May 19, 2016

New Marquette Lawyer Sheds Light on Urban Neighborhoods—and Much More

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Marquette LawyerPair up the wisdom of a leading national expert on understanding urban neighborhoods with an effort to increase the vitality of a large section of Milwaukee’s west side and what do you have? You have the cover package of the Summer 2016 issue of Marquette Lawyer magazine.

Professor Robert J. Sampson, the Henry J. Ford II Professor of Social Sciences at Harvard University, delivered the Robert F. Boden Lecture at Marquette Law School in September 2015, drawing on his work in Chicago and Boston examining the fabric of urban neighborhoods. ”Neighborhood Inequality and Public Policy: What Can Milwaukee Learn from Chicago and Boston?” offers an essay version of Sampson’s lecture, along with reactions from several Milwaukee leaders.

A partner piece describes efforts by Marquette University and other major institutions to improve housing, business and commercial life, safety, and community amenities in near west side areas of Milwaukee—generally between the Marquette campus and the Harley-Davidson offices and factory a couple miles to the northwest. “Writing a New West Side Story” describes the ambitious undertaking under the leadership of Marquette’s President Michael R. Lovell.  The piece concludes with a comment by Provost Daniel J. Myers.

The cover package also includes a reflection by Mike Gousha, distinguished fellow in law and public policy, on the Law School’s public policy initiative, which aims to increase dialogue about major issues and shed light on subjects such as what can help urban neighborhoods. The dean’s column at the beginning of the magazine also speaks to Milwaukee, urban America, and the Law School’s interest in these matters.  Read more »

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May 18, 2016

Opposing Views, One Conversation at Session on Milwaukee Education

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Category: Education & Law, Milwaukee, Political Processes & Rhetoric, Public, Speakers at Marquette
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Until Tuesday, Dale Kooyenga and Lauren Baker had never met. That alone is an argument for why their discussion before a capacity audience in the Appellate Courtroom of Eckstein Hall was worthwhile.

Kooyenga is a member of the state Assembly, a leader among Republicans pushing for education policies that embrace school choice, and a key figure behind a controversial new law that gives Milwaukee County Executive Chris Abele powers to control what happens in some low-success Milwaukee public schools.

Baker is the executive director of the Milwaukee Teachers’ Education Association, the union that is an influential force in Milwaukee politics and MPS decision making. The union opposes almost all the plans Kooyenga supports.

Never the twain shall agree? That’s likely, given the adamancy of their positions. But never the twain shall meet? That ended at the Law School event, which was titled “The Future of Education in Milwaukee: One Conversation, Two Viewpoints.” Read more »

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May 15, 2016

For Sale: George Zimmerman’s Property

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Forsale2-300x236Most law school classes in Property begin with the venerable bundle of sticks metaphor.  The “bundle” includes those rights and interests held by the owners of property.  The assorted “sticks” take on different shapes and sizes, and owners invoke one or more of them to a different extent as the times change.  In the opinion of many, the right to sell one’s property has supplanted the right to use one’s property as the most important “stick” of  in the present.

The recent efforts of George Zimmerman to market the gun he used to shoot Trayvon Martin is a particularly distasteful example of an attempt to sell one’s property.  While patrolling as part of a self-styled neighborhood watch in a gated community near Orlando, Florida, Zimmerman confronted and fought with the seventeen-year-old Martin.  In the midst of the struggle, Zimmerman fired his 9 mm Kel-Tec PF-9 pistol and killed Martin.

Zimmerman was tried for the murder in early 2012, and the media absolutely feasted on the courtroom proceedings.  Zimmerman and his attorneys successfully argued the shooting was in self-defense.  Zimmerman was acquitted in February, 2012, and he publicly delighted in his victory at trial.  What’s more, the United States Justice Department at that point returned the weapon to Zimmerman.

This past week, Zimmerman put the gun up for sale on several gun auction sites. Read more »

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May 9, 2016

Commonly Confused Words, Part V

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Category: Legal Practice, Legal Writing, Public
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I’ve previously posted on words that writers, particularly lawyers, commonly confuse. Those posts are here (that/which/who, more than/over, few(er), less, amount/number, farther/further, since/because/as, among/between, who/whom, attain/obtain), here (a/an/the, counsel/council, e.g.,/i.e., it’s/its, principal/principle, then/than, utilize/use, you’re/your, affect/effect, tortious/tortuous, tack/tact, capitol/capital, motioned/moved, flesh/flush), here (although/while, assure/insure/ensure, complement/compliment, rational/rationale), and here (a couple, a few, some, several, and many).

Today, I’ll cover seven more pairs of commonly confused words.

Born/borne – Both words are past participles of “to bear”; however, only one relates to birth. Use “born” when referring to literal or figurative birth, such as: She was born in California or Wisdom is born from years of experience. “Borne,” on the other hand, refers to the other meanings of “to bear”: such as, to carry, to produce, or to bring about. “Borne” would be proper in the following: Costs associated with this litigation will be borne by the defendant.

