April 21, 2015

Israel Reflections 2015 — Putting the Lessons into Action

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Before posting our last (and fabulous) blog post from the trip, I just want to say that it has been a real delight to share all of these reflections from my terrific students with our blogging community.  Looking forward already to the next trip in 2017!

Student James Bowers does a beautiful job here outlining how learning about international conflict may inspire us to deal with our own conflict in the U.S. Read more »

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April 20, 2015

Israel Reflections 2015 — The Elections

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Category: International Law & Diplomacy, Marquette Law School, Political Processes & Rhetoric, Public
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I know you are all bereft at the thought of the final Israel blog posts!  I’ll be sharing two from my students this week.  The first is on the Israeli elections.  Our trip was perfectly timed right before the Israeli elections and so we had already been learning about the different political parties in Israel and then seeing campaign posters all over the country.

Student Adam Marshall wrote about his experience:

“As a group of young soon-to-be lawyers, it was unbelievable to experience the last leg of a much-awaited election in Israel.   The country, after coming off of a brief war in the summer with its Palestinian neighbors, was eager to see if there would be a change in leadership or if everything would remain business as usual. While the Israeli election got sucked into the American media due to a congressional visit by Prime Minister Benjamin Netanyahu, which sparked a trivial debate between Republicans and Democrats, there was much more meaning to the elections in Israel.

“New elections in Israel meant possible new leadership of the country, which could lead them either closer or further away from peace with Palestine. As a student who arrived in Israel with the goal of studying the conflict, it seemed apparent that this would be the most important talking point in the elections. However, I was shocked to learn that the conflict was in fact not the most important issue in the election. In the end, what seemed to have won Netanyahu his seat once again was his foreign policy, not in regards to Palestine, but rather on Iran’s nuclear program, which was the topic of his controversial speech in the U.S. It seems that the focus on social issues in Israel may have been one reason for the dramatic decline in votes for the Zionist Union [the more liberal party] in the election from what the polls showed.

“The belief going into the election was that the Zionist Union and Herzog would have a chance to beat Likud and Netanyahu, but this was not the case. Instead Likud won 30 seats and the Zionist Union was behind with 24. While talking with different Israeli citizens, this belief that Herzog had a chance of winning remained, even though it was Netanyahu’s face that I saw all over Israel. During our bus rides through the city there were always political ads outside of my window. Whether it was a poster on a light post, a picture on a bus stop, or a giant billboard, there were always political ads in sight. Most of the ads were for Netanyahu, and I presume that is because he had the most money for the campaign, or rather his party did. Israel has a proportional representation voting system so a party runs a list of people with their top politicians at the head of the list. Other parties were represented around the cities, but it was clear that Likud had more area covered.

“One reason why the Israeli-Palestinian conflict may not have been a major issue in the election is that the people of Israel believe that politics remains a major roadblock to peace with Palestine. That is to say that, without the politicization of the conflict, there might actually be a peace agreement made. It seems to be that the split of political parties and the ever-changing party system creates a political scheme in which it is difficult to find peace. Unlike the U.S., Israel has a multi-party system, 10 of which make up the new Knesset after the elections. Parties change and make alliances after each election and this changes the political nature of the election.   If the parties were able to come together on their views regarding the conflict, there might be an actual peace agreement in the near future.

“It will be amazing to compare how my experience in Israel during their elections may be similar or different to my experience in the 2016 elections in the U.S. I assume it will be very different. I have a higher stake in the U.S. elections, and I can actually vote, but comparing campaigning styles and, more importantly, what issues are the most important will be very interesting. I will never forget my experience in Israel and the political culture there.”

We also visited the Knesset (shown below) and student Nate Hofman shared some details:Knesset


“On day three of the journey to Israel, our class was fortunate enough to get a tour of the Knesset. The courtyard was adorned with Israeli flags and a long walkway leading up to an impressive building. Unlike our domed capital building, the Knesset building is more rectangular with a flat roof. Once inside, our tour guide greeted us. Unfortunately, the Knesset was not in session because of the elections taking place a week from the time of our visit. We got to see a replica of the Israeli Declaration of Independence. It was written on a scroll, which seemed very Old Testament Israeli and perfectly fitting.

“The Knesset floor looks similar to the Congressional floor. The members sit in a semi circle facing the speaker on a raised podium. Above the 120 seats of the Knesset floor are two levels of viewing seats. The level closest to the floor, where we sat and listened, is used for invited guests and foreign dignitaries. The furthest from the floor is open for the public to view the Knesset.”

