January 27, 2012


The two political half-states of Wisconsin

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Category: Election Law, Marquette Law School, Political Processes & Rhetoric, Public
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Gov. Scott Walker’s job performance is drawing strong disapproval—in the city of Milwaukee. Gov. Scott Walker’s job performance is drawing strong approval—in the rest of the Milwaukee media market.

A big thumbs up for Walker across most of the state of Wisconsin. A big thumbs down in Madison.

The two half-states of Wisconsin—one with clear Democratic majorities, one with clear Republican majorities—can be seen in the results of the Marquette Law School Poll released this week. Political contests in either of the half-states alone would be bring few surprises and little drama because they would be one-sided. But combine the two halves into the one Wisconsin we actually have, and you get a polarized, evenly split state that has become a center of passionate partisanship, attracting high levels of national attention.

You can see the two half-Wisconsins in the demographic breakdowns of many of the questions in the new Law School poll. (The results are all on the Law School Poll’s webpage. To go to them, click on “Results & Data” and then on the line referring to “crosstabs.”) Read more

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January 25, 2012


Marquette Law School Poll: The First Results Are Out

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Category: Election Law, Marquette Law School, Public
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The first results from the Marquette Law School Poll, the largest political polling project in Wisconsin history, were released Wednesday morning, providing a fresh and provocative view of public opinion across the state.

The full poll results can be found here.

At noon today (Jan. 25), Charles Franklin, visiting professor of law and public policy and director of the poll, will discuss the poll results with Mike Gousha, distinguished fellow in law and public policy, in Eckstein Hall. The session is free and open to the public. Video of the session will be posted on the Web page for the poll shortly after the session ends.

A brief look at the results: With the spotlight on the almost-certain recall election for governor, more people said at this point that they would vote for Gov. Scott Walker, the Republican who has been in office for a year, than for any of four possible Democratic challengers. The margins in favor of Walker ranged from five to ten percentage points.

Asked if they approved or disapproved of the way Walker is handling his job as governor, 51% said they approved and 46% said they disapproved.

The poll results also included information on how Wisconsinites rate candidates for the U.S. Senate seat that is open this year, what they think of some of the proposals that have stirred controversy in the state in the last year, and the standing of President Barack Obama and some of the Republican candidates for president. 

The Law School polling project will continue throughout 2012, with fresh rounds of polling generally monthly. All poll results, along with analysis of what the poll shows, links to media coverage of the poll, and announcement of upcoming events, will be posted on the Web page for the poll.

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January 24, 2012


The Roots of Progressivism Lie in . . . the Republican Party?

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Category: Legacies of Lincoln, Political Processes & Rhetoric, President & Executive Branch, Public
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Tonight, when President Barack Obama delivers his third State of the Union address, he is widely expected to channel the progressive rhetoric of Theodore Roosevelt. It was Roosevelt’s “New Nationalism” speech in 1910 (quoted in my previous post here) that called for the federal government to play an active role in regulating the economy. When he speaks to the nation tonight, President Obama is likely to push back against the demand to shrink the federal government – a common refrain among the current crop of Republican presidential candidates — by pointing to Theodore Roosevelt’s call for an active federal government.

It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln. Read more

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January 20, 2012


Pop Culture and Ideology

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Category: Popular Culture & Law, Public
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It’s common to assume American popular culture leads only to mindless escape, but in a recent speech to Communist Party officials President Hu Juntao of China warned that American popular culture might have a much more dangerous effect. He noted that Transformers 3 was a top-grossing film in China and also that the songs of Lady Gaga were as popular as those of any Chinese singer. Hu suggested the United States and other nations are westernizing and dividing China as he spoke and pop cultural works were weapons in this onslaught. Hu urged the Chinese to understand the seriousness of the struggle for Chinese cultural integrity and to always “sound the alarms and remain vigilant.”

Perhaps Hu is exaggerating the dangers, especially with regard to the fundamental aspects of Chinese culture. It’s hard to imagine Transformers 3 doing much damage to Confucian ethics or the Chinese sense of community and solidarity. However, Hu is correct when he suggests popular culture can and routinely does promote certain values and modes of behavior. It is highly normative. Popular culture – films, television shows, cheap literature – have the potential to function ideologically, and consumers of popular culture in China as well as in the United States are encouraged to “get on board” with the social world popular culture imagines and promotes.

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How Should the Supreme Court Handle Warrantless GPS Tracking?

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Category: Criminal Law & Process, Legal Scholarship, Public, U.S. Supreme Court
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One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here).  The case concerns Fourth Amendment protections from GPS tracking of automobiles.   The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the defendant’s car without a warrant and tracking his movements 24 hours a day for four weeks.  For the D.C. Circuit, it was crucial that the tracking was so extensive, which creates the possibility of a very fact-bound affirmance.  Alternatively, the Court might try to draw some type of bright-line rule that would be of greater assistance to lower courts in deciding future cases, either favorably to GPS tracking or otherwise.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

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A “Paper-Shuffling Bureaucrat” at Center Stage in Wisconsin Politics

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Category: Election Law, Marquette Law School, Political Processes & Rhetoric, Public, Speakers at Marquette
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Kevin Kennedy refers to himself as “just a paper-shuffling bureaucrat. – I haven’t moved to rock star status.”

