Two Views, One Conversation: Light Shed on School Vouchers at Law School Program

Posted by:
Category: Education & Law, Milwaukee Public Schools, Public, Speakers at Marquette
1 Comment »

Even in a social media world, I’m still a big backer of the notion that serious, informative, in-person dialogue about major public issues is a good thing. The more contentious and important the subject and the more level-headed the discussion, the better. When it comes to contentiousness and importance, almost nothing in the realm of education policy rivals the subject of private school vouchers for kindergartner through twelfth grade students. Milwaukee was the place where vouchers for low-income, urban students were launched in1990. And, with the election of Donald Trump as president and Trump’s selection of voucher-advocate Betsy DeVos to be secretary of education, vouchers are a hot subject.

All of this is to say that I thought the hour-long session at Marquette Law School on Wednesday was worth listening to, and the opportunity to do that remains, as you can find at the end of this blog item. In a program titled Lessons from a Quarter Century of School Vouchers: One Conversation, Two Points of View, we brought together Scott Jensen, a key figure in the voucher movement in Wisconsin and now an adviser to the American Federation for Children, a school-choice advocacy group headed by DeVos, and Julie Underwood, a professor in the education and law schools at the University of Wisconsin-Madison and a long-time advocate for public schools. Read more »

Print Friendly



Court Wrestles With Vagueness and Retroactivity in Sentencing Context

Posted by:
Category: Constitutional Interpretation, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
Leave a Comment »

honore%20daumier%20-%20le%20proveYesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.

With her opening question, Justice Ruth Bader Ginsburg forced Janice Bergmann, representing Beckles, to focus on the third issue in the case: the relationship between the guidelines’ residual clause and the commentary, which specifically listed Beckles’ offense of conviction as a crime of violence. A number of justices took issue with Bergmann’s assertion that the commentary cannot define “shapeless” language, a term taken from Johnson. After all, they noted, the guideline commentary, at least in part, interpreted the residual clause, presumably providing meaning in that manner. They also questioned whether the commission was not in the best position to clarify its own language. Bergmann responded that the guideline language was not the commission’s, but rather was drawn from the ACCA residual clause. Any interpretation and examples offered by the commission, she argued, would therefore be arbitrary.

Justice Samuel Alito was the first to direct the argument to the question of what vagueness would mean in a guideline-free world. Along with Justice Stephen Breyer, Alito reminded Bergmann that pre-guideline sentencing appears substantially more vague and arbitrary than the residual clause, as do many of the current guideline provisions. In response, Bergmann asserted that the guideline residual clause is unique among those provisions because of its identity with the ACCA residual clause, and that it shares the same characteristics embodied in the categorical approach that ultimately caused the court to declare the ACCA provision void for vagueness.

Chief Justice John Roberts and Justice Anthony Kennedy continued along similar lines by pointing to the decrease in vagueness any guideline, even a vague one, would provide as compared to the previous system of discretionary sentencing. Why, they asked, should greater precision lead to greater vagueness? Read more »

Print Friendly



Marquette Teams Win Best Petitioner Brief and Best Respondent Brief at NMCC Regionals

Posted by:
Category: Legal Education, Legal Practice, Legal Writing, Marquette Law School, Public
Leave a Comment »

I had the privilege of working with two outstanding National Moot Court Competition (NMCC) teams again this year. The Region VIII round of the NMCC was hosted by Marquette November 19-20, 2016.

Please congratulate team members Kayla McCann, Emily Tercilla, and Samuel (Micah) Woo, who received the highest brief score in the competition and award for best Petitioner’s brief. Attorneys Jason Luczak and Max Stephenson coached the team.

Please also congratulate team members David Conley, Andrew Mong, and Kiel Killmer for their performance at the competition. The team had the top placing Respondent’s brief and advanced to the quarterfinals (top eight teams). Attorneys Jeremy Klang, Jesse Blocher, and Michael Cerjak coached the team.

Read more »

Print Friendly



Study Abroad in Germany This Summer

Posted by:
Category: International Law & Diplomacy, Legal Education, Marquette Law School, Public
Leave a Comment »

overview_2016-participantsThe campus of the Justus Liebig University in Giessen, Germany will be the location of the Ninth Annual Summer Session in International and Comparative Law offered jointly by Marquette University, the University of Wisconsin, and the Justus Liebig University- Giessen.  This program brings together up to sixty students from law schools all over the world to take classes in comparative and international law over a four week session lasting from July 15 through August 12. In addition to students from the United States and Germany, over the years the program has attracted students from Russia, India, Columbia, Brazil, South Africa, Ethiopia, Spain, Vietnam, Italy, the United Kingdom, the Dominican Republic, Korea, Australia, Indonesia and Kazakhstan, among other countries.  Class instruction is in English, and the international student body provides for a unique learning experience.

