September 18, 2014

Professor Edwards Speaks to the Marquette Legal Writing Society

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Category: Legal Practice, Legal Writing, Marquette Law School, Public
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Yesterday, Professor Linda Edwards, the Robert F. Boden Visiting Professor of Law, spoke to the Marquette Legal Writing Society about her work and interest in legal writing.

This semester Professor Edwards is teaching a course on the great briefs.  Each week students study a brief to determine what made the brief successful—what made it sing, as she said.  Among her favorite briefs are the petitioner’s briefs in Miranda v. Arizona and in Bowers v. Hardwick.  Professor Edwards recommended reading and studying good briefs as a way for an advocate to advance his or her own persuasive writing. Aside from the briefs she mentions in her book Readings in Persuasion: Briefs that Changed the World, she recommended reading anything written by the Solicitor General’s office and anything written by any of the Supreme Court justices as examples of great legal writing.

Professor Edwards also noted that really good briefs speak to the reader and that a legal writer’s own voice should come through the brief.  While structure is important, she said, formulaic writing of briefs is not effective.  She cautioned against doggedly following a set of received “rules” rather than crafting a document for a particular reader or situation.  Good legal writing doesn’t have to sound lifeless or mechanical, she said.

The mission of the Marquette Legal Writing Society is to foster discussion about legal writing.  Elizabeth Oestreich is the president of this year’s organization.

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The Howard Fuller You Probably Don’t Know: An Advocate’s Remarkable Life

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Category: Civil Rights, Education & Law, Milwaukee, Milwaukee Public Schools, Public, Speakers at Marquette
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Fifty-five minutes into Thursday’s one-hour “On the Issues with Mike Gousha” program, prominent education advocate Howard Fuller finally began talking about the last 20 years of his life. Because the conversation was dragging on? Definitely not. It was because Fuller has led such a remarkable life, with so many chapters (and so many stories to tell) that talking about earlier years was appealing and confining even a well-paced interview to an hour was hard.

Many people in Milwaukee associate Fuller with his nationally significant role as an advocate for private school vouchers and charter schools in the last couple decades. But the full story of his life offers not only a remarkable personal narrative, but provocative perspective on the development of political thinking and advocacy among African Americans in the United States since the 1950s.

Fuller, 73, provided a healthy dose of that narrative and perspective in the session with Gousha, Marquette Law School’s Distinguished Fellow in Law and Public Policy, before a capacity audience in the Appellate Courtroom of Eckstein Hall. In much more detail, it is what he provides in his autobiography, No Struggle, No Progress: A Warrior’s Life from Black Power to Education Reform, published this month by Marquette University Press. Read more »

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Brutality Touches Down at Home

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Category: Criminal Law & Process, Family Law, Public, Sports & Law
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imagesVR6YYD65Anyone living in the United States who has watched TV in the last two weeks is undoubtedly aware that the NFL is in the midst of a storm of bad publicity. First, we saw the chilling videotape of Baltimore Ravens running back Ray Rice delivering a punch to the head that knocked out his then-fiancée (now wife) Janay Palmer, and then roughly dragging her off the elevator and dropping her like a sack of potatoes on the floor. Only days later, the Minnesota Vikings found themselves in the midst of a similar scandal when their star running back Adrian Peterson was charged with felony child abuse in Texas, where it is alleged he beat his 4-year-old son with a “switch.” Perhaps learning from the debacle that ensued when NFL Commissioner Roger Goodell originally imposed a meagre two-game suspension on Rice for his misdeeds, the Minnesota Vikings have suspended Peterson from games and team activities indefinitely, although since he continues to draw his $11 million dollar salary, he is hardly a sympathetic character at the moment. Meanwhile, the incidents involving NFL player violence against their partners and children keep surfacing.

A lot has already been said and written about these cases, and much of the discussion is thoughtful and educational. Numerous commenters, including New York Times columnist Michael Powell, have pointed out that we should not be so shocked that players who are rewarded for brutality on the football field revert to violent behavior at home. He makes an excellent point. After all, the NFL is not the only place where people who use force, sometimes brutal force, in their jobs have a hard time turning it off at home: the military and various police forces have faced similar issues. Moreover, we live in a society with a high tolerance for violence, at least violence of a recreational sort—as evidenced by numerous TV shows, video games and movies. Read more »

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September 17, 2014

New Marquette Law School Poll Puts Enthusiasm of Voters in Spotlight

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Category: Marquette Law School, Political Processes & Rhetoric, Public
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How important is enthusiasm among voters in determining the outcome of an election? Very, and the closer the election, the more important enthusiasm usually is because it indicates who will actually turn out to vote.

