For the post-1908 period, when the Milwaukee Law School became part of Marquette University, Eugene W. Scott appears to be a likely candidate for the institution’s first African-American student.  Scott was one of the 46 first year students enrolled in the law school’s day program in the fall of 1911.  (One of his classmates was future dean Francis X. Swietlik.)  He is also one of 35 students listed as “Day Juniors” in the following year’s College of Law bulletin.  His photograph also appears as “E. W. Scott” in the Class of 1914 group picture which currently hangs in the hallway outside the Dean’s Office on the first floor of Sensenbrenner Hall.

There is also evidence that Scott did well as a student at Marquette.  His picture appeared in the July 1913 edition of The Crisis, the magazine of the National Association of Colored People with the note that he was competing for the senior oratorical prize.   However, in spite of his photograph appearing in the above-mentioned class picture, he is not listed among the 18 individuals who received law degrees at the 1914 commencement.    It was not necessary to graduate from law school to practice law in Wisconsin in 1914, and Scott, like many of the law students of that era, may have left without graduating.  However, his appearance in the class photograph suggests that his decision must have been a last minute one.  It is, of course, possible that he failed his final law school exams.

We actually know very little about Scott, either before or after he attended Marquette.  Entries in the 1912 and 1913 Marquette Law School bulletins list him as a resident of Milwaukee, but a search of the 1910 United States Census shows that there were only three Eugene Scott’s in Wisconsin that year, and none of the three were black or of an age that would match Scott’s photographs in The Crisis or at the law school.  However, the 1910 Census does list an African American named Eugene W. Scott living in Chicago.  That Eugene Scott was born in 1883, and was then working as a waiter in a hotel while living in a boarding house.  If this is the Eugene Scott who enrolled at Marquette in 1911, he would have been 27 or 28 years old at that time. 

Scott apparently moved to Janesville, Wisconsin after leaving Marquette, and in January 15, 1915, he corresponded with Mary Childs Nerney, the secretary of the NAACP regarding efforts to protest the recently released film, “Birth of a Nation” which cast African-Americans in a bad light.  Later that year, the Chicago Defender, a leading black newspaper, published a letter from Scott regarding his efforts to protest the showing of the film in Janesville which included an appearance before the Janesville City Council.

What happened to Scott after 1915 is not known.  He does not show up in Wisconsin in the 1920 Census, but a Eugene W. Scott does show up as living in Buffalo, New York.  This Eugene Scott was also born in 1883 in Mississippi, as was the Eugene Scott listed as living in Chicago in 1910.  This Eugene Scott was elected president of the Buffalo chapter of the Colored American Workmen’s League in 1919.  Following his election Scott delivered a eulogy for the recently deceased Theodore Roosevelt whom Scott described as “the greatest friend of the Negro in American public life since Abraham Lincoln.” 

After 1920, the record goes blank.  There is also no mention of a Eugene W. Scott, born in 1883 in Mississippi, in the 1930 United States Census.  More evidence may be forthcoming, but for now Eugene Scott, likely the first black student to enroll in the Marquette Law School, remains a man of mystery.

While Scott may have been the first black student to enroll at the Marquette College of Law, there was at least one black student at the Milwaukee Law School, its predecessor institution.  The career of Horace Scurry will be the subject of the next entry in this series.

But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

She said he is charming, gracious, tough, bullying, arrogant, a lot of fun, and prickly, at different times. She quoted Justice Ruth Bader Ginsburg saying, “Sometimes I’d like to strangle Nino, but I love him.” Ginsburg and Scalia are philosophical opposites on many legal matters, but are close personal friends. On the other hand, Biskupic said, as much as Scalia and Justice Clarence Thomas are close on the court, they are not close socially because, in the words of Thomas, Thomas likes to go home and watch college football while Scalia likes to go home and listen to opera.

Biskupic interviewed Scalia on the record a dozen times for her book, even after he initially said he wouldn’t agree to talk to her. He changed his mind after she saw him at a social event and began describing what she had found during visits to Trenton, N.J., where Scalia was born.

Biskupic, who covers the Supreme Court for USA Today, said that, at 73, Scalia is at the apex of his career because his influence has grown and he can attract support from other justices, including Chief Justice John Roberts and Justice Samuel Alito Jr., to put together majorities in some cases. In some prior periods, when his views were in a clear minority, Scalia found being on the court so frustrating that he considered resigning, she said.

Scalia is “an amazing stylist” when it comes to his written opinions, she said, which is one reason his opinions are so widely read. “He’s so clever, so engaging in his writing,” she said.

Biskupic noted a little-known Milwaukee touch to Scalia’s life – he spent a summer as a clerk at Foley and Lardner between his second and third years of Harvard Law School. But he did not want to come back to Milwaukee to practice after he graduated.

Biskupic’s book, “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” was published by Sarah Crichton Books. Biskupic received a bachelor’s degree from Marquette and covered the Supreme Court for the Washington Post before joining USA Today. She previously authored a biography of Justice Sandra Day O’Connor.

Almost two years ago, we convened a group of servicemembers and veterans here at Marquette Law School to explore ways the Law School could support their service.    Spearheaded by a district legal services attorney for the U.S. Coast Guard (which maintains an active base in Milwaukee), this committee grew to include officers and enlisted personnel from the Army, Air Force, Naval Reserve, and Wisconsin National Guard, as well as veterans.   This committee alerted us to some of the legal challenges facing military personnel, their families, and veterans.   For example, Judge Advocates General can provide advice to military personnel regarding civil legal matters, but they do not represent them in civilian courts.   Sometimes a service member is not attached to a unit – either separated or in Individual Ready Reserve – and thus does not have easy access to a Unit JAG.  Other times, JAG offices may be at a headquarters base hundreds of miles from their duty station and unfamiliar with local court rules.   Similarly, while veterans receive a number of benefits through the county, state, and federal veterans administrations, access to legal counsel is not one of them.

Thus, with support from the State Bar of Wisconsin and the ABA,  Marquette Law School launched SAVLAW: Servicemembers and Veterans Legal Assistance for Wisconsin. 

Our website may be found at: www.savlaw.org.  Under the leadership of Marquette Law School’s Pro Bono Coordinator, Adie Olson, we convened a panel of pro bono attorneys and law students in two distinct projects.   The first provides an opportunity for active-duty servicemembers (regular, guard, or reserve) and their families to access legal advice for civil legal matters that affect their ability to serve, or impact their rights under the Servicemembers Civil Relief Act.   The Law School hosted a special CLE training on the SCRA and related laws for lawyers interested in volunteering with the program that was webcast statewide.   In addition to providing general advice and a link to pro bono representation, SAVLAW is gathering information to provide legal outreach to family members left behind by deployed personnel.   For veterans, SAVLAW opened a branch of the Marquette Volunteer Legal Clinic at the Milwaukee County Veterans Services office on the federal VA grounds.   The MVLC at the VA now operates on the first and third Mondays of the month from 4:00 p.m. to 6:00 p.m.   Staffed by pro bono attorneys who are themselves veterans, alongside Marquette law students, the clinic provides much-needed legal counsel to veterans in a wide range of civil legal matters.

In these practical and professional ways, Marquette Law School honors its veterans, as well as those who continue to serve our country in the Armed Forces.   Supporting this important public service is another way we are reaching out to our community, meeting a need, and building a new law school.   Please join me in thanking our veterans, as well as all of our volunteer lawyers and law students who serve them through SAVLAW.   Happy Veterans Day!