But sometimes, timing is everything. So that’s why there were a gaggle of television cameras, a cluster of reporters, and about 200 others in the room when Kennedy joined Mike Gousha for an “On the Issues” session at Eckstein Hall on Thursday.

Kennedy is director and general counsel of the Wisconsin Governmental Accountability Board. Now in possession of petitions with about 1.9 million signatures calling for recall elections for governor, lieutenant governor, and for four state Senate seats currently held by Republicans, the board is at center stage for one of America’s hottest political scenes. What the GAB decides in handling the petitions and setting the course for the elections that are almost sure to result will have a major bearing on Wisconsin’s future and become a vivid part of Wisconsin’s history.

“It’s an honor to be part this process,” Kennedy told Gousha, the Law School’s distinguished fellow in law and public policy. ”And it’s definitely energizing. You can’t help but get juiced when you’re working on something this challenging.” Read more

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Cory Maples May Avoid Procedural Default, But Will Anyone Else Ride His Coattails?

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Category: Federal Criminal Law & Process, Public, U.S. Supreme Court
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The Supreme Court ruled earlier this week that habeas petitioner Cory Maples may not have to bear the consequences of a truly egregious dereliction of duty by his pro bono lawyers.  The lower federal courts had refused to consider Maples’ petition on the merits because he had missed a filing deadline in state court.  Normally, criminal defendants are stuck with the mistakes of their lawyers, but in this case — “a veritable perfect storm of misfortune,” as Justice Alito called it — the defendant will have another opportunity to litigate his claims.  (The full opinion in Maples v. Thomas is here.)

Here’s what happened.  Maples was convicted of murder and sentenced to death by an Alabama state court.  His direct appeals were unsuccessful.  He then launched a collateral attack in state trial court.  The Supreme Court recounted what happened next:  Read more

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January 19, 2012


Providing Straight Information on Public Opinion in a Historic Political Time

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Category: Election Law, Marquette Law School, Political Processes & Rhetoric, Public
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Amid the amazing tumult on the Wisconsin political scene, with partisanship and passion running so high, how can you get straight information about what voters are thinking?

One good answer: You can run a large-scale polling project, adhering to the highest standards of professionalism and non-partisanship. You can poll repeatedly throughout the year, so that you can follow trends. You can make all the results available promptly to anybody. You can go to lengths to give others a chance to see what you’ve found out.

That is what the Marquette Law School Poll is going to do. It will be the most extensive polling project in Wisconsin history, and we are fully committed to making it an independent effort that will have no agenda except to find out as much as we can about public opinion in Wisconsin and share it with all.

In fact, consider this your invitation to tune into the poll’s results. We are launching the first round of polling on Thursday, Jan. 19, and will release the results next Wednesday, Jan. 25. Read more

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January 17, 2012


Private Prisons and Accountability

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Category: Criminal Law & Process, Federal Civil Litigation, Federal Criminal Law & Process, Public, U.S. Supreme Court
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Last week, in Minneci v. Pollard (No. 10-1104), the United States Supreme Court held that employees of privately run federal prisons cannot be sued for money damages for violations of constitutional rights.  By coincidence, last week also saw the release of a new report on private prisons by the Sentencing Project.  The report raises a multitude of concerns with private prisons, which may leave the reader troubled that the Supreme Court has now chosen to diminish the accountability of for-profit jailers.

Here are the (quite critical) conclusions of the Sentencing Project:

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January 16, 2012


John Paul Stevens’ Restraint

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Category: Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, Public, U.S. Supreme Court
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After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir.  After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.  Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 – 48 Term when Fred Vinson was Chief Justice.  Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court.  It was during this time, however, that he argued his only case before the Court.  In Five Chiefs, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices.  Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that “Chief Justice Warren could have shaken my hand had he wished.”

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him. Read more

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January 15, 2012


A Second Look at the Sharia Law Amendment

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Category: Constitutional Interpretation, International Law & Diplomacy, Public
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Last week, the Tenth Circuit issued a decision on Oklahoma’s “Sharia Law Amendment.” A quick summary for those who haven’t followed: In 2010, Oklahoma voters approved a ballot initiative that amended their state’s constitution to prohibit Oklahoma courts from “considering or using” either “international law” or “Sharia Law” in making judicial decisions. A district court issued a preliminary injunction that at least temporarily prohibited the law from taking effect on the ground that its language regarding Sharia Law violates the Establishment Clause. The Tenth Circuit decision held that the district court did not abuse its discretion in issuing the injunction.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds. Read more

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January 13, 2012


Delay in Criminal Procedure: What’s Good for the Goose Is . . . Well, Never Mind

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Category: Criminal Law & Process, U.S. Supreme Court
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Earlier this week, in Gonzalez v. Thaler (No. 10-895), the Supreme Court rejected Rafael Gonzalez’s pro se habeas corpus petition because it was filed about five weeks too late.  The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition — the issue that the Court refused to address on the merits — was a ten-year delay between the time that he was charged and the time that he was brought to trial, allegedly in violation of his Sixth Amendment right to a speedy trial.  That’s right — ten years, occasioned mostly by a six-year delay by the government in initiating extradition proceedings.  What’s an extra five weeks of delay by the defendant in a case that has already been delayed far longer by others?

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules.  The government gets the very malleable and forgiving multifactor test of Barker v. Wingo.  (Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.)  The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A).  It was this one-year deadline that Gonzalez missed by five weeks.

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.

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