November 6, 2009


The Real Value in Appellate Oral Argument

Posted by: David Strifling
Category: Judges & Judicial Process, Legal Practice
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moot-court_trimmedDoes appellate oral argument still matter?  In some courts with exceptionally heavy caseloads, such as the Wisconsin Court of Appeals, oral argument is vanishingly rare.  But even in courts that regularly hold oral argument, some observers claim that it has devolved into a dog-and-pony show unlikely to move judges who have already reached unspoken decisions based on often-voluminous briefing.

It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4th District, 2nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages.  Read more


November 5, 2009


Big Demand for a Win-Win Way to Resolve Mortgage Crises

Posted by: Alan J. Borsuk
Category: Marquette Law School, Mediation, Milwaukee
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handshakeUnfortunately, business is booming when it comes to foreclosure problems in Wisconsin. Fortunately, the Milwaukee Foreclosure Mediation Program is succeeding at helping a growing number of those problems end with people keeping their homes and financial institutions satisfied with new arrangements.

Debra Tuttle, chief mediator for the program, said during a panel discussion at a conference Friday on foreclosure issues in Wisconsin that from July 22, when the program began, through November 4, there were 278 requests for mediation, more than double the number that was anticipated.

Twenty cases have gone through the mediation process, with all but one resulting in the owner keeping the house, she said. More than twenty others have ended with agreement between the owner and lender without the mediation process. And 136 are awaiting mediation.  Read more



Obama’s Applause Lines on Education

Posted by: Alan J. Borsuk
Category: Education & Law, President & Executive Branch
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teacherPresident Barack Obama’s 35-minute speech on education at Wright Middle School in Madison on Wednesday was interrupted by applause at many points, but most of the reaction was pretty low-key. Three lines drew what seemed to be more enthusiastic responses from the crowd of more than 500, most of them teachers, parents, and students at the 250-student school. Each of those lines says something significant about public sentiment and Obama administration priorities on education issues.

One: Obama said, “I’ve got to be honest, we’ve got to do a better job of moving bad teachers out of the classroom, once they’ve been given an opportunity to do it right.” His calls for recruiting higher-quality teachers and rewarding top teachers better didn’t get applause, but this line did. Secretary of Education Arne Duncan said in a telephone interview after the speech that this didn’t surprise him — it happens wherever the president speaks about education, he said. Raising the quality of teachers, in large part by doing more to identify quality teachers (and those who aren’t) is one of the highest, but most difficult, priorities for Obama and Duncan. And moving out the ones who really aren’t good at it is especially difficult, particularly given the defensiveness of teachers’ unions when such issues come up.

Two: His call for overhauling the way testing is done nationwide.  Read more



Myron Gordon, R.I.P.

Posted by: Richard M. Esenberg
Category: Eastern District of Wisconsin, Milwaukee
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I only really knew Myron Gordon as a judge on senior status and tried only one case before him. It was a challenge by the NAACP to the method of electing judges in Milwaukee County. The plaintiffs alleged that county-wide elections of judges denied black voters the opportunity to elect candidates of their own choice and sought election of judges on the basis of sub-county districts. We represented the Wisconsin Judges Association, which had intervened as a defendant. The judges did not want to be elected from smaller districts in which voters might not appreciate the array of considerations facing a judge. I remember, in particular, the testimony of one of our client’s members who said that he did not wish to depend only on his neighbors in a North Shore suburb for reelection. He felt that it would make it very difficult for him to give a defendant from the inner city the benefit of the doubt.

At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed, but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I’d like to think that events — subsequent successes by black candidates on a county wide basis — have validated his judgment, but I may not be the best one to make that judgment.

Judge Gordon wasn’t — on the bench — a warm person. Read more


November 3, 2009


Will State Education Reforms Get a Boost from Obama?

Posted by: Alan J. Borsuk
Category: Education & Law, Milwaukee
1 Comment


When, if ever, has a president of the United States inserted himself as directly into a legislative issue in Wisconsin as President Barack Obama is doing by visiting Madison on Wednesday? Obama’s visit to a middle school a couple miles from the State Capitol will focus on education – and it comes as Gov. Jim Doyle and others are ramping up their push for a series of educational reforms, including giving much of the power over Milwaukee Public Schools to Milwaukee’s mayor.

Obama and Secretary of Education Arne Duncan, who will be with him, are firm supporters of many of the ideas being incorporated into the legislative package. Wisconsin clearly has to make changes such as these if it wants a decent chance at a share of the $5 billion in the Race to the Top money and other incentive funds Obama and Duncan will distribute over the next couple years.

It appears highly likely a special session of the Legislature will be called in November to consider the education proposals. The outcome is not clear. Read more



The NFL Commissioner Asks for Labor Law Reform?

Posted by: Paul M. Secunda
Category: Labor & Employment Law
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Nfllogo Who knew that the commissioner of the NFL was such a labor law aficionado?  From Yahoo! News and the AP:

Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help.

“We believe that a specific and tailored amendment to the Labor Management Relations Act is appropriate and necessary to protect collectively bargained steroid policies from attack under state law,” Goodell said in testimony prepared for a House Energy and Commerce subcommittee hearing Tuesday.

Recent court decisions “call into question the continued viability of the steroid policies of the NFL and other national sports organizations,” Goodell said.