Like many Wisconsin lawyers of his generation, Jenkins was a native New Yorker who had moved to Milwaukee prior to the Civil War.  He was born in Saratoga Springs on July 18, 1834, the son of New York City merchant Edgar Jenkins and Mary Elizabeth (Walworth) Jenkins. His maternal grandfather was Reuben Hyde Walworth, a former United States congressman and New York chancellor who in 1844 was nominated, unsuccessfully as it turned out, to the United States Supreme Court by President John Tyler. 

Jenkins did not attend college or law school but instead studied law in the office of the New York City firm of Ellis, Burrill, and Davison for five years. He was admitted to the bar at age 21 and worked as “head clerk” for a New York law office for two years.  In 1857, he relocated to Milwaukee.  

Over the next 31 years he engaged in the practice of law in Milwaukee. According to Jenkins, his first position in the city was in the law office of Jason Downer who paid him $3 per week.  However, within in six months he had become a partner with Downer, who in 1864 became a justice on the state Supreme Court.  Jenkins later formed a partnership with Edward Ryan and Matthew Carpenter, both legendary figures in the legal history of Wisconsin, and he was later a partner with the less-well remembered James Hickox.  

An active Democrat, Jenkins did not serve in the Civil War.  However, he was one of the speakers at a mass rally on behalf of the Union war effort held in Wisconsin on July 31, 1862, and in 1863, he was elected Milwaukee City Attorney, a position that he would hold until 1867.  After leaving office, he formed his own law firm which was known at various times as Jenkins & Elliott; Jenkins, Winkler, & Smith; and Jenkins, Winkler, Fish & Smith.  In 1877, he chaired the state Democratic convention that nominated James S Mallory of Milwaukee for the state’s highest office.  

In 1879, Jenkins himself was the Wisconsin Democratic Party’s nominee for Governor of Wisconsin, but he was beaten fairly soundly by Republican William E. Smith who received over 50% of the votes in a three-man race.  (There was also a Greenback Party candidate who received approximately 7% of the vote.)  In 1881, he was the Democrat candidate for the United States Senate, but the Republican majority in the Wisconsin legislature not surprisingly chose one of their own.  

Jenkins’ services to his party did not go unappreciated.  In 1885, newly elected Democratic president Grover Cleveland offered Jenkins a position on the Supreme Court of the District of Columbia, but Jenkins declined the appointment.  However, on June 18, 1888, he was appointed United States district judge for the eastern district of Wisconsin by President Grover Cleveland and his appointment was confirmed by the Senate on July 2.  Although Cleveland was defeated for reelection in 1888, he was again elected president in 1892.  For his second term, he selected Judge Walter Q. Gresham, a former Republican turned Democrat, as his Secretary of State, and in 1893, Jenkins was appointed Gresham’s replacement as United States Circuit Judge for the Seventh Judicial Circuit.  His nomination was confirmed by the Senate and he sat on the Circuit Court until he retired in 1905 at the age of 71.  

Shortly after his appointment to the Seventh Circuit, Jenkins was arrested following an indictment by a Milwaukee grand jury which concluded that he and the other directors of the failed Plankinton Bank had improperly taken money from the bank after it had become insolvent.  The story of Jenkins’ arrest was reported on the first page of the July 13, 1893 New York Times, but Jenkins resisted suggestions that he resign from the bench, and in November, the indictments were declared “null and void” by the Milwaukee Circuit Court. 

Jenkins most famous (or infamous) judicial decision also came in 1893 in the case of Farmers Loan & Trust Co. v. No. Pacific Ry., 60 Fed. 803, in which he enjoined a strike against a railroad under receivership and in doing so coined the phrase “government by injunction” (which he viewed favorably).  Jenkins’ injunction, which was interpreted as barring the workers from quitting their jobs, was highly controversial, and there were efforts in Congress to censure him.  Eventually he survived the attacks, although the broader aspects of his ruling were narrowed on appeal. 

            After retiring from the bench in 1905, Jenkins returned to Milwaukee where he remained at least semi-retired, a status that meant that he was potentially available to fill the newly created position of dean of the Marquette University College of Law.  Although he was 74 years old in the fall of 1908, there were a number of reasons why he was an attractive candidate for the position of dean.  First of all, Jenkins’ prominence as a jurist brought a degree of luster to the law school.  In addition to his status as a federal circuit court judge, he also had been awarded honorary doctor of law degrees from the University of Wisconsin (1893) and Wabash College (1897).  He was also a member of the nine-lawyer committee that drafted the original American Bar Association Canon of Ethics which was formally adopted in the summer of 1908. 

Furthermore, although Jenkins himself had not attended law school, he had been involved with legal education off and on throughout his career.  Early in his law practice, he had trained a number of attorneys in his office, including Milwaukee lawyers Horace Upham and Louis Lecher (once Jenkins’ secretary) both studied law under his direction.  While a judge, he had also lectured at law schools in Milwaukee and Chicago.  

Although the extent of his involvement is not clear, he reportedly lectured at the Milwaukee Law School during its early years, and he was involved with the establishment of the John Marshall Law School.  John Marshall, an evening law school located in the Chicago Loop, had been founded in 1899, while Jenkins was still on the federal bench and based in Chicago.  He was one of the school’s original faculty members and was the featured speaker at its first commencement in 1902.  Apparently his connection to the law school was one that continued until his retirement from the bench in 1905.  In 1906, the Chicago school published several of his lectures delivered at the law school the year before which was his final year in the Windy City. 

While his teaching probably involved little more than showing up a couple of nights a week and delivering lectures on federal court procedure, his experiences did provide him with some exposure to contemporary legal education, albeit of the night school variety.  The Milwaukee Law School and the Milwaukee University Law Schools had provided instruction at night, but the plan for the new Marquette University Law School was to have both a day and an evening program. 

Jenkins was also not a Roman Catholic, but that does not appear to have been a major concern of the priests who ran Marquette University in 1908, as all but one of the original law faculty members were Protestants.  (The University took the same ecumenical approach to the recruitment of members for its Board of Regents which was founded in 1909.  The original regents included Jenkins and a number of other Protestants, and, shortly thereafter, Jews.) Although Jenkins was an Episcopalian, he did have a connection to Roman Catholicism in that his uncle, Clarence Walworth, was a convert to Catholicism and a founder of the Paulist Fathers. 

One of the strategies of the new Marquette Law School was to supplement the instruction of the regular faculty (all of whom also practiced law) with lecturers drawn from the ranks of distinguished lawyers and jurists.  Presumably, Jenkins’ personal connections in Wisconsin and Illinois helped facilitate this, and the law schools’ first catalog lists 24 such lecturers, including Chicago federal judge Kenesaw Mountain Landis, later the first commissioner of Organized Baseball.  Jenkins himself was listed as a lecturer (and not a professor) with the Law of the Sea and Trade Marks listed as his subject areas. 

The law school appeared to flourish under Jenkins direction.  The enrollment in the fall of 1908 was 127 students, including 77 freshmen, totals that far exceeded those of its two private law school predecessors.  Entry level enrollments leveled off after the first year but overall enrollments remained strong, and the number of students reached 166 in the fall of 1915, Jenkins last semester as dean.  Moreover, after initially holding classes in Johnston Hall, the law school obtained its own building in 1910, the Mackie Mansion, located on the current site of Sensenbrenner Hall.  In 1912, the law school was admitted into the Association of American Law Schools, an organization of law schools committed to higher admissions standards (at least a high school diploma or its equivalent) and an expanded curriculum (a three year law course). 