Faculty will be drawn from the U.S. and Europe.  Each student will select two courses (each course worth 2.0 law school credit hours) out of a total of four courses in the curriculum.  In addition to coursework, the curriculum includes two overnight field trips to Berlin and Hamburg to visit courts, other governmental institutions, and historical sites.  In addition, the program includes speakers on a variety of topics including a panel discussion on differences and similarities in legal education and practice around the world and a discussion of opportunities for further legal study and internships in Europe.

Classes will be held Monday through Thursday, during the day, over the four weeks of the program.  This schedule leaves students with time to explore the cities, villages and countryside around Giessen and nearby Frankfurt, and the opportunity to travel throughout Europe.  Paris to the west and Berlin to the east are a mere 300 miles from Giessen.

Past participants in the program have given high marks to both the substantive learning experience and the opportunity to form international friendships.  Enrollment is open to students who have completed one year of instruction in any U.S. law school.  Students enrolled in law schools outside of the United States should apply through the Justus Liebig University.

A general program overviewtravel and tuition details, course descriptions and faculty biographies can be viewed online.  An application form can be downloaded here.  Apply now and I will see you in Germany this summer!

Print Friendly



Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

Posted by:
Category: Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public
Leave a Comment »

galler_hornsgatan_2012aMy recent article, “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” examines judicial decisions that reflect an increasing dissatisfaction with harsh criminal penalties and severe collateral consequences for nonviolent offenders.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

A full copy of the article can be downloaded at the New York University Law Review Online.

Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School.

Print Friendly



Electoral College – Keep or Toss?

Posted by:
Category: Constitutional Law, Election Law, Political Processes & Rhetoric, President & Executive Branch, Public
2 Comments »

electoral-college-2016By Mathew O’Neill

During the Twilight craze, the country was split between Team Edward and Team Jacob.  The battle was over Bella Swan’s heart.  Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.  Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.  Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.  I was decidedly Team Jacob.

After the 2016 election, the country is split about the Electoral College.  There are again two camps: Team Keep and Team Toss.  Before going into the merits of each, some brief background.

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.  So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.  What gives?  I thought this was a democracy.

This anomaly is the work of the venerated Electoral College.  The College was created in Article II, Section 1 of the Constitution, which states in part:

The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and representative to which the State may be entitled in Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.

The Constitution does not direct how the states must “chuse” their Electors.  In colonial times, most states did not call for a popular election to select their Electors.  Instead, party bosses made those decisions.  Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state’s popular votes.  Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.

Which raises the question: is this acceptable? Read more »

Print Friendly



Supreme Court to Tackle Constitutionality of Residual Clause in Sentencing Guidelines

Posted by:
Category: Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
Leave a Comment »

hardy_they_shall_show_you_the_sentence_of_judgmentIn 2015, in Johnson v. United States, the Supreme Court struck down the “residual clause” of the Armed Career Criminals Act (ACCA) as unconstitutionally vague, ruling that the provision did not give ordinary people adequate notice of what conduct was prohibited by the statute. The residual clause had included among the category of “violent felonies” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Next week, in Beckles v. United States, the court will confront the constitutionality of the sentencing guidelines’ version of the residual clause. This is one of two cases this term that address the effect of Johnson on the vagueness doctrine. (The other case, Lynch v. Dimaya, arises in a statutory context.) Two of the nine justices who joined in the six-justice majority opinion in Johnson, including its author – the late Justice Antonin Scalia – will not participate in this case. Because Justice Elena Kagan is recused, a seven-member court will render a decision.

The U.S. Sentencing Commission, which is responsible for drafting and amending the sentencing guidelines, removed the guideline residual clause earlier this year and supplanted it in part by commentary, which is also at issue here. It did not, however, make the change retroactive. This case brings the question of retroactivity squarely in front of the court, continuing the interplay between the commission and the court. The ostensible issues of vagueness and retroactivity, however, camouflage a broader question about the meaning and function of advisory guidelines.

Notably, the government has changed its position on both retroactivity and vagueness. Although it supported the defendant’s claims in the U.S. Court of Appeals for the 11th Circuit – and those of similarly situated defendants in other circuits – it opposes them now. Adding another dimension to the controversy, the court appointed an amicus, or “friend of the court,” to defend the 11th Circuit’s holding that the vagueness doctrine does not apply to the sentencing guidelines. The decision in this case, therefore, will have broad ramifications for vagueness jurisprudence, the meaning of advisory guidelines, and the respective roles of the commission and the court. Read more »

Print Friendly



Microsoft President Calls for Protecting Privacy as the Cloud Reshapes Lives

Posted by:
Category: Computer Law, Intellectual Property Law, Public, Speakers at Marquette
Leave a Comment »

You only needed to read the title of the 2016 Nies Lecture in Intellectual Property presented Tuesday at Marquette Law School to know that Brad Smith was offering a generally positive view of the future of technological innovation. “A Cloud for Global Good: The Future of Technology—Issues for Wisconsin and the World” was the title.

Indeed, Smith spoke to the potential for what he called the fourth industrial revolution to improve lives across the world. But he also voiced concerns about the future of privacy and security for personal information in a rapidly changing world, and he called for updating of both American laws and international agreements related to technology to respond to the big changes.

