Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

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Category: Political Processes & Rhetoric, Public, Wisconsin Law & Legal System
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In 1851, the state of Wisconsin adopted the simple word Forward as its state motto. It’s a powerful word that has symbolized the State’s progressive history. Lately, though, it seems like we’ve been going backward rather than forward. Case in point: open records law.

Wisconsin’s open records law has been around since 1981. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins with a broad declaration of policy: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.

Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute, said, “Transparency in government is not a liberal or conservative issue, it is a good government issue. Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable.”

And the law has been used to do just that. Read more »

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The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Human Rights, Judges & Judicial Process, Legal History, Political Processes & Rhetoric, Public
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b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others. Read more »

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Law School and Public Policy Forum Offer Web Site on Future of Cultural Assets

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Category: Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public
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Set aside the hot subject of a new basketball arena for downtown Milwaukee – that’s a horse race that’s already far down the track – and we still face a lot of major policy questions about the future of the Milwaukee area’s cultural and recreational assets.

Museums, the zoo, parks, playgrounds, the convention center, cultural organizations– these are important assets to the community and keys to the overall quality of life of people living in and visiting the Milwaukee area.

What should do to keep them vibrant and how should we pay for what we do?

Marquette Law School and the Public Policy Forum, a non-partisan local research organization, are partnering in an effort to help educate people on the issues surrounding these important aspects of our community. The two institutions have created a Web-based tool for learning about the issues and developing your own thoughts on what should be done and how it might be financed. Read more »

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After Forty Years, Axelrod Still Sees the Good Side of Politics

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette
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David Axelrod’s new book is titled “Believer: My Forty Years in Politics.” If he had had his way, the title would have been “Believer: How My Idealism Survived Forty Years in Politics,” he told a packed Appellate Courtroom in Eckstein Hall during an “On the Issues with Mike Gousha” program Tuesday.

That option was too wordy in the eyes of the publisher, said Axelrod, the chief strategist for President Barack Obama’s successful runs for president in 2008 and 2012.

But in his visit to Marquette Law School, Axelrod emphasized his belief that good things can be accomplished through politics, an emphasis underscored by his current work as director of the University of Chicago Institute of Politics, where one of his goals is to encourage young adults to get involved.

“We have the ability to shape our future, and the way we do it is through politics,” Axelrod told Gousha, the Law School’s distinguished fellow in law and public policy. “Politics at its best can make a great deal of difference,” he said. “It’s our opportunity to seize the wheel of history and, ever so gently because it’s hard to turn that wheel, turn it in the right direction.” Read more »

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The Rule of Law in the United States

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Category: Political Processes & Rhetoric, Public
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US Supreme CourtThe highly regarded World Justice Project, an independent organization in Washington, D.C. that promotes the rule of law, has used 47 indicators organized around nine themes to generate a so-called “Rule of Law Index.” Using this Index, the World Justice Project then ranked 99 of the world’s nations according to the extent to which the rule of law was truly operative in those nations’ daily life. The United States ranked nineteenth.

This ranking is surely respectable. Americans could conceivably be pleased the United States compares so well to nations such as Zimbabwe, Afghanistan, and Venezuela, which do in fact appear at the bottom of the World Justice Project’s ranking. But at the same time Americans could be disappointed that the top four nations are, in order, Denmark, Norway, Sweden, and Finland. What’s more, other nations with a common law heritage such as Australia, Canada, and New Zealand also rank higher than the United States.

The ranking is especially surprising given familiar American boasting that their nation lives by the rule of law rather than by the rule of men and that their nation is exceptional in this regard. A belief in the rule of law, in my opinion, has been a central tenet of American ideology since the earliest decades of the Republic. However, all ideological tenets should be subject to vigorous critique, lest they be used for political purposes.