Although Jenkins was a “full-time” dean and occupied one of the few faculty offices in the law school building (the Mackie Mansion), he taught very little and appears to have been somewhat detached as an administrator.  He was originally assisted by an associate dean—first Lynn Pease and then Edward Spencer, both former faculty of the Milwaukee Law School—but it appears that neither Jenkins nor the associate deans kept any records at all.  In 1911, Arthur Richter was hired as a full-time faculty member and secretary for the law school, but the situation did not appear to significantly improve. 

The final years of Jenkins’ deanship were marked by controversy.  In 1914, Richter published an article in the American Law School Review (the leading publication devoted to legal education in the early 20^th century) that accused the University of Wisconsin Law Department of unfairly lobbying the legislature to defeat a new bar admissions statute that would have eliminated the diploma privilege.  In reply, Professor Howard L. Smith of the University of Wisconsin attacked the character and quality of the Marquette Law School and noted, correctly, that Marquette had supported the diploma privilege until it became clear that the Wisconsin legislature until it became clear that the Wisconsin legislature was not going to extend the privilege to an institution that many Wisconsin lawyers still thought of as a night school.  Marquette, presumably with the approval of Jenkins, then threatened to sue the University of Wisconsin for libel.  This cross-state verbal warfare did little to help the reputation of Marquette and seems not to have harmed its public school neighbor.  It also did not help when it was revealed that during the acrimonious Richter-Smith exchange, Richter was secretly trying to secure an appointment to the Wisconsin faculty. 

A more serious problem arose in 1915 when Marquette underwent a surprise inspection by the Association of American Law Schools to determine if it was in fact complying with AALS guidelines.  Although the 81-year old Jenkins decided somewhat abruptly to step down in the fall of 1915, there seems little doubt that his lax leadership and record keeping had made the investigation more likely.  Marquette was able to survive an effort to expel it from the organization the following year, but its poor record keeping clearly hampered its ability to prove its innocence.  Jenkins was replaced as dean by faculty member Max Schoetz, who began as acting dean but was given the permanent position the following year. 

After stepping down as dean, Jenkins remained a member of the Marquette Board of Regents until his death in Milwaukee on August 6, 1921.  He also continued to be involved in a variety of civic affairs and sat on a number of boards of charitable organizations.  On September 30, 1917, the Milwaukee Old Settlers Club honored him for his 60 years of residence in the city.  After his retirement, he also published an article on the “Admiralty Jurisdiction of Courts” in Volume 4 of the Marquette Law Review. 

Although it was written in 1897 for publication in a highly flattering biographical encyclopedia called Men of Progress: Wisconsin Jenkins would probably have been pleased with the following as his obituary:

He has always been a close student of the law, of general literature and of the arts; and these studies have given him a strength and a grace in all his efforts at the bar which not many of his professional associates have attained. Free from the tricks and cunning which too often disgrace the practice of a noble profession, he came to be recognized as one of the foremost and ablest of the bar of Wisconsin. As a practitioner he had his full share of notable cases in the courts, and conducted as large a percentage of them to successful conclusion as have the most prominent of his contemporaries. 

His bust can be found on the first floor of Sensenbrenner Hall, just outside the elevator.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.

The first Marquette alumnus to play in the NFL was Edward Lewis “Bo” Hanley, a Milwaukee native who played wingback for the Detroit Heralds in 1920, the league’s inaugural season when it was known as the American Professional Football Association.   The 5’7”, 150 pound Hanley was born in Milwaukee in 1887, and was thus 33 years old during the 1920 season, his only year in the NFL.  When the Green Bay Packers entered the NFL in 1921, their center was 29-year old Marquette alumnus, Richard John Murray, the second Marquette student to play in the NFL.  “Jab” Murray, as he was known, was a native of Ocanto and was 6’1” tall and weighed a hulking 219 pounds. 

The last Marquette player to join the NFL ranks was defensive back John Martin Sisk, Jr. who played for the Chicago Bears in 1964.   Sisk—whose father starred at Marquette in the 1920’s and with the Bears in the 1930’s—had played at Marquette as a freshman and then had transferred to the University of Miami when the school dropped football.   The last two Marquette football players to appear in the NFL were Minnesota Viking safety Karl Kassulke, who transferred to Drake University after Marquette dropped football and who entered the NFL in 1963, and Dallas Cowboy defensive lineman, George Andrie, who remained at Marquette for his senior year after the school dropped football and was then drafted by the Cowboys.  Both Kassulke and Andrie appeared in the Pro Bowl during their careers—Andrie did so on five occasions–and both appeared in the Super Bowl, albeit on the losing side.  Both players retired after the 1972 season.

However, the greatest of the Marquette alumni in the NFL was clearly LaVern “Lavvie” Dilweg, who played left end for the Milwaukee Badgers and the Green Bay Packers from 1926 to 1934, winning first team all-pro honors six times.  The 6’3,” 200 lb., Dilweg was born in Milwaukee in 1903.  He grew up in city of his birth and was a star football player at Washington High School in the late 1910’s and early 1920’s.  He continued his football career at Marquette where he won All-American honors as an end who played both defense and offense. 

After two years in the college, Dilweg enrolled in the Marquette Law School from which he graduated in 1927.  The diploma privilege had not yet been extended to Marquette, but Dilweg took, and successfully passed, the bar exam during the summer following his graduation.  Having exhausted his college football eligibility prior to his third year of law school, Dilweg played for the NFL’s Milwaukee Badgers while attending law school during the 1926 season. 

Dilweg was one of five former Marquette players on the Badgers roster that season.  Unfortunately, the professional Badgers, who featured eight rookie starters, were generally outclassed by their opponents in 1926.  The team finished with a record of 2-7, and folded before the official end of the season, bringing to a close Milwaukee’s official presence in the NFL.

In 1927, Dilweg signed with the Green Bay Packers and at the same time began the practice of law in Green Bay where he was to reside for the rest of his life.  During Dilweg’s years with the team, the Packers were one of the premier teams in the NFL, and he was one of its top stars.  After finishing second in 1927, and fourth in 1928, the Packers reeled off three consecutive NFL championships, and would have won a fourth in 1932, but for the NFL rule that ties did not count in the standings.  In 1932, Green Bay finished 10-3-1, but lost the title to the 7-1-6 Chicago Bears.   (Under modern rules, which treat ties as a half-win and half-loss, Green Bay would have been awarded the 1932 championship.)  Between 1929 and 1932, the Packers were a combined 44-7-3, with an undefeated 12-0-1 season in 1929. 

In 1933, the NFL was divided into two divisions and the Packers level of play declined somewhat.  In both 1933 and 1934, they finished third in the NFL’s Western Division.   At the end of the 1934 season, Dilweg retired from football at age 31 to devote himself to his law practice and his other business interests.  He did, however, keep his hand in the sport by refereeing Big Ten football games on a regular basis until 1943. 

