Marquette University Law School Faculty Blog

“I consider you and [Jefferson] as the North and South Poles of the American Revolution. Some talked, some rewrote, and some fought to promote and establish it, but you and Mr. Jefferson thought for us all.”

—Benjamin Rush to John Adams, February 17, 1812

Every law student has a responsibly to enhance the American Conversation—the eternal dialogue that is the American experiment. While it would be conceited and with reproach that I suggest we think like Messrs. Adams and Jefferson, we should, however, seek to become more thoughtful and attempt to engage in lively, educated discourse. Our national dialogue has increasingly been filled with a self-destructive, dysfunctional, do-nothing mentality that lacks reasoned thought. This trend is at best unproductive—at worst, destructive—to the American Conversation. As law students, we have the skills and responsibility to change this trend.

It is quite gratifying to obtain a deep understanding of a topic and then learn that you lacked a full appreciation for some of the more nuanced issues within that particular topic. Part of the legal learning process encapsulates this type of learning, where you learn a new approach or different perspective and it can—and should—be learned outside the classroom. It should go without saying that one the best places to learn is outside the classroom. But as law students, in the ultra-competitive school environment, we tend to focus on grades (and the job hunt) and lose focus of the big picture—developing the skills necessary to fulfill our duty to serve the public. As such, we would do well to be reminded of the importance of using the skills we have learned outside the classroom. While Dean Kearney reminds us to continue learning outside the classroom (e.g., in the many guest lectures, at On The Issues, and during social and award events at the Law School), the one place for learning that should continually reside in a predominant place in our minds is the Zilber Forum, a social area for discussion and contemplation. The Zilber Forum, or the idea of the Forum, does not and should not stay within the confines of the four walls (although the shape of the building may suggest three). This idea is already bursting at the seams of Eckstein Hall and with a little help from students will reach the community around us. Read more »

Is it 2016 yet? No, but daily news reports and, even more so, any glimpse into political maneuvering nationwide clearly show that a lot of work is already going into laying groundwork for the next race for president. Marquette Law School Poll results released Tuesday join in the early going, showing that former Secretary of State Hillary Clinton is at a strong advantage in Wisconsin among potential Democratic candidates, while the Republican field is pretty wide open. That said, Wisconsin Rep. Paul Ryan drew the most support among Republicans in Wisconsin.

Charles Franklin, director of the poll and newly-named professor of law and public policy at the Law School, said the purpose of the presidential questions at this point wasn’t to try to predict what will happen in 2016 in Wisconsin. Rather, he said, it is to begin building a picture of how the race will evolve.

That said, the poll found that 27% of those who said they were Republican or lean Republican named Ryan as their preferred candidate. Florida Sen. Marco Rubio was the choice of 21%, Wisconsin Gov. Scott Walker drew 16%, and New Jersey Gov. Chris Christie was picked by 11%. Those under 10% included Kentucky Sen. Rand Paul (7%); former Florida Gov. Jeb Bush (5%); and Louisiana Gov. Bobby Jindal (1%).

Clinton was the preference of 62% of Democrats and those who said they lean Democratic. Vice President Joe Biden was the choice of 13%. Drawing less than 10% were Massachusetts Sen. Elizabeth Warren (5%); New York Gov. Andrew Cuomo (4%); Massachusetts Gov. Deval Patrick (2%); Maryland Gov. Martin O’Malley (1%); and Virginia Sen. Mark Warner (1%). Read more »

April is National Poetry Month, which may be Marquette University President Scott R. Pilarz, S.J.’s favorite month.  And for good reason.  Poetry can sometimes say what we can’t; it can touch our hearts and our souls with its inspiration, its longing, its joy, and its sadness.

Last year, on this blog, several of us wrote about poetry, sharing our favorites, composing new poetry in both traditional and different ways, or exploring poetry in and about the law.  As student Gabe Houghton noted this post, there are some judges who compose opinions in verse.

