Marquette University Law School Faculty Blog

The law school’s repository, Marquette Law Scholarly Commons, was formally announced on the Faculty Blog on August 8, 2012. Less than a year later, Marquette Law Scholarly Commons celebrates its 1,000,000th download! Researchers from all over the world have downloaded articles from the repository. The following twenty countries have the highest download count (from most downloads to least): United States, United Kingdom, India, Canada, Italy, Philippines, Australia, Malaysia, Tanzania, Ghana, Singapore, Pakistan, Colombia, South Africa, Hong Kong, Nigeria, Russian Federation, Kenya, Poland, and France.

The one millionth article downloaded was Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues, by Professor Carolyn Edwards. Professor Edwards has been a member of the law faculty since 1974. She was a Woodrow Wilson Fellow in philosophy at the University of California – Berkeley and is a member of Phi Beta Kappa. She is a graduate of the University of Toledo College of Law. Professor Edwards teaches contracts, sales, secured transactions, and negotiable instruments.

Please join us in celebrating this milestone by visiting the Marquette Law Scholarly Commons and browsing our collections.

“I consider you and [Jefferson] as the North and South Poles of the American Revolution. Some talked, some rewrote, and some fought to promote and establish it, but you and Mr. Jefferson thought for us all.”

—Benjamin Rush to John Adams, February 17, 1812

Every law student has a responsibly to enhance the American Conversation—the eternal dialogue that is the American experiment. While it would be conceited and with reproach that I suggest we think like Messrs. Adams and Jefferson, we should, however, seek to become more thoughtful and attempt to engage in lively, educated discourse. Our national dialogue has increasingly been filled with a self-destructive, dysfunctional, do-nothing mentality that lacks reasoned thought. This trend is at best unproductive—at worst, destructive—to the American Conversation. As law students, we have the skills and responsibility to change this trend.

It is quite gratifying to obtain a deep understanding of a topic and then learn that you lacked a full appreciation for some of the more nuanced issues within that particular topic. Part of the legal learning process encapsulates this type of learning, where you learn a new approach or different perspective and it can—and should—be learned outside the classroom. It should go without saying that one the best places to learn is outside the classroom. But as law students, in the ultra-competitive school environment, we tend to focus on grades (and the job hunt) and lose focus of the big picture—developing the skills necessary to fulfill our duty to serve the public. As such, we would do well to be reminded of the importance of using the skills we have learned outside the classroom. While Dean Kearney reminds us to continue learning outside the classroom (e.g., in the many guest lectures, at On The Issues, and during social and award events at the Law School), the one place for learning that should continually reside in a predominant place in our minds is the Zilber Forum, a social area for discussion and contemplation. The Zilber Forum, or the idea of the Forum, does not and should not stay within the confines of the four walls (although the shape of the building may suggest three). This idea is already bursting at the seams of Eckstein Hall and with a little help from students will reach the community around us. Read more »

Is it 2016 yet? No, but daily news reports and, even more so, any glimpse into political maneuvering nationwide clearly show that a lot of work is already going into laying groundwork for the next race for president. Marquette Law School Poll results released Tuesday join in the early going, showing that former Secretary of State Hillary Clinton is at a strong advantage in Wisconsin among potential Democratic candidates, while the Republican field is pretty wide open. That said, Wisconsin Rep. Paul Ryan drew the most support among Republicans in Wisconsin.

Charles Franklin, director of the poll and newly-named professor of law and public policy at the Law School, said the purpose of the presidential questions at this point wasn’t to try to predict what will happen in 2016 in Wisconsin. Rather, he said, it is to begin building a picture of how the race will evolve.

That said, the poll found that 27% of those who said they were Republican or lean Republican named Ryan as their preferred candidate. Florida Sen. Marco Rubio was the choice of 21%, Wisconsin Gov. Scott Walker drew 16%, and New Jersey Gov. Chris Christie was picked by 11%. Those under 10% included Kentucky Sen. Rand Paul (7%); former Florida Gov. Jeb Bush (5%); and Louisiana Gov. Bobby Jindal (1%).

