Supreme Court Roundup Part One: McCutcheon v. FEC

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Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
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Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Read more »

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What Is the NBA?

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Category: Corporate Law, Public, Sports & Law
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basketballProfessor Nadelle Grossman has another forthcoming publication, “What Is the NBA?”, written for the faculty symposium issue of the Marquette Sports Law Review.  The abstract is below, and you can access the full article at SSRN:

The NBA’s organizational structure is curious.  While courts at times refer to the NBA as a joint venture and at other times as a single entity, their analyses are conducted not for state organization law purposes but to assess the NBA’s compliance with federal antitrust law.  Commentators, too, consistently address the NBA’s organizational structure only under antitrust law and not state organization law. As I argue, given the different purposes of these two legal regimes — antitrust law to protect consumers through preserving competition, and state organization law to ensure managers are faithful to the business purpose and to create a default structure among owners and managers — conclusions about the NBA’s organizational structure for purposes of compliance with antitrust law does not control the analysis of the NBA’s structure for purposes of state organization law.

To fill the gap in case law and commentary, this article analyzes the NBA’s organizational form under state organization law.  This analysis is important because the NBA’s organizational form impacts the rights and duties of the member team-owners of the NBA.  If, for example, the NBA is a joint venture partnership under state organization law — that is, an association of team owners who have come together to pursue a limited scope business for profit — then by default, its members would owe fiduciary duties to the other members and any member could seek judicial expulsion of a recalcitrant member.

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The Continuing Story of a Strongly Divided Electorate

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Category: Marquette Law School Poll, Public
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And in the end, we are at the point where we started – a state that is narrowly divided when it comes to the total number of people on each side of its politics and deeply divided when it comes to how strongly people feel about key issues.

That’s the way it was in 2011 and 2012 in the tumultuous events that led to a recall election for  governor. That’s the way it was in an analysis of voting patterns in Wisconsin, and especially in the Milwaukee area, by Craig Gilbert, the Milwaukee Journal Sentinel Washington Bureau chief, which was the cover story of the current Marquette Lawyer magazine. That’s what the Marquette Law School Poll showed at the start of 2014, as the run-up began to the election for governor, to be held on Tuesday.

And as Charles Franklin, professor of law and public policy and director of the Marquette Law School Poll, said Wednesday, that’s what the final pre-election results showed. Franklin spoke at the conclusion of the “On the Issues with Mike Gousha” session at which the last poll data prior to the Nov. 4 election was released. Read more »

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Casual Convergence in Unincorporated Entity Law

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Category: Corporate Law, Public
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offices-at-night-smProfessor Nadelle Grossman has a forthcoming book chapter entitled “Casual Convergence in Unincorporated Entity Law” in the Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman & Mark J. Loewenstein eds., Edward Elgar Publ’g forthcoming 2015).  The abstract is below. You can access Prof. Grossman’s full book chapter at SSRN.

As seemingly uniform as the surface of the sea, unincorporated entity acts in most states are drafted from one of the National Conference of Commissioners on Uniform State Law’s (NCCUSL) uniform acts.  In fact, by the end of 2013, seven states had adopted NCCUSL’s latest uniform act governing limited liability companies (LLCs), called the Revised Uniform Limited Liability Company Act, or RULLCA, and more have since followed.

Supporters of uniformity, including NCCUSL, argue that uniformity among state LLC acts generates administrative and cost savings.  Critics, on the other hand, argue that uniformity undermines state experimentation to achieve more efficient LLC laws.

However, I argue in the chapter that these debates about uniformity are misguided.  Read more »

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An Interview with Professor Linda Edwards

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Category: Legal Education, Legal Writing, Marquette Law School, Public
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faculty_lindaedwards2014-04This fall, Professor Linda Edwards joins Marquette Law School as the Robert F. Boden Visiting Professor of Law.  She is the E.L. Cord Foundation Professor of Law at UNLV.

You have written a wonderful book on the great briefs. What are some of your favorite briefs and why do you like them?

