Marquette University Law School Faculty Blog

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

The 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.

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 »

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.

In three cases since 2010, the U.S. Supreme Court has seemingly strengthened the chronically anemic right to effective assistance of counsel. Padilla v. Kentucky, the first in the trilogy, indicated that defense lawyers must in some circumstances provide accurate information to their clients regarding the deportation consequences of a conviction. The Court then followed Padilla with decisions in Lafler v. Cooper and Missouri v. Frye that reaffirmed and clarified the right to effective assistance in plea bargaining. (See my post here.)

Inspired by these decisions, Cecelia Klingele and I put together an issue of the Federal Sentencing Reporter devoted to recent legal developments affecting the right to counsel. The issue is now out in print.

The issue includes commentary from several of the nation’s most astute observers of criminal procedure; the contents appear after the jump.  I do have a few extra copies on hand and would be happy to forward them gratis to any interested readers of this blog. Just email me your mailing address (michael.ohear@marquette.edu).

Read more »

My review of Stephanos Bibas’s book The Machinery of Criminal Justice is now available on SSRN.  Here is the abstract:

Stephanos Bibas’s new book, The Machinery of Criminal Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a “participatory morality play,” in which ordinary members of the community played a crucial role. In Bibas’s view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas’s book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects for reviving the morality-play model may be even dimmer than Bibas recognizes, although a number of his proposed reforms nonetheless appear attractive.

Entitled “(The History of) Criminal Justice as a Morality Play,” my essay will appear in the Penn Law Review’s on-line journal, PENNumbra.

A draft of my new article, “Mass Incarceration in the Three Midwestern States: Origins and Trends,” is now available on SSRN. Here’s the abstract:

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

My new article on habeas corpus and the right to effective assistance of counsel is now out: Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rep. 110 (2012).  Here is the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.

Following David’s post last week, I thought I’d remark on another historian who recently passed away: Eric Hobsbawm, who died last Monday. (NY Times obituary.) Hobsbawm, like Genovese, was a Marxist historian who wrote in the 1960s and 1970s, but unlike Genovese, he never altered his view. Hobsbawm is most widely known for his masterful history of the “long nineteenth century,” a term he coined to describe the period from 1789 to 1914 (which has a lot going for it as a sensible periodization).

Hobsbawm was a formative influence on me, but not because of his three-volume masterwork on the Victorian era. In 1959, three years before “The Age of Revolution: 1789-1848,” Hobsbawm wrote a slim volume of essays that looked at bandits: Primitive Rebels: Studies in Archaic Forms of Social Movement in the 19th and 20th Centuries. The specific argument of the book was that bandits can in some circumstances be seen as proto-revolutionaries fighting against landed interests or capital. But the part that has stuck with me is a more general one: that actions outside of law, possibly even contrary to law, are part of a web of enforcement of the rules of a given society. Hobsbawm’s bandits were not simply rulebreakers; they were, in his telling, attempting to enforce different rules from the ones being imposed from the top down. And they had their own procedures — rituals — that they followed in doing so. Read more »

The Bluebook, A Uniform System of Citation, fondly referred to as “The Bluebook,” is now available as a mobile app. The Bluebook is a legal citation style guide. The app is available for sale through the rulebook app on all Apple iOS devices.

On August 22, 2012, the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, Criminal Procedure, and Evidence may be downloaded for free on the rulebook app.

The Eckstein Law Library is pleased to announce the formal launch of the Marquette Law Scholarly Commons, which offers free, online access to a growing collection of scholarly work of the Marquette University Law School community. Today, the Scholarly Commons has over 5300 items, including all four student-edited, Marquette law journals as well as articles written by Marquette University Law School faculty published in the Marquette law journals and elsewhere. In the future, look for additional journal articles to be added to these existing collections and for new collections to be announced. Although the full-text documents in the journal and faculty scholarship collections are the heart of the Scholarly Commons, the repository also serves as a gateway to other endeavors of the Law School community. Follow links to read the Faculty Blog or the Marquette Lawyer, learn about programs such as On the Issues with Mike Gousha, and explore faculty working papers and accepted articles in Marquette’s Legal Studies Research Paper Series on SSRN.

This repository grew from a shared vision of Dean Kearney, the Law Librarians, Associate Dean for Research Michael O’Hear and others to provide convenient and global access to the scholarly output of the Marquette University Law School. While preserving the scholarly output of the Law School, the Marquette Law Scholarly Commons also expands the reach of faculty scholarship and Law School journals. Indeed, in the past few weeks the repository had visitors from Australia, Japan, India, Brazil and China, among others.

We encourage you to be a regular visitor to the Marquette Law Scholarly Commons. If interested, you can monitor new items as they are uploaded to the Scholarly Commons by enabling the Marquette Law Scholarly Commons RSS feed in an RSS Reader or setting up personalized email notifications to be sent when content that meets specified search criteria is added. The Marquette Law Scholarly Commons is a service of the Eckstein Law Library.