Clinton was the preference of 62% of Democrats and those who said they lean Democratic. Vice President Joe Biden was the choice of 13%. Drawing less than 10% were Massachusetts Sen. Elizabeth Warren (5%); New York Gov. Andrew Cuomo (4%); Massachusetts Gov. Deval Patrick (2%); Maryland Gov. Martin O’Malley (1%); and Virginia Sen. Mark Warner (1%). Read more »

Last week, the U.S. Bureau of Justice Statistics issued a new report compiling nearly two decades of data on gun crime, Firearm Violence, 1993-2011.  No doubt, many readers will pore over the report’s abundant tables and graphs looking for support for their views on gun control.  However, I was most struck by a breakdown of firearm violence based on population size (table 5).  Among the six size-based categories, the most dangerous places were cities of 500,000-999,999 — the category containing Milwaukee (pop. 597,867).  These mid-large cities not only have rates of gun crime that are about four times higher than cities of less than 100,000, but they are also forty-four percent higher than cities of one million or more.

One of my students, Drew Walgreen, recommended this article by Bryan A. Garner, published originally in the Michigan Bar Journal.  Bryan Garner, if you haven’t already heard, is a noted legal writing specialist and author who has written books such as Legal Writing in Plain English.  This article focuses on twenty common mistakes lawyers make when editing sentences.  I like that the article gives an example of each mistake and the corrected version.

Last week, the Circuit Court in Milwaukee County rejected the effort of Sheriff David A. Clarke to maintain control over the County Correctional Facility South.  (Judge Van Grunsven’s ruling is available here.)  Although the CCF-S (formerly known as the House of Corrections) was run for decades by a superintendent who was independent of the Sheriff, the County transferred control over the CCF-S to the Sheriff in 2009 as a result of security concerns at the facility.  However, the new management proved less than satisfactory to some important stakeholders.

Conflict over Clarke’s administration of the CCF-S seems connected to a wider ideological conflict between Clarke and other County leaders over the incarceration of relatively low-risk criminal offenders, with Clarke taking a very critical position regarding various criminal-justice initiatives that might be grouped under the heading “evidence-based decision making.”  (Background on the conflict is here; my critique of some of Clarke’s views is here.)  Clarke has been unsupportive of treatment programs and alternatives to incarceration, and his administration of the CCF-S has apparently reflected this perspective.  Finally, through its 2013 budget, the County Board decided to transfer control of the CCF-S back to a superintendent.  Clarke’s control over the downtown jail, which has been his all along, remains unaffected.

Clarke sued the County in order to block the transfer.   Read more »

My practice is nearly exclusively a criminal appellate practice, and it’s been that way for almost 10 years. Being a one-trick pony, I can’t help but think about legal issues in the news in the context of an imaginary appeal. Of course, recently the news was flooded with stories about the Boston Marathon bombing. The issue that grabbed my interest the most was all of the talk centered on not informing captured suspect Dzhokhar Tsarnaev his Miranda rights pursuant to the public safety exception.

The idea behind the public safety exception makes sense: gathering information from a suspect to ward off an immediate threat. The exception was originally created nearly 20 years ago, but in the past 10 years or so, has become stretched (some say past recognition) to deal with terrorist threats. But that’s neither here nor there — the public safety exception and the suppression of evidence obtained from it is a trial lawyer’s concern.

First, told or not told, Tsarnaev has all of the same rights every American citizen has, including the right to remain silent and the right to an attorney. In this era of cop and robbers television (“Law & Order” in all its various forms has been on the air for 23 years), it seems self-evident that a person has those rights. But still, whether he knows he has those rights or not, the government has an obligation to inform a suspect he has them. But what happens when the defense persuades a court that law enforcement interrogated a person in violation of Miranda? That evidence is suppressed and so are the fruits of it. This is the part that really interests the appellate lawyer in me, because the question I keep coming back to here, is: so what?