One of my favorites is the Petitioner’s brief in Miranda v. Arizona. Scholars, law teachers, and practitioners usually read judicial opinions rather than the briefs that produced those opinions. The Miranda brief is one of the few that has received attention in its own right. I took my turn to comment on it in Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev. 885 (2010). Instead of a dry parsing of the cases, the argument section tells an engrossing story of the birth of the right to counsel. It’s also a story about the kind of people we want to be. It’s well-written too. In an era when lawyers tended to write in a boring, ponderous style, the Miranda brief is engaging and easy to read. It combines strong legal analysis, great policy arguments, and a passion for justice—a great example for us all.

Another of my favorites is the primary defense brief in the set of consolidated cases that came to be known as Furman v. Georgia. The primary brief challenging the death penalty for those cases was actually filed in Aikens v. California. The thing I like most about this brief is the daring choice it makes in the fact statement. It does not try to minimize the crimes or argue that the defendant was innocent or that his hard life provided an excuse for his actions. All of those would have been losing arguments. Instead, it admits that the crimes were horrendous and that the defendant probably did them, but it uses our human reaction to those killings to argue that state-imposed killing is little better. It was a risky argument, but it was honest and much better strategy than the alternatives. I really admire the courage and skill it took to pull it off.

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You Knew Your New iPhone Was Cool, but Did You Know….?

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Category: Computer Law, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Public
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apple-logo-redApple is marketing its newest smartphone operating system, iOS 8, as a bulwark of personal privacy. Apparently, not even Apple itself can bypass a customer’s passcode and extract data from an iPhone that runs the new operating system. This means that even in response to a court order, the company will be powerless to comply.  Competitors are likely to follow suit.

This is a development with profound implications for law enforcement, which views the ability to obtain such data with a warrant as crucial in its efforts to combat crime and terrorism.  Defenders of the new technology point out that law enforcement may be able to obtain the same data in different ways; for example, if the data is stored “in the cloud” or if the password can be deduced somehow.

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SCOTUS Arguments Can Become “Must-See Television”

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CaptureThe United States Supreme Court prohibits cameras during its oral arguments, although each argument is audio-recorded. But, as Last Week Tonight host John Oliver points out, audio recording makes television coverage of those arguments “basically unwatchable” because television must present its coverage of the arguments by using artist renderings of the proceedings with audio clips.

Yet, as Oliver also points out, what happens at the United States Supreme Court is important and the public should pay attention. Oliver has a solution: the real dogs, fake paws Supreme Court. (Warning: some language is Not Safe For Work (NSFW).) Read more »

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Does the Legalization of Marijuana Violate International Law?

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Category: Constitutional Law, International Law & Diplomacy, Public
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The shift toward legalization of marijuana has gained a lot of momentum in the past few years. By a recent count, more than twenty states have enacted legislation that permits use of one form or another. Most allow only medical use, but Colorado and Washington also permit recreational consumption. For present purposes, I take no position on the policy merits of this development. I do, however, want to point out that the marijuana debate tends to overlook an important issue—namely, federal tolerance for legalization of the sort that has occurred in Colorado and Washington probably places the United States in material breach of international law.

The argument is pretty straightforward: The 1961 Single Convention on Narcotic Drugs provides that parties “shall take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of” cannabis, among other drugs. Having joined the treaty in 1967, the United States is bound to comply. But for the most part, the Obama Administration has chosen not to enforce federal drug laws against recreational consumption in Colorado and Washington, and state authorities in those jurisdictions obviously do not have state prohibitions to enforce. Thus, the United States no longer takes “administrative measures” that are necessary to limit use to medical and scientific purposes. A comparable analysis applies under the 1971 Convention on Psychotropic Substances and the 1988 Convention Against Traffic in Narcotic Drugs and Psychotropic Substances, both of which contain similar provisions and bind the United States as a party. Read more »

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Law’s Love of Adverbs

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Ah—the maligned adverb. Many writers eschew them. Stephen King, for example, seems to hate them. In his book, On Writing: A Memoir of the Craft, he writes, “I believe the road to hell is paved with adverbs[.]” He likens them to dandelions: one of them might look pretty, but they’re actually weeds that can and do take over your lawn (or, in the case of adverbs, your writing).

What is an adverb? Generally speaking, it’s a word that ends in –ly (though not always; scroll down here to see adverbs as emphasizers, amplifiers, and downtoners—all words we lawyers like to use). The purpose of an adverb is to modify verbs, adjectives or other adverbs. Getting rid of adverbs can, in fact, make our writing better because we are forced to choose stronger or more precise words. For example, I could write, Losing that case made me very angry. In that sentence, the adverb is “very” and it modifies “angry.” I wasn’t just angry, I was very angry. But wouldn’t it be more vivid, more precise, if I instead wrote, Losing that case made me livid?

