Armed Forces Appeals Judges Hear Arguments, Offer Advice in Eckstein Hall Session

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Category: Federal Law & Legal System, Judges & Judicial Process, Marquette Law School, Public
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“When you’re done, sit down.”

Pithy but important advice on how to present an oral argument to an appeals court was one of the beneficial things Marquette Law School students had a chance to hear Tuesday. That was when the United States Court of Appeals for the Armed Forces convened for a session in Eckstein Hall, followed by a question and answer session with the court’s five judges.

The court, an Article I entity which hears oral arguments in about three dozen cases a year, heard oral arguments in the appeal of an Air Force staff sergeant, Joshua K. Plant. He was convicted in 2012 of two counts of aggravated sexual assault of a child, adultery, and child endangerment and given a sentence that included 12 years of confinement. Included in Tuesday’s proceedings: Joshua J. Bryant, a third-year Marquette law student, who presented amicus curiae arguments in support of the sergeant’s appeal.​

First, here’s the case the court heard. Then, we’ll summarize some of the advice. Read more »

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The Notorious R.B.G.

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Category: Feminism, Judges & Judicial Process, Public, U.S. Supreme Court
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20150103_135911-1Those of us who teach in gender and feminist studies have long been familiar with Justice Ruth Bader Ginsburg; we regularly deal with her work as both a lawyer and as jurist. This past January, I had the honor of hearing her speak at a conference in Washington, D.C., and was awed by her. So over spring break, I decided to start reading a new book, The Legacy of Ruth Bader Ginsburg, edited by Scott Dodson. I’m not that far into the book yet, but what I’ve read has only made me admire her more.

I’m far from being Justice Ginsburg’s only admirer. She has quite the following, including this woman, who had a portrait of Justice Ginsburg tattooed on her arm. One man put her 35-page dissent in Burwell v. Hobby Lobby to music. Another admirer dubbed her “The Notorious R.B.G.,” a take-off on rapper The Notorious B.I.G, and there’s a whole blog devoted to all things R.B.G. Google “Notorious R.B.G.” to find t-shirts and other merchandise. It’s a title the Justice herself seems to enjoy. (Listen to the video clip here.)

Ironically, while I was starting my book over spring break, Justice Ginsburg celebrated her 82nd birthday. She seems in no way ready to step down from the court. After all, she reminds us, Justice John Paul Stevens served until he was 90. In honor of her birthday, one site gathered some of her best quotes. My favorite: “People ask me sometimes . . . When will there be enough women on the court? And my answer is: When there are nine.”

Wouldn’t have expected anything less from her.

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Has Wisconsin Produced Any Great Judges?

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Category: Judges & Judicial Process, Legal History, Public, Wisconsin Supreme Court
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winslow

Chief Justice
John B. Winslow

As announced this past summer, Joseph A. Ranney is serving as Marquette Law School’s Schoone Visiting Fellow in Wisconsin Law and using the occasion to write a book examining the role states have played in the evolution of American law, with a focus on the contributions made by Wisconsin. In a series of blog posts this semester, Professor Ranney will offer some Schoone Fellowship Field Notes. This is the first.

What makes a great judge? Who are the great state judges? Thousands of judges have helped build the edifice that is American state law. Only a few have received great acclaim. What are the elements of judicial greatness, and has Wisconsin produced any great judges? Let me consider the matter, excluding any current or recent judges. Read more »

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Discerning the Relationship Between Bankruptcy Judges and Article III Judges

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supreme courtThis summer, the United States Supreme Court handed down a decision in the case of Executive Benefits Insurance Agency v. Arkison that changed how bankruptcy judges, covered under Article I (the Executive Branch) of the Constitution, and district court Article III judges work together. Arkison helped clarify nagging procedural issues between district and bankruptcy courts. At the same time, Arkison verified a significant reduction in the ability of bankruptcy courts to resolve common claims arising in bankruptcy proceedings.

Arkison began as a seemingly conventional case. In 2006, Bellingham Insurance Agency filed for Chapter 7 bankruptcy. Peter Arkison was assigned as the trustee. Mr. Arkison filed a fraudulent conveyance complaint against Bellingham, something not uncommon in a bankruptcy proceeding. In fact, Title 28 specifically grants bankruptcy courts the ability to hear and determine such claims. The bankruptcy court granted summary judgment on Mr. Arkison’s claim.

The black letter language in Title 28 and Supreme Court precedent contradict each other. Read more »

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Five Oral Argument Tips

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Category: Judges & Judicial Process, Public, Seventh Circuit
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This past summer I had the amazing opportunity to intern with the United States Court of Appeals for the Seventh Circuit (thank you, Professor Hammer, for organizing such a rewarding internship program). I would highly recommend this internship to anyone. For me, the internship was truly a once in a lifetime experience since, as many of you may know, I am a major moot court nerd. While interning at the Seventh Circuit, I observed upwards of seventy oral arguments, including a rehearing en banc, a Foreign Intelligence Surveillance Act case, and a death penalty case. During these arguments, I would take notes on attorney conduct, questions from the judges, and the overall atmosphere of the courtroom. I would like to share with you the top five oral arguments tips I learned while at the Seventh Circuit.

