An Interview with Professor Edward Fallone

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Category: Marquette Law School, Public
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[Editor’s Note: This blog is the second in a series of interviews with faculty and staff at the Law School.]

Professor Edward Fallone is a graduate of Boston University, where he majored in Spanish Language & Literature. He holds a J.D. from Boston University. Following law school, he was an associate at a Washington, D.C. law firm where he practiced corporate law and white collar crime. He joined the Marquette faculty in 1992. He has also taught international criminal law at the Marquette summer law programs at the University of Brisbane and Justus Liebig University Law School in Giessen, Germany. His current research interests involve issues of constitutional interpretation and judicial methods. In addition to his work at the Law School, he is of counsel at a Milwaukee law firm and has held leadership roles in Milwaukee’s Hispanic and immigrant community.

Question: How did you become interested in law and teaching law?

Oddly enough, I became interested in law teaching because I absolutely hated one of my law professors. I was very interested in Corporate Law, and I found the class readings on insider trading and hostile takeovers to be fascinating. But my professor in that course was extremely boring, and he taught mostly by reading the teacher’s manual out loud to the class. I remember sitting in that class and thinking to myself, “I could do a better job than him.” Of course, nowadays when I am teaching a class I often look out over the faces of my students and I wonder if any of them are thinking the same thing.

Question: What do you most enjoy about teaching law students?

I like being in the classroom. I have never considered teaching to be a one way conduit of information. In my opinion, a class discussion can be just like an intelligent conversation over dinner, and it can be just as entertaining (without the wine, however). When a class goes well, the topics of the conversation can be wide-ranging and unexpected. If the students are prepared for class and engaged, then I have fun. Of course, this doesn’t happen every class period. Sometimes a particular subject matter lends itself to a more one-sided lecture format. Sometimes the students are unprepared. However, there are enough good days to make the job rewarding.

Question: You teach courses in wide-ranging legal disciplines. Do you see any common threads among those courses?

I do see some commonalities, although they may not be obvious at first. For example, much of corporate law revolves around voting issues. The shareholders are the nominal owners of the company, but they can’t really exercise any control over how the company is run because their voting power is limited to specific times and specific topics. This allows the representatives of the shareholders (management) to run the company in their own interest, as opposed to running the company in the interest of the shareholders. Economists call these “agency costs.”

These same sorts of agency issues can arise in our constitutional system. The Framers were very concerned that those individuals who wield power in the government might be tempted to use power in order to advance their own parochial interests rather than for the common good. Now, this doesn’t mean that the same legal mechanisms used in corporate law in order to increase shareholder voice will also work in the political realm, or vice versa. I am not a fan of transporting solutions from one area of the law into another, because oftentimes you end up transporting unforeseen consequences along with the solutions. But sometimes I recognize that the disparate areas of the law that I teach are in fact grappling with similar underlying problems.

Question: A number of your blogs discuss issues of state and national politics. What motivates you to write about politics?

I would like to stimulate an intelligent discussion of politics, even though politicians and the media keep trying to dumb everything down into simplistic terms. You can’t teach law without recognizing that Americans have always transformed political debates into legal questions. Alexis de Tocqueville made this observation in the 1830s, and the public debate over the Affordable Care Act demonstrates that this tendency remains an enduring characteristic of our country.

I think that it is appropriate to blog on political issues because it is no longer possible to maintain any significant separation between the political and the legal realms. Walter Lippmann explained that the public supports political objectives based upon the “pictures in their heads.” Those who would influence public opinion try to plant those pictures in our mind. For example, opponents of the Affordable Care Act know that the law is too complicated for the general public to understand, but if they label the law a “job killer” and repeat that phrase often enough then they might succeed in creating a negative perception of the law.

We see this same approach being applied to legal questions all of the time. Repeat over and over the mantra that the Constitution does not permit Congress to regulate inactivity, and the public might agree with you (even though there is nothing in the text or in Supreme Court precedent that supports such a conclusion). It might even be possible to convince a majority of the public that corporations enjoy all of the same rights as individuals under the Constitution. Our Constitution references many broad principles such as “liberty” and “free speech” and “the right to bear arms,” and a constant effort is underway to influence and manipulate how the general public understands these general terms.

Similar efforts are being made to influence how the public understands the Wisconsin Constitution. Consider, for example, the effort to influence how the general public thinks of the recall power under the Wisconsin Constitution, and to have the public conceptualize the recall in narrow terms (efforts that largely succeeded according to exit polling). I think that law professors are in a good position to push back against those interest groups who would like to plant “pictures in the heads” of the public concerning the meaning of the state and federal Constitutions.

Question: What do you find most interesting about the current political climate?

It’s like watching a slow motion train wreck, isn’t it? I can’t look at the current political environment without asking, “Will the center hold?” According to liberal political theory since the turn of the twentieth century, a functioning representative democracy requires several underlying realities before it can work. It requires that the majority of voters are educated enough to understand the issues and to filter out the demagogues. It requires that these same voters will be motivated to inform themselves about the issues. It also requires that, once elected, our representatives will define the public interest broadly, and not seek solely to advance the interests of their political supporters. Of course, some critics of liberalism have long denied that any of these presuppositions are possible.

Historically, our nation began as a representative democracy comprised of and existing for a relatively small elite class. Over the course of our nation’s history, it has been a liberal article of faith that our society can and should expand the circle of voting power to include ever larger segments of our society. It wasn’t perfect, but representative democracy seemed to function well even as the electorate broadened. The experience of the twentieth century seemed to support the idea that expanding the base of social and political power could proceed hand in hand with economic growth.

However, as we move deeper into the twenty-first century, I can’t help but wonder whether our representative democracy will be able to function if we continue to undermine the environment that is necessary for it to operate. Some policymakers seem intent on dismantling public education. New communication technologies allow the partisan mass media to drown out objective sources of information. Meanwhile, we are cursed with obscenely expensive political campaigns that make our elected officials beholden to big money donors. It does seem that we risk losing the ability to effectively govern ourselves.

Question: You have worked extensively to develop nonprofits in the Milwaukee area to serve the poor and underprivileged. What can lawyers and law students do to help?

Lawyers understand governance issues. Many non-profits have volunteers and staff who are committed and enthusiastic, but these people don’t know how to run a meeting. Meetings are held, and people talk, but at the end of the day no decisions are made and no plans are adopted.

Most of the smaller nonprofits that I have encountered struggle with how to get their board of directors and management to work more effectively. No one founds a nonprofit because they enjoy scheduling meetings. These founders need someone who can focus on the nuts and bolts of the process. It happens that lawyers and law students tend to be good at process issues, and they can be invaluable in keeping the nonprofit organization’s governance running smoothly.

Question: You are the mc for the Law School’s Public Interest Law Society (PILS) Auction. Auction attendees look forward to your humor as mc each year. How do you approach humor and public speaking?

I enjoy performing in front of an audience. I think that all law professors enjoy playing to an audience, to a certain extent. And I also like to have fun. I have always believed that it is possible to work at a high pressure job, perform at a high level of competence, treat other people with decency and respect, and yet still manage to have some fun in your job. Hopefully, the students see this.

Question: What is the best advice you would give to a recent law school graduate about the practice of law?

My main advice is to take responsibility for your own professional development. Law school alums should perform a skills assessment on an annual basis. What skills have you developed over the past year? What skills are lacking that you need to practice or develop? Imagine what you would like your resume to look like in three or four years, and then start pursuing the opportunities today that will lead you in that direction. In many ways, the law is a great career because you are never a “finished product.” You are always learning and growing.

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