I have written previously about the interesting state law questions lurking in the case concerning the suspension of two Minnesota Viking players. Read more



Pondering the Wisconsin Supreme Court’s Criminal Docket

Posted by: Michael M. O'Hear
Category: Criminal Law & Process, Wisconsin Criminal Law & Process, Wisconsin Supreme Court
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Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg.  The panel I moderated reviewed some of the court’s most significant criminal cases last term.  But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases to offer anything especially bold or innovative.  The court seems to be operating more in an error-correction mode than a law-declaration mode.  Recent decisions generally do not announce new rules of law, but operate within established legal frameworks and decide cases based on the particularities of the facts presented.  (Indeed, an exception to this trend, State v. Ferguson, 767 N.W.2d 187, drew a sharp rebuke from Justice Bradley, who characterized the majority decision as “an unbridled exercise of power.”)  Notably absent is the “new federalism” exhibited in some earlier terms, in which the court interprets state constitutional rights in ways that are more protective than the analogous federal rights.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions.  So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions.  I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system.  Though much in vogue now, minimalism has its vices, too.



Drug Courts after Twenty Years: What Next?

Posted by: Michael M. O'Hear
Category: Criminal Law & Process, Wisconsin Criminal Law & Process
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I’ve been meaning to blog about the interesting new report from the National Association of Criminal Defense Lawyers on drug courts, but alum Tony Cotton (a member of the NACDL Board of Directors) has beaten me to the punch.  (For my own take on drug courts — voicing some of the same concerns as Tony – see this recent article.)  Tony offers these insightful and timely thoughts on drug courts:

This year marks the twentieth anniversary of a criminal justice innovation that was supposed to help solve the drug problem in this country and reduce the mass incarceration of men and women whose substance abuse habits lead them toward criminal behavior and, more often than not, to prison.

In 1989, then-State’s Attorney for Miami-Dade County, Florida (later United States Attorney General) Janet Reno designed a new approach to mitigate the crushing loads of drug-related criminal cases in South Florida. Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are 2,100 such “problem solving” courts around the country, receiving federal funds and dealing with not only drug abuse, but also drunk drivers and domestic violence offenders.  Read more


November 2, 2009


Water, Jobs, and the Way Forward

Posted by: Alan J. Borsuk
Category: Milwaukee, Speakers at Marquette
2 Comments


waterDoes Lake Lanier hold an important message about the possibility for economic growth in the Milwaukee area? If so, it’s a message that business and political leaders in Wisconsin need to move with urgency, boldness, and vision if they want to make southeast Wisconsin the hub of freshwater-related business in North America.

That was a key theme of a conference Monday convened by Marquette Law School. “Milwaukee 2015: Water, Jobs, and the Way Forward” brought Wisconsin Gov. Jim Doyle, Milwaukee Mayor Tom Barrett, and business and academic leaders together before an audience of several hundred at the Alumni Memorial Union.

“My dream is, by 2015, when people think water, they think Milwaukee,” said Richard A. Meeusen, president and CEO of Badger Meter and co-chair of the Milwaukee 7 Water Council, a group of civic leaders focused on building  the metropolitan area as a hub for businesses related to water.  Read more



Is Health Care a Human Right?

Posted by: Lisa J. Laplante
Category: Health Care, Human Rights, International Law & Diplomacy
9 Comments


global-healthcare3As Congress enters the final stretch in pushing forward a health care reform bill, I have been struck by the fact that during the ongoing debate very few people seem to pose the question of whether access to health care constitutes a human right.  Yet, in many countries around the world, this perspective forms the starting point of their national debates—and this consensus inevitably directs their public policy on universal health care. 

For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health. Read more



Welcome, November Bloggers

Posted by: Michael M. O'Hear
Category: Uncategorized
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ThanksgivingOur featured bloggers for November will be Professor Lisa Laplante and David Strifling ‘04.  Many thanks to our featured bloggers for October!



Thinking about Recusal Rules

Posted by: Richard M. Esenberg
Category: Uncategorized
5 Comments


We spent some time at Friday’s Wisconsin Supreme Court conference discussing the court’s consideration of certain rules related to recusal. This is my take: I think the state supreme court seems to have gotten it right in rejecting a proposed rule changes advanced by the League of Women Voters and retired Justice William Bablitch and in adopting changes advanced by WMC and the Wisconsin Realtors Association. This is not to say that the latter two rules could not be improved. I think they can be.

The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a “mass communication” on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.

A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.

I think this still goes too far – particularly in large counties and definitely for state wide races. Because it applies to “in kind” expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.

This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might – particularly in a circuit court race. But I don’t think it is fair to say that such a contribution would <em>always</em> create a potential for bias such that recusal should be warranted notwithstanding a judge’s subjective determination that she can decide the matter impartially.

But the largest problem, I think, is the suggestion that an “indirect interest” might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that – without further definition – it may be read to imply a broad duty to recuse based upon supporter’s ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.

Justice Bablitch himself conceded that the term “indirect support” was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.

And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court “thumbing its nose” at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.

Rather, they make clear that recusal cannot be required “solely” due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.

I don’t think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.

Having said that, it’s not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.

Cross posted at Shark and Shepherd


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