So how important are the “enthusiasm” results in the Marquette Law School Poll released Wednesday? That remains to be seen, starting with keeping an eye on the remaining rounds of polls that will be released before the Nov. 4 election.

But it is a sure bet that people working in the campaigns of Republican Gov. Scott Walker and his Democratic challenger, Mary Burke, are paying close attention to the new results. While the poll showed that the race for governor remains essentially tied, there was an uptick in how enthusiastic Walker supporters are and in the percentage of people who identified themselves as Republicans.

Overall, the poll found that Walker and Burke are tied at 46% each among registered voters. Among those considered likely voters (people who said they are registered and are certain to vote), Walker was supported by 49% and Burke 46%. In both cases, the outcomes were within the poll’s margins of error.

Read more »

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Congratulations to AWL Scholarship Winners Cavey and LaFond

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lafondPhotographerOn Tuesday, September 16, 2014, the Milwaukee Association for Women Lawyers (AWL) Foundation honored two Marquette University Law School students with scholarships.

Britteny LaFond, 3L (pictured at left), received the AWL Foundation scholarship. The AWL Foundation Scholarship is awarded to a woman who has exhibited service to others, diversity, compelling financial need, academic achievement, unique life experiences (such as overcoming obstacles to attend or continue law school), and advancement of women in the profession. LaFond grew up in a small Wisconsin town, never, in her words, seeing firsthand some of the difficulties that people face, like poverty and homelessness. Since being in law school, LaFond has spent many hours volunteeringat: the Milwaukee Justice Center’s Family Forms Assistance Clinic, the Domestic Violence Injunction Project, and the Marquette Volunteer Legal Clinic. LaFond completed a judicial internship with Judge Pocan in Milwaukee County and an internship with the Legal Aid Society (Guardian ad Litem division). She is also presently interning at the state public defender’s office with a year-long clinical placement. LaFond is an auction chair for the Public Interest Law Society, a member of the Pro Bono Society, as well as secretary of the Criminal Law Society.

Kelly Cavey (pictured at right) received the AWL Foundation’s Virginia A. Pomeroy scholarship. This scholarship honors the late Virginia A. Pomeroy, a former deputy state public defender and a past president of AWL. In addition to meeting the same criteria as for the AWL Foundation scholarship, the winner of this scholarship must also exhibit what the AWL Foundation calls “a special emphasis, through experience, employment, class work or clinical programs” in one of several particular areas: appellate practice, civil rights law, public interest law, public policy, public service, or service to the vulnerable or disadvantaged. Cavey, a part-time student now in her final year of law school, was for five years a juvenile corrections officer. She now works full-time with the state public defender’s office as support staff while she is finishing her law school. She is a member of the Marquette Law Review, the Pro Bono Society, AWL, and has often made the Dean’s List. Cavey was an intern at the U.S. Department of Justice this past summer (2014) and an intern with the U.S. Navy JAG Corps during the summer of 2012.

Congratulations to both women for outstanding service and for their representation of Marquette University Law School.

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September 16, 2014

“Good Time” in Washington: A Model for Wisconsin?

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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In an earlier post, I argued that Wisconsin should consider reinstituting “good time” for prisoners, that is, credits toward accelerated release that can be earned based on good behavior.  An established program that Wisconsin might emulate is Washington’s.

Washington has long been regarded as a national leader in criminal justice.  Indeed, Wisconsin has previously borrowed from other Washington innovations, such as its “three strikes and you are out” law and its civil commitment program for sexually violent offenders.  Washington’s good-time law takes a balanced, moderate approach.  It is neither among the most generous nor the most stringent in the nation.

Notably, Washington’s recidivism rate has been consistently lower than both the national average and Wisconsin’s.  Although many factors contribute to a state’s recidivism rate, some research suggests that the incentives established by a well-designed good-time program may help to reduce repeat offending.

With the rules set forth here, the Washington program works like this:   Read more »

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September 15, 2014

7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Public, Seventh Circuit, Western District of Wisconsin
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same sex hand holdingJudge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument. Read more »

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“I Want to Make Sure I Don’t Educate Monsters”

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During an “On the Issues with Mike Gousha” discussion at Eckstein Hall on Sept. 11, Michael Berenbaum, a prominent scholar of the Nazi Holocaust, described the Wannsee Conference held near Berlin on Jan. 20, 1942, when 15 leaders from branches of the German government met to develop ways to cooperate effectively in killing Jews by the hundreds of thousands. The leaders did not set the policy of killing Jews, he said, but they greatly increased the pace and efficiency of the genocide. At the time of Wannsee, four out of five of the six million Jews murdered during the Holocaust were still alive, Berenbaum said. Fifteen months later, four of five were dead.

