Access to Justice in a Civil Context

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Category: Federal Civil Litigation, Human Rights, Judges & Judicial Process, Legal Profession, Pro Bono, Public, Wisconsin Civil Litigation
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ATJ-reportIndigent defendants in criminal cases, and select civil matters (i.e., child in need of protective services petitions, termination of parental rights petitions, Chapter 51 petitions, and Chapter 980 petitions), are entitled to the appointment of counsel when they cannot afford representation. Either the state public defender’s office represents the individual, or an attorney is appointed by the county. It is imperative that individuals facing some form of deprivation of their individual liberty and freedom, as in the aforementioned scenarios, be represented.

But, what happens in other types of civil matters, where there is no right to counsel? What happens when a person or family faces a legal issue that will affect their rights, health, safety, economic security, and overall well-being? All people, regardless of socioeconomic status, should have access to the justice system. While some individuals may be able to handle a matter pro se, meaningful legal assistance or full representation is often needed to assist individuals in asserting and defending their rights.

The Wisconsin Access to Justice Commission (WATJC) is one entity working toward “improving the administration of justice by supporting civil legal services to those who cannot afford them”. In 2011, Wisconsin became one of only four states nationally, and the only state in the Midwest, that failed to provide any state funding for civil legal services. The 2015-2017 budget appropriates $500,000 per year of the biennium for civil legal aid service to abuse victims. This sum is well below the other neighboring states. Minnesota, for example, appropriated over 12 million dollars per year of its biennium for civil legal services. According to WATJC, the average budget for indigent civil legal services in other Midwestern states is $7.6 million. While Wisconsin falls well below that average, it is at least an improvement that the current state budget appropriates some funding, albeit for a very specific class of litigants.

There are a variety of agencies that offer legal assistance and full-representation to indigent clients in civil matters. From my experience working at Centro Legal, I am aware that many more people were in need of assistance than that organization had the capacity to handle. While I cannot speak for other agencies, my best guess is that they also have more work than they can take on, and that as a result many people are turned away because there just isn’t the capacity to represent them. There are notable efforts to coordinate volunteer attorneys and to help people be matched with an attorney that would be willing to take on a case for a reduced rate. With low levels of funding from the state to support agencies already offering civil representation, the difference must be made up somehow. Whether it is volunteering to represent someone, participating as a volunteer at one of the several clinics offering brief legal advice, offering a reduced rate in certain circumstances, or offering support to practitioners that incorporate as a non-profit and offer reduced rates for indigent or modest means clients, all lawyers have a role to play in ensuring that access to justice and the legal system is not limited by one’s socioeconomic status. We all have a stake in improving access to civil legal service for people who cannot afford an attorney.

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Our Peacebuilding Pope

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Category: Human Rights, Public, Religion & Law
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elliot-popeThe Pope, a rabbi and an imam…it sounds like the beginning of a very funny joke but last week was a reality.  As you likely know, last Friday the Pope hosted an interfaith prayer gathering at the 9/11 Memorial and Museum.  This was a trailblazing event and I’ve linked to the video here for those you who have not yet seen it.

As a professor at a Jesuit university, I am delighted by this Pope’s Jesuit background and our claim at affiliation.  This service last Friday also was particularly significant for me since the rabbi (the one in the picture above) is my very talented brother in law, Elliot Cosgrove.  You can link to his sermon about this experience here.

Should you watch the video, here are some times noted:  Cardinal Timothy Dolan speaks first; Elliot begins speaking at 2:55 until about 8 minutes in (alternating with the Imam); the Pope speaks after that with representatives of many faiths speaking after him.

And here is our family’s favorite shot of the day–the Pope greeting my nieces and nephew after the ceremony is concluded (the very cute kid in the middle and his sisters are behind him.)

jed-popeAmazingly, this was also caught in the video of the day if you want to see it happening at around 47 minutes in.  As Elliot put it in his sermon:

My warmest memory of all from yesterday relates not directly to the pope, but to my dear friend His Eminence Cardinal Dolan, to whom the city of New York owes a great debt of gratitude for his inspired leadership. The formal part of the program had ended, and as participants were greeting each other, the pope stood for pictures with assorted dignitaries. Off to the side, Cardinal Dolan and I greeted each other warmly, and he said, “Elliot, aren’t your children here?” When I signaled to him where they were sitting, Cardinal Dolan insisted, “Well bring them up here, they should be up here!” I turned around, caught my children’s eye, waved them over, and to make a long story short, was able to give them each the gift of a handshake and smile from the pope that they will never forget.

