March 24, 2017

Supreme Court Permits Some Light Into the Black Box of Jury Deliberations

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Public, Race & Law, U.S. Supreme Court
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A photo of the Supreme CourtJury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.

Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.

Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails.  Read more »

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March 23, 2017

Human Rights Expert Says Surviving the Holocaust Motivated His Career

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Category: International Law & Diplomacy, Public, Speakers at Marquette
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The last question at the “On the Issues with Mike Gousha” program at Marquette Law School on Thursday with Judge Thomas Buergenthal went to a retired Milwaukee school teacher who painted a gloomy picture of the state of the world.

“Humanity is having a real problem,” she said. “These are horrible time right now.”

Buergenthal answered in a positive fashion: “You’re too pessimistic,” he said. “Things are happening. They’re not happening as fast as you and I would like it to happen. There are some bad things happening too. But overall, we are moving slowly, too slowly.” He mentioned efforts by the United Nations and regional human rights organizations around the world that he thought were having positive impact.

“We do more harm to these developments if we think they’re not working.” He said. “So the trick is to stay with it.“

Buergenthal has stayed with it for decades. He is an authority on international and human rights law and one of the youngest Holocaust survivors. He is an emeritus professor of law at George Washington Law School and a former judge of the International Court of Justice at the Hague – among many distinctions and accomplishments. And he is author or co-author of numerous books, including a memoir, A Lucky Child, about surviving Auschwitz as a child. In his early 80s, he is, in fact, one of the youngest survivors of the notorious Nazi concentration camp. Read more »

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March 20, 2017

Alexander Hamilton as Attorney

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Category: Legal History, Public
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The extraordinary success of the Broadway musical “Hamilton” has spiked renewed interest in the accomplishments of the actual Alexander Hamilton (1757-1804). And indeed, Hamilton was a genuine military hero in the Revolutionary War, George Washington’s unofficial chief of staff, author of two-thirds of the “Federalist Papers,” the nation’s first Secretary of the Treasury, and the leading architect of the Early Republic’s market economy. His accomplishments as an attorney have attracted less attention, but legalists in particular might remember that in his era, he was New York City’s pre-eminent attorney.

When Hamilton returned to New York City after the defeat of the British in 1781, he qualified for a veteran’s exemption from the requirement that aspiring attorneys complete an apprenticeship. He studied law on his own for only six months, concentrating his studies on Lord William Blackstone’s “Commentaries on the English Common Law.” He then passed an oral bar examination and was admitted to practice in 1782. Read more »

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March 18, 2017

A Campaign of Fear Towards Immigrants

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Category: Immigration Law, Public
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Nineteenth Century US political cartoon of Uncle Sam kicking out the Chinese, refering to the Chinese exclusion act.The question I am asked over and over lately: “how do I get temporary guardianship for my children in case I am detained and deported?” The fact that I hear this question, or some similar form of it, so frequently in recent weeks is indicative of the level of fear in the immigrant community. This fear is a direct result of the new policies of our President, his executive orders, the follow up memoranda from Homeland Security, and the waves of “targeted enforcement” by Immigration and Customs Enforcement (ICE) that have been unleashed nationwide.

Let’s be clear, ICE has been carrying out its daily work of initiating deportation proceedings long before this presidency. That has not changed. ICE currently has the same number of officers and the same amount of resources. There is no “deportation force” over and above what we already had – at least not yet. However, the tone and tactics being used have clearly changed. Virtually any undocumented immigrant is now a priority for removal, regardless of whether they have a criminal record. Media recently reported that ICE detained a domestic abuse victim in El Paso, Texas after going to court to file a restraining order. ICE also detained a young Dreamer from Argentina in Jackson, Mississippi just after leaving a press conference where she spoke out against these changes. People hear reports of these high-profile cases and wonder if they will be next.

It is the beginning of a campaign of fear directed towards not only the undocumented, but immigrants in general. Fear feeds rumors, which can turn fear into panic. This is the first step. Order a travel ban for Muslim-majority countries in the name of protecting us from terrorists. Call for more deportations of undocumented immigrants while labeling them as criminals. This scares immigrants, but also creates fear of the “other” among the wider general population. Is this the America we want to be? Read more »

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March 10, 2017

Roggensack Calls for Defending Legitimacy of Courts from “Tough Talk” of Critics

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Category: Judges & Judicial Process, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Wisconsin Supreme Court Chief Justice Patience Roggensack wanted to use her Hallows Lecture at Marquette Law School on March 7 “to start what I hope will be a public conversation about a rising challenge to the institutional legitimacy of our courts, both state and federal.”

Roggensack launched the conversation with strong words for those she thinks are harming the standing of courts as a whole. She named names and spoke forcefully about the impact of those inside and outside the legal system who have disparaged some judges and justices in personal terms or who have said the Wisconsin Supreme Court and other courts make decisions based on political allegiances. She criticized what she called their “tough talk.”

“Most tough talk comes from those who have no conscious intent to harm the institutional legitimacy of courts, but have not considered the unintended consequences that may follow from their fully protected speech,” Roggensack said. Read more »

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March 9, 2017

Welcome Our Alumni Blogger for March

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Category: Marquette Law School, Public
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Cain Oulahan headshotWe are pleased to have Cain Oulahan join the Faculty Blog as our alumni blogger for March. Cain is an attorney with Straub Immigration in Milwaukee. His practice focuses on family-based immigration, deportation defense, naturalization, U visas, deferred action, post-conviction relief and the immigration consequences of criminal convictions. Attorney Oulahan graduated cum laude from Marquette University Law School where he was an associate editor of the Marquette Law Review. His comment, titled “The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad,” was published in the Summer 2011 edition of the Marquette Law Review and was the winner of the 2011 Golden Quill Award for outstanding student comment.

