Rule 18.2: Comments on Bluebook Citation to Internet Resources

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Rule 18.2 in the Bluebook governs citation to sources and information available on the Internet. Although the rules in the Nineteenth Edition provide significantly more guidance on the subject than the general principles articulated in the Eighteenth Edition, citation to Internet sources remains a source of confusion for many legal writers. Until the editors release the Twentieth Edition and its inevitable alterations to Rule 18.2, here are a few tips and reminders about citation to Internet resources.

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“With Friends Like These . . .”: New Critiques of Graham and Miller

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Category: Criminal Law & Process, Legal Scholarship, Public, U.S. Supreme Court
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The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   Read more »

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MULS to Welcome Professor Linda Edwards in Fall 2014

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Category: Legal Education, Legal Scholarship, Legal Writing, Marquette Law School, Political Processes & Rhetoric, Public
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faculty_lindaedwards2014-04Marquette University Law School’s legal writing professors are pleased to announce that Professor Linda Edwards, E.L. Cord Foundation Professor of Law at University of Nevada Las Vegas, will be joining us as a Boden Visiting Professor for the fall semester of 2014.

Professor Edwards is a leading scholar and leader in the field of legal writing.  She has authored five texts, three of them focused on legal writing, and has written numerous scholarly articles on legal writing, rhetoric, and law. Her recent book, Readings in Persuasion: Briefs that Changed the World (Aspen Law & Bus. 2012) will serve as the basis for the advanced legal writing seminar she will be teaching at MULS next fall. The book discusses why some briefs are more compelling than others and covers briefs written in some of the law’s most foundational cases: Muller v. Oregon (the Brandeis Brief), Brown v. Board of Education, Miranda v. Arizona, Furman v. Georgia, Loving v. Virginia, and others. Professor Edwards says the course will build on what students learned in Legal Analysis, Writing & Research 2, but from a more advanced perspective.

Professor Edwards practiced law for 11 years before becoming the coordinator of NYU’s Lawyering Program. She then spent 19 years at Mercer University School of Law, where she was the director of legal writing and taught legal reasoning and advanced legal writing, as well as property, employment discrimination, and professional responsibility. In 2009, she joined the faculty at UNLV.  Also in 2009, Professor Edwards was awarded the Association of Legal Writing Directors and Legal Writing Institute’s Thomas Blackwell Award for her lifetime achievements and contributions to the legal writing field.

We are very excited to welcome Professor Edwards next fall.

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Imprisonment Inertia and Public Attitudes Toward Truth in Sentencing

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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I’ve posted a number of times about the interesting results of the Marquette Law School Poll regarding the attitudes of Wisconsin voters toward truth in sentencing and early release from prison (e.g., here and here).  I’ve now finished a more in-depth analysis of the survey data with Professor Darren Wheelock of Marquette’s Department of Social and Cultural Sciences.  Our results are discussed in a new paper on SSRN (available here).  The abstract sets forth a little more of the context and key findings:

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors analyzed the results of public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.

Entitled “Imprisonment Inertia and Public Attitudes Toward ‘Truth in Sentencing,’” our paper will be published in early 2015 in the BYU Law Review.

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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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“The Past Is a Foreign Country” — Or Is It?

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Category: Criminal Law & Process, Legal History, Legal Scholarship, Marquette Law School, Public, Wisconsin Criminal Law & Process
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dean bookI’ve recently finished reading Dean Strang’s fascinating new book, “Worse Than the Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror.”  The book recounts the story of a once-famous (or infamous) criminal case that was tried in Milwaukee nearly a century ago.  The case arose from a short, armed skirmish between police and residents of Milwaukee’s largely Italian, working-class Bay View neighborhood in September 1917. In the wake of that violence, police indiscriminately arrested dozens of Italian immigrants, ultimately resulting in the trial of eleven suspected anarchists in November 1917 on charges of assault with intent to murder.

America’s recent entry into the First World War had already created a public atmosphere that was hardly favorable to immigrants and political dissidents, but a terrible local tragedy may have wiped out any remaining hope that the defendants would receive a fair trial.  Just days before the jury was selected, a bomb exploded in a Milwaukee police station, killing ten — America’s single greatest loss of officers in the line of duty before 9/11. Although the Bay View defendants were not formally charged with this crime — indeed, the case was never solved and no one was ever formally charged — the bombing was widely believed to be the work of the defendants’ supporters.

