May 29, 2015

Yates v. United States: Overcoming Plain Meaning

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Category: Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)

Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”

On appeal, the question was simply whether a fish counted as a “tangible object.”   Read more »

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May 26, 2015

The School of Don Walker

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Category: Marquette Law School History, Milwaukee, Public
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Several people have used the phrase “old school” when talking about Don Walker. I know what they mean and it is certainly intended as a compliment.

But I want to make sure no one thinks that what Don did as a news reporter and editor for 37 years in Milwaukee was in any way out of date.

The Don Walker approach to news was to get to know all you can about important subjects and to tell what you know to the public in as clear and straight-forward a way as you could. That’s something we need so much these days. That’s why whatever he wrote, whatever subject he was covering, his reporting was a must-read for anyone who wanted to know what was going on.

That’s one big reason – but only one – why Don will be missed. He collapsed and died Friday at home, apparently of a heart attack. He was 62.    Read more »

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May 24, 2015

The Rule of Law in the United States

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Category: Political Processes & Rhetoric, Public

US Supreme CourtThe highly regarded World Justice Project, an independent organization in Washington, D.C. that promotes the rule of law, has used 47 indicators organized around nine themes to generate a so-called “Rule of Law Index.” Using this Index, the World Justice Project then ranked 99 of the world’s nations according to the extent to which the rule of law was truly operative in those nations’ daily life. The United States ranked nineteenth.

This ranking is surely respectable. Americans could conceivably be pleased the United States compares so well to nations such as Zimbabwe, Afghanistan, and Venezuela, which do in fact appear at the bottom of the World Justice Project’s ranking. But at the same time Americans could be disappointed that the top four nations are, in order, Denmark, Norway, Sweden, and Finland. What’s more, other nations with a common law heritage such as Australia, Canada, and New Zealand also rank higher than the United States.

The ranking is especially surprising given familiar American boasting that their nation lives by the rule of law rather than by the rule of men and that their nation is exceptional in this regard. A belief in the rule of law, in my opinion, has been a central tenet of American ideology since the earliest decades of the Republic. However, all ideological tenets should be subject to vigorous critique, lest they be used for political purposes.

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May 13, 2015

Sampling the Strong Stew of Thoughts at Eckstein Hall Education Conference

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Category: Education & Law, Marquette Law School Poll, Milwaukee Public Schools, Public, Speakers at Marquette
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Given the long list of controversial and major decisions to be made soon as the process of setting Wisconsin’s state budget for the next two years comes to a head, it was remarkable how much agreement there was among speakers at the wide-ranging conference on kindergarten through twelfth grade education policy Monday at Eckstein Hall.

“Pivotal Points: A Forum on Key Wisconsin Education Issues as Big Decisions Approach” brought together key figures involved in politics, schools, and education policy before a full-house audience in the Appellate Courtroom.

Yes, there were differences. But speakers covering a spectrum of views found a lot in common, including the need for stable, adequate funding of schools and stable, effective approaches to dealing with assessing students and tackling the challenges of schools where success is not common.

The four-hour conference opened with welcoming remarks from Marquette University President Michael R. Lovell and ended with something close to agreement by a Republican and Democrat involved in State Assembly education policy that “low performing” schools need support and help more than they need to be closed. Read more »

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May 8, 2015

The Chief’s Lawsuit

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Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Public, Wisconsin Supreme Court

220px-Shirley_AbrahamsonA lawsuit filed in federal court by a sitting Chief Justice of a state Supreme Court against her colleagues is certainly unusual, if not unprecedented.  The reaction to the filing of the complaint in Abrahamson v. Neitzel  by the mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: “Will the Real Chief Justice Please Stand”) to viewing this latest development as part of an ongoing tragedy (The New Yorker: “The Destruction of the Wisconsin Supreme Court”).  However, the legal question at the heart of the Chief’s lawsuit is actually quite interesting.

Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court take effect in the middle of the sitting Chief Justice’s term, or does it take effect upon the conclusion of the term of the current Chief?

Complicating the issue is the fact that an $8,000 salary differential exists between the position of Chief Justice and the other six Justices on the Court.  Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary.  Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution. Read more »

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Katie Maloney Perhach Discusses Her Leadership Role at Quarles & Brady

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Category: Education & Law, Legal Practice, Legal Profession, Marquette Law School, Public
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Marquette Law alum Katie Maloney Perhach discusses her leadership role at Quarles & Brady in this interview with the Milwaukee Journal Sentinel.  She is managing partner for the Milwaukee office and the chair of its Financial Institutions Litigation Group.

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May 4, 2015

Congratulations to Scott Butler–2015 Outstanding Young Lawyer of the Year

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Category: Legal Practice, Legal Profession, Marquette Law School, Public

Congratulations to Marquette Law graduate, Scott Butler, for being named the 2015 Outstanding Young Lawyer of the Year by the Young Lawyer’s Division of the State Bar of Wisconsin.  Butler is an associate attorney with Fitzpatrick, Skemp and Associates in La Crosse.  In addition to his successful practice as a civil litigator, Butler serves on several legal and community organizations in the La Crosse area, including the Wisconsin Association for Justice and the La Crosse County Bar Association and New Horizons Shelter and Outreach Center.

