Marquette University Law School Faculty Blog

Provocative essays on the future of Milwaukee in the emerging Chicago megacity lead the content of a packed and wide-ranging new edition of Marquette Lawyer, the Marquette University Law School semiannual magazine.

The megacity that stretches along Lake Michigan, from north of Milwaukee down through Chicago to northwestern Indiana, was the focus of a July 2012 conference at Marquette Law School, “Milwaukee’s Future in the Chicago Megacity.” The magazine includes two essays building on presentations at that conference: “Rivalry, Resignation, and Regionalization,” by historian John Gurda, and “Flying Too Close to the Sun?” by urban blogger and expert Aaron Renn. My own contribution is an overview of efforts to build cooperation in economic development in the tri-state region.

The magazine also presents “The Civil War, Reconstruction, and the Origins of Birthright Citizenship,” an essay by Columbia University historian Eric Foner based on his Boden Lecture at Marquette Law School last fall, and “The Accidental Crime Commission: Its Legacies and Lessons,” by Franklin E. Zimring, of the University of California, Berkeley’s law school, based on his Fall 2012 Barrock Lecture here.

Marquette Law Professor David Ray Papke gave a lecture in Uganda on the connection between the law and social power. “Exploring Socio-Legal Dominance in Context: An Approach to American Legal History,” based on his talk, is included in the new magazine.

The magazine also contains news of the Law School and of some of its students and alumni. The printed magazine is being sent to Law School students and alumni across the country and to many others. You can get a jump on reading this issue on the Law School’s website.

To read the interactive version of the magazine, click here.

To read specific articles and sections, click on any of these:

For all three pieces on the Chicago megacity, click here.

The individual pieces are available by clicking on each of these:

Emerging Megacity: Perspectives on the Future of Chicago and Milwaukee

Thinking and Acting (and Flourishing?) as a Region

Rivalry, Resignation, and Regionalization

Flying Too Close to the Sun? 

And you can click on each of these:

The Civil War, Reconstruction, and the Origins of Birthright Citizenship

The Accidental Crime Commission: Its Legacies and Lessons

Exploring Socio-Legal Dominance in Context: An Approach to American Legal History

Law School News

Remarks of Dean Joseph D. Kearney at the Investiture of Circuit Judge Lindsey Grady

From the Dean

Alumni Class Notes

Alumni Awards

A couple of years ago, I was talking with one of the boosters of the effort to brand the Milwaukee area as a global water technology hub. He told me the biggest challenge the initiative would face would be Milwaukee’s inferiority complex, or at least our unwillingness to brag about our assets.

I was reminded of that conversation recently, when the Law School collaborated with the Milwaukee Journal Sentinel on two major projects. On April 8, we hosted a conference in Eckstein Hall exploring the pros and cons of building a new downtown sports and entertainment facility. Those in attendance heard the president of the Oklahoma City Chamber of Commerce describe how his city had been dramatically transformed by a series of projects that had broad community support. Then, this past Sunday, the newspaper published the first in a four-part series examining the economic future of metropolitan Milwaukee. Called “A Time to Build,” the series was reported by Rick Romell of the Journal Sentinel, under a six-month Law School fellowship established by the Sheldon B. Lubar Fund for Public Policy Research.

As part of that current series on the metro area’s economic prospects, the newspaper created an interactive graphic that allows the reader to compare the nation’s top 50 metropolitan areas. It’s easy to use, and educational, too.

After hearing so much about the Oklahoma City success story, I thought it might be interesting to see how metro Milwaukee stacks up against Oklahoma City in several key categories. It turns out, we do pretty well. We have more college graduates, higher per capita income, and a slightly lower poverty rate. I then added the metropolitan Dallas area to the mix, given Dallas’ reputation as one of the stars of the Sunbelt. Again, the comparison was favorable. Milwaukee and Dallas had remarkably similar numbers in several key indices. The comparative data are available here. Read more »

The Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however. Read more »

There was a question mark in the title of Monday’s conference at Marquette University Law School: “A New Milwaukee Sports and Entertainment Arena? Divining the Benefits and Dividing the Costs.”

Six hours of presentations offered a lot of serious discussion, a wide range of perspectives, expert input, comparative experiences from other metropolitan areas, and insights into factors involved in the issue. You could even say there was a broad sense of agreement that it will be good for Milwaukee if the Milwaukee Bucks professional basketball team stays in the city, in that no one favored the team leaving.