(1) Answer the Judge’s Question Directly

Questions are a gift because they allow you to know exactly what is bothering the judge. Too often, people see questions as an interruption or a nuisance and, thus, fail to take full advantage of the opportunity the question presents. I cannot tell you how many times I heard the phrase, “You’re not answering my question,” and the follow-up phrase, “It’s a simple yes or no answer.” The best way to handle questions is to answer directly—preferably with a yes or no when appropriate—and then say, “Let me explain.” This answers the judge’s question and also signals that further explanation is necessary. When you dodge a judge’s question, you lose credibility and frustrate the judge.  Read more »

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Justice Ginsburg on Empowering Oral Argument

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Category: Judges & Judicial Process, Legal History, Legal Practice, Public, U.S. Supreme Court
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Justice GinsburgAn interview with Justice Ginsburg appears in the October issue of Elle magazine.  In the article, Justice Ginsburg describes her first oral argument before the United States Supreme Court.  Any advocate could relate to her story:

I had, I think, 12 minutes, or something like that, of argument.  I was very nervous.  In those days, the court sat from 10 to 12, and 1 to 3.  It was an afternoon argument.  I didn’t dare eat lunch.  There were many butterflies in my stomach.  I had a very well-prepared opening sentence I had memorized.  Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience.

Justice Ginsburg argued on behalf of Sharon Frontiero in Frontiero v. Richardson.  In that case the Court held that the United States military could not differentiate on the basis of gender in how it provides benefits to service members’ families.

In the interview, Justice Ginsburg recounts that as she spoke before the Court during oral argument her confidence grew:

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.  So I relied on myself as kind of a teacher to get them to think about gender.

 

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Reflections on Judicial Contract Interpretation and the Boden Lecture

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Category: Business Regulation, Judges & Judicial Process, Public, Speakers at Marquette
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agreement-signingThis week in my Contracts class we are discussing how to interpret a contract — that is, how to give contractual language meaning. This discussion inevitably focuses on how courts interpret contracts, because Contracts casebooks primarily examine principles of contract through case law. Cases do, in fact, provide a useful lens through which to study contract interpretation, for they allow an examination of courts’ goals and tools in approaching conflicting arguments about how to interpret an ambiguous term. Yet we also considered judicial interpretation of contracts from a policy perspective.

Specifically, in light of Professor Robert Scott’s Boden lecture “Contracts Design and the Goldilocks Problem,” I asked my Contracts students to reflect on the wisdom of judicial determination of the meaning of ambiguous contractual language. Read more »

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US Supreme Court Review: Constitutional Criminal Cases

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Category: Constitutional Law, Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

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US Supreme Court Review: Statutory Interpretation in Criminal Cases

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public, U.S. Supreme Court
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US Supreme Court OT2013 logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In the first post in this series, I discussed two causation cases in some detail.  In this post, I will more briefly summarize the full set of the Court’s criminal statutory interpretation cases from the past term and then offer a few overarching observations.

Here are the cases (excluding habeas corpus decisions):   Read more »

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US Supreme Court Review: Crime and Causation

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public, U.S. Supreme Court
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US Supreme Court logo(This is the first post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term. Other posts, when they appear, can be found here.) The Court’s criminal docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.   Read more »

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Stare Decisis for Interpretive Methods?

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Category: Judges & Judicial Process, Legal Scholarship, Public, U.S. Supreme Court
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Supreme CourtAlthough the Supreme Court decides dozens of cases every year, it has never decided how to decide those cases. That is, the Court has never adopted a governing approach to constitutional interpretation. Instead, the justices seem to bounce from one method to the next, even when considering the same subject matter. What explains this methodological pluralism? Why doesn’t the Court consider itself bound under the doctrine of stare decisis not only to follow the substantive results of earlier constitutional cases, but also the methodological tools it used in getting there?

Chad Oldfather has a new paper on SSRN that explores the answers to these questions, Methodological Pluralism and Constitutional Interpretation. Here is the abstract: Read more »

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Truth in Sentencing, Early Release Options Both Have Appeal, O’Hear Says

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While truth in sentencing is highly popular with Wisconsin voters, some options that could allow prisoners to be released before serving their full sentences also have majority support, Marquette Law School Professor Michael O’Hear told an “On the Issues with Mike Gousha” audience last week. Wisconsin may want to give renewed attention to such ideas in the pursuit of prison policies that are both morally appealing and fiscally wise.

O’Hear, who is associate dean for research at the Law School, summarized Wisconsin’s trends in incarceration in the last four decades, including increased prison populations, abolition of the parole board, and adoption of “truth in sentencing,” which makes a judge’s sentence close to the final word on how long a prisoner will serve. Changes that eased the truth in sentencing practices, including creation in 2009 of an Earned Release Commission, were largely reversed under Gov. Scott Walker in recent years.

The number of people in the Wisconsin prisons went from about 2,000 in 1973 to about 23,000 in 2004, O’Hear said. The total has leveled off since then. Strong political momentum to get tough on crime, including not letting prisoners out before they served their full sentences, underlay the trends, and Wisconsin’s boom in prison population was in line with what occurred in much of the nation, O’Hear said.

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