Marquette University Law School Faculty Blog

I was having lunch the other day with someone who works in city government, and we were talking about the serious foreclosure problem in Milwaukee. He was lamenting the fact that in some of the poorest sections of the city, the housing market is fundamentally broken. Homes, now owned by the city, can be purchased for as little as $5,000 and yet they still aren’t selling. If you want some sobering evidence of the magnitude of the nation’s housing market collapse and the impact of the Great Recession, check out the listings. They’re stunning, really.

Mayor Tom Barrett estimates the foreclosure crisis has cost Milwaukee $5 billion dollars in assessed value. The city has tried to get a handle on the problem, but it persists, eating away at once-stable neighborhoods. In 2008, the mayor launched the Milwaukee Foreclosure Partnership Initiative, which tries to prevent foreclosures and stabilize neighborhoods.  There’s a branch of city government that directly addresses housing issues. And last week, the mayor announced he would be committing another $2.3 million to address the foreclosure problem. As part of that initiative, scores of empty homes will be torn down because they’re a blight on city neighborhoods. As a longtime Milwaukee resident, I’d be less than honest if I didn’t say the specter of Detroit came to mind when I heard the news.

But the next Detroit is hardly the image thousands of newcomers have of my hometown. After losing 20 per cent of its population from 1960-2000, Milwaukee is growing again. It’s not a population explosion, but it’s growth. Recent census numbers show that from 2010 to 2012, the city added 4,000 residents. What’s most interesting is who’s choosing to live in Milwaukee. Reporting by the Milwaukee Journal Sentinel (part of a collaboration with Marquette Law School) found that in the last decade, there has been a migration of young people to the city. Many are college graduates. They live downtown, on the city’s east side, and in “hot” neighborhoods like the Third Ward, Walker’s Point, Bay View, Brewers’ Hill and Washington Heights. Their presence has brought a new energy and economic vitality to parts of Milwaukee, with restaurants and shops racing to meet the demands of younger consumers. These newcomers are helping fuel a change in Milwaukee’s risk-averse entrepreneurial culture, and have created a dynamic arts and entertainment scene. Their arrival is also welcome news to established Fortune 500 companies like Northwestern Mutual, which is planning a new skyscraper for its downtown campus, along with hundreds of news jobs. Read more »

As a new lawyer, I struggled to come up with blog topics. Being only two years out of law school, I don’t pretend to have near the amount of knowledge or experience as the frequent contributors and readers of this blog. I contemplated a post about the recent United States Supreme Court decision in Missouri v. McNeely, but Dean O’Hear would cover that topic in a much more eloquent and researched fashion. I then contemplated a post about the privacy implications regarding the recent news on the NSA collecting phone records (or even more recently—the criminal defendants demanding the records as exculpatory evidence). However, as a past student of Professor Boyden’s Law of Privacy class, I’m inclined to believe his post on that issue would make a much more interesting read. I finally decided on a topic that has monopolized my attention this Spring and Summer: jury trials. While a post on jury trials authored by Professor Blinka would likely be deemed so sage as to be cited by the Wisconsin Supreme Court, I’ll tackle the area from what I’ve learned as a new lawyer. Read more »

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come.  Read more »

According to recent news reports, a growing group of Chinese officials and scholars has commenced a semiofficial campaign to challenge Japanese sovereignty over Okinawa. This is of course in addition to the widely publicized Chinese efforts to challenge Japanese control over the Senkaku / Diaoyu Islands. The basis for the claim to Okinawa appears to be a combination of early history and the Cairo Declaration, which the United States, China, and the United Kingdom issued in 1943 to help prepare the post-war order in East Asia. The argument goes like this: Okinawa and the other Ryukyu Islands were originally Chinese territory because the Ryukyu Kingdom was a tributary state of the Ming and Qing Dynasties; Japan stole the Ryukyus by invading them in 1609 and formally annexing them in the late 1870s; the Allies demanded the reversion of sovereignty over Okinawa to China in 1943 by stating in the Cairo Declaration that “all the territories Japan has stolen from the Chinese . . . shall be restored to the Republic of China”; and Japan agreed to the reversion of sovereignty by accepting the 1945 Instrument of Surrender, which provided for the enforcement of the Cairo Declaration. In this post, I’d like to identify a few reasons why this argument is unpersuasive. Read more »

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Cross posted at Life Sentences.

Even with a seemingly endless stream of stories in the lawyer press about lay-offs at large corporate firms, the largest law firms in the United States continue to grow larger and larger.

In the National Law Journal’s recently released list of the 350 largest law firms in the United States, two Chicago-based law firms have broken through the 4000 lawyer barrier. DLA Piper leads the list with 4036 lawyers while Baker and McKenzie is close behind at 4004.

There is a considerable gap between these two firms and the next largest firm, although three law firms–Jones Day (New York), Hogan Lovells (Washington, D.C.), and Latham & Watkins–each have more than 2000 attorneys. An additional 17 firms had more than 1000. Read more »

I have two friends (and fellow classmates) who love to flood my email inbox and Facebook account with pictures of Lindsay Lohan. I think they love it more than summer break. Admittedly, I had this coming. These friends showed me a particularly startling picture of Ms. Lohan during a study break 1L year, and I let out a sort of shriek that I’m not proud of. I understand that actions have consequences. The pictures began rolling in during fall of 2011 and haven’t stopped since.