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Israel Reflections 2015 — The Elections

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Category: International Law & Diplomacy, Marquette Law School, Political Processes & Rhetoric, Public
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I know you are all bereft at the thought of the final Israel blog posts!  I’ll be sharing two from my students this week.  The first is on the Israeli elections.  Our trip was perfectly timed right before the Israeli elections and so we had already been learning about the different political parties in Israel and then seeing campaign posters all over the country.

Student Adam Marshall wrote about his experience:

“As a group of young soon-to-be lawyers, it was unbelievable to experience the last leg of a much-awaited election in Israel.   The country, after coming off of a brief war in the summer with its Palestinian neighbors, was eager to see if there would be a change in leadership or if everything would remain business as usual. While the Israeli election got sucked into the American media due to a congressional visit by Prime Minister Benjamin Netanyahu, which sparked a trivial debate between Republicans and Democrats, there was much more meaning to the elections in Israel.

“New elections in Israel meant possible new leadership of the country, which could lead them either closer or further away from peace with Palestine. As a student who arrived in Israel with the goal of studying the conflict, it seemed apparent that this would be the most important talking point in the elections. However, I was shocked to learn that the conflict was in fact not the most important issue in the election. In the end, what seemed to have won Netanyahu his seat once again was his foreign policy, not in regards to Palestine, but rather on Iran’s nuclear program, which was the topic of his controversial speech in the U.S. It seems that the focus on social issues in Israel may have been one reason for the dramatic decline in votes for the Zionist Union [the more liberal party] in the election from what the polls showed.

“The belief going into the election was that the Zionist Union and Herzog would have a chance to beat Likud and Netanyahu, but this was not the case. Instead Likud won 30 seats and the Zionist Union was behind with 24. While talking with different Israeli citizens, this belief that Herzog had a chance of winning remained, even though it was Netanyahu’s face that I saw all over Israel. During our bus rides through the city there were always political ads outside of my window. Whether it was a poster on a light post, a picture on a bus stop, or a giant billboard, there were always political ads in sight. Most of the ads were for Netanyahu, and I presume that is because he had the most money for the campaign, or rather his party did. Israel has a proportional representation voting system so a party runs a list of people with their top politicians at the head of the list. Other parties were represented around the cities, but it was clear that Likud had more area covered.

“One reason why the Israeli-Palestinian conflict may not have been a major issue in the election is that the people of Israel believe that politics remains a major roadblock to peace with Palestine. That is to say that, without the politicization of the conflict, there might actually be a peace agreement made. It seems to be that the split of political parties and the ever-changing party system creates a political scheme in which it is difficult to find peace. Unlike the U.S., Israel has a multi-party system, 10 of which make up the new Knesset after the elections. Parties change and make alliances after each election and this changes the political nature of the election.   If the parties were able to come together on their views regarding the conflict, there might be an actual peace agreement in the near future.

“It will be amazing to compare how my experience in Israel during their elections may be similar or different to my experience in the 2016 elections in the U.S. I assume it will be very different. I have a higher stake in the U.S. elections, and I can actually vote, but comparing campaigning styles and, more importantly, what issues are the most important will be very interesting. I will never forget my experience in Israel and the political culture there.”

We also visited the Knesset (shown below) and student Nate Hofman shared some details:Knesset

 

“On day three of the journey to Israel, our class was fortunate enough to get a tour of the Knesset. The courtyard was adorned with Israeli flags and a long walkway leading up to an impressive building. Unlike our domed capital building, the Knesset building is more rectangular with a flat roof. Once inside, our tour guide greeted us. Unfortunately, the Knesset was not in session because of the elections taking place a week from the time of our visit. We got to see a replica of the Israeli Declaration of Independence. It was written on a scroll, which seemed very Old Testament Israeli and perfectly fitting.

“The Knesset floor looks similar to the Congressional floor. The members sit in a semi circle facing the speaker on a raised podium. Above the 120 seats of the Knesset floor are two levels of viewing seats. The level closest to the floor, where we sat and listened, is used for invited guests and foreign dignitaries. The furthest from the floor is open for the public to view the Knesset.”