In addition to his law practice, Dilweg was involved in the construction industry in Green Bay, as well as numerous other business and civic activities.  He served as a director of the Green Bay Blue Jays baseball team which was a member of the Class D Wisconsin State League, and from 1934 to 1943, he was in charge of the Green Bay Home Owners Loan Corporation (HOLC), a New Deal housing agency. 

A strong supporter of Franklin Roosevelt, Dilweg was active in Democratic Party politics in Wisconsin.  In 1943, he was elected as a Democrat to the United States House of Representatives from Wisconsin’s 8^th District.  His election marked only the third time since 1848 that the voters of Green Bay’s district had elected a Democrat to Congress.  By all accounts his celebrity as a former Green Bay Packer star contributed to his victory.  In the House, he served with a former Marquette Law School classmate, John B. Bennett of Michigan (’25), who was also elected in the fall of 1942.

Unfortunately for Dilweg, his stint in the House of Representatives turned out to be only a single two-year term as he went down to defeat with President Franklin Roosevelt as the Republican Party carried Wisconsin in the 1944 elections.  (Ironically, Bennett, a Republican, was also defeated in 1944, but he was later returned to Congress for nine additional terms.)

After leaving Congress , Dilweg resumed the practice of law in Green Bay but also maintained an office in Washington, D.C.  In 1961, he was named by President Kennedy as a member of the Foreign Claims Settlement Commission.  Dilweg died in Florida in 1968, just prior to his 65^th birthday.  He is a member of the Green Bay Packers Hall of Fame, and his grandson, quarterback Anthony Dilweg, played in the NFL from 1989 to 1991 and with the Packers from 1989 to 1990.

The photo accompanying this post is of the Marquette Golden Avalanche preparing to play in the first Cotton Bowl in 1937.

             The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

             Turning from the pretrial to the trial setting, the Hon. Patricia J. Gorence (L’77), a federal magistrate judge in Wisconsin’s Eastern District, spoke about the management of exhibits at trial.  Judge Gorence particularly emphasized some of the issues that arise in the use of electronic exhibits of various sorts, including the introduction of e-mails, website pages, and CGI animations.  Lynn Laufenberg (L’75), of the Laufenberg Law Group SC, then undertook the Herculean task of providing an overview of state law governing the admissibility of expert opinion testimony.  Lynn’s masterful lecture featured his own experience in working with a wide variety of experts, including a seasoned dairy farmer who turned out to be the critical witness in a stray voltage case.

             Leading the afternoon session was one of Wisconsin’s most accomplished women trial attorneys, Mary Lee Ratzel (L’81), of Peterson, Johnson, and Murray SC.  Drawing upon her considerable experience in defending complex civil cases, particularly medical malpractice actions, Mary Lee took up a variety of important issues related to expert testimony, including Wisconsin’s unique expert witness privilege, an expert’s reliance on inadmissible evidence, experts whose opinions “shift” between discovery and trial, and the use of learned treatises at trial.  Her partner, James T. Murray (L’74) then surveyed the law governing the lawyer-client privilege.  Jim focused attention on recurring problems regarding inadvertent disclosures by lawyers, the uncertain contours of the privilege where the client is a corporation, and the sticky problem of contacting employees, officers, and ex-employees of a corporate entity.  Closing the day was Timothy S. Trecek (L’93), of Habush, Habush & Rottier SC, who discussed two subjects that haunt personal injury litigation in particular: the collateral source rule and the admissibility of “other accident” evidence.  Tim addressed recent developments in litigation that have unsettled the long-standing rule that a tortfeasor cannot reap the benefits that might accrue to the plaintiff when, for example, a hospital accepts an insurer’s payment for less than the amount of its invoice.  Tim also skillfully laid out the intricate evidentiary steps required when lawyers want to put in proof of other accidents in order to prove causation, notice, or the existence of defects in a product.

             Next year’s conference will feature a docket of similarly stimulating issues and distinguished lawyers.  We have the good fortune to draw from the very deep well of Marquette trial lawyers to assist us.

All too often, we see and hear people trying to intimidate others-whether it involves politics, religion, driving habits, employment, sports, family or any other topic that creates conflict. Rather than civil and respectful discourse on tough topics, many routinely call each other derogatory names and describe the other as “evil,” “Hitler-like” “self-centered,” etc. We see physical violence and harassment occurring regularly in schools, places of employment and even on our highways. Finally, the language people use on talk shows or in e-mails, blogs, and even tweets often is designed to intimidate, ridicule and even destroy those with whom the speaker or writer disagree. I consider that this conduct to be an attempt at “adult bullying”…trying to “win” an argument by physically or verbally attacking others who in good faith see a situation or issue differently.

For the last four years, the Marquette Law School Restorative Justice Initiative (RJI) has held very successful annual conferences on topics involving victims and restorative justice, the international application of restorative justice and two conferences on creating safe streets through restorative justice. Last year when the planning committee for our 2009 (RJI) conference met, we decided to focus on restorative practices that address bullying because many schools were asking our assistance in creating approaches to address a serious problem of bullying in both elementary and high schools. On November 10, we will present our “Bullying in Schools–Teaching Respect and Compassion Through Restorative Practices” conference at the Marquette University Alumni Memorial Union. Not surprisingly we “sold out” all 350 seats at the conference. Students, parents, teachers and social workers continue to struggle with how to address instances of student bullying through physical and verbal abuse not to mention the terrible phenomenon of what is happening on the Internet including the sending of nude student pictures to others. Our conference is designed to help people learn of better ways to promote respectful and civil dialogue in our schools.

Dr. Brenda Morrison, our keynote speaker, describes bullying in the school context this way:

“The most frequently cited definition of bullying is the ‘repeated oppression, psychological or physical of a less powerful person by a more powerful person or group of persons’ (Rigby, 1996, p.15; see also Farrington, 1993; Olweus, 1993). Three critical points are important in this definition: Power: Children who bully acquire their power through various means: physical size and strength; status within a peer group; and recruitment within the peer group so as to exclude others. Frequency: Bullying is not a random act; it is characterized by its repetitive nature. Because it is repetitive, the children who are bullied not only have to survive the humiliation of the attack itself but live in constant fear of its re-occurrence. Intent to harm: While not always fully conscious to the child who bullies, causing physical and emotional harm is a deliberative act. It puts the child who is bullied in a position of oppression by the child who bullies.”

The RJI decided to offer both the academic community and the greater community an opportunity to learn more about bullying and how better to address the problem. The critical nature of the problem is accentuated by the fact that Mayor Tom Barrett, City of Milwaukee School Superintendent Andrew Andrekopoulos, and Milwaukee District Attorney John Chisholm will all play a role in the conference. We are fortunate to have the most prominent expert on the topic of restorative justice and bullying as our keynote speaker. Dr. Brenda Morrison, Co-Director of the Centre for Restorative Justice and Assistant Professor at Simon Fraser University, British Columbia. She will speak on “The Power Dynamics of Bullying” Negotiating the Socialand Emotional World of the School Community.” Following her talk, we will offer a panel discussion by four Milwaukee high school students who will talk about their respective experiences with bullying.

In the afternoon, we will offer a number of breakout sessions: “What is a Restorative Justice Circle?”, “A Discussion on the Legal Implications of Bullying” (presented by Milwaukee County District Attorney John Chisholm), “Cyberbullying and Social Interaction with Technology–How to Talk with Your Child,” (a discussion with educators from two high schools who have faced severe cases of sexual related internet bullying), “The Impact of Bullying on Learning,”  and “How MPS is Using Circles to Deal with Bullying” (with an actual demonstration of a circle with MPS students).

