Revisiting recent posts on Great Lakes law and policy

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Category: Environmental Law, Public, Water Law
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I have recently written in this space about several legal and policy matters of current importance to the Great Lakes, including the city of Waukesha, Wisconsin’s application for a diversion of Great Lakes water pursuant to the Great Lakes Compact; the potential invasion of the Great Lakes by a voracious non-native species of fish, the Asian carp; Great Lakes from spaceand President Trump’s budget proposal to completely defund the Great Lakes Restoration Initiative (GLRI), a federal program that enjoys strong bipartisan support and supports approximately $300 million in Great Lakes projects annually. There have been important developments on all three fronts over the past few weeks.

Waukesha diversion. The last remaining major barrier to Waukesha’s diversion of Great Lakes water for its public supply has fallen. Read more »




Crime and Stigma: New Research Explores the Connections

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Category: Criminal Law & Process, Public
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The colonial Americans famously had their “scarlet letter” punishments, which marked and shamed the criminal. Today, the stigma of a conviction may be less vividly displayed, but it is no less real. Two interesting new criminological articles present research on the impact of this stigma.

First, an article by Jeff Bouffard and LaQuana Askew considers potential crime-reducing benefits of stigma, specifically in relation to sex offender registration and notification (SORN) laws. Such laws, adopted across the United States in the 1990s, require certain convicted sex offenders to register their residence and other information with state authorities on an ongoing basis, sometimes for the rest of their lives. The information is then made publicly available, which can greatly magnify the duration and intensity of the stigma of the conviction.

It was thought that SORN laws might reduce sexual offending in two ways: by deterring prospective offenders from committing crimes that might land them on a registry, and by alerting potential victims to the proximity of individuals who were already registered and hence possibly dangerous. However, several studies thus far have found little or no reduction in offending in the wake of the adoption of SORN legislation.  Read more »




Department of Labor Fiduciary Rule: The Good, the Bad, and the Ugly

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Category: Business Regulation, Public
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The Department of Labor passed a new Fiduciary rule on June 9, 2017, that has shaken up the investment and retirement-advice market. The new rule holds financial advisers who provide investment advice and recommendations in retirement accounts to a fiduciary standard. This fiduciary standard, the on-going duty of care and loyalty, is higher than the previous suitability standard which only required that the investment advice or product was suitable at the time of recommendation. Therefore, when advisers are providing investment advice, they must act in the best interest of their clients in retirement accounts.

The Good: For investors, this new DOL rule should have been passed years ago because as clients, no one wants to be deceived or oversold on unnecessary products. With this new rule’s soft implementation on June 9, an investor can sue an advisor for breaching the fiduciary standard and will have a better chance of winning in court because of that contractual obligation. The obligation instilled in the DOL’s standards “are formal obligations to serve clients’ best interests, to charge only reasonable compensation and to avoid misleading statements,” according to InvestmentNews’ Fiduciary Corner blog by Blaine Akin.

The Bad: For many companies, the DOL rule comes with risks of lawsuits and legal complaints by investors who believe that they have been harmed by a financial adviser’s advice or recommendation of investment. For some companies, the DOL rule has instilled a fear of class-action lawsuits that has caused them to go as far as eliminating certain types of products that their advisers can sell to investors, thus removing the slight risk of conflict of interest which potentially reduces the amount of revenue.

The Ugly: The answer that remains unknown is whether the DOL rule is here to stay. Currently, under the Trump Administration, the DOL rule is undergoing review which could lead to repeal or modification. One argument is that the DOL rule is too complex and costly, and is dangerously close to entering the regulatory space that is traditionally governed by the Securities Exchange Commission. SEC Chair Jay Clayton submitted a six-page comment request asserting that the SEC should govern this regulatory space as provided by the Dodd-Frank financial reform law. On June 1, Clayton reached out to DOL Secretary Alexander Acosta to “engage constructively as the Commission moves forward with its examination of the standards of conduct applicable to investment advisers and broker-dealers.”

