple of reasons supporters of this type of legislation will give.  The first is that a person's credit history is irrelevant to her job performance.  Is it really?  If so, why the exemptions for certain employers?  And since when does the government get to decide what is deemed relevant for a particular job?  Granted, certain broad categories related to personal characteristics (mostly involuntary) are prohibited bases for employment decisions under our civil rights laws -- sex, age, race, creed, national origin, religion, height, weight, etc.  But credit history?  That's usually the result of a voluntary act -- assuming credit obligations and the risk that payment will become difficult.  And if an employer determines, for example, that credit history is a good indicator of an employee's judgment and reliability, why shouldn't she be able to use it as a hiring tool?

A second reason offered by credit history opponents is that it has a disparate impact on minority applicants, presumable because they tend to have worse credit histories than white applicants.  Again, if this is true, why the exemptions?  Putting an exemption in the law does not wash away the discriminatory aspects of the hiring process, if there are any -- it enshrines them for those sectors who benefit from the exemptions. 

The exempt industries regularly handle cash or information pertaining to other persons' credit.  By exempting them, the law assumes that people with poor credit histories can't be trusted around money or others' personal financial information.  So why isn't there an exemption for cashiers? or lawyers' offices? or doctors' offices? or pharmacies? or any other business that handles money or confidential information?

To be consistent, this law should have no exemptions whatsoever.  As drafted, it is internally inconsistent and contradictory.  As conceived, it is simply stupid.

This is what happens when political hacks micromanage the millions of basic, everyday decisions made by employers and business owners.  They get it wrong.  In fact, they are incapable of getting it right, so they just need to get out.

Sunday, March 20, 2011

Time for a March on Grand Rapids!

All of our most sacred institutions are under assault.

From government to the courts to the church, we are accustomed to defending the castle.  But now, they have gone too far.

Recently, plans were announced to mount a frontal assault on that most sacred of institutions -- ballpark food.  Ground zero in this battle?  Fifth Third Ballpark in Grand Rapids, home of the West Michigan Whitecaps.

FTB is a great minor league park and boasts one of the greatest culinary feats since man began to walk upright -- The Fifth Third Burger.  Checking in at 4 pounds and 4,800 calories, the Fifth Third Burger is the Eighth Wonder of the World (with apologies to Pampero Firpo).

The Wiz has honored the Fifth Third Burger twice before -- read about it here and here.

But, the good folks over in Amway-land just couldn't leave well enough alone.  They held a contest recently to pick a new food item to offer at the ballpark, and the winner was something called "Chicks with Sticks."  Okay, a cool name, I'll give you that -- makes me think of a female hockey team.  (Manon Rheaume, anyone?)  Don't let the name fool you -- Chicks with Sticks is definitely not cool.  Here's the description:
"fresh-cut vegetables with hummus."

Vegetables and hummus are NOT ballpark food.  These things have no place in a ballpark.  Reading about this new menu item, I experienced the same disoriented feeling I had years ago in San Francisco's Candlestick Park when I heard a female public address announcer for the first time and saw vendors walking through the stands hawking iced cappucino. 

So, make the signs, gas up the vans, initiate the email, blog, and Facebook campaigns, and let's get to Grand Rapids!  No beef, no peace!

Wednesday, March 2, 2011

Being a Judge Means Following the Law, No Matter How Distasteful

Last year's Michigan Supreme Court race featured a fairly clear choice between rule-of-law judges and empathy judges.  The former discern the law and apply it as they find it; the latter rule based on personal whim and feeling, contorting the law to fit their preordained results. 

Sometimes, the rule of law is painful to watch, but it is in these moments when it is most needed.  Judges don't get to make only the easy calls; they have to make tough, occasionally excruciating decisions.  This is the situation that confronted the U.S. Supreme Court in the case of Snyder v Phelps, the anxiosly awaited First Amendment case addressing picketing by the Westboro Baptist Church.  The Court issued its opinion today, available here.

Here are the facts, from the case syllabus:
For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about 30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.
Snyder filed a diversity action against Phelps, his daughters—who participated in the picketing—and the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech. The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case.
Can there be anything more distasteful and sickening than the hate-filled rants of these Westboro kooks?  Does the First Amendment really protect this bigotry and invective?

No and yes, respectively.

Legally, this turned out not to be even a close question -- the margin on the Court was 8-1, with only Justice Alito dissenting.  One has to concede admiration for Chief Justice Roberts, who authored the majority opinion and who, I am certain, wishes he had been able to lead a unanimous court in this important case.  Chief Justice Roberts concluded his opinion this way:
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
Undoubtedly, there will be many who decry this decision and call for, oh, something to be done.  But what?  Congress can pass a law making Westboro's conduct illegal, but such a law would itself be unconstitutional under the principles outlined in the Snyder decision.  
The First Amendment makes blogging possible.  Yes, it protects flag burning and Nazi marches, but it also prohibits speech codes and attempts to muzzle a free press and the free expression of ideas that characterizes healthy political discourse. 
The Snyder decision is not an endorsement of Westboro or its lamebrained antics; rather, it's a example of the majesty and breadth of the First Amendment and a reminder that the rule of law can be extremely difficult.  It is at these times, at the outer edges of freedom, that we must demonstrate our commitment to the Constitution and the exraordinary framework the Founders gave us.

And we must thank God for the Constitution and pray for all the men and women in our military.  And while we're at it, let's pray for the misguided souls at Westboro, that God may touch their hearts and minds, showing them His way.