That being said, there are good reasons to use adverbs, especially in legal writing of all kinds—memos, briefs, judicial opinions, statutes, rules, and regulations. Why? The law operates in the grey areas. A legal writer who is asked to give an objective opinion on whether a person might be liable for a particular claim can sometimes do no better than giving a qualified answer, like Martin is probably not liable. Other times, a legal writer will throw in adverbs to emphasize her point in a brief: Plaintiff is clearly entitled to relief. In judicial opinions, judges may want or need the wiggle room that an adverb can provide. A legal rule that comes from case law might allow certain conduct so long as it does not substantially burden certain people, for example. The question that lawyers will argue about in future cases, then, is what it means to substantially burden, and in so arguing, those lawyers will likely rely on tons of adverbs.

See here for a delightful article on why adverbs seem to be here to stay—at least for lawyers. Obviously, you’ll find it really enlightening.

 

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Justice Ginsburg on Empowering Oral Argument

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Category: Judges & Judicial Process, Legal History, Legal Practice, Public, U.S. Supreme Court
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Justice GinsburgAn interview with Justice Ginsburg appears in the October issue of Elle magazine.  In the article, Justice Ginsburg describes her first oral argument before the United States Supreme Court.  Any advocate could relate to her story:

I had, I think, 12 minutes, or something like that, of argument.  I was very nervous.  In those days, the court sat from 10 to 12, and 1 to 3.  It was an afternoon argument.  I didn’t dare eat lunch.  There were many butterflies in my stomach.  I had a very well-prepared opening sentence I had memorized.  Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience.

Justice Ginsburg argued on behalf of Sharon Frontiero in Frontiero v. Richardson.  In that case the Court held that the United States military could not differentiate on the basis of gender in how it provides benefits to service members’ families.

In the interview, Justice Ginsburg recounts that as she spoke before the Court during oral argument her confidence grew:

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.  So I relied on myself as kind of a teacher to get them to think about gender.

 

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Daubert Has “Teeth” (and a Pulse)

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Category: Legal Practice, Public, Wisconsin Law & Legal System
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The first published case on Wisconsin’s (relatively) new rule on expert opinion testimony has emerged at long last. In 2011 the legislature replaced Wisconsin’s decade’s-old approach with the federal “Daubert rule,” a rule rejected by state appellate courts on several occasions. The old rule left disagreements among experts mostly to the trier of fact, provided the witnesses had suitable specialized knowledge that could assist in fact finding. The current Daubert rule unctuously anoints trial judges as “gatekeepers” responsible for ensuring that only “reliable” expert opinions are put before juries. Many critics, me included, thought the old rule served the same purpose quite well. In State v. Giese, 2014 WI App 92, the court of appeals wisely signals that the new rule is mostly compatible with the older approach.  Read more »

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A Global Survey on the Study of International Law (Part II)

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Category: International Law & Diplomacy, Legal Education, Public
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Last month I put up the first in what I anticipate will be a series of posts on the subject of international legal education. I summarized the results of a global survey on the study of international law, reported that a majority of law students around the world must complete at least one course on the subject prior to graduation, and pointed out that the overwhelming tendency for American law schools to offer international law exclusively as an elective is fairly abnormal. In this post, I’ll explain my methodology and elaborate a bit on the data underlying my conclusions.

The methodology was pretty simple: I relied on a collection of official government documents, information available on the websites of university law faculties, and, occasionally, email correspondence with faculty members. Where this evidence established that a curriculum includes a mandatory course that on its face substantially implicates public international law, I coded the corresponding university as requiring international legal training. Inversely, I coded a university as requiring no such training where the evidence demonstrated that courses on public international law are elective or unavailable. Finally, I coded a university as “no data” if it has a law faculty but evidence of its curriculum was inaccessible within the confines of the research methods. For present purposes, the key point is that the numbers only reflect what I could find. This probably amounts to all relevant data for many states. But for others, particularly in the developing world, the data are less complete because not all universities have functioning websites and even those that have them often omit information about their curriculum. Read more »

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