 Good/well – “Good” is an adjective, “well” is an adverb. That is, “good” describes and “well” modifies or qualifies. A good lawyer writes well. “Good” in that sentence describes the noun, “lawyer.” (What kind of lawyer? A good one.) “Well” qualifies the verb “writes.” (How does the lawyer write? Well.) The exception to this good/well distinction involves health. If you’re asked How are you?, the grammatically correct answer would be I am well (i.e., your health is good).

Do not use “good” to modify a verb. We might say That lawyer is good at writing, but we certainly wouldn’t say That lawyer writes good.

 Lay/lie – My wonderful colleagues Anne Enquist and Laurel Currie Oates from Seattle University have best explained the distinction between these two words in their book Just Writing: Grammar, Punctuation, and Style for the Legal Writer (4th ed. 2013). I am drawing from their explanation nearly verbatim but for style changes to fit the form here. Read more »

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April 28, 2016

Waukesha Diversion Application Inches Closer To Conditional Approval, But State Law Questions Remain

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Category: Environmental Law, Public, Water Law
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Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert visited Marquette Law School on February 4 for a wide-ranging conversation about Waukesha diversionWaukesha’s application to divert water from Lake Michigan pursuant to the Great Lakes Compact.  At the time, few observers expressed confidence about the application’s prospects for approval.  Now, after several intervening meetings by the Regional Body that governs the Compact, we have more clarity on a path forward.

The Regional Body has offered a revised plan for consideration under which it could grant a conditional approval if, in exchange, Waukesha accepts a smaller water service area (and a diversion reduced by a corresponding amount.)  In its application papers, Waukesha took the position that state law required it to request enough water to supply a water service area contiguous with its sewer service area.  The boundaries extended well beyond the city limits and included parts of the City of Pewaukee and the Towns of Delafield, Genesee, and Waukesha.  During a Regional Body meeting on April 21, it became clear that the expanded service area was a sticking point for several other states, all of which hold a veto power over the application.  Partly, this is because the exception to the Compact’s ban on diversions refers only to a “community,” in the singular; it makes no reference to a water service area.  The Regional Body therefore drafted, and yesterday posted to its website, a revised map showing a reduced service area that would decrease the estimated diversion request from about 10.1 million gallons of water per day (MGD) to about 8.2 MGD.  Waukesha leaders appear willing to accept the change: “[W]e’re approaching a workable solution for residents of the city,” said Waukesha Water Utility General Manager Dan Duchniak.  The decreased water service area may satisfy the requirements of the Compact.  But does it simultaneously violate state law for Waukesha’s water service area to be non-contiguous with its sewer service area, as the city originally posited?  The answer isn’t readily apparent, but some statutory calisthenics reveal the dilemma. Read more »

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April 27, 2016

Author Says Urban Progress Requires “Durable” Policy

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Category: Milwaukee, Poverty & Law, Public, Speakers at Marquette
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A few phrases provide a taste of the serious serving of thoughts about urban centers in America offered by Patrick Sharkey, a sociology professor at New York University, at an “On the Issues with Mike Gousha” program at Marquette Law School on Tuesday.

“Multi-generational cumulative exposure.” Sharkey is author of the book, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality, and is working currently on issues related to violence and low-income communities. A key to his findings is that the problems facing people who live in poor, predominantly minority areas have built up for generations and show themselves in multiple serious ways, including the educational success and future prospects of children.

“A durable urban policy agenda.” Sharkey said that one thing that has shown positive results is sustained effort to help people with housing, jobs, education, and other matters – with the emphasis on the word “sustained.” So many initiatives are launched and then dropped, he said. He said he doesn’t see durable policy coming from the federal government. The waning of such efforts after the late 1960s is one of the main reasons progress in closing racial gaps stopped, he said. But durable efforts have been undertaken on more local levels, and that gives him some cause for optimism. Read more »

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April 26, 2016

Should College Athletes Be Paid to Play?

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Category: Sports & Law
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sports1On April 19th I participated in a lively panel discussion debating the pros and cons of paying Division I Football Bowl Championship football and men’s basketball players for their services, hosted by The Ohio State University Sports & Society Initiative, which was recently started by its College of Arts & Sciences.  Despite the commercialized nature of these sports, I advocated that college student-athletes should not receive economic benefits based on their playing ability, including cash stipends, in excess of the full cost of attendance at their respective universities.  In my view, there should be greater emphasis on ensuring they receive a meaningful education and earn a college degree that well prepares them for a career other than professional sports, which could include lifetime free tuition and cash bonuses for earning an undergraduate degree. Other panelists included sports economist Andrew Zimbalist, who expressed substantially the same views, as well as Joe Nocera, a New York Times writer, and Vince Doria, a former ESPN senior vice president, who both asserted that college football and basketball players should be paid based on their individual athletic ability and accomplishments.  A video of this panel discussion along with a second panel of former Ohio State football, men’s and women’s  basketball players (including Maurice Clarett, Lawrence Funderburke, and Shawn Springs), and a women’s golfer discussing this issue is available here.