If any of the news reports are to be believed, and obviously those outside of the parties won’t know until the trial, if there is one, the government has built a relatively strong case against Tsarnaev without his help. So even if some of his statements are suppressed, it doesn’t really matter because the government will still have plenty of evidence to go around. Presumably, the people who did the interrogating had a really good sense of what evidence they already had against him. Perhaps, sure in its case (even though the investigation was in the infancy), the government opted to question Tsarnaev and ask him everything it could think of. Worst case scenario, some cumulative evidence gets suppressed. Read more »

Provocative essays on the future of Milwaukee in the emerging Chicago megacity lead the content of a packed and wide-ranging new edition of Marquette Lawyer, the Marquette University Law School semiannual magazine.

The megacity that stretches along Lake Michigan, from north of Milwaukee down through Chicago to northwestern Indiana, was the focus of a July 2012 conference at Marquette Law School, “Milwaukee’s Future in the Chicago Megacity.” The magazine includes two essays building on presentations at that conference: “Rivalry, Resignation, and Regionalization,” by historian John Gurda, and “Flying Too Close to the Sun?” by urban blogger and expert Aaron Renn. My own contribution is an overview of efforts to build cooperation in economic development in the tri-state region.

The magazine also presents “The Civil War, Reconstruction, and the Origins of Birthright Citizenship,” an essay by Columbia University historian Eric Foner based on his Boden Lecture at Marquette Law School last fall, and “The Accidental Crime Commission: Its Legacies and Lessons,” by Franklin E. Zimring, of the University of California, Berkeley’s law school, based on his Fall 2012 Barrock Lecture here.

Marquette Law Professor David Ray Papke gave a lecture in Uganda on the connection between the law and social power. “Exploring Socio-Legal Dominance in Context: An Approach to American Legal History,” based on his talk, is included in the new magazine.

The magazine also contains news of the Law School and of some of its students and alumni. The printed magazine is being sent to Law School students and alumni across the country and to many others. You can get a jump on reading this issue on the Law School’s website.

To read the interactive version of the magazine, click here.

To read specific articles and sections, click on any of these:

For all three pieces on the Chicago megacity, click here.

The individual pieces are available by clicking on each of these:

Emerging Megacity: Perspectives on the Future of Chicago and Milwaukee

Thinking and Acting (and Flourishing?) as a Region

Rivalry, Resignation, and Regionalization

Flying Too Close to the Sun? 

And you can click on each of these:

The Civil War, Reconstruction, and the Origins of Birthright Citizenship

The Accidental Crime Commission: Its Legacies and Lessons

Exploring Socio-Legal Dominance in Context: An Approach to American Legal History

Law School News

Remarks of Dean Joseph D. Kearney at the Investiture of Circuit Judge Lindsey Grady

From the Dean

Alumni Class Notes

Alumni Awards

Judge John L. Coffey, a man of strong conviction and strong faith, was remembered for his positive impact on family, the courts, and the legal profession in a ceremony April 17 in the Appellate Courtroom of Eckstein Hall.

Nine judges of the United States Court of Appeals for the Seventh Circuit were on the bench at the ceremonial session in memory of Coffey, who died last November at 90. Chief Judge Frank H. Easterbrook said the location was appropriate because Coffey “thought the world of this school—this is where Jack Coffey would have wanted this celebration.” Coffey graduated from Marquette University in 1943 and from Marquette Law School in 1948 and was well known for his loyalty to Marquette.

Beginning in 1954, Coffey served as a judge in Milwaukee County, until he became a member of the Wisconsin Supreme Court in 1978. He joined the federal appeals court in 1982. In 2012, he announced he would not take part in cases—although, as was noted during the session, he didn’t really say he was retiring either.

“Jack did not see much ambiguity,” Easterbrook said. He described Coffey as a passionate advocate who once emphasized a written point he was making by underlining, bold-facing, and italicizing the passage. “He missed only the opportunity to put it in a larger font,” Easterbrook said.

Coffey was “a rock when it came to defending his principles,” Judge Rudolph T. Randa of the United States District Court for the Eastern District of Wisconsin told the audience of about 200.