But the conference didn’t – and, in reality, surely couldn’t – remove any of the formidable question marks that hang over the futures of the BMO Harris Bradley Center, the Bucks, and a possible new sports and entertainment franchise in Milwaukee. Read more »

A curious thing happened at the end Thursday’s hour-long joint appearance at Eckstein Hall of State Rep. Joe Sanfelippo, who wants to reduce the role of the Milwaukee County Board, and County Board Chairwoman Marina Dimitrijevic, who is fighting Sanfelippo’s proposals:

A lot of people stayed on to talk. Dimitrijevic talked with whoever came up to her. Sanfelippo did the same. County Executive Chris Abele, who was in the audience, had almost a dozen people gathered around him at some points. Other people lingered and mingled through much of the Appellate Courtroom.

Usually, the room clears pretty quickly at the end of events of this kind. But for some reason – an interest in talking about the issue? the availability of the main figures? the chance to catch up with people? – this was a group that didn’t seem to want to leave. There were probably almost 50 people, out of an audience of more than 200, still in the room 15 minutes after the session ended.

Maybe this was a little bit different way of demonstrating how the public policy programs that Marquette University Law School has been hosting for the last half dozen years are meeting their goals of furthering serious, informed conversation on major issues. The notion of being a crossroads for such a discussion starts with the presenters at these sessions, but it often extends to the informal conversations before a program, during breaks, or afterwards.  Read more »

Charter schools are “the strongest wave of educational reform in the United States” and they’re not going away, one of the nation’s premier charter school researchers told a conference at Marquette University Law School this week. So what can be done to make the overall results of the movement more positive?

At the conference, titled “Charter Schools: Assessing the Present, Looking to the Future,” Margaret (Macke) Raymond, director of the Center for Research in Educational Outcomes (CREDO) at Stanford University, outlined policy implications of research she has led that includes data from 30 states.

“State policy matters a lot and there are specific policy variables that will get you a fair amount,” Raymond said. For example, authorizers of charter schools need to play their role well if they are to foster high performing charter schools while keeping weak operations from ever opening or closing them down if they are getting poor results. Having multiple local authorizers of charter schools (which Milwaukee has) and having a cap on the number of charter schools (which Milwaukee and Wisconsin do not have) leads to poorer results, Raymond said.

Charter schools are publicly-funded schools that operate to a large degree in independent and self-governing ways, freed from some of the rules and constraints put on conventional public schools. A little over two decades old, the charter movement has grown rapidly, with more than two million students in such schools nationwide. In Wisconsin, there are more than 200 charter schools. Authorizers, most often public school boards but sometimes other government agencies or even private non-profits, give a charter school permission to operate and at the end of a contract period, usually five years, have the power to withdraw that permission based on performance. Read more »

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.” Read more »

“Bumper sticker” approaches are politically appealing and popular, but they aren’t the right ways to deal with complex major issues connected to drugs and the toll they take, the nation’s drug czar said Wednesday during an appearance in Eckstein Hall.

Neither calling for a war on drugs nor calling for legalization of drugs are effective paths, said, Gil Kerlikowske, whose actual title is director of the White House Office of National Drug Control Policy. Smart, well-structured approaches that combine law enforcement, treatment options, and prevention efforts create a third path that can yield good results, Kerlikowske said.

The “drug war” of the 1980s and ‘90s was “a totally inadequate answer to what is really a very complex problem,” he said. Using law enforcement alone, “we’re not capable of solving drug problems.” But using multiple approaches can show genuine and positive results.

Kerlikowske cited a nationwide decline in cocaine use – he estimated the decline at 40% — as an example of multiple factors coming together to help reduce a problem. He said the factors include reduced cocaine production in Columbia, better interdiction of drug shipments by law enforcement, and widespread recognition among potential users in the US of the dangers and risks of the drug. Read more »

Let’s assume that civil, even good natured differences of opinion are better than heated, even angry differences of opinion.

The former is what was provided by two of the key figures in the Wisconsin Legislature at an “On the Issues with Mike Gousha” event Friday in the Appellate Courtroom of Eckstein Hall. The latter was one of the things the Legislature became known for nationwide two years ago.

Assembly Speaker Robin Vos, a Republican, and Assembly Minority Leader Peter Barca, a Democrat, didn’t mask their differences on a list of major issues. But the hour-long session was a conversation, not a shouting match.

For one thing, the two actually get along reasonably well on a personal level and, once a month, they tape a similar civil dialogue for broadcast on “Wisconsin Eye,” the cable TV and online service that broadcasts legislative sessions and related programming. For another, they and others in the Legislature are intentionally trying to change the tenor of the environment within the Capitol. Read more »

There is no way the legal system – or anyone else — can undo the terrible wounds left on people who have had a loved one murdered. But can the system or those involved in different aspects of it help survivors of a murder victim go forward in leading their lives?