Cain is currently President of the Wisconsin Hispanic Lawyers Association, Treasurer of the Wisconsin Chapter of the American Immigration Lawyers Association, and Legal Advisor to the Wisconsin State Board of the League of United Latin American Citizens. He volunteers regularly with the Marquette Volunteer Legal Clinic and frequently presents on immigration issues for local non-profit organizations, churches and schools. He has appeared on the PBS program Adelante, the Telemundo evening news and program Buscando Soluciones, and has been interviewed by Wisconsin Public Radio.

 

 

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March 8, 2017

Amid Continuing Concerns, MPS Chief Highlights Progress in School Initiatives

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Category: Education & Law, Milwaukee Public Schools, Public, Speakers at Marquette
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“I’m very impatient and I want everything changed overnight. But it doesn’t happen that way.”

How does it happen? I Supt takes time. It takes the involvement of pretty much everyone in the community. It takes a willingness to make changes, but then stick with them so that they can take root and grow.

Those were among the broad and important lessons Darienne Driver, the superintendent of Milwaukee Public Schools, offered at an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday. Driver was enthusiastic about progress being made within MPS and about the prospects for success growing. But she was also realistic about MPS’s problems, and about how it will take time before the impact of current initiatives can be judged. Read more »

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March 7, 2017

NAAC Team Advances to Octofinals in Boston

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After three rounds of oral argument at the National Appellate Advocacy Competition (NAAC) regional in Boston this past weekend, Marquette University Law School students Tamara Johnson (3L) and Henry Twomey (3L) (pictured) were 2-1 and seeded ninth out of 32 teams. Johnson and Twomey advanced to the octofinals, but unfortunately lost a close match to another team. Attorneys (and former NAAC competitors) Lucas Bennewitz (L’15), Hiriam Bradley (L’16), Jesse Blocher (L’06), Michael Cerjack (L’08) coached the team.

Barry Braatz (3L), Alexandra Klimko (3L), and Brianna Meyer (3L) also competed in the Boston regional, facing tough competition each round. Their team was coached by attorneys Elleny Christopolous and Kate Maternowski, both of whom were former NAAC competitors for their law schools, and Zach Willenbrink (L’11). Professor Lisa Mazzie is the faculty advisor for both teams.

The NAAC is sponsored by the American Bar Association Law Student Division.

 

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March 5, 2017

Apply Now for 2017 Summer Session in Giessen, Germany

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Category: International Law & Diplomacy, Legal Education, Marquette Law School, Public
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Three students in the summer program in Giessen, Germany sit at their desks and laugh.Applications are due March 24 for the Summer Session in International and Comparative Law being held in Giessen, Germany from July 15 through August 12, 2017.  Participants can choose from among four courses — CyberLaw, Comparative Constitutional Law, International Economic Law & Business Transactions and Business Ethics and Human Rights — and spend a month living and studying with a truly international student body.  A distinguished faculty from law schools in Germany, the United Kingdom and Wisconsin will lead the classroom instruction.  More information, as well as an application, can be downloaded here from the Law School Study Abroad webpage.  Past participants agree that this program was one of the most fun and memorable parts of their legal education.  If you need any more reasons to apply, consider watching this YouTube video made by last summer’s participant, A.J. “The Wanderer” Lawton, which documents his travels to Giessen, program field trip destinations in Hamburg and Berlin, and other sites throughout Europe.  Apply Now!

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February 28, 2017

Author Bemoans “Worship of Ignorance” and Urges New Vitality in US Civic Life

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette
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Tom Nichols thinks we’re in a pretty big mess in America. We’re narcissistic in a big way, we are ”obsessed with worship of ignorance,” we’re thin-skinned, we’re unwilling to have serious conversations on serious issues, we wear the fact that we don’t know much as a badge of honor, and we’re deeply divided.

His deep concerns didn’t arise from the 2016 political tumult and the rise of Donald Trump to the presidency. Nichols has been studying and writing about his concerns for several years.

The result is his new book, The Death of Expertise: The Campaign against Established Knowledge and Why it Matters. And the book led to an “On the Issues with Mike Gousha” program Tuesday at Marquette Law School. Read more »

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February 27, 2017

More Doubts About the Court’s Resolution of the John Doe Investigation

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Category: Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme Court
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Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in  Independence Institute v. Federal Election Commission.  By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election.  In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.

However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.”  The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent.  “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.

The Independence Institute is a nonprofit organization.  It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election).  The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy.  As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.”  The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.

If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85).  Read more »

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February 23, 2017

Kleefisch and Nygren Describe “An American Epidemic” in Law School Program

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Wisconsin Lt. Gov. Rebecca Kleefisch asked the audience in Eckstein Hall’s Appellate Courtroom a question: How many of you have been given a prescription for opioid pain medication in the last several years?

A large number of hands – perhaps a majority – went up.

Among these people, the drugs had been provided legally. But the large response illustrated one of Kleefisch’s main points at an “On the Issues with Mike Gousha” program on Thursday:

Powerful drugs are all over our communities. And, in a shocking number of cases, they are ending up being used for illegal purposes, they are triggering or feeding dangerous addictions, and they are leading the way for people to become involved in illegal drugs such as heroin.

Kleefisch and State Rep. John Nygren (R-Marinette) are co-chairs of Gov. Scott Walker’s Task Force on Opioid Abuse, created last fall. Nygren is co-chair of the legislature’s powerful Joint Committee on Finance, but also has a daughter who has struggled with heroin addiction. Read more »

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