What Berernbaum noted about the conference was that all 15 participants had university degrees. Eight had doctorates. Seven were lawyers.

A responsibility of all teachers, he said, is “to make sure that we do not create educated monsters who have all the skills and the abilities of modern men and women, all the genius of modern technology, all the capacity for creative thought, and no moral core.”

“I want to make sure that I don’t educate monsters,” Berenbaum said in summarizing his goal as an educator. Read more »

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September 12, 2014

Chasing Happiness

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Category: Education & Law, Legal Practice, Legal Profession, Public
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HappinessA July 2014 article in the Wisconsin Lawyer magazine describes a nationwide study about the happiness of lawyers.  This study shows factors that correlate with lawyer happiness, as well as those that don’t correlate.  Those factors that correlate most strongly are what the article calls internal factors, and the factors that are least likely to correlate are external factors.  The internal factors relate to how well a person is able to communicate and interact with others, and the external factors relate to points largely outside one’s immediate control.

The article highlights the following internal factors, which positively influence lawyer happiness:

•Autonomy, or being authentic and having a sense of control over one’s choices (0.66)
•Relatedness to others (0.65)
•Feeling competent in performing one’s job (0.63)
•Internal motivation at work (0.55) – that is, finding the work itself meaningful, enjoyable, and so on, rather than being motivated by external factors, such as pressure from others or needing to impress others
•Autonomy support at work (0.46)
•Intrinsic values (0.30) – these may include personal growth, helping others, and so on, in contrast to such extrinsic values as power, affluence, and others

 

Read more »

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September 9, 2014

Lovell Wants to Build on “Penned Up Energy” of Marquette Community

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One thing Michael Lovell has learned about Marquette University since starting as president on July 1 is that there are many people on campus who have great pride in the institution and who want to make it better.

“There’s a lot of penned up energy,” Lovell said during an “On the Issues with Mike Gousha” session at Eckstein Hall on Tuesday. “People have some great ideas and they’re just waiting to go . . . For some reason or other, they just didn’t feel empowered to take those great ideas and just make them happen.”

That will be one of his main goals, Lovell said: Providing the resources and guidance for fresh ways to improve Marquette in all its aspects.

But Lovell held off on giving many specifics on what his agenda will be. For one thing, he said he is planning to unveil some plans during the events marking his inauguration next week. He reiterated previous statements that filling “a lot of open senior positions,” as he put it, is his first priority. “It is so important to get the right thought leaders in place.” Read more »

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Time for Changes in the Policies of Major League Soccer

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soccerMajor League Soccer (MLS) is the top-flight soccer league in the United States. Unlike professional soccer leagues in other nations, MLS does not use a federation model. In a federation model, a governing association controls each level of the sport, from the amateur ranks that play on Saturday afternoons to the highly paid professionals. In this structure, any team is theoretically capable of reaching the highest level of the pyramid because teams are promoted and relegated up and down the ranks at the end of each season. Instead, the structure of MLS is more akin to other American leagues: private associations in which the owners dictate operation in strictly professional ranks.

Like the other American sports leagues, MLS has largely seen its structure challenged under antitrust law. In Fraser v. Major League Soccer, 284 F.3d 47, 61 (2002), a group of players argued MLS teams’ agreement not to compete for player services was in violation of the Sherman Act. The First Circuit Court of Appeals disagreed because the appellants failed to make the requisite relevant market showing. Id. at 69. Further, the district court’s finding that MLS was a single entity for antitrust purposes was not reversed because the court did not need to decide the issue. Id. at 56.

Within the typical American league structure, the single entity antitrust exemption has not been widely adopted because teams do compete against one another for the services of players, fans, etc. While Fraser leaves the door open for further discussion of MLS and the single entity exemption, recent developments in MLS have revealed a window for claims under the law of private associations. While the remedies are not as lucrative as the treble damages in antitrust cases, the law of private associations could require the league to change its practices. Read more »

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What the Seventh Circuit Did During Your Summer Vacation

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Category: Federal Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit
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seventh-circuit51Part One: Supervised Release

It’s been an eventful summer at the United States Court of Appeals for the Seventh Circuit in Chicago. In addition to deciding high-profile cases involving same-sex marriage and the validity of Wisconsin’s “Act 10” legislation, the Court has issued noteworthy opinions addressing criminal sentencing procedure and the law of evidence.

Seemingly out of the blue, the Court has signaled a new willingness to take a closer look at the imposition of supervised release conditions in federal criminal cases. Prosecutors, defense attorneys, judges, and probation officers will all be required to “up their game” in response to this new scrutiny. Read more »

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