That was the underlying question at the remarkable and emotionally intense 2013 Restorative Justice Conference held last week at Marquette Law School’s Eckstein Hall. “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community” brought together about 200 people from Wisconsin and much of the country to examine the post-murder lives of family members.

But among the many speakers, six stood out – because, as survivors of victims, they personally had gone through the grieving and dealt with the legal system and so many other problems. Three from Texas, two from Minnesota, and one from the Milwaukee area told their searing stories in a pair of panel discussions on Friday morning, the second day of the conference. Read more »

I’m looking forward to this year’s annual Restorative Justice Conference, “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community.” The conference was inspired by a fascinating empirical study comparing the long-run experiences of family members of homicide victims in Texas, which has the death penalty, and Minnesota, which does not. Authored by Marilyn Peterson Armour and Mark S. Umbreit and forthcoming in the Marquette Law Review, the article concludes that the Minnesota family members achieved a higher level of physical, psychological, and behavioral health.

The conference kicks off with a keynote address by Armour (pictured here) at 4:30 on February 21. The following day will include several panels providing a diverse set of first-hand perspectives on the impact of homicide, capital punishment, and the criminal process on family members, lawyers, judges, and many others. Additional information about the conference is available here.

Maggy Barankitse says she has made many mistakes. “I hope they will accept me in Heaven,” she said during an “On the Issues with Mike Gousha” program at Eckstein Hall on Thursday.

“If you’re not going, the rest of us are in trouble,” responded Gousha, Marquette Law School’s distinguished fellow in law and public policy.

Gousha’s logic was simple: Who among us measures up to people such as Barankitse? Who can say we’ve done anything in the way of service to people that is even a blip compared to what she has done for tens of thousands of children in Burundi?

You can say the same when comparing our accomplishments to those of Father Richard Frechette, C.P., who launched the St. Luke Foundation that has provided day to day help and education to thousands of children in Haiti. Frechette was the guest at an “On the Issues” session Tuesday.

But who among us can’t learn from the examples of Barankitse and Frechette, who both said during their visits to the Law School that the starting points for what they have accomplished were really quite simple: seeing need, having faith, and putting their hearts and souls into doing what is good and what God wants people to do for others?

What should we learn? What can we do? That we should keep our minds and hearts open to all the people of the world, Frechette said, and do what we can to keep “the banquet of life” open to all. “When you do the right thing, the next right thing will happen,” he said. 

Barankitse and Frechette are each past winners of the Opus Prize, a $1 million award recognizing great accomplishments in faith-based social entrepreneurship. They and six other winners of the prestigious award were on the Marquette campus for Mission Week. All eight, as well as representatives of two other Opus winners, were recognized at the keynote event for the week Thursday evening at the Varsity Theatre.

Barankitse – known as Maggy to the people of Burundi – lived through horrific violence between members of Hutu and Tutsi ethnic groups that left tens of thousands of people dead in recent decades, including a slaughter in her presence of dozens, including members of her family. But, she said, she refused to be broken by what she saw; rather, she became dedicated to a positive, optimistic approach to building lives of children in her African nation, regardless of their ethnic background. Maison Shalom, the organization she founded, now provides multiple services to about 30,000 children, with the goal of rebuilding healthy families. Its work includes a hospital complex serving mothers and children.

Frechette went to Haiti in 1987 to work in an orphanage. He was motivated to take on more and more services for children as he led the rise of the St. Luke Foundation. Its operations now include schools for 8,000 younger children and 1,200 high school age children. The foundation has also launched businesses employing Haitians and helps meet food needs of many. Its programs touch the lives of an estimated 150,000 Haitians each year.

Frechette described conditions in Haiti as terrible on almost every level, and, in general, not getting better. Yet, he pursues his work with love and confidence in the potential and future of the children who are involved. “I don’t see so much the bad part of it,” he said. “I see what’s possible.” Summarizing what St. Luke does, he said, “We raise children, that’s what we do.”

Two unpretentious people who have had so much impact in places on the globe where need can seem overwhelming, impact that started with determination to do what is right and good and helpful. “You go for one thing and you end doing a lot of other things,” Frechette said.

How do we make that resonate in our own lives? What more can we do to help meet the needs of people in our midst as well as those who seem remote from us? How can we use the examples of people such as Barankitse and Frechette to inspire and guide our own paths? If one goal of Mission Week is to put such questions in front of everyone involved at Marquette, consider the two sessions at the Law School successful parts of the campus-wide whole.

Video of the conversation with Father Frechette can be viewed by clicking here. Video of the session with Maggy Barankitse can be viewed by clicking here.