With many opinions and speculations surrounding the DOL rule, there are only three possibilities ahead: (a) nothing will be changed and the hard implementation will begin next year, (b) there will be changes made to the proposed rule, or (c) the rule will be entirely rescinded. As of now, there are signs that indicate that the final effective date of January 1, 2018, will likely be pushed back with expected changes to the rule. One of those signs is that the House Committee on Education and the Workforce approved legislation that would replace the DOL rule and the House Appropriations Committee approved a DOL spending bill that would prevent funding that enforces the fiduciary rule. Although this indicates that the House plans to kill the DOL rule, there is still no telling what the outcome will be.




Things Are Heating Up in Germany

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Category: Legal Education, Marquette Law School, Public, Uncategorized
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Approximately 60 law students pose for a group photo in front of the law school building at Justus Liebig University in Giessen, Germany.cThe 2017 Summer Session in International and Comparative Law is off to a hot start, matching the temperature in Giessen, Germany.  In this photo, you see a mix of jet-lagged law students from all over the world posing outside of the law school at Justus Liebig University (you can also see me and Professor Anuj Desai from the University of Wisconsin).  The students attended orientation this past Sunday, and then set off on a “city rally” in which small teams of students competed to locate different check-in points located throughout the city of Giessen.  It was a fun way to get introduced to their new surroundings.  Then it was back to the law school for the group photo and a Welcome Dinner.

Our 10 Marquette Law School participants have now joined their classmates (and new friends) from countries that include Brazil, Colombia, Poland, Vietnam, Egypt, and Portugal, and have completed three days of classes.  Interest and enrollment appears equally divided among our four course offerings: 1) International Economic Law and Business Transactions, 2) Comparative Constitutional Law, 3) Business Ethics and Human Rights, and 4) CyberLaw.

Following the last class on Thursday, the students will board buses for a 3 day field trip to Berlin and surrounding sights.  At this pace, the four weeks of the program will fly by.  However, I happen to know that some of the U.S. students have still found time during this first week to visit a local beer garden and participate in a karaoke night.

Our program is open to any law student in the United States attending an accredited law school.  Details on the 10th annual Summer Session, scheduled to begin July 14, 2018, will be available this fall.  Watch this space for course, faculty and tuition information.




Both Sides Now: The Interactive Constitution

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Category: Constitutional Interpretation, Constitutional Law, Federalism, First Amendment, Legal History, Public
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Constitution & GavelI recently learned about an amazing feature on the National Constitution Center website: an interactive Constitution. The site contains the entire United States Constitution and all of its amendments.

Click on any part—the Preamble, any of the seven articles, or any of the 27 amendments—and view the text of that part, along with the dates of its signing or passage and its ratification. You’ll also learn if any part of the Constitution was changed by an amendment.  Article I contains several sections that were changed by later amendments. For example, click on the highlighted text in Article I, section 3 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”) to learn that this section was changed by the 17th Amendment, which allows for the direct popular election of senators.

The most interesting part, however, is that you’ll also get views from constitutional scholars “across the legal and philosophical spectrum.” Read more »




“Diversity” in the Law: Savvy Business, Self-Motivation, or Both?

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Category: Legal Practice, Legal Profession, Public, Race & Law
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“Diversity” is a term to qualify something diverse, which the American Heritage dictionary defines as “made up of distinct characteristics, qualities, or elements.” Diversity in the work environment of law firms, agencies, in-house counsels, and non-profits usually relates to the genetic makeup of the employees’ gender, race, national origin, and sexual orientation, but for purposes of brevity and, frankly, your time, this post focuses solely on race.