Marquette Law School Dean Joseph D. Kearney said, “Jack Coffey focused relentlessly on the future,” including the future of the Law School. Coffey was one of the first alumni to encourage Kearney to consider leading the Law School out of Sensenbrenner Hall.

Francis Schmitz, who was a law clerk for Coffey in 1983-84, said that working for Coffey “was not unlike the parental concept known as tough love.” The judge was a demanding, no-excuses, no- cutting-corners boss who cared greatly and compassionately about those who worked for him, Schmitz said.

Peter Robbins, a grandson of the judge, said Coffey asked for divine guidance every day because he sat in judgment of others. He believed in hard work—“he always endeavored to know more”—but his family meant everything to him, Robbins said.

Coffey’s son, Peter Coffey, recounted how his father was one of ten children, all of whom graduated from Marquette.

Easterbrook said that Coffey had a reputation of being a dissenter, but during Coffey’s time on the federal appeals bench, there were 93 cases heard en banc and Coffey was in the majority in 78. He wrote the opinions in 11, which, Easterbrook said, was more than his share. “We miss his presence in our circles,” Easterbrook said.

I have had the pleasure of attending law school abroad at Koç University in Istanbul, Turkey, and I am currently studying at the University of Copenhagen for one semester.  Other American law students have occasionally asked me about the benefits of studying law abroad.  Some may wonder whether I will be adequately prepared to practice in the United States, given my focus on foreign law.

My fellow law students and I will enter a legal world that is more globalized than ever before.  American clients are increasingly becoming subject to jurisdictions beyond United States borders, as corporations are diversifying their business throughout the world in response to the world-wide economic turmoil in recent years.  Now, it would not be uncommon for a business to be incorporated in Delaware, and have affiliated companies in Brazil and France.  This same company may well hold bank accounts in Switzerland, have assets in South Africa, invest in Saudi Arabia, and conduct business transactions in Japan.  As a result, lawyers may be asked to provide advice on how a French subsidiary of an American parent company would be taxed and whether any international tax conventions apply; what happens if an American financial institution enters into a contract with a Saudi lender and the contract fails to meet the strict requirements of Islamic finance law; or what if an American car dealer enters into a sales contract with a German car manufacturer and the contract fails to meet EU sales directives?  Questions such as these are becoming more and more relevant and American attorneys need to be able to provide answers to clients who wish to do business abroad.  Read more »

A few months ago, I pulled the Norton Anthology of English Literature from my bookshelf—an old friend to read on a cold winter day. The page fell open to Keats, and a reference to Richard Woodhouse, barrister and friend of Keats, caught my eye.

John Keats (1795-1821) was an English Romantic poet. Keats wrote for six years before he died of tuberculosis in Rome at age 25. During that short time, he created some of the most beautiful verse, such as his sonnet, “On First Looking into Chapman’s Homer” (1816):

Much have I travell’d in the realms of gold,
And many goodly states and kingdoms seen;
Round many western islands have I been
Which bards in fealty to Apollo hold.
Oft of one wide expanse had I been told
That deep-brow’d Homer ruled as his demesne;
Yet did I never breathe its pure serene
Till I heard Chapman speak out loud and bold:
Then felt I like some watcher of the skies
When a new planet swims into his ken;
Or like stout Cortez when with eagle eyes
He star’d at the Pacific–and all his men
Look’d at each other with a wild surmise–
Silent, upon a peak in Darien.

Richard Woodhouse was an English barrister who represented Keats’ publisher, Taylor and Hessey. Keats and Woodhouse became friends, and Woodhouse encouraged Keats in his writing. Keats was to receive an inheritance when he turned 21, but he did not know of the inheritance. As such, Keats struggled for want of money, and his publisher gave him an advance on his second book. To me, Woodhouse had a unique view of Keats that came in part from Woodhouse’s work as a lawyer: Woodhouse, as a lawyer, was able to evaluate Keats both professionally and personally, and he recognized Keats’ talent.

Read more »

Our guest bloggers in May are Amelia Bizzaro ’03, 2L A.J. Peterman, and 2L Derek Becker. Many thanks to our April guests, 1L Mario Falsetti and 1L Grant Henderson.