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April 19, 2016

Take Part in Sports, But Minimize the Risks, Sports Concussion Expert Says

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Julian Bailes does not say that kids younger than 14 – or anyone else – shouldn’t take part in contact sports such as football.  But they should know the risks, follow the rules, and make sure they are involved with coaches and others who do the right things when it comes to the health of players.

Bailes is someone whose views are particularly worth attention. A former team physician for the Pittsburgh Steelers, he has been a central figure in medical work that has brought to light the links between repeated hits to the head and long-term brain damage among football players.

During an “On the Issues with Mike Gousha” program Tuesday at Marquette Law School, Bailes outlined the history of awareness of the toll that concussions and “sub-concussive” hits to the head can have, going back more than a century. But it has been in recent years that work by doctors, most notably  Bennet Omalu and Bailes, has established the high incidence among former professional football players of a form of brain damage known as CTE. Read more »

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April 16, 2016

Applications Still Being Accepted for Study Abroad in Germany

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Category: International Law & Diplomacy, Marquette Law School, Public
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There is still time to join law students from Wisconsin, throughout the United States, and around the world as they come together in Giessen, Germany from July 16 to August 13, 2016 for the Eighth Annual Summer Session in International and Comparative Law. The program already has the minimum number of participants necessary to move forward, but additional participants are welcome and applications will continue to be accepted until May 27.

The faculty includes Marquette Law School’s own Professor Ed Fallone and Adjunct Professor Doug Smith, as well as Professor Heinz Klug from the University of Wisconsin Law School, Professor Thilo Marauhn of the Justus Liebig University in Giessen, Germany, and Professor Sorcha MacLeod of the University of Sheffield in the United Kingdom.

Participants can choose two classes from the following four courses: 1) Comparative Constitutional Law: The E.U., Germany and the U.S.; 2) International Economic Law & Business Transactions; 3) Business Ethics and Human Rights Law; and 4) Comparative Corporate Governance. The schedule includes field trips to Berlin and Hamburg, as well as free time to travel Europe on your own.

Applications can be downloaded from the “Study Abroad” link on the Marquette Law School webpage. Interested students from Marquette or other ABA accredited law schools should contact Prof. Ed Fallone at edward.fallone@marquette.edu for more information.

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April 14, 2016

Insights Offered on Working in the White House and Judicial Nomination Gridlock

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Category: Judges & Judicial Process, President & Executive Branch, Public, Sports & Law
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It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea. Read more »

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Drone Law 101

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Category: Environmental Law, Public
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The Federal Aviation Administration (FAA) estimates that almost 2.5 million unmanned aerial systems, more commonly known as drones, will be purchased in 2016, and that annual sales will reach almost 7 million units by 2020.  Drones have been or soon will be employed in an ever-broadening dronesphere of applications, including photography, natural resource mapping and management, hobbyist flying, military and police applications, and perhaps even package delivery.  But as with many fast-emerging technologies, governance regimes have not kept pace with science.  As a result, many of these millions of purchasers have at least one thing in common: uncertainty over how their flying activities are regulated.

On Friday, April 8, the Environmental Law Society hosted a discussion of the future of drone regulation at the federal and state levels, featuring three experts: Russ Klingaman, who teaches Aviation Law and is a licensed pilot; Eric Compas, a UW-Whitewater professor and drone enthusiast who has received grant funding to investigate the use of drones for natural resource and disaster recovery purposes; and Detective Eric Draeger of the Milwaukee Police Department.  In a wide-ranging discussion, the panelists agreed that legal regimes governing drones are constantly evolving.  They grouped the top legal challenges related to drones into three categories: safety, privacy, and security.

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April 13, 2016

Congratulations to the 2016 Jenkins Honors Moot Court Competition Winners

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Congratulations to the winners of the 2016 Jenkins Honors Moot Court Competition, Amardeep (Simi) Singh and Sara McNamara. Congratulations also go to finalists Samuel Draver and Alan Mazzulla, who additionally won the Franz C. Eschweiler Prize for Best Brief.  Simi Singh won the Ramon A. Klitzke Prize for Best Oralist.

The competitors argued before a large audience in the Appellate Courtroom. Presiding over the final round were Hon. Diane Sykes, Hon. Brett Kavanaugh, and Hon. Gary Feinerman.

Many thanks to the judges and competitors for their hard work, enthusiasm, and sportsmanship in all the rounds of competition, as well as to the moot court executive board and Law School administration and staff for their work in putting on the event. Special thanks to Dean Kearney for his support of the competition.  Thank you as well to the Moot Court Association for its work in putting this event together, and especially 3L executive board members Larissa Dallman and Andrew Otto.

Students are selected to participate in the competition based on their success in the fall Appellate Writing and Advocacy class at the Law School.

Here is a link to the final round video.

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