Finally at the end of the conference we will recognize eight “unsung Milwaukee urban heroes” who generously and regularly make a significant difference in the lives of children. Each recipient will receive our RJI Starfish Award and a financial award to use how they see fit. The winners are:

Sister Clara Atwater described as a “living saint” in our city. As founder of the nonprofit Gingerbread Land Inc. on the north side of Milwaukee and as a spiritual leader of True Love Church, she has taken in babies born to drug addicted mothers and become their stand-in mother showering them with love and guidance. Over the years, she has taken in and worked with 400 children. She has also taken in other foster children and homeless people and created a community garden which benefits the neighborhood. She is deeply loved in her community for her generosity and kindness.

Sister Jean Ellman S.S.D.N. has an incredible generous heart and is a tower of faith and stability in challenging neighborhoods. She has shared her gifts through the years as a teacher, principal and minister all in the Hispanic community. In 1996 Notre Dame Middle School (school for Latina youth) opened with Sister Jean’s help. She taught at the school and then became principal in 2008. She works to know each child and each child’s family personally. She observes families and she meets needs as she sees them: warm clothes, food, advice, spiritual guidance, encouragement—whatever will bless the family and empower students. In her service to others, she also models faith, wisdom, and compassion.

Charles Reese is the Program Director for the Milwaukee chapter of the I Have A Dream (IHAD) Program at the Clarke Street School. Charles works hand-in-hand with first and second graders to ensure they will continue from elementary school to college with financial assistance from IHAD. He offers year-round education assistance as well as support to overcome non-educational barriers. IHAD utilizes a holistic approach to address the need for increased educational opportunities for central city youth. He is persistent to see the ultimate goal of the program fulfilled: college education for the children with financial gaps funded by IHAD.

Raymond Rivera grew up in the Riverwest area watching many of his friends and family become heavily involved in gangs and drug activity. He however focused his energies into martial arts and sports which has allowed him to help many young people find a safe and healthy way to relieve stress. He currently works as the Youth Development Specialists for the United Community Center. He serves as a wonderful role model for young people. He also runs a faith-based drug and alcohol prevention program on the Southside called Life Changers.

Raymond Robakowski is a city of Milwaukee police officer, a loving husband and father and proud grandfather. For most of his career in law enforcement Ray’s views were traditional, but as the Community Liaison office at MPD District 5 he has grown to embrace community policing. He is an officer who interprets the law by the book, but has the ability to make it fit the culture of the community. Ray knows all the players in the neighborhoods: the gang-bangers, the business owners, scores of residents, the block clubs, community-based organizations, stakeholders, and leaders. He has been so successful in building these relationships that community residents will call Ray on his cell phone and share information with him or ask him for help. As a police officer, he has certainly witnessed the underside of humanity, but he is still able to approach the daily challenges of his profession with optimism and hope.

Jacqueline Spence is a full-time MPS teacher. She has gone above and beyond the work as a teacher by doing community work through the Running Rebels Organization. Through her work with this organization, she created a reading program that helps students read as well as confront some of their issues including bullying, violence and relationships. She has also developed literature to help parents navigate the sometimes confusing jargon surrounding the educational system. including definitions and explanations of acronyms. Her upbeat demeanor, diligent work and humility display that her goals are centered on the success of the children.

Bradley Thurman is married and the proud father of three boys. After graduating from UW-Oshkosh he served as a Milwaukee firefighter for sixteen years, rising to the rank of Lieutenant. In 1995 he started a second career as an entrepreneur and businessman. Bradley is well respected in the business community and is known to assist and collaborate with other local businesses, even competitors of his. For the past 25 years, he has been a staunch supporter and volunteer for the Becham/Stapleton Little League baseball program in Milwaukee. Bradley has served as a coach for many years, worked in fund development and now is the player agent and all-around handyman and good guy. He also has generously, without compensation, given our RJI Safe Streets north side coordinator, Ron Johnson, an office and meeting space for his work with the community.

Lori Vance founded Express Yourself Milwaukee (EYM), a nonprofit organization to help young people realize their inner talents and rise above their daily struggles through the power of art. Lori believes that every child, no matter the pain and adversity he or she faces each day, has endless potential to grow, transform and prosper and that art provides an outlet to these children for self-expression, self-identification and self- improvement. Each year Lori brings together about 700 students with lots of baggage—learning, behavioral, emotional, or psychological disadvantages, and home lives marred by violence, poverty, incarceration, and drug addiction. But once they arrive at EYM, Lori immerses her students in various artistic mediums, including music, drama, dance, visual, and performance art. With the help of guest artists, including performers from Stomp, Lori’s students work together towards a grand, culminating, end-of year performance.

(Editor’s note:  The photograph accompanying this post was found here.)

Debra Tuttle, chief mediator for the program, said during a panel discussion at a conference Friday on foreclosure issues in Wisconsin that from July 22, when the program began, through November 4, there were 278 requests for mediation, more than double the number that was anticipated.

Twenty cases have gone through the mediation process, with all but one resulting in the owner keeping the house, she said. More than twenty others have ended with agreement between the owner and lender without the mediation process. And 136 are awaiting mediation. 

Natalie C. Fleury, program coordinator for dispute resolution at the Law School, said a key to making mediation work was having everyone involved understand that that it is in their interest to work together to reach agreement. Lenders don’t actually want to take possession of homes and owners don’t want to give them up. “There are common interests here that mediation can help,” she said.

Cases are brought to the mediators through court referrals, and the mediators act as neutral parties. Marquette Law School is playing a central role in launching and staffing the mediation process.

The panel discussion was moderated by Daniel Idzikowski, the Law School’s Assistant Dean for Public Service. It was part of a conference at the Clarion Hotel & Conference Center, titled “Foreclosures in Wisconsin:  Responses and Resources for Living Beyond the Bubble.” The sponsors included the Law School, the Federal Reserve Bank of Chicago, the City of Milwaukee, the Wisconsin Housing and Economic Development Authority, the University of Wisconsin Extension, and the  U.S. Department of Housing and Urban Development.

I encourage students to follow in Doug’s footsteps and enter national writing competitions.  Many competitions award cash prizes and give students publication opportunities.  A link that contains information about student writing competitions is here.

Congratulations, Doug!

The participants agreed that the day was a great way to brainstorm ideas and get inspired.  Those of us attending had such a good experience that Susan Thrower suggested starting a regional group to meet to discuss current scholarship in progress.  Please let Susan or me know if you’re interested.

Special thanks to ALWD for providing us with a generous grant for the forum, to Dean Kearney for his overall support, to Dan Weddle for all his work in co-organizing this event, and to the following panelists and participants:  Hillary Burgess (Hofstra), Mary Ann Becker (DePaul), Ian Gallacher (Syracuse), Melissa Greipp (Marquette), Sue Liemer (Southern Illinois), Lisa McElroy (Drexel), Andrea Mooney (Cornell), Michael Murray (Valparaiso), Michael O’Hear (Marquette), Sarah Ricks (Rutgers-Camden), Susan Thrower (DePaul), Mary Trevor (Hamline), Amy Vorenberg (Franklin Pierce), and Dan Weddle (UMKC).

