Marquette University Law School Faculty Blog

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.

“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 »

Reviewers of Steven Spielberg’s “Lincoln” have rightfully praised the film for its faithfulness to history and for the fine acting of Daniel Day Lewis, Sally Field, and Tommy Lee Jones, among others. As a “lifer” in legal academics, I was intrigued by the film’s engagement with law, lawmaking, and law-related ideology.

The most important “law” in the film is the 13th Amendment to the United States Constitution, and the film accurately suggests that the Amendment’s ratification in 1865 was more important in formally ending slavery than was the more famous Emancipation Proclamation. The latter, issued by President Lincoln in 1863, served only to free slaves in the ten Confederate states warring against the Union. Lincoln issued the Emancipation Proclamation chiefly as a war measure and hoped it would prompt slaves to take up arms against slave owners.   Read more »

When I was an undergrad in the UW Milwaukee film program my father recommended I see four movies. He hoped they would encourage me to pursue a career in law, which I was generally opposed to, not really knowing any lawyers well and aware that just about everyone hates lawyers. I think he wanted me to see that attorneys can, at times, play a role in society more useful than that of the punch line to a joke.

Similar to Hemingway’s list of books that he “would rather read again for the first time . . . than have an assured income of a million dollars a year,” these titles, for me, have served as guiding lights, models of what practicing the law can be:

1. Inherit the Wind (1960) – A Hollywood dramatization of the Scopes trial that occurred in Tennessee in 1925 over the teaching of evolution in schools, you have to stomach some quaint plot exposition to get to the engaging courtroom scenes. A favorite is the defense’s questioning of a young boy who had been exposed to the science teacher’s course. He asks the young man: “What Mr. Cares told you, did it hurt your baseball game any? Affect your pitching arm any?” This simple line of questioning goes a long way in conveying the frivolousness of the charge. The ending is satisfactorily honest, deviating from the Hollywood formula and staying true to the real case, in that the defense loses. Read more »

The other day I was walking along the Milwaukee River in Estrabrook Park amazed, as I am every year, at the colors of the leaves changing. I noticed around ten different individuals wading in the water and casting flies into the current. My mind went back to John D. Voelker, the attorney, author, Michigan Supreme Court Justice, and fly-fisherman who was as at home in the north woods and spinning a narrative as he was in a courtroom.

One of the most cited Michigan Supreme Court decisions authored by Voelker is Mitcham v. City of Detroit, 355 Mich. 182 (1959). In it the court examined a tort case by a couple who had been injured while riding in a “trackless motor coach” that stopped abruptly, hurling the wife into a metal stanchion. The legal issue turned on whether or not the plaintiff’s prima facie negligence argument was of proper form. In finding for the Mitchams, Justice Voelker, writing for the majority, took the opportunity to make some broader assessments about litigation and the aims of procedure:

“The cause of a deserving litigant is no less dead when it is slain by a procedural arrow than if there were no cause at all. . . . It is bad enough that individual litigants have thus been made unjustly to suffer, but that is not all. This has frequently been done with the helpless acquiescence if not active aid of our courts. Too often the trial of cases has become a game of legal hide-and-seek. Just as bad has been the accompanying bewilderment and cynicism of the public—including the jurors who vainly sat on the case—over the baffling mysteries and vagaries of the law. The public has sometimes been righter than it knew.” Id. at 196. Read more »

Crime often pays, and sometimes pays very well. Both the drug dealer with a pile of cash in the basement and the insider trader with a huge portfolio in an off-shore account face a common problem: How to use the cash without being targeted by law enforcement or tax collectors. The solution is “money laundering,” a banal phrase that accurately conveys how illegitimate wealth is cleaned and pressed to appear lawful – and hence useable.