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April 17, 2015

Crowdfunding and Sport: How Soon Until the Fans Own the Franchise?

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Category: Corporate Law, Legal Scholarship, Public, Sports & Law
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Jamaika-BobThe latest issue of the Marquette Sports Law Review is now available online.  This is a faculty symposium issue.  I am proud to have my article, “Crowdfunding and Sport: How Soon Until the Fans Own the Franchise?,” included in this issue.  Here is the introduction.

The Green Bay Packers football team operates as a nonprofit corporation that has been publicly-owned since 1923.  Since that time, the franchise has raised capital by selling shares of stock in five different stock offerings, and there are currently over 350,000 individual members of the public who are shareholders of the team.  These shareholders are the joint owners of a sports franchise that is currently valued at $1.375 billion.

The public ownership of the Green Bay Packers is often noted in the media, and it is generally praised for contributing to the team’s strong tie to the surrounding community.  However, it is highly unlikely that any other N.F.L. team will follow in Green Bay’s footsteps.  Public ownership of franchises is actually prohibited under the current N.F.L. Constitution, and Green Bay’s ownership structure persists solely because of a grandfather clause that excludes the Packers from the prohibition.  Moreover, the unique nature of the Packer’s public ownership structure extends beyond the boundaries of the N.F.L.  The Green Bay Packers are currently the only wholly publicly owned franchise among all of the four major sports leagues (football, baseball, basketball and hockey) in the United States.

There is no reason why publicly owned professional sports teams cannot thrive and succeed at the same level as privately owned teams.  While public ownership of professional sports teams is relatively rare in the United States, it is common overseas.  Notable examples of publicly owned soccer teams are Real Madrid and Barcelona FC, both of which play in Spain’s Liga Nacional de Fútbol Profesional, commonly known as “La Liga.”  These teams are operated as “socios,” a form of nonprofit organization where fans of the club pay an annual membership fee for the right to buy season tickets in a special section of the stadium and the right to vote on certain management decisions.  Another team that plays in La Liga, Real Oviedo FC, has maintained consistent and significant numbers of public owners despite the relative disadvantage of being based in the region of Asturias, far from Spain’s major population centers.

It is not just that the United States lacks more than one example of a major league team that is wholly owned by the public.  It is also uncommon for American major league sports teams to have a minority ownership stake comprised of public shareholders.  In recent decades, the private owners of several major league franchises have experimented with establishing and maintaining a publicly owned minority stake, seeking to inject additional capital into their team whilst still maintaining control over the enterprise.  However, in each instance the private ownership group used a stock offering in order to create a minority interest, only to subsequently abandon the structure and negotiate the sale of the entire team to new owners.  For example, the Cleveland Indians baseball team held a public offering of shares in 1998 but went wholly private again in 1999.  The Boston Celtics basketball team had a longer run with minority public shareholders, holding a public stock offering in 1986 but eventually reverting to wholly private ownership in 2002.

Today the ownership of major league sports teams in the United States remains almost exclusively the province of large corporations, wealthy individuals or ownership groups comprised of these same two actors. Read more »

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April 16, 2015

New Law School Poll Results Generate Great Interest Quickly

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The passage of time was one of the reasons why the release of a new round of Marquette Law School Poll results on Thursday drew such strong interest. It was the first round of Law School polling since shortly before the general election almost six months ago.

But the passage of time since the last poll was only one factor driving the rapid dissemination of  the results across Wisconsin and well beyond. A governor who has emerged as a leading all-but-announced candidate for president, controversial proposals connected to the state budget being shaped currently, a first look at a likely US Senate race in Wisconsin in 2016, a proposal for public funding for part of the cost of  a new arena in downtown Milwaukee — there are a lot of hot subjects  where finding out what the public as a whole thinks is both interesting and potentially influential.

To mention a few of the broad themes of the results:

— Job approval of Republican Gov. Scott Walker dipped to lower levels than seen previously in Law School Polls in 2012, 2013, and 2014. Read more »

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Enhancing Credibility in Brief Writing by Using Oral Argument Techniques

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Category: Legal Writing, Public
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This semester in Professor Susan Bay’s Advanced Legal Writing course, Rhetoric and Persuasion, our class discussed the means of persuasion: logos, pathos and ethos. Ethos immediately intrigued me because I could not grasp how to employ ethos in brief writing. One legal scholar, Professor Kirsten K. Davis, explains ethos as “classically considered the ‘persuasive force of a person’s character.’” In one word, ethos can be defined as credibility. Reading articles from legal scholars like Professor Davis helped, but I still was missing a connection. And then it occurred to me that I had been familiar with credibility, just in a different branch of advocacy: oral arguments.