Professor Alison Julien took the lead in organizing this conference, and several participants (including Mark Wojcik at the Legal Writing Prof Blog) remarked upon how well the event was organized and run.  The biggest testament to its success, I think, is that conference participants have encouraged Marquette to serve as the host school again.

The conference featured a diverse range of interesting topics, and though I was unable to attend every session, the six I attended are representative:  Collaboration in Teaching and Scholarship; Update on Interdisciplinary Skills Scholarship (presented by our visiting Boden Professor of Legal Writing, Michael Smith); The Six Things You Can Do in a Contract; Assigning Clients in Persuasive Writing Assignments; Using Literature to Teach Theme Development in Persuasive Writing, and How to Identify and Counter Logical Fallacies (presented by Prof. Melissa Greipp).  The sessions were informative and thought-provoking, and I left the conference thinking of ways I can improve my teaching and engage in scholarship.

Many thanks to everyone who made the event a success, including, especially, Dean Kearney, Prof. Julien, Sharon Hill, Beverly Franklin, Carol Dufek, and many student volunteers.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least).  In Gant, the Court limited the scope of “search incident to arrest.”  The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

After the discussion of the case, Professor Blinka suggested that one ramification of Gant is that law enforcement will likely put more emphasis on gaining consent to search vehicles, since arrest will no longer yield such access. Professor Blinka also left the lunch group with one question: why did the Court decide that it was appropriate to narrow the “search incident to arrest” rule in 2009, especially since the broader search rule had been in effect for nearly thirty years?

Professor McChrystal addressed the Court’s decision in Safford Unified School District v. Redding, 557 U.S. ___ (2009), another Fourth Amendment case. Unlike Gant, which was based on a police search, this case addressed the ability of public school administrators to strip search a minor student for contraband. In reaching their decision that the school administrator’s strip-search violated the student’s Fourth Amendment protection, the eight-member majority found that the intrusive nature of the search did not adequately correspond with a “substantial chance” of finding contraband in her underwear.

The 8-to-1 decision in Redding left Justice Thomas alone in dissent. In his dissenting opinion, Justice Thomas argued that the doctrine of in loco parentis (literally meaning “in place of the parent,” allows a third party to act with same authority that a parent would have) should be applied to allow school administrators to search a student’s person without any Fourth Amendment concerns whatsoever. Under this approach, not only would a strip search be constitutional, but so would a more drastic search of a student’s body cavities.

In Professor McChrystal’s closing remarks, he cautioned future practitioners about a broader issue of privacy— that in an age of Google searches, clients might want to limit their names from public record.  A Google search for the plaintiff in Redding results in nearly four million hits. And while Ms. Redding’s ordeal at school occurred six years ago this month, her name will always be attached to the school’s invasion of her privacy. However, had her lawyer petitioned the court for a pseudonym for the minor plaintiff, something that most courts would be likely to grant under the circumstances, she might have maintained more of the privacy that she fought so hard to protect.

The last case, Crawford v. Metropolitan Government of Nashville, discussed by Professor Secunda, reviewed the anti-retaliation provision of Title VII. This provision protects employees suffering from adverse employment actions (such as a demotion, change in pay, or termination) when the employee “participates” or “opposes” an unlawful employment practice. At the heart of the matter in Crawford was what type of employee conduct constitutes “opposition” to an unlawful employment practice. The Court, reversing the Sixth Circuit Court of Appeals, held that reporting sexual harassment was not needed for protection under the “opposition” prong of the anti-retaliation provision. Furthermore, applying an ordinary definition of “opposition” the Court held that the “opposition” prong of Title VII protected an employee’s cooperation with an internal investigation of sexual harassment when an employee gave a “disapproving account” of a supervisor’s conduct.

Professor Secunda noted that while the unanimous decision is good for employees that seek retaliation protection, the Court may have better helped such workers by addressing employee protection under the more frequently used “participation” clause.

MU-ACS sincerely appreciates the faculty members and students who gave their time for the event. All students are welcome to join MU-ACS events.

How to teach ethics and morality, or even if it is appropriate to do so, has been a much discussed topic in the legal academy, going back at least to the Watergate Crisis of the mid-1970’s.  One aspect of the debate has involved what to call the basic course in legal ethics and professional responsibility required of all law students.  Should the course be primarily about the formal rules governing lawyer conduct or should it focus on the ethical conduct of lawyers separate and apart from the rules that govern them?  Although course titles can be misleading, they often reflect the way that a particular institution has answered this question.

Marquette’s experience has reflected the uncertainty over the proper name for the course that used to be universally known as “legal ethics.”  While the course at Marquette traditionally was called “Legal Ethics” at some point that title was abandoned, and the over the past twenty years it has been known variously as “Professional Responsibility,” “Law and Ethics of Lawyering,” and the current “Law Governing Lawyers.”  At Marquette, the term “ethics” was in the course name, then it wasn’t, then it was brought back, albeit in a secondary position to “law,” and then it was dropped again.  Although the current course description refers to “ethical principles” they are listed as second to “legal principles,” and the course’s focus is described as primarily a “study of the principal ways in which lawyers are regulated.”

From 1997 to 2000, Marquette had a second required course on the legal profession, called “The Lawyer in American Society.”  Initially, the primary text for this course was American Legal Ethics by the noted ethical theorist Thomas Shaffer of the Notre Dame Law School.  Shaffer’s book was not about the Rules of Professional Conduct but about the moral consequences of becoming a lawyer.  After the first year, the Shaffer text was abandoned, although one section did replace it with another Shaffer book entitled, Lawyers, Clients, and Moral Responsibility. By the end of the second year of the four year experiment, the ethics focus of the class was largely abandoned.

Why does Marquette Law School, a branch of a Christian university, seemingly have such difficulty in holding itself out as a teacher of ethics and morality?   Why don’t we still call the course “Legal Ethics”?

I am not suggesting that individual professors do not raise questions of ethics and morality in their classes. I am certain that many do.  But at the level of course names, we seem to be reluctant to use words like “ethics” and “morality,” as our inability to settle on a permanent name for our required course on professional obligations suggests.

This phenomenon is not limited to Marquette.  As an experiment, I examined the web pages of 20 leading law schools to determine how each school deals with the question of what to call its basic course in professional obligation.

Of the twenty schools, only Notre Dame refers to the course simply as “Ethics,” but five others include the word “ethics” in the course title.   Northwestern still uses the traditional “Legal Ethics” and at Washington University, the course is “Lawyer Ethics.”  Other schools combine “ethics” with other concepts as Marquette did in the most recent former name of the course.  The University of Michigan uses “Ethics and Law of Lawyering—the Marquette version of this switched ethics and law.  At the University of Chicago, the title is “Legal Practice and Ethics” while it is “Ethics, Business, and Lawyers” at the University of California-Berkeley.

The most popular name for the course is the ethically neutral “Professional Responsibility” which is how the course is known at the University of Virginia, Georgetown, Penn, Columbia, Texas, Stanford, Vanderbilt, Washington & Lee, and UCLA.  Wisconsin, apparently to emphasize the multiplicity of obligations, calls it “Professional Responsibilities.”  At NYU, it is “Professional Responsibility and the Regulation of Lawyers;” while at Yale it is “Professional Responsibility and the Legal Profession.”  Harvard, being Harvard, uses its own name, “Legal Profession.”