It is this story, more than any other, to which I have returned in the hours since the event concluded. That in the split second of the chaotic recessional Cardinal Dolan saw me and didn’t see a rabbi, or even necessarily a Jew, but friend and a dad who probably wanted what every dad wants: to make his children happy. It was a gesture of supreme menschlichkeit, and it speaks volumes of Cardinal Dolan and the church he represents. If each one of us had it within ourselves to recognize each other not for our titles, stature, or faith, but for the human beings we are, and then performed acts of friendship and service to validate that common humanity, well then, just think how much better off this world would be. I am grateful to Cardinal Dolan for many things, but it is that one gesture as much as anything, exemplifying the spirit of his ministry, that is worthy of emulation. May we all similarly seek, with humanity and humility, to do so in our own lives, and may the spirit of Pope Francis’s visit continue to inspire our great city for many years to come.

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Law School to Sponsor Cuba Trip

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Category: Human Rights, International Law & Diplomacy, Marquette Law School, Public
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TR_San_Juan_Hill_1898This coming January 9-16, 2016, several Marquette Law School faculty and I will accompany a group of law students for an International Conflict Resolution winter break trip to Cuba.   The trip will focus on economic, religious, social and political issues during this interesting time as Cuba and the US begin renewing diplomatic relations.  The itinerary will include meetings with journalists, leaders of the Catholic church, urban planners, economics experts, a former Cuban diplomat, lawyers and university students.    Participants will also experience traditional Cuban cuisine, tour Havana and learn about the Cuban baseball program.

An application, and more information, can be found by clicking this link.

Space is limited, and priority will be given to 3L students and to students with international travel experience.  Please note, this is NOT a class and no course credit will be given!!

This trip is yet another opportunity for Marquette University Law School students to travel to a foreign country in order to observe issues relating to international conflict resolution first hand, while interacting personally with local leaders.  The Law School also offers a class on International Conflict Resolution on a biennial basis that includes a trip to Israel.

Photo:  Teddy Roosevelt and the Rough Riders in Cuba in 1898.

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The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Human Rights, Judges & Judicial Process, Legal History, Political Processes & Rhetoric, Public
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b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others. Read more »

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Israel Reflections 2015 — Day Three: Yad Vashem

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Category: Human Rights, Marquette Law School, Public
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In one of the more emotional and difficult tours on the trip, we visited Yad Vashem, the Israeli Holocaust Museum and home to the International Institute of Holocaust Research. The museum itself houses hours of historical footage, video interviews, and artifacts, including the famous Hall of Names, a memorial dedicated to remembering each and every person killed in the Holocaust. Many students recounted this visit as their most touching memory.

Student Andrea Lau recalls what Yad Vashem represents and how the experience affected her:

“ה וְנָתַתִּי לָהֶם בְּבֵיתִי וּבְחוֹמֹתַי, יָד וָשֵׁם–טוֹב, מִבָּנִים וּמִבָּנוֹת: שֵׁם עוֹלָם אֶתֶּן-לוֹ, אֲשֶׁר לֹא יִכָּרֵת.”

Even unto them will I give in my house and within my walls a place and a name better than of sons and of daughters: I will give them an everlasting name, that shall not be cut off.- Isaiah 56:5

The literal meaning of Yad Vashem is derived from Isaiah 56:5. God promised His people a place and a name that will last for all eternity. Even though millions of Jews lost theYad-Vashemir lives in the Holocaust, they will never lose their names or their place of remembrance. Yad Vashem is Israel’s national Holocaust museum and memorial, constructed to commemorate the millions of Jews that lost their lives in the Holocaust. Read more »

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MULS Conference to Consider Human Trafficking and Restorative Justice

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Category: Criminal Law & Process, Human Rights, Immigration Law, International Law & Diplomacy, Labor & Employment Law, Marquette Law School, Milwaukee, Poverty & Law, Public
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MartinaVImage_0On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.”  As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally.  Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area.  The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.

The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C.  Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.

On Friday, the Conference will continue with a full schedule of speakers and panels.  A panel of victim-survivors will share their experiences.  Local leaders and activists will discuss the impact of trafficking and current efforts to help victims.  Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.

The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.

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Prisoner Enfranchisement in Ireland

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Category: Criminal Law & Process, Election Law, Human Rights, Prisoner Rights, Public
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I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006. Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere. This turns out not to be the case. Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive. Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised. The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).

Before proceeding with the Irish story, a little on the American situation:   Read more »

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Wisconsin to Allow Same-Sex Marriage

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Category: Civil Rights, Human Rights, Public, Seventh Circuit, U.S. Supreme Court, Western District of Wisconsin
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wedding cakeOn Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.

Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Read more »

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The Gender Binary

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Category: Constitutional Law, Family Law, Human Rights, Public
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Gender_signsWestern society has traditionally assumed a gender binary, classifying sex and gender as “male” or “female.” This binary is reflected in many aspects of our legal system. However in recent decades, the gender binary, and related assumptions about the fixed nature and unambiguous meaning of sex and gender, has been challenged by transsexual, transgendered and intersex people seeking legal recognition of their sex and/or gender identity and protection from discrimination based thereon.

In the US, the majority of states now permit alteration of sex on birth certificates for transsexual persons (whether sex-reassignment surgery is required varies from state to state), although a handful of states still take a “fixed from birth” approach to legal sex. The legal landscape in relation to marriage for transsexual people is similarly inconsistent and in flux.

Challenging the fixed nature of sex/gender is an important development, but in most jurisdictions, the gender binary has been kept legally intact. More recently, some jurisdictions are grappling with the question of “other-gendered” and “other-sexed” persons (the terms are not synonymous – the Norrie case, below, was framed as an issue of biological sex, not gender identity.) The issue has come to a head in Australia, where special leave to appeal to the High Court has been granted in a case involving a person who wishes to be recognized as legally genderless. Read more »

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Still Dreaming: The 50th Anniversary of the March on Washington

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Category: Civil Rights, Human Rights, Legal History, Public, Race & Law
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untitled2Today marks the 50th anniversary of the March for Jobs and Freedom, more commonly known as the March on Washington. Today, in 1963, an estimated 250,000 people—of all ages, races, and creeds—descended on the Lincoln Memorial in a peaceful show of solidarity for full civil rights for African Americans. It was also the day that Martin Luther King, Jr. gave his famous “I Have a Dream Speech.”

There have been a number of interesting pieces presenting the story behind the march, behind the people who organized it, and the people who participated. You can find some of those pieces here, here, here, here, and here (linking to writer and broadcaster Jean Shepherd’s incredibly interesting radio broadcasts about his participation in the march; the popular movie “A Christmas Story” is based on Shepherd’s autobiographical stories). Or just click on today’s Google doodle to find a host of links.

While reading a good number of pieces on the march, I realized that I cannot recall once in my entire 19 years of public schooling (elementary and secondary schools, plus public college and law school) that I ever read or heard about that event and never, not once, did I ever read or hear King’s speech. Read more »

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Don’t Convicted Felons Deserve Second Chances, Too?

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Human Rights, Public
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A group of friends and I email each other links to news articles on a regular basis.  Sometimes the articles are about interesting, funny, or odd developments. The articles that come to mind recently include the Georgetown law student convicted of running a methamphetamine ring; cat-hoarding; rabid beaver attacks; or this article on therapy llamas. (We have a fun group.)  Occasionally we have in-depth back-and-forth discussions about more serious legal topics.  By now, two years removed from law school, we have moved to different cities and states and we all practice in different areas of law, which tends to give us very different perspectives on the various topics that pop up. 

This week, we’ve had a lively debate about Paula Cooper , the Indiana woman released Monday after having been sentenced to die for a crime she committed at fifteen.  The news stories report that she stabbed a 78-year-old woman 33 times with a butcher knife, and was the youngest person in the country sentenced to the death penalty.  For reasons that would take up an entirely separate blog article, since she was sentenced in 1986, it has now been deemed unconstitutional to sentence a child to the death penalty.  Cooper’s sentence was amended to 60 years, and she was released on Monday after having served more than a quarter of a century behind bars.  She will serve time on parole.

The question posed to the group was: would you let this woman out? Read more »

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Israel Reflections 2013–Yad Vashem

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Category: Human Rights, International Law & Diplomacy, Public
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Today’s post is from Brendan Byrne on visiting the Yad Vashem Holocaust Memorial – a regular stop for visitors to Israel including the President this past month.

Yad Vashem is the official memorial to the victims and survivors of the Holocaust that took 6 million lives and left physical and emotional scars on millions more during World War II. The museum itself is located on a tranquil and peaceful mountaintop surrounded by walking paths that allow for reflection after the atrocities recounted within.

To enter the museum everyone must cross a wooden bridge. Once inside I immediately noticed that I was surrounded by 30 foot high concrete walls and instantly recognized that I was not entering the comforts of home; it was something far from home. Rounding the first turn I saw a single long hallway that seems to be brightly lit at the end, but I couldn’t just walk a straight path to that light; the path is blocked by numerous wired fences.

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