Feelings of disregard pervaded those first few months. But as the seasons changed, so did I. Most pictures came with headlines, and the more I read, the more I wondered how someone can so frequently break laws, violate probation, and skip out on court dates, and yet avoid any meaningful jail time. Then again, it’s not necessarily her fault that she’s been able to avoid consequences better than I have. The question, for me at least, is whether the justice system has treated her differently than it would you or I. And if so, why? Read more »

According to new statistics posted on the American Bar Association website, the number of lawyers in Wisconsin grew from 13,813 in 2003 to 15,538 in 2013, an increase of 12%. For the country as a whole, the number of lawyers increased from 1.06 million in 2003 to 1.27 million a decade later, an increase of 20%.

The only year in which the number of lawyers in Wisconsin actually decreased was from 2007 to 2008, when the total fell by 113 lawyers, from 14,561 to 14,448.

Read more »

So just how advisory are the “advisory” federal sentencing guidelines? That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.

The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.” Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts. Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences. Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.

The new system also raised Ex Post Facto Clause issues, which divided the lower courts. Peugh nicely illustrates the problem.  Read more »

When I was studying journalism at UW-Madison, we would sometimes end our day at Vilas Hall by grabbing a cold one at a nearby tavern on University Avenue. Bob and Gene’s is no longer there, but a particular memory remains. One of the television sets at the bar was tuned each night to the CBS Evening News, and when anchorman Walter Cronkite came on the air, the place got quiet and remained that way until Cronkite’s signature standoff: “and that’s the way it is.” On the heels of Watergate and a long war that threatened to tear the nation apart, there was a sense that we had witnessed history.

We witnessed history again in Wisconsin last year, and this time it threatened to tear the state apart. One year ago—June 5—Wisconsin went to the polls in the recall election for Governor. The protests of 2011 had been replaced by a political movement aimed at ousting Governor Scott Walker from office. It was an election that divided not just Republicans and Democrats, but friends and families, some of whom simply stopped talking about politics rather than run the risk of a nasty argument. Bitter and contentious, there was little middle ground. In the waning days of the race between Governor Scott Walker and Milwaukee Mayor Tom Barrett (a rematch of 2010), the Law School found itself in the middle of the fray. We released our final Marquette Law School Poll of the election cycle, showing Governor Walker leading by seven points (ultimately, his margin of victory). The Law School also played host to the final debate of the campaign. As I moderated the event, I was struck not only by the sharpness of the exchanges between Barrett and Walker, but how the evening had a certain rhythm to it, each candidate giving as good as he got. The two men knew each other well. They had done this several times before, and their familiarity along with their fundamentally different visions for the state produced an hour of compelling conversation. But I also remember the overwhelming silence in a packed Eckstein Hall when both Barrett and Walker would briefly pause to collect their thoughts. Intense doesn’t begin to describe it.

When Election Day was over, Scott Walker had won. Again. And life went on in Wisconsin. So what has happened in the year since the historic recall? In some ways, the debate seems remarkably familiar. We’re still arguing over jobs numbers and the performance of the state’s economy. According to our latest Law School poll, the Governor’s job approval rating remains about the same, slightly more positive than negative. But one fact is beyond dispute: Wisconsin continues to undergo a rapid and fundamental transformation, one that could change its future course for not only years, but decades. With Republicans in control in Madison, the state is quickly moving away from its progressive past, plotting a future built on a philosophy of lower taxes, less government assistance, fewer regulations, and more school choice. Election laws are also likely to change in ways that could benefit Republican candidates. For now, Democrats can do little but watch and wait for 2014, the next major election cycle. And yet, in many respects, Wisconsin is still a purple state, neither red nor blue, as evidenced by the victories of Democrats Barack Obama and Tammy Baldwin in November.

About 18 months ago, Businessweek referred to us as the “republic of political unhappiness.” We may not be in the primal scream stage anymore. But our deep divisions remain, and it’s still probably not a good idea to talk politics at a family picnic. That’s the way it is in Wisconsin, one year after the recall.

In a recent post, Professor Lisa Mazzie offered her observations on the 1949 film classic, Adam’s Rib, which stars Katharine Hepburn and Spencer Tracy as husband-and-wife attorneys who end up on opposite sides of the same murder case. Like Professor Mazzie, I have long been fascinated with the movie, especially as an historical document.

Trying to figure out what it is that Adam’s Rib has to say about women and the legal profession in the 1940’s turns out to be a bit perplexing. Does it endorse the idea that women make just as good attorneys as men, or is it merely just a celebration of the uniqueness of Hepburn’s character?

Although you would not necessarily discern this from the movie itself, Adam’s Rib was filmed at a time in which the role of women in the legal profession was apparently changing in significant ways.

In an era when very few women went to law school and even fewer practiced law, the 1940’s were, thanks to World War II, a decade of expanded opportunities for women in the legal profession. Unfortunately, this expansion turned out to be quite temporary. Read more »

This month (June 2013) marks the 75th anniversary of the first appearance of Superman in Action Comics #1.  Although he has been imitated many times, Superman, a/k/a Clark Kent, the surviving son of the exploded planet Krypton, remains the archetype of the comic book superhero.  Literary critics and cultural theorists as noted as Umberto Eco and Scott Bukatman have long ruminated on his significance. (If you doubt this, see Eco, “The Myth of Superman,” Diacritics, Spring 1972; Scott Bukatman, Matters of Gravity (2004).)

For most of the past 75 years, Superman has been held up as a symbol of the fairness of the American system.  After all, at least since the debut of the Adventures of Superman television show in 1951, he has been committed to fighting for “truth, justice, and the American Way.”  However, upon closer analysis, the relationship between Superman, justice, and law has never as straightforward as it appeared in the middle of the twentieth century.

Read more »