As April closes, I just wanted to remind everyone that poetry should be celebrated all months and remember that there are many kinds of poetry.  Songs can be considered poetry set to music. There are also poetry slams.   My favorite in this last genre is Taylor Mali, teacher and poet.  You can see him perform his poem “Totally like whatever, you know?” here.  It’s a nice reminder for those of us who love language that what we say, as well as how we say it, matters.

The next time you see Milwaukee Mayor Tom Barrett, ask him about his map. It’s the Mayor’s latest weapon in his battle to stop the state from eliminating residency requirements for municipal employees in Wisconsin. More than 120 municipalities have rules spelling out where their employees can live. But Governor Walker wants to change that. He says residency requirements are unnecessary and outdated, even counter-productive, and he has included language in his state budget that would end them.

Mayor Barrett says the Governor’s proposal doesn’t belong in the budget, since it’s not a fiscal item. But Barrett’s concerns go much deeper. In a recent e-mail to supporters, Barrett said an end to the city’s 75-year-old residency requirement could “destabilize” Milwaukee. I pressed the Mayor on that claim in a recent television interview. He said philosophically he agrees with the notion that people should be able to live where they want, but that local municipalities should be able to determine the conditions of employment for the people they hire. In Barrett’s world, that translates into a simple reality. If you don’t want to live in Milwaukee, don’t apply for a job with the city. He said there’s been no shortage of applicants.

Perhaps more important, Barrett said the value of assessed property in Milwaukee had fallen five billion dollars because of the economic downturn. He argued that based on experiences in other cities, such as Detroit, Minneapolis, Baltimore, and Cleveland, significant numbers of city employees were likely to leave the city should the residency requirement be lifted. Barrett was making the case that there was great risk to his city, and he wanted to show me a map he carried with him into the television studio. You can see it here. Because of the amount of data in the file, it takes about 10-15 seconds to present itself.

The map shows the gravity of Milwaukee’s foreclosure crisis. Foreclosed properties are in red. As of last week, there were nearly 2600. Blue represents where the more than 7,000 city employees live. Besides helping stabilize struggling sections of Milwaukee, city employees are the backbone of a number of healthy, middle-class neighborhoods, including Bay View and the southwest, far south, and far west sides. These neighborhoods are home to hundreds of police officers and firefighters. But what happens if, as the Mayor believes, 40 to 50 per cent of those blue dots—city employees—move outside the city? Will there be a dramatic downward pressure on property values?

The Mayor contends the end of residency was a promise Governor Walker made to the Milwaukee police and firefighters unions in an effort to gain their support during his bid for Governor. Walker argues that personal freedom should trump conditions of employment, and that at the end of the day, it’s up to the city to become a more attractive place to live. Neither man knows exactly what will happen should the requirement be eliminated. Nor do they know what Mayor Barrett’s map will look like 10 years from now. But if Barrett is right, it will be a lot less blue, and Milwaukee could be a very different city.

There was a question mark in the title of Monday’s conference at Marquette University Law School: “A New Milwaukee Sports and Entertainment Arena? Divining the Benefits and Dividing the Costs.”

Six hours of presentations offered a lot of serious discussion, a wide range of perspectives, expert input, comparative experiences from other metropolitan areas, and insights into factors involved in the issue. You could even say there was a broad sense of agreement that it will be good for Milwaukee if the Milwaukee Bucks professional basketball team stays in the city, in that no one favored the team leaving.

But the conference didn’t – and, in reality, surely couldn’t – remove any of the formidable question marks that hang over the futures of the BMO Harris Bradley Center, the Bucks, and a possible new sports and entertainment franchise in Milwaukee. Read more »

“I am extraordinarily patient, provided I get my own way in the end.”

– Margaret Thatcher

One of the world’s most powerful women died today.  Margaret Thatcher, Britain’s only woman prime minister, was 87.