Little wonder that all of the defendants were convicted on a dubious conspiracy theory in a trial that reeked of pro-prosecution bias from start to finish.   Read more »

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Law Reviews, Again

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BooksThe perennial topic of the foibles of legal academic publishing is back in the news, thanks to a recent “Sidebar” column in the New York Times by reporter Adam Liptak. Much of the article rehashes the standard complaints, going all the way back to Fred Rodell’s 1936 jeremiad against law reviews. The news hook is the publication of three recent articles — in law reviews, ironically — that demonstrate that (1) law reviews are biased in favor of home-school professors; (2) the Supreme Court is not citing them as much as it used to; and (3) almost no one, not even law professors, is happy with the current system.

Liptak’s article has unleashed a flurry of mostly critical responses. (See: Baude, Kerr, Leiter, Bodie, Chin, Wasserman, Solove, Magliocca, Pasquale.) I have just two points to add.

1. The Rumsfeldian Zen Acceptance of Law Reviews. One of the most common complaints about legal scholarship, from nearly all quarters, is that it is not peer-reviewed prior to publication. Several of the bloggers I link to above do a good job of arguing why peer review is not an unalloyed good and student-run editorial boards are not all bad. Some even seem to argue that, for legal scholarship at least, forgoing peer review might on balance be better. And I’m sure there are non-legal academics who believe that publishing in non-peer-reviewed law journals is on a par with publishing with a vanity press.

I find it difficult to get excited about either of those arguments. 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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The Eighth Amendment and Life Without Parole for Adults

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My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

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Marquette Law Repository Reaches Over 1 Million Downloads Worldwide

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repository millionThe law school’s repository, Marquette Law Scholarly Commons, was formally announced on the Faculty Blog on August 8, 2012. Less than a year later, Marquette Law Scholarly Commons celebrates its 1,000,000th download! Researchers from all over the world have downloaded articles from the repository. The following twenty countries have the highest download count (from most downloads to least): United States, United Kingdom, India, Canada, Italy, Philippines, Australia, Malaysia, Tanzania, Ghana, Singapore, Pakistan, Colombia, South Africa, Hong Kong, Nigeria, Russian Federation, Kenya, Poland, and France.

The one millionth article downloaded was Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues, by Professor Carolyn Edwards. Professor Edwards has been a member of the law faculty since 1974. She was a Woodrow Wilson Fellow in philosophy at the University of California – Berkeley and is a member of Phi Beta Kappa. She is a graduate of the University of Toledo College of Law. Professor Edwards teaches contracts, sales, secured transactions, and negotiable instruments.

Please join us in celebrating this milestone by visiting the Marquette Law Scholarly Commons and browsing our collections.

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United States Supreme Court Cites the Marquette Intellectual Property Law Review

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Category: Intellectual Property Law, Legal Scholarship, Marquette Law School, Public
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Law professors, like everyone else, have good days and less good days. Then, sometimes, law professors have special days. In these days, something truly unique happens, something that makes law professors especially grateful for their roles as mentors and educators. This past week, I had probably one of the most special days in my law professor career, and it was not about getting tenure, getting promoted or the like (all very special days I can promise!). It was about the success of a student I had the privilege to mentor and supervise, who was one of my very best students, and who made me so very proud. So what happened? An academic dream: the Supreme Court of the United States cited the comment that my former student Lina Monten wrote in 2005, and that we published in the Marquette Intellectual Property Review.

Here is a little more “technical” background. The Supreme Court recently issued its opinion in Kirtsaeng v. John Wiley & Sons, a closely-watched copyright case concerning the issue of whether the “first sale” doctrine of copyright law applies to imported works. Justice Breyer wrote the majority opinion holding that it does, and Justice Ginsburg wrote a dissent (on behalf of herself and Justices Scalia and Kennedy) arguing that it does not. In the course of her dissent, Justice Ginsburg argued that the United States has long taken the position in international negotiations that copyright owners should have the right to prevent importation of copies of their works that they manufactured and sold in another country. (Slip op. at 20-21.) In support of her argument, Justice Ginsburg cited two items, one of which was the comment published in the Marquette Intellectual Property Law Review, written by then-student, now-Marquette Lawyer Lina M. Montén, entitled The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? (9 Marq. Intellectual Property L. Rev. 387 (2005)). I supervised the comments, which started as a paper that Lina wrote for the International Business Transaction class that I taught during spring 2005.  Read more »

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New Essays on Restitution and Sentencing Commissions

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Public
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I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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