Discerning the Relationship Between Bankruptcy Judges and Article III Judges

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Category: Federal Law & Legal System, Judges & Judicial Process, Public, U.S. Supreme Court
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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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Category: Criminal Law & Process, Judges & Judicial Process, Public, Speakers at Marquette
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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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Earned Release From Prison: Judges Not Necessarily the Best Deciders

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Category: Criminal Law & Process, Judges & Judicial Process, Marquette Law School, Public, Wisconsin Criminal Law & Process
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PrisonIn 2009, Wisconsin expanded release opportunities for prisoners and established a new Earned Release Review Commission to handle the petitions.  Just two years later, however, the legislature reversed course, largely repealing the 2009 reforms and abolishing the ERRC. The 2011 revisions effectively returned authority over “early” release to judges. Critics of the ERRC, an appointed body, maintained that it was more appropriate to give release authority to elected judges.

However, last month’s Marquette Law School Poll indicates that Wisconsin voters would actually prefer to put early release into the hands of a statewide commission of experts rather than the original sentencing judge.

Among the 713 randomly selected Wisconsin voters who participated, a 52% majority stated that release decisions should be made by a commission of experts, as opposed to only about 31% who favored judges. An additional 13% stated that both options were equally good. The Poll’s margin of error was 3.7%.

We asked several questions to try to identify more specifically the perceived strengths and weaknesses of both options.   Read more »

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Oldfather Triangulating

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Professor Chad Oldfather’s recent article, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship (co-authored with Joseph P. Bockhorst and Brian P. Dimmer) – published in the Florida Law Review – has received a lot of recent scholarly attention. Professor Robin Effron of Brooklyn Law School and Professor Scott Bauries of the University of Kentucky College of Law each wrote responses (here and here) in the Florida Law Review Forum (the Florida Law Review’s online companion). In addition, Professor Corey Yung of the Kansas University School of Law also wrote an essay about the article. Congratulations, Professor Oldfather!

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Civility in the Courtroom

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It seems like the more of a digital society we become, the less of a civil one we are. People are on their devices constantly — while wandering the grocery store, in the middle of a movie at a theater, during dinners. How many times have you seen a group of people out and noticed that all of them are on their phones? While the source of the problem is debatable (maybe phones and tables aren’t to blame), there can be no dispute that rudeness and incivility is on the rise.  It is front and center in the national political discourse, and of course, Wisconsinites need only look as far as the Supreme Court or the Milwaukee County Sheriff to see first-hand examples.

But when I think about civility in the practice of law, it’s not the lawyers who are the problem; it’s the judiciary. I have never had opposing counsel question whether I was being candid, refer to me as intellectually dishonest, or tower over me and yell at me in the middle of hearing. All of those things have happened to me at the hands of members of the court. And how to deal with that is not something anyone ever teaches you in law school.

Judges do not have it easy. They have exploding caseloads and fewer and fewer dollars every year to deal with them. But at what point did the convenience of the court’s calendar start not just to overshadow the rights of the defendants and the needs of the victims and witnesses, but to completely consume it? Doing anything to disrupt the court’s calendar — whether it be by filing a motion requesting an evidentiary hearing, seeking an adjournment, or (gasp!) a defendant who actually exercises his right to a trial — causes a meltdown.

Recently, while waiting for my case to be called, I watched a judge grill a defendant at his final pretrial hearing about why he wanted a trial. “What is it you think your lawyer can do for you?” the judge asked, reminding the defendant that he had already confessed. But how does the judge know that? Because the state alleged it when the parties were discussing witnesses? There are lots of reasons people confess, if that is in fact what he did. And so what if he did confess; maybe his defense wasn’t that he didn’t do it, but that he was privileged to act in a particular way. I have no idea — I just saw a five-minute final pretrial hearing. But I was outraged that the defense attorney stood silent and let his client be questioned. The answer to the judge’s question is simple: the client wants a trial so he gets a trial. Why should never figure into it.

That sort of questioning has no place in a courtroom. It’s abhorrent. It’s unconstitutional. It’s uncivil.

Judges are under enormous pressure, but so is everyone else. A defendant exercising his rights by actively defending against the serious charges against him, should not be the cause of incivility. It should be celebrated.

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