Thatcher, leader of the country’s Conservative Party, was British prime minister from 1979 to 1990.  According to CNN.com, she shared “a close working relationship” with former President Ronald Reagan, “with whom she shared similar conservative views.” Initially dubbed “Iron Lady” by Soviet journalists, she was well known (for better or for worse) for her personal and professional toughness. (For interesting commentary on Thatcher and her impact, see here, here, and here.)                                               

Thatcher was a trailblazer, one of just a very few women to become heads of their country’s government. While women make up nearly half of the world’s population, worldwide, they represent roughly 16% of the members of national governing bodies.  In the United States, women account for only 18.1% of Congress, 33% of the United States Supreme Court, and no woman has ever been elected president.

So, what’s the problem? Some would argue that there’s nothing stopping women from running for office, even for president. True, there are no laws that outright prohibit women’s participation in government.  (Saudia Arabia, long the hold out on allowing women to vote and to serve in government, has finally reversed course.)  But there are other barriers that may be less obvious. Read more »

A curious thing happened at the end Thursday’s hour-long joint appearance at Eckstein Hall of State Rep. Joe Sanfelippo, who wants to reduce the role of the Milwaukee County Board, and County Board Chairwoman Marina Dimitrijevic, who is fighting Sanfelippo’s proposals:

A lot of people stayed on to talk. Dimitrijevic talked with whoever came up to her. Sanfelippo did the same. County Executive Chris Abele, who was in the audience, had almost a dozen people gathered around him at some points. Other people lingered and mingled through much of the Appellate Courtroom.

Usually, the room clears pretty quickly at the end of events of this kind. But for some reason – an interest in talking about the issue? the availability of the main figures? the chance to catch up with people? – this was a group that didn’t seem to want to leave. There were probably almost 50 people, out of an audience of more than 200, still in the room 15 minutes after the session ended.

Maybe this was a little bit different way of demonstrating how the public policy programs that Marquette University Law School has been hosting for the last half dozen years are meeting their goals of furthering serious, informed conversation on major issues. The notion of being a crossroads for such a discussion starts with the presenters at these sessions, but it often extends to the informal conversations before a program, during breaks, or afterwards.  Read more »

“Our old friend, polarization” – that was the phrase Charles Franklin, director of the Marquette Law School Poll, used at one point in describing the results of a fresh round of polling released Tuesday. It was the first poll since shortly before the November elections.

This was the first time in 15 rounds of the Law School Poll, starting in early 2012, that there were no “horse race” election questions involved. The questions this time were focused on issues such as regulating some aspects of gun control, education funding and school choice, how to pay for road construction, and residency rules for government employees.

There were some issues where opinion was strongly in favor of one position. For example, background checks for all gun purchasers were strongly supported by both Republicans and Democrats and people living in every part of the state.

But on many issues, Wisconsin remains sharply, and sometimes close to evenly, divided. Read more »

Let’s assume that civil, even good natured differences of opinion are better than heated, even angry differences of opinion.

The former is what was provided by two of the key figures in the Wisconsin Legislature at an “On the Issues with Mike Gousha” event Friday in the Appellate Courtroom of Eckstein Hall. The latter was one of the things the Legislature became known for nationwide two years ago.

Assembly Speaker Robin Vos, a Republican, and Assembly Minority Leader Peter Barca, a Democrat, didn’t mask their differences on a list of major issues. But the hour-long session was a conversation, not a shouting match.

For one thing, the two actually get along reasonably well on a personal level and, once a month, they tape a similar civil dialogue for broadcast on “Wisconsin Eye,” the cable TV and online service that broadcasts legislative sessions and related programming. For another, they and others in the Legislature are intentionally trying to change the tenor of the environment within the Capitol. Read more »

A central goal of the public policy initiative at Marquette University Law School has been to provide and encourage serious, level-headed, and provocative consideration of major issues. As we come to the end of 2012, it doesn’t seem presumptuous to say that this has been a very successful year in pursuing that goal.