On September 5, 2012 the Law School hosted a packed lecture, “Money Laundering Perfected by Art,” presented by the Hon. Fausto Martin De Sanctis, a leading federal judge from Brazil, and Karine Moreno-Taxman, an assistant United States Attorney in the Eastern District of Wisconsin. Currently a fellow at the Federal Judicial Center in Washington D.C., Judge De Sanctis has been in the forefront of Brazil’s efforts to crackdown on international and domestic money laundering. Judge De Sanctis described the myriad forms that money laundering can assume, especially through the use of museum-quality art. Paintings and sculptures, for example, leave no money trails. Art dealers jealously guard the confidentiality of their patrons, which only facilitates stealth transactions. Judge De Sanctis talked about the legal battles involving Jean Michel Basquiat’s “Hannibal” (see image), an $8 million painting smuggled from Brazil to the U.S. by persons implicated in the Banco Santos financial scandal (Brazil’s answer to Bernie Madoff). 

Attorney Moreno-Taxman, who translated for Judge De Sanctis, also talked about gaps in domestic (U.S.) and international law which make these crimes hard to detect and complicate the recovery of tainted art, like “Hannibal.” An interesting subtheme was Brazil’s efforts to implement the rule of law since 1988, when it abandoned its military dictatorship and adopted a written constitution.

The Baby Boom generation (those born between 1946 and 1964) transformed the practice of law in the United States. Through the sheer numbers alone, the legal profession was dramatically altered by the influx of members of this generation.

In 1968, the year when the first Baby Boomers enrolled in law school, total law school enrollment in ABA-accredited law schools was 62,779 students; by 1987, when the first post-Baby Boomer students entered law school, the number had increased to 123,198. In the spring of 1968, there were 14,738 law school graduates; in the spring of 1987, the number was 36,121.

The impact of the surge of Baby Boomer law students on the size of the American Bar was extraordinary. In 1970, there were approximately 250,000 lawyers in the United States; by 1990, the number had more than tripled, to over 800,000.

The way in which law was practiced also changed during the era in which members of the generation flooded into law schools.   Read more »

On June 28, actress Katie Holmes allegedly “blindsided” actor Tom Cruise, her husband of five-and-a-half years, by filing for divorce.  Cruise was filming a new movie in Iceland when Holmes filed her divorce papers in New York, where she and their daughter Suri had been living. 

What made this story even more dramatic was the incredibly calculated way in which Holmes is rumored to have plotted her departure and her filing.  Most media (gossip) reports claim that weeks (if not months) prior to June 28, Holmes set the wheels in motion, using pay-as-you-go cell phones to contact attorneys, cutting off ties with joint friends, firing staff that Cruise had hired, and renting a new apartment in New York City in her name only, allegedly telling Cruise that the new apartment had certain features that allowed for more privacy, even as she allegedly was professing her love for Cruise during phone calls with him.  (Stories can be found here, here, here, here, and here, undoubtedly among many other places.)

Why Holmes chose New York rather than California as the venue for her filing could be due to one, or both, of two possible reasons, as speculated by a number of legal sources, none of whom are connected with the Holmes-Cruise case.  First, filings in California are public, while filings in New York are sealed (and Holmes purportedly petitioned for an anonymous caption).  This would allow the couple privacy as they worked through the unraveling of their marriage. Second, it was widely speculated that custody of Holmes’ and Cruise’s daughter would be an issue.  Holmes requested sole legal custody, a move many thought occurred because Holmes (raised a Catholic) wanted to remove the influence of Scientology (Cruise’s professed religion) from Suri’s life, and a New York court is more likely than a California court to grant sole custody where parents cannot agree on child rearing issues.     

Holmes and Cruise settled their divorce in 11 days and though little has been officially released about the terms, most reports agree that Holmes with have primary custody of Suri in New York and Cruise will have liberal visitation rights.  Thereafter, Holmes and Cruise released a joint statement professing their commitment to work together as parents for their daughter’s best interests.   

So, what’s there left to talk about?

What I keep coming back to again and again was not that Holmes decided to end her marriage, but how she went about doing it.  Read more »

I just finished reading Cinderella Ate My Daughter: Dispatches from the Front Lines of the New Girlie-Girl Culture.

As clichéd as it sounds, children’s things just seem different from when I was growing up. Toys, tennis rackets, toothbrushes, everything, it seems, can be purchased in girl or boy specific colors and styles today.

The premise of the book validated my observations. Children are at the center of a huge marketing scheme aimed at getting parents to buy more. How is it done?