In 2007, per the ABA National Lawyer Population Survey, the racial demographic of the attorney population consisted of 77.6% Caucasian/White, 3.2% African American, 3.1% Hispanic and even lower numbers for the other categories of races and ethnicities. Not surprisingly, this disparity has not made much progress in the past decade which is displayed in the 2017 percentages that show attorneys consisting of 66.8% Caucasian/White, 4.1% African American, and 3.9% Hispanic. Accordingly, these statistics create more questions than answers, such as: Why is there such a low presence of minorities in the law? Is this disparity due to a systemic problem in the American education system or attributed to employers’ implicit bias? Do schools/employers care about these statistics? If not, should they? Read more »




The Uninvited

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Category: Environmental Law, Public, Water Law
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The recent discovery of a voracious, non-native aquatic predator only nine miles from Lake Michigan is alarming but not particularly surprising, in light of the unappealing options for legal and political responses. However, when coupled with policy and budget changes implemented by the Trump administration, the new find may reignite a series of legal battles between the Midwestern states that the Seventh Circuit has dealt with twice in the past six yeAn invasive Asian carp jumps from the waterars. First, the factual background: Asian carp (shorthand for several species including grass carp, bighead carp, silver carp, and black carp) eat up to 20% of their weight per day and grow to several feet long and over one hundred pounds. Videos document their tendency to leap out of the water when startled, sometimes colliding with boaters and causing injury or damage. They have no natural predators and, by some estimates, would wreak havoc on the Great Lakes food chain and devastate the multi-billion dollar Great Lakes fishery. In 2006 the U.S. Fish and Wildlife Service estimated that “Asian carp pose the greatest immediate threat to the Great Lakes ecosystem.”

The story of the carp’s inexorable march to the doorstep of the Great Lakes is both a lesson in the law of unintended consequences and a cautionary tale of political and legal inefficacy. Beginning in the 1960s, southern fish farmers imported several species of carp to control vegetation in ponds. The carp entered the lower Mississippi River basin via accidental releases and flooding events, and have since rapidly migrated through nearly the entire basin, with their populations increasing exponentially. Even so, the carp could not have threatened the Great Lakes without the artificial connection between the Mississippi and Great Lakes basins created by the City of Chicago in the year 1900, which was originally constructed as a crude sewage treatment solution but now serves other purposes.

The Obama administration made some efforts to control the spread of the carp, and especially to keep them out of the Great Lakes. In 2010, the president convened a “carp summit” at the White House and appointed an “Asian carp czar” who led an effort to eradicate them. President Obama also proposed a $78 million plan to improve the federal response to the issue. Later, the United States Army Corps of Engineers developed a four-pronged strategy to prevent carp from becoming established in the Great Lakes, including the construction and operation of a large electric dispersal barrier between the Chicago Sanitary and Ship Canal and the entry to the Great Lakes. And the Wisconsin Department of Natural Resources recently developed a “Response Framework for Invasive Species,” which addresses invasive aquatic species without specifically mentioning the carp. None of these well-meaning efforts has successfully halted the carp’s progress.

The Trump administration has taken a different approach that may run afoul of two recent Seventh Circuit decisions and lead to additional legal maneuvering. Read more »




Going Beyond Police Patrols to Problem-Solving Policing

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Doing police patrol work is hard, but it often is pretty routine. An officer drives around, waits for calls and responds to them, deals with specific incidents, and writes reports about them. “There’s a simplicity in it,” said Michael Scott, a former police officer and police chief.

But if police work is to be done in the most effective way, it needs to go beyond that routine, Scott said. It needs to aim to deal with or at least understand problems that underlie so many instances of crime, disorder, or other trouble.

That explains why Scott has become the director of the Center for Problem-Oriented Policing, an organization which promotes exactly that problem-solving approach to police work. He is also a professor at Arizona State University’s School of Criminology and Criminal Justice. He was previously a professor at the University of Wisconsin Law School in Madison. Read more »




FCPA Enforcement in the Trump Administration: Nevertheless, It Persists

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Category: Business Regulation, Corporate Law, Public
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Whenever a new president transitions into the White House, there is almost always a level of uncertainty around how the new administration will handle certain hot button issues now in their purview. As logic dictates, we often look to the newly minted president’s campaign promises to ascertain their stance on these issues. But with the election of President Donald Trump, many of us looked to Twitter and old interviews from the then-businessman turned reality TV maven to determine what would come of a myriad of laws and loose ends. One of the laws that many speculated could come under attack is rooted in preventing corporate corruption, and geared towards the promotion of respectable business practices, both domestically and internationally – the Foreign Corrupt Practices Act of 1977 [“FCPA”].