All of this came from a standpoint of unquestionable knowledge of the subject matter. Smith is the president and chief legal officer of Microsoft. The Appleton native has been with the company since 1993 and his duties include overseeing corporate, external, and legal affairs for the global technology giant. Read more »

Print Friendly



There Is Real Election Fraud (Just Not What You Think)

Posted by:
Category: Civil Rights, Election Law, Political Processes & Rhetoric, Public
1 Comment »

stamp_us_1977_3c_americanaI have been working on elections since 2000, when I helped organize a team to defend a potential recount of Wisconsin’s narrow victory for Al Gore (never happened; see Bush v. Gore).  Since 2004, I have trained thousands of attorneys to observe at polling places to ensure every eligible voter is allowed to cast a regular ballot.  That is, and should be, the only goal of our election laws: enfranchisement!

In 2005 I testified before Congress about Wisconsin’s voting laws, the lack of any actual voter fraud, and the many real administrative problems caused by running a national election in one day.  In subsequent years, I helped compile reports of Election Day issues, defended individuals accused of voting irregularities, and was part of the GAB committee to create formal rules for observers.

So, I have some background in election law.

To put it mildly, I was surprised to hear a candidate for President state: “Voter fraud is very, very common.”  Not just common, but VERY, VERY common.

The statement, if meant to suggest rampant fraudulent voting, is categorically false.  Fraudulent conduct by voters is exceedingly rare.  A comprehensive study published in 2014 confirmed 31 cases of in-person voter fraud from 2000 to 2014, out of more than a billion votes.  In stark numerical terms, that is one act of fraud for every 32 million votes.  When defending Wisconsin’s harsh Voter ID law, the State “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”  Frank v. Walker.  In other words, voter fraud is very, very, very uncommon.

There is, however, an election fraud that has become common in the past decade: the suggestion that voting laws need to be tightened to combat voter fraud.  This is the BIG LIE. It has been used across the country to justify a stunning array of laws designed to make it harder to vote. Read more »

Print Friendly



Welcome November Blogger

Posted by:
Category: Public
Leave a Comment »

Our Alumni Blogger for the month of November is Mathew O’Neill.  Matt is a shareholder at Fox, O’Neill & Shannon, S.C. His practice focuses on commercial litigation, appeals, arbitration, shareholder disputes, and election and campaign finance law. Matt graduated from Marquette Law School in 1991, in the old building. Since 2004, Matt has trained lawyers to observe at the polls on behalf of the Democratic Party, vigorously trying to ensure that every eligible voter gets to cast a vote that is counted. In 2005 Matt testified before Congress about voting rights issues, including voter suppression efforts, the real problems with heavy turnout elections, and the absence of voter fraud. He has litigated numerous election issues in the past, including HAVA cross-check challenges, attempted City of Milwaukee registration roll purges, and ballot access cases.  Welcome aboard, Matt!

Print Friendly



An Election Day Primer for Wisconsin Voters*

Posted by:
Category: Civil Rights, Election Law, Milwaukee, Public
1 Comment »

Voting_United_StatesTomorrow is Election Day. It’s important to vote, so make sure you know where and when you can cast your ballot. New for Wisconsin voters this year is a photo identification requirement. I break down the voting process below to demystify and clarify it.

The main thing, though, is to vote. Even if you don’t like your choices for president, there are down-ballot races, including a state-wide U.S. Senate race between Russ Feingold and Ron Johnson and any number of races for federal or state representatives and other local officials, for which your vote matters. Read more »

Print Friendly



Remember Us?

Posted by:
Category: Marquette Law School Poll, Political Processes & Rhetoric, Public
Leave a Comment »

It was a long time coming, but Wisconsin seems to have finally regained its “key battleground state” status in this year’s presidential election. At least for the moment, anyway.  For much of this election cycle, we’ve been missing out on the action, a second tier state that Democrats believed would be theirs on Election Day, never seriously in jeopardy.

If it takes two to tango, Wisconsin has been missing a dance partner.  While Republican nominee Donald Trump has been to Wisconsin five times, Democratic nominee Hillary Clinton hasn’t been here once. It might be argued that given Clinton’s struggles in Wisconsin—a crushing primary loss in 2008 to then-Sen. Barack Obama and a 2016 April primary defeat which saw her lose 71 of 72 counties to Sen. Bernie Sanders—surrogates like Sanders and Chelsea Clinton might be more effective campaigners than the nominee herself. Whatever the reason, Clinton has focused her personal attention on other states. Her campaign only recently began running ads in Wisconsin, a true indicator of a state’s relative importance in the election.

But if you believe recent public opinion surveys in the first tier battleground states of North Carolina, Florida, and Ohio, the race has tightened considerably.  Wednesday, Real Clear Politics released its latest Electoral College “No Toss Ups” Map. Using the latest state-by-state polling, Clinton would squeeze out the narrowest of victories in the Electoral College, 273 votes for her, 265 for Trump.  Read more »

Print Friendly