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ACLU Attorney Says Tighter Voting Rules “Not Healthy” for Democracy

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Category: Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette
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There was a sea change in the approach to election issues across America in the late 2000s, as Dale Ho sees it. He isn’t sure what the cause was, but he is sure it wasn’t a good development. Ho is director of the American Civil Liberties Union Voting Rights Project, which makes him one of the leaders of legal opposition nationwide to tightening the rules on who can vote.

Ho told an “On the Issues with Mike Gousha” session at Eckstein Hall on Wednesday that voting rights issues had largely drawn bipartisan support for decades.

“We had thought we had largely achieved a consensus in this country around universal suffrage, basic access for everyone (to voting),” Ho said. “Most of the debates about voting rights since the early 1970s were about redistricting – are the lines being drawn fairly for every community, are they being gerrymandered for partisan reasons, things like that. The trend remained toward greater liberalization in terms of ballot access. We didn’t see a lot of fights about registration and ballot access. .  . .

“In the late 2000s, something changed.” Read more »

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Israel Reflections 2015–Day 5: Haifa University and Sulha

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Category: International Law & Diplomacy, Negotiation, Political Processes & Rhetoric, Public
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Our Wednesday morning in the north of Israel started with a visit to Yardenit, a site at the base of the Sea of Galilee where it meets the Jordan River near the biblical baptism site. Then we all headed to Haifa University to meet with Professors Orna Einy, Moti Mironi, and Tali Gal–each of whom work in an area of ADR–to learn about their research. After a quick lunch with them, we then turned our attention to a wonderful guest speaker they arranged for us. In a combination of theoretical, spiritual, and academic learning, the students had the great pleasure of hearing Elias Jabbour speak about “Sulha”, or the traditional peacemaking techniques used in Arab villages throughout the Middle East.

Student Molly Madonia retells two of Mr. Jabbour’s stories and recounts his methods to making Sulha:

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Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

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Category: Congress & Congressional Power, Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch, Public, Speakers at Marquette
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DSC_2573

Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Read more »

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Same-Sex Marriage Referendums: Major Metropolitan Areas Out of Step With Less Populated Regions

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Category: Election Law, Political Processes & Rhetoric, Public
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In most states same-sex marriage has become the law of the land by judicial decision. In a smaller number, the institution has been recognized by acts of the state legislature. Although there were numerous public referendums attempting to ban same sex marriage before 2008, in recent years only twice have the voters of a state had the opportunity to vote directly on the recognition of marriages between individuals of the same gender.

Both opportunities came in November 2012, as voters in Maryland and Washington State confirmed their state’s recognition of a new definition of marriage. However, both episodes revealed a sharp divide between the majority views of those who live in major metropolitan areas and those who live in less densely populated areas.

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Paul Ryan Speaks Well of Obama — on One Issue

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Kind words for Democratic President Barack Obama from Rep. Paul Ryan, a leading figure in the Republican Party and chair of the House Ways and Means Committee?

Yes – but on only one subject, the pursuit of trade agreements with countries in Europe and Asia. And a you might include tax reform, where there may be some room for bipartisan cooperation, Ryan said.

In an “On the Issue with Mike Gousha” session at Eckstein Hall on Monday, Ryan discussed a wide range of subjects, from his thoughts on fighting poverty to Obama’s handling of foreign policy (no kind words on that score) to Ryan’s decision not to run for president in 2016. Read more »

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Karl Marx on Religion

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marxReligious people sometimes express disdain for Karl Marx and his philosophies because he supposedly characterized religion as “the opiate of the masses.” It turns out that this isn’t exactly what Marx said. Furthermore, he wasn’t necessarily negative about religion and its role in social life.

Appearing in Marx’s projected but never completed A Contribution to the Critique of Hegel’s Philosophy, Marx’s words on religion are of course in German. Read more »

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