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May 1, 2015

Welcome to Our May Blogger

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Category: Public
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tulip iiOur May guest blogger with be 3L Amy Heart. Many thanks to our previous guest, 3L Elizabeth Oestreich.

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April 28, 2015

New Marquette Lawyer magazine takes long-term view of major issues 

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Category: Civil Rights, Marquette Law School, Public, Speakers at Marquette
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The long-term view: That’s a theme that underlies much of the content in the just-released Spring 2015 issue of Marquette Lawyer magazine. The way events and trends that date back decades shed light on major issues today is at the heart of several of the feature articles in the magazine.
That is especially true of the cover story, “Screws v. United States and the Birth of Federal Civil Rights Enforcement,” an essay version of Marquette Law School’s 2014 E. Harold Hallows Lecture by Judge Paul J. Watford of the U.S. Court of Appeals for the Ninth Circuit. Watford recounts the history behind a 1945 U.S. Supreme Court decision which opened the way for more widely known landmark decisions on civil rights. Accompanying the article is a commentary piece by John J. Pauly, Gretchen and Cyril Colnik Chair in the Marquette University Diederich College of Communication, and Janice S. Welburn, dean of university libraries at Marquette University.

A November 2014 conference at the Law School on the state of kindergarten through twelfth-grade Catholic schools, both nationwide and in Milwaukee, is the basis of “Much to Preserve—and Much to Change: The Challenges Facing Catholic K-12 Education,” by Alan J. Borsuk, senior fellow in law and public policy at the Law School. The article reports on the decline in enrollment in Catholic schools, going back to the 1960s, and current efforts to reverse that trend.

Columbia Law School’s Robert E. Scott, a leading expert on contract law, proposes a path for navigating different theories of contract law in “Contract Design and the Goldilocks Problem,” a print version of his 2014 Robert F. Boden Lecture at Eckstein Hall. Scott analyzes the interpretive approaches, going back decades, of contract law titans Samuel Williston (focused on text)and Arthur Corbin (emphasizing context) and suggests a middle path. The magazine includes reactions to Scott’s approach from George Triantis of Stanford Law School; Victor A. Lazzaretti, L’93, of Emerson Electric Co. in St. Louis; Nadelle E. Grossman of Marquette Law School; and Stewart Macaulay and William C. Whitford of the University of Wisconsin Law School.

The magazine includes excerpts from nine articles by Law School faculty members in the current issue of the Marquette Sports Law Review. Each excerpt focuses on an aspect of the interaction between law and the world of sports. The nine professors are Michael K. McChrystal, Nadelle E. Grossman, Matthew J. Mitten, Kali N. Murray, Chad M. Oldfather, Judith McMullen, Edward A. Fallone, Jay E. Grenig, and Lisa A. Mazzie.

Dean Joseph D. Kearney takes a long-term view of the Legal Aid Society of Milwaukee, including the Law School’s involvement with the society’s work, in remarks that he made at a Legal Aid Society event.

The magazine begins with the dean’s column and law school news and concludes with the Class Notes section, including extended profiles of several accomplished Marquette lawyers: Jessica Poliner, L’06; Tim Reardon, L’88; R. L. McNeely, L’94; and Daniel Chudnow, L’84.

The full magazine may be found by clicking here.

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April 27, 2015

Urban Poverty Conference Offers Insights and Some Bits of Hope

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Category: Marquette Law School, Milwaukee, Poverty & Law, Public, Speakers at Marquette

“Urban Men in Poverty: Problems and Solutions” – that was the name of a morning-long conference at Eckstein Hall on Friday. Not surprisingly, the content of the gathering, which featured presentations from five professors from four universities, shed more light on the problems than the solutions. The problems are large and urgent, and good research illuminates them. The solutions are much more difficult to identify and implement.

That gave the conference a lot of content but a sobering tone. On the other hand, hope was present too.

For one thing, the fact that such a gathering occurred was a promising sign, Marquette University President Mike Lovell told the audience of more than 200. This was the first collaboration between the University of Wisconsin-Madison La Follette School of Public Affairs and Marquette Law School. Lovell suggested this was an example of the kind of partnerships that are needed to create change.

“The only way we’re going to face and overcome the problems of urban men in poverty is by working together,” Lovell said. He said there are no easy answers. The problems related to urban men in poverty are rooted in events of decades. Solutions will not come quickly.  But, he said, he was excited so many people with serious interest gathered to show commitment to pursing solutions. Read more »

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April 21, 2015

Israel Reflections 2015 — Putting the Lessons into Action

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Category: Public, Race & Law
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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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