The Marquette Law School Poll provided insightful, in-depth, and accurate readings on public opinion in Wisconsin throughout a historic year of election after election. The candidates for governor and senator held debates in Eckstein Hall that were televised live across Wisconsin. “On the Issues with Mike Gousha” offered a rich series of programs, free and open to the public, in which newsmakers and consequential figures shared their thoughts. Academic conferences, major lectures, conferences on mental health law and Milwaukee’s future in the Chicago “megacity,” the annual Restorative Justice Initiative conference on civility in public discussion, and two education policy events were all components of a year of thoughtful forays into major issues.

Let us end the year with some highlights of the last two major public policy events of 2012 which we have not reported on this blog previously:

Wisconsin 2012: The voters have spoken. What did they tell us?

December 6, the Appellate Courtroom, Eckstein Hall

To wrap-up an epic year in Wisconsin politics, an array of experts gathered to talk about what happened, with Mike Gousha, the Law School’s distinguished fellow in law and public policy, moderating.

Charles Franklin, visiting professor of law and public policy and director of the Marquette University Law School Poll, presented a county by county analysis showing dramatic differences in the voting in the June recall election for governor and the November presidential race. The map was predominantly red in June, strengthening arguments that Wisconsin was becoming a more Republican state. But in November, the map was much bluer, and many deep-red counties had turned light red. “That’s just stunning in five months to see that much difference,” Franklin said. The biggest shifts between the two elections came in counties that voted Republican each time, but with much smaller margins for presidential candidate Mitt Romney than for Gov. Scott Walker. The smaller margins amounted to a gain for President Barack Obama of 158,000 votes, Franklin said. In other words, Obama’s stronger performance in Republican areas, compared to the showing of Democrat Tom Barrett in the governor’s race, was a central aspect of Obama’s victory in Wisconsin. In counties that voted Democratic both times, Obama ran up a margin that was 135,000 votes larger than Barrett had. Read more »

This picture is of a five-year-old. More specifically, my five-year-old. Energetic and friendly and excited for kindergarten. Now that boy is long past kindergarten. Still energetic and friendly, but now excited for college. In his twelve years of primary and secondary schooling, he never once had to endure a lock-down of his school; never once had to cower under a desk or huddle with other children because someone with a gun lurks nearby, maybe even right in front of him; never had to witness his classmates or his teacher shot and lying bloody in front of him; never had to close his eyes to walk past carnage to exit his school. Maybe he was just lucky.

But no child should have to endure such things. No child. Anywhere.

By the time my sons entered school, mass school shootings were already on the national radar, thanks to the Columbine school shooting in 1999.  And, sadly, mass shootings generally have made regular appearances in their lives since then:  the Westside Middle School shooting in Arkansas, the Beltway sniper attacks, the Amish school shooting, the shooting at a Brookfield hotel where church services were being held, the massacre at Virginia Tech, the shooting of Congresswoman Gabby Giffords and others, including a nine-year-old girl, in Tucson, and just this year alone, the Aurora theatre shootings, the shooting at Oak Creek’s Sikh Temple, the shootings at Texas A&M, the shooting at Azana Salon & Spa in Brookfield, the Portland, Oregon, mall shootings, and now the Sandy Hook School shootings in Connecticut. Read more »

In light of President Obama’s resounding re-election victory last night, and other developments in political races down the ticket, here are some of my initial thoughts on what might happen in the labor and employment law area during a second Obama administration:

First, I think the verdict is still very much out on  whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term.  It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.

On the one hand, the Congress remains bitterly divided between the two parties which means that labor law reform in the form of the Employee Free Choice Act is highly unlikely, as well as updates to the employment discrimination laws, like adding sexual orientation as a protected classification under Title VII or addressing “qualified individuals” under the Americans with Disabilities Act.  I also do not envision major changes to the FMLA or OSHA in a second term, though I suspect there will be additional attempts to amend the Equal Pay Act by trying to get the Paycheck Fairness Act passed.

On the other hand, there will be plenty of room for agency decisionmakers to work on the margins and within their own domains.   Read more »