The author, Peggy Orenstein, explains that segmenting the children’s market causes people to think they should purchase separately at each level of a child’s development, or for each gender. The concept of “the toddler” is an example. Orenstein “assumed that phase was something experts—people with PhDs at the very least—developed after years of research into children’s behavior.”  (36)  Her assumption was wrong.

Instead, it “[t]urns out, according to Daniel Cook, a historian of childhood consumerism, it was popularized as a marketing gimmick by clothing manufacturers in the 1930s.” (36)

And, what’s more, “[i]t was only after ‘toddler’ became common shoppers’ parlance that it evolved into a broadly accepted developmental stage.” (36) 

Enter the princess market. The princess market was developed by a savvy strategist at Disney named Andy Mooney in 2000.

Read more »

The American writer Ray Bradbury, author of the science-fiction and fantasy classics Fahrenheit 451 and The Martian Chronicles, passed on Wednesday, June 6, at the age of 91.

Although some members of the American legal profession, like Chinese-immigrant lawyer Michael Yaki, have attributed their decision to become lawyers to reading Bradbury’s anti-thought control novel, Fahrenheit 451, Bradbury himself appeared to have a fairly low regard for lawyers.

There was little in Bradbury’s early life that brought him into contact with the legal profession. Born in Waukegan, Illinois, in 1920, Bradbury was the son of an itinerant telephone lineman. After graduating from high school in Los Angeles in the late 1930’s, he eschewed college (although at least in part for financial reasons). Instead, he proudly continued his own education in the public libraries of Southern California, while embarking on a career as a writer.

Bradbury later admitted that when he first entered into negotiations in the early 1940’s with a filmmaker over the rights to one of his short stories, he had never met a lawyer in his life.

Although he would use lawyers on a number of occasions to enforce his intellectual property rights, Bradbury never seemed to warm up to the legal profession. Lawyer characters appear in his stories only infrequently, and often in unflattering roles.

Read more »

If you search the phrase “Doc Watson” in the Lexis database you will find 13 reported cases in which those two words appear consecutively. However, none of the 13 has anything to do with Arthel Lane “Doc” Watson, the legendary blind guitar player and folksinger, who passed away in Winston-Salem, N.C., last week. Watson managed to avoid the intellectual property rights disputes and other legal issues that have plagued the professional lives of many performers.

Doc Watson was born in 1923 in Deep Gap, North Carolina, a small community just to the east of the town of Boone. He lost his sight at the age of one, and he picked up the nickname “Doc,” as a young performer when stage announcers had trouble pronouncing “Arthel.” (The “Doc” reference was apparently to “Doctor Watson” of Sherlock Holmes fame, although there was a baseball player named Doc Watson who pitched for the Chicago Cubs in the early 1910’s.)

Watson began playing the guitar as a child and began performing publicly as a teenager. Although a successful regional musician as early as the 1940’s, he first received widespread attention in the early 1960’s, when he was “discovered” by the world of folk music. In 1964, he began to perform regularly with his son Merle (b. 1949), a collaboration which lasted for more than two decades until it ended suddenly in 1985, when Merle was killed in a tractor accident on the family farm.

Over the course of his career, Doc, who was also recognized as an outstanding singer of old-time country music, won too many awards to enumerate here, but his honors included seven Grammy Awards over the span of four decades, along with a Grammy Lifetime Achievement Award in 2004, membership in the Bluegrass Hall of Fame, and an honorary doctorate in music from Boston’s Berklee College of Music.

I have spent much of my academic career studying the way that lawyers are depicted in popular culture, and I have also spent a great deal of time listening to the music of Doc Watson. While many of his recordings were instrumentals, he also recorded dozens of traditional story songs, and in his stage performances, he was a frequent and gifted story-teller.

However, I cannot think of a single Doc Watson recording that makes any reference to lawyers or judges. Read more »

I’d like to follow the previous posts celebrating National Poetry Month (here, here, and here) with a hastily composed bookspine poem titled “The Happy Lawyer”. I imagine that before they printed words on magnets, people would rearrange their books to write poems on the fly. Bookspine poetry is celebrated by libraries and readers alike.