My understanding of oral arguments stems from my participation in Moot Court. I am proud to be a Moot Court enthusiast. I did not know about it until Professor Rebecca Blemberg recommended that my 1L Legal Writing, Analysis and Research classmates and I attend the semi-finals and finals of the Jenkins Honors Moot Court Competition. I was awestruck by the oralists. I vividly recall standing with Professor Blemberg, telling her that I could never recite law or formulate an oral argument the way those students did. To my great surprise, one year later, I competed in the Jenkins Competition.

Through participating in the Appellate Writing and Advocacy course as a student and as a student coach, the Jenkins Competition as a competitor and a student coach, and the National Moot Court Competition as a competitor, I have received and shared advice about how to be a credible advocate at the podium. Here are some ideas about credibility that transcend oral arguments, and that you can apply to your own brief writing.

Respect Your Audience.

Respecting your audience is one way to earn credibility. Just as an oralist does in oral arguments, use proper form when addressing courts in your brief (i.e. the court you are writing to is written as “This Court should,” and a court you are writing about should be written as “The court in Smith”). You can also show respect for your reader and earn your reader’s respect by being respectful to others. Address strong counterarguments or, if you are responding, then the opposing counsel’s strong arguments, and provide specific reasons why those arguments are flawed whether it be because of logic, fact, or policy. Read more »

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Michael Sam and the NFL Locker Room: How Masculinities Theory Explains How We View Gay Athletes

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footballLast year, Michael Sam became the first openly gay player in the National Football League. Sam was drafted by the St. Louis Rams in the seventh and final round of the draft. He survived the initial round of pre-season cuts with the team, but was let go when the team had to make a 53-player roster. He was picked up by the Dallas Cowboys and played on the team’s practice squad. After seven weeks with the Cowboys, Sam was released and remained unsigned the rest of the season.

Sam’s coming out and his subsequent drafting and playing in the NFL caused quite a stir. According to one Sports Illustrated article, one NFL player personnel assistant said, “I don’t think football is ready for [an openly gay player] just yet.”

But why? Read more »

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Israel Reflections 2015–Day 7: Moty Cristal

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Category: Marquette Law School, Mediation, Public
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One of the most interactive and influential speakers during the trip was Moty Cristal, the CEO of Next Consulting. Having begun his career as one of Israel’s leading negotiators, Moty now conducts international negotiation trainings for the private sector. He made time to speak to us at the Rabin Center and his lesson was among the favorites of the trip.  As our last speaker of the trip, I knew Moty would be a great wrap-up!

Student Sean A. McCarthy recalls his experience:

Moty Cristal has become one of the leading negotiation experts in Israel and my class was fortunate enough to meet with him in Tel Aviv.  He had the class participate in an exercise that involved three people dividing up a large sum of money amongst each other. Each role (A, B, and C) was given a different amount of bargaining power and rules for reaching an agreement. Moty formula (2)If all three individuals were able to come to an agreement, they could split up $121 million. However, if A and B reached an agreement, they would split $110 million; if A and C reached an agreement, they would split $84 million; and if B and C reached an agreement, they would split $50 million.

As a member of the A group, I realized that I was going into the exercise with virtually all of the negotiating power.  I was also fairly confident that a deal would be reached and that I would be a member of the deal. Ultimately, I was able to agree with B to split the $110 million with $26 million going to B and $92 million going to myself. During the debrief, I noticed that A was a party to all of the agreements reached, except for one. Many of the groups talked about how difficult it was to take the power away from A. In relation to international conflict, Moty explained that A groups could, in almost every situation, include the excluded party without losing anything themselves. This viewpoint—that while the pie can be expanded, ultimately some sharing is required for an agreement to be reached—was one of the most important lessons I learned on the trip.

Student Alex Evrard provides a different viewpoint on the experience:

During the exercise, I was a member of Nation C.  Going into the negotiation with two much more powerful nations, I had little room to negotiate an agreement in which I was not the nation left out.  Although my two opponents were inclusive and included me in an agreement, my fellow Nation C negotiators were not as fortunate; many of them reported back that they were left out of the final agreement. Moty’s lesson focused on how to negotiate while in a powerless situation. He told the group a story about the only time C was ever able to gain all of the money. In that situation, C was able to persuade his group members to agree to a coin flip. His lesson to the powerless negotiator was to negotiate as if there were no power. Instead of focusing on coalitions and the use of power, focus on the process of the agreement and working toward a solution that can benefit everyone. This was a wonderful exercise that left an impression on a good number of the students.