What is the FCPA?

The FCPA ascended from a cauldron of toil and trouble – or more aptly stated, came into existence as a result of corruption, scandal, and an unveiling of the pervasive bribery of foreign officials perpetuated by U.S. companies. The botched break in of the Democratic National Committee (DNC) Shaking hands with hidden moneyHeadquarters at the Watergate office complex ultimately led to the discovery of slush funds used to bribe domestic political parties and certain foreign government officials. In order to conceal these payments, companies misrepresented their corporate financial statements, allowing the cycle of corruption to continue domestically and internationally. These findings not only tainted the view of U.S. businesses, but revealed just how awful corruption is for business. Recognizing the need to restore confidence in U.S. businesses and mitigate future corruption, Congress enacted the FCPA.

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Cosplay Wars: The Legal Implications of Fan Costume Competitions

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Category: Intellectual Property Law, Popular Culture & Law, Public
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This past weekend, I attended the annual Milwaukee Mighty Con, a local comic convention.  While there, I watched one of the cosplay competitions where competitors dressed in fantastical recreations of iconic characters such as Star Wars’ Kylo Ren.  Yet while observing the competition and enjoying the efforts of the competitors, I pondered the legal implications of these derivative works.

But first, a little backTwo people dressed in costumesground information is in order.  The term “cosplay” was created by Takahashi Nobuyuki in 1984. Nobuyuki attended a science fiction convention in Los Angeles, and he was so impressed with the fans’ costume competition that he wrote about his experiences upon returning to Japan. Yet, no word in the Japanese language accurately represented the costume competition Nobuyuki saw. To remedy this predicament, Nobuyuki combined the Japanese equivalents of “costume” and “play” to describe what he saw.  This created the word “kosupure,” which in English roughly translates into cosplay. Today, this term universally refers to a fan’s wearing of costumes, props, and accessories to represent a character often originating from video games, comics, movies, and TV shows.  By extension, the individual who imitates the character is known as a cosplayer. Now, some cosplayers, like the competitors at Milwaukee Mighty Con, can have a monetary benefit from winning cosplay competitions.  Such monetary gains naturally bring up concerns regarding the copyrights and trademarks on the imitated characters.

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New Poll Gives Vivid Look into Polarized Political Perceptions

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Category: Marquette Law School Poll, Political Processes & Rhetoric, Public
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Once again, a lesson in the two worlds of Wisconsin. That’s one way to describe the new round of results from the Marquette Law School Poll released on Wednesday (June 28, 2017).

In one world, Donald Trump is doing well as president. In another, he is not. In one, he is keeping his promises. In another he is not. Opinions on Governor Scott Walker or Senators Ron Johnson and Tammy Baldwin or House Speaker Paul Ryan? Split evenly. In all of these instances, Republicans are firmly on one side, Democrats firmly on the other. And the divisions  generally show little change since March, the time of the most recent prior Law School Poll.

How sharp is the divide? A few results:

Overall, 41 percent of the 800 Wisconsin registered voters who were interviewed approved of the way Trump is doing his job, while 51 percent disapproved. But among those identifying themselves as Republican or leaning Republican, Trump’s work was approved by 85 percent, with 8 percent disapproving. Among Democrats, 3 percent approved of how Trump was doing as president while 95 percent disapproved. Read more »




Right to Counsel: One Step Forward, Two Steps Back

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Category: Constitutional Law, Criminal Law & Process, Federalism, Public, U.S. Supreme Court
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A photo of the Supreme CourtAs part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial. 

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