If law schools do decide to follow Crittenden’s recommendation and focus much more explicitly on ethical and moral behavior on the part of lawyers and clients, a good way to start would be to return to the use of “Legal Ethics” as the name of the basic courses in … legal ethics.

I will acknowledge that teachers of this course in Wisconsin do face a type of pressure to orient their courses around the formal rules governing the practice of law that does not exist in other states.  Forty-six states now require prospective lawyers to take the Multistate Professional Responsibility Examination, a separate examination that requires knowledge of the American Bar Association’s Model Rules of Professional Conduct.  Law students in these states invariably take an MPRE review course which provides them with a systematic presentation of the Model Rules.  Three of the other four states test knowledge of ethical rules as part of the regular bar examination and the topic is covered, sometimes extensively, in bar review courses for those states.

Wisconsin’s diploma privilege, however, means that the only exposure that students at Marquette and the UW receive to the rules governing law practice is what they are exposed to in their required Professional Responsibilities or Law Governing Lawyers course.  However, I do not find persuasive the argument that there is not time in this class to provide both a thorough explication of the Wisconsin Rules and to challenge students to think systematically about the moral and ethical obligations that follow from bar membership.

I, for one, would be happy to see the name of our course returned to “Legal Ethics.”

On Saturday, October 10, 2009, the Wisconsin Lincoln Bicentennial Commission will commemorate the Bicentennial of Abraham Lincoln’s birth as well as the 150^th anniversary of Lincoln’s speech at the Wisconsin State Fair in Milwaukee on September 30, 1859. The keynote speaker for the event will be Orville Vernon Burton, emeritus professor of history at the University of Illinois and Burroughs Distinguished Professor of Southern History and Culture at Coastal Carolina University.  His most recent book is The Age of Lincoln.  

The Program will be held in Memorial Hall at the Milwaukee War Memorial Center from 11 am to 12:30 pm.  Members of Wisconsin’s 1st Brigade Band will perform Civil War period music beginning at 10:30 am. 

A plaque commemorating President Lincoln’s 1859 address in Milwaukee will be presented for installation at the Lincoln statue in the Milwaukee War Memorial Center plaza.  Mayor Tom Barrett and County Executive Scott Walker will also make brief remarks.  

Although access to downtown will be somewhat limited by Al’s Run, which will close a number of downtown streets and exits,  the Commission has arranged routes with city officials and reserved parking in the O’Donnell Park parking structure at 910 E. Michigan Street.  For best results please follow the directions posted below:

For directions to O’Donnell Park go to http://warmemorialcenter.org/news/images/BicentenialParking.jpg.  

For printable dashboard sign, go to http://warmemorialcenter.org/news/images/BicentennialSign.jpg.
(Note:  Dashboard sign should be used to help you proceed through the street closures)

First, they visited the law firm of Gonzalez Saggio & Harlan LLP to meet with firm attorneys Hugo Rojas, Jeff Krill, Jean-Marie Feedham, and MULS graduate Natalia Minkel to learn about private law practice in Milwaukee and the nation as a whole.   The students were quite curious about the organizational structure of the associates and partners, and how they attract work.  Rojas explained that they rely mostly on word of mouth, pointing out that ethical guidelines limit aggressive forms of seeking new cases.  During the meeting, founding partner Jerry Gonzalez stopped by to greet the delegation and in particular mentioned the firm’s priority in assuring diversity among its attorneys, which only reflects the changing demographics of the country itself.

In the afternoon the students visited non-governmental agencies working with the Latino community in South Milwaukee. First, they visited Catholic Charities to learn about immigration work and the issues it raises, most notably the hardship faced by families that are often separated due to their immigrant status.   Attorney Barb Graham spoke of her tireless work to represent her clients, which frequently requires travelling to Chicago.  Afterwards, the students visited Centro Legal where Executive Director Heather Ramirez invited them to cookies and Alterra coffee.   The meeting featured staff lawyers Sam Levin and Jason Mishelow speaking about family law; and Mike Blater, criminal law. Board member Mike Balter also offered information about the organization, which offers legal services on a sliding scale.  The final stop was at Voces de la Frontera where the members of this association spoke of their grassroots movement to change policy in favor of immigrant and Latino populations, such as laws to allow for valid drivers licenses and fair wages.  They explained that their legal work (free clinics on Saturday) complement their activism to help stimulate broader policy change.

In the evening the Chilean delegation accepted the gracious invitation to attend the annual dinner of the MULS Hispanic Law Students Association which took place at Club Tres Hermanos  in South Milwaukee.  The festive event featured Mexican cuisine and conversation in both Spanish and English.  The Chileans sang songs along with the Mariachi band and demonstrated Chilean dances.  The occasion was a perfect ending to a full week of academic exploration.

Hamdan v. Rumsfeld

Swift’s presentation promises to be compelling in at least two respects.  The first is that Swift will provide a first-hand account of the legal issues surrounding the war on terror via the story of his advocacy for recognition of the rights of Guantanamo detainees.  The second concerns the personal cost to Swift of his representation.  According to media accounts, Swift understood that the expectation was that he would simply assist Hamdan in entering a guilty plea.  But, Swift explained to the Seattle Post-Intelligencer,  “I didn’t volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could.”  That resulted in a trip to the Supreme Court, in Swift being denied a promotion, and in turn to the end of his military career.  As Swift explained to a Bloomberg reporter, “If you start thinking about your career over your duty, it’s time to get out.”

For more information, and to reserve your spot, go here.

In the afternoon, the students visited the Milwaukee Courthouse, and received a tour by Felony Court Coordinator Mary Jo Swider, including a stop to observe the intake court in action. Commissioner Julia E. Vosper came out to greet the group and give them a brief explanation of this first steps in the criminal justice process:  verifying the probable cause basis for the arrest, setting bail and scheduling a trial date. The students were stunned when one man was escorted into the courtroom handcuffed and wearing the orange prison garb. This condition did not seem to correspond to his crime for driving without a license.

Court Interpreter Coordinator Jackie Thachenkary then brought the Hurtado students to observe a felony trial, in which the defense attorney argued a motion to suppress the “fruits of the poisonous tree” based on the argument that the Spanish speaking defendant did not grasp the significance of the Miranda warning—which the arresting officer had recited quickly in English. After a very impassioned argument, Public Defender Alex Lockwood came out to greet the students during a break. He explained that this case was a particularly complex and challenging one given not only the language issues but also the mental competency of the defendant, who has been charged with homicide. The students were impressed with the patience of Judge Daniel L. Konkol, who had to ask the defendant numerous times if he wanted to testify and waive his constitutional right to remain silent.

Later, the students then visited a civil trial to get a view of a jury, which their own system does not use. The delegation’s visit to the intake, criminal trial, and civil trial courts at the Milwaukee County Courthouse served as a nice complement to the academic component offered earlier by MULS criminal law professors.

The Hurtado students then met individually with professors on their research topics.  

(Professor Paul Secunda met with Fernanda Gajardo on labor law; Professor Alan Madry met with Andrea Cerda on eminent domain; Professor Louise Cainker met with Diego Aguilar on multiculturalism).  According to Professor Secunda,  “It was a wonderful meeting with Fernanda on labor and employment law. It went so well that we are meeting again at 11 am today.”  The Hurtado students informed me the interviews were key to their research agendas.