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April 15, 2015

ACLU Attorney Says Tighter Voting Rules “Not Healthy” for Democracy

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Category: Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette

There was a sea change in the approach to election issues across America in the late 2000s, as Dale Ho sees it. He isn’t sure what the cause was, but he is sure it wasn’t a good development. Ho is director of the American Civil Liberties Union Voting Rights Project, which makes him one of the leaders of legal opposition nationwide to tightening the rules on who can vote.

Ho told an “On the Issues with Mike Gousha” session at Eckstein Hall on Wednesday that voting rights issues had largely drawn bipartisan support for decades.

“We had thought we had largely achieved a consensus in this country around universal suffrage, basic access for everyone (to voting),” Ho said. “Most of the debates about voting rights since the early 1970s were about redistricting – are the lines being drawn fairly for every community, are they being gerrymandered for partisan reasons, things like that. The trend remained toward greater liberalization in terms of ballot access. We didn’t see a lot of fights about registration and ballot access. .  . .

“In the late 2000s, something changed.” Read more »

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Stanley Kutler, American Legal Historian

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Stanley KutlerThe obituaries for Stanley Kutler, a retired University of Wisconsin professor who passed away on April 7, tended to stress Kutler’s large role in obtaining public access to the Nixon Watergate tapes. Only 63 hours of those tapes had been released before Kutler’s lawsuit against the National Archives and Records Administration, but his efforts resulted in the release of more than 3,000 additional hours. Kutler and other scholars were then able to use material on the tapes to detail the Nixon Administration’s frequent and sometimes shocking abuses of political power.

Unfortunately, the obituaries largely overlooked Kutler’s decades of extraordinary work as a legal historian. His numerous books and articles include Judicial Power and Reconstruction Politics (1969), Privilege and Creative Destruction: The Charles River Bridge Case (1971), and American Inquisition: Justice and Injustice in the Cold War (1984). All of these works explored specific cases in the context of broader historical movements. The facts and social complexities of the cases were always more important for Kutler than were the rules and corollaries spouted from one appellate bench or another.

Kutler’s work as a legal historian placed him at the center of the “new legal history” that emerged during the 1960s. Read more »

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Israel Reflections 2015: Day 7 — The Rabin Center

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On the beginning of day seven of our trip (our last day!!), we visited the Rabin Center museum.  This museum commemorates the life and career of late Prime Minister Yitzhak Rabin through telling the story of Israeli history.  And the view from the Center over Tel Aviv (pictured below) cannot be beat!

Student William Nash shares his personal reaction to the Rabin museum:

“We began our last day in Israel by visiting the Rabin Center Museum in Tel Aviv. It was a nice morning—warm, with an easy, steady breeze. Standing out on the balcony, we overlooked the rabin-centerTel Aviv skyline beaming just beneath the prominence of the late-morning Mediterranean sun. It was a picture of peace. But at the time I didn’t appreciate the profound character and meaning of the ambiance. To me, it was a reprieve from constant bustle of the trip. And it was the perfect opportunity to take some last-minute pictures. Read more »

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Armed Forces Appeals Judges Hear Arguments, Offer Advice in Eckstein Hall Session

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Category: Federal Law & Legal System, Judges & Judicial Process, Marquette Law School, Public
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“When you’re done, sit down.”

Pithy but important advice on how to present an oral argument to an appeals court was one of the beneficial things Marquette Law School students had a chance to hear Tuesday. That was when the United States Court of Appeals for the Armed Forces convened for a session in Eckstein Hall, followed by a question and answer session with the court’s five judges.

The court, an Article I entity which hears oral arguments in about three dozen cases a year, heard oral arguments in the appeal of an Air Force staff sergeant, Joshua K. Plant. He was convicted in 2012 of two counts of aggravated sexual assault of a child, adultery, and child endangerment and given a sentence that included 12 years of confinement. Included in Tuesday’s proceedings: Joshua J. Bryant, a third-year Marquette law student, who presented amicus curiae arguments in support of the sergeant’s appeal.​

First, here’s the case the court heard. Then, we’ll summarize some of the advice. Read more »

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April 14, 2015

Israel Reflections 2015–Day 6: Bar Ilan University

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One of the most important parts of our trip was spending time with students from other universities and comparing academic experiences. During our time in Tel Aviv, we were privileged to meet with Professor Michal Alberstein and other faculty at Bar Ilan University as well as several students to discuss their dispute resolution curriculum and the different practical experiences offered to students.

Student Avery Mayne offers some insight: Read more »

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