At lunch, while the Hurtado faculty joined with members of our own faculty at the Lunda room, the students attended a brown bag with MULS students, an event co-sponsored by the Labor & Employment Law Society.   Present were leaders from various MULS student groups, including the Student Bar Association, Hispanic Students Law Association, Public Interest Law Society, Hablando del Derecho, American Constitutional Society for Law and Public Policy, and Saint Thomas More Society.   In Eisenberg Hall, they sat around the large tables and introduced themselves. Professor Paul Secunda observed, “It went really well. Lots of laughing and camaraderie.  The students stood up and introduced themselves and talked of their various organizations. Although we had translators, what was great was that many of our student leaders used their Spanish to introduce themselves.”

In the afternoon, we were joined by Distinguished Professor and Director of the MULS Restorative Justice Initiative, Janine Geske and headed to the South Side of Milwaukee in an MU athletic van.  At the Kosciusko Community Center, we met with Paulina de Haan, co-coordinator of the Safe Streets Program, who had convened a circle of community members:  parole officers, offenders who recently finished their prison terms, and policemen.    Professor Geske first gave an overview of the theory of circles, which emphasizes the idea that we all belong to the same community and that alternative processes can help reconcile differences.  Ms. de Haan then instructed us that  we could only talk when he held the “talking piece” (a carved stone).  This practice helped us learn how to listen when we were without the piece.    All of us shared our definition of community; the experience of being Latino in the United States and in Chile (and, in my case, of living in both cultures); and finally how crime and violence have impacted our own lives.  The students were completely stunned to watch the two policemen sit next to the offenders, and impressed by the approachable and caring demeanor of the law enforcement agents.  Chilean Professor Pablo Contreras explained, “Our police are not like that.”   The experience greatly affected the delegation, which has begun to contemplate ways of bringing the techniques to its own country.

In the evening, Professor Jay Grenig hosted the delegation in his home in Delafield, stuffing us with his home-cooked, Wisconsin-style BBQ and sharing local eating delights like brats and Wisconsin cheese.   Also in attendance were MULS students, who presented a gift to the Hurtado delegation of a framed photo of our namesake Pere Marquette.   As Professor Grenig remarked, “It was one of the liveliest parties at our house.”  Indeed, the Chileans and the Americans enjoyed conversations in Spanish and English as they munched on homemade foods.  The highlight was making sundaes with Professor Grenig’s homemade ice cream.

In the afternoon, we drove to Madison to visit Chief Justice Shirley Abrahamson at the State Capitol, accompanied by former Supreme Court Justice and MULS professor Janine Geske.  The Chief Justice greeted the delegation in the hallways of the Capitol, and then invited the members to sit in the Supreme Court Hearing Room to offer an overview of the Wisconsin Supreme Court’s work.  With warm humor, the Chief Justice then answered the many questions that the Chilean students posed.

One student asked if the justices are ever influenced by their political affiliations when they write their decisions.  The Chief explained that they do not work as Democrats or Republicans, but rather as “reasonable” people.  That said, the students were curious about the election process and how judges are selected.  The Chief Justice noted that she has sat on the bench for more than 30 years and joked that she plans on running in 2019, but unopposed.  She clarified that, unlike other political campaigners, the judicial candidates only promise to uphold the law.  She then turned to point to the mural above the bench of the founding fathers signing our national Constitution.  The image is there to remind us that the justices take an “oath of office” to uphold the highest law.  The Chief escorted the group to the conference room, where she shared the process for selecting who would write the majority opinion:  chess pieces!

The Wisconsin Law Journal covered the event, so stay tuned for pictures.

First, let me set the stage. 

We are told to dress “prison appropriate” which means no metal anywhere (other than your shoes) unless you want to take off that particular piece of clothing or undergarment to run it through the metal detector.  We (Janine; a few law students; community members interested in RJ, including someone from LA interested in adopting this program for California; and me) go through five sets of bars that open only when the one behind you closes.  The circle is held in the prison classroom, where we sit in a large circle of chairs – prisoners interspersed with staff and outsiders.  Although we can see their full names on their name tents, we use first names and flip our security-issued name tags around so no one can read the full name.  It’s a little daunting, so even more powerful, as the day moves forward.

I went on the second day of the RJ program.  On the first day, the prisoners are broken into groups, and each group charts the ripple effects of a single crime, an armed robbery at a mall.  From the flipcharts posted around the room, I can see the groups have done an impressive job.  A single theft not only affects the victim and the store, but the victim’s family, customers and other workers at the store, members of the broader community who might shop at the mall, the suppliers, and so on.  Today, on the second day, we hear from two victim-survivors in the morning.  The first is a the widow of a police officer killed at a domestic violence shelter, taking a bullet for a 15-year-old who had been defending his mother against her abuser.  She speaks in excrutiating detail: hearing the sirens, being woken to go to the hospital, hearing her sneakers squeak with his blood, seeing the line of blue uniformed officers lining the hospital hallway, telling her two small children.  It is impossibly hard to hear this and I wonder what the prisoners think.  The next woman who speaks lost her son to a drunk driver.  (She hates that phrasing “lost.” It is much too passive.   As she noted, she didn’t “lose” her son – she knows exactly where he is.  I should say he was murdered.)  Again, we learn the details of his life: a warm, vibrant college senior who, in the year between high school and college, biked with three friends around the entire perimeter of the continental U.S.  He was biking when he was killed, just a few days before his last college exam.

And then we break for lunch.  As Janine warned the inmates, lunch might be difficult.  They will be thinking about what they have heard.  We get to leave for lunch and the sunlight is a welcomed intrusion.

When we return, it is time to go around the circle and hear from the men.  The statements are amazing – as Janine tells me, many of these men will never be released from prison.  Their statements do not go to the parole board, and they often wouldn’t help them anyway.  Almost all of them start by thanking the women for speaking, many of them are crying and talk about their own loss and vicitimization as part of what got them to prison in the first place.  Here is a sampling:

“I want to apologize to you.  I belong here and you have helped me understand the hurt that I have caused.” 

“I will take your story and try to change the world for good.” 

“I used to think that victimizing someone after you have been a victim is power.  But this is real power, the power to help others, the power to help change.” 

“I used to view myself as the victim and blame others.  I never saw the ripple effect.” 

“I was hurt so I wanted to hurt others.” 

“Males are born but men are made – and this is one of the starting points.”

At the end of the afternoon, the prisoners heard from one more victim, the sister of a man imprisoned for life for murder, who just graduated law school at Marquette.  And the men heard about a different ripple effect, on their families and loved ones, who lost their brother or son in the crime they committed.  

Unfortunately, I could not go for the third day, where the prisoners talk again about what they have heard and then look forward to what they can do with what they have learned.  The warden at Green Bay loves this program: In-prison behavior from these prisoners improves while they are there and the likelihood of repeat offending once they do get out goes down.

Let me close with what I was thinking on my drive home:  First, I felt blessed that I was just a visitor – not a victim, not a relative, not directly touched by any crime.  Second, I was amazed to see what restorative justice and dispute resolution can do to individuals even in the worst circumstances.  And finally, I was so proud that this program is supported by Marquette and part of our dispute resolution curriculum.  I know it has a dramatic impact on our students as they go out into the world and practice law.  They, too, will learn the ripple effect of their actions – good and bad – and what good they can do as lawyers in the broader community.

Cross posted at Indisputably.