Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

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Category: Congress & Congressional Power, Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch, Public, Speakers at Marquette
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Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Read more »

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Some Perspective from Five Marquette Lawyers Who Are General Counsel

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Category: Corporate Law, International Law & Diplomacy, Legal Practice, Public, Speakers at Marquette
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You are the general counsel of a large corporation. Your company is involved in negotiations to buy a competitor and there are layers upon layers of complexity and risk. Is a lawsuit against the competitor a deal-killer or no big deal? Why is a key employee of the other company about to bolt for a third company? Business for your own company has been slipping. Do you need this deal to save your company or will the deal wreck what you do have? The questions—and the pressure—build.

Ray Manista, Cari Logemann, Paul Dacier, Julie Van Straten, and Frank Steeves in Eckstein Hall’s Appellate Room

Ray Manista, Cari Logemann, Paul Dacier, Julie Van Straten, and Frank Steeves in Eckstein Hall’s Appellate Room

Paul Dacier, L’83, outlined the scenario before a capacity audience in the Appellate Courtroom of Eckstein Hall on Feb. 20, and as he did so, he asked members of the audience how they would handle each step.

As Dacier’s story comes to a head: The CEO calls you into his office. “It’s just the two of you in the room and the CEO is sweating bullets,” Dacier says. He wants to know what you as general counsel recommend.

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Archbishop Explains the Pope’s Approach to Opposing Abortion

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Milwaukee Archbishop Jerome Listecki says, “Until I die, I will be supportive of pro-life efforts.” But does he understand what Pope Francis meant when he said that the Catholic Church was obsessed with issues such as abortion?

Yes, he said, during an “On the Issues with Mike Gousha” program at Eckstein Hall on Monday. The pope, he said, was not talking about the “rightness of the issue” and the church’s opposition to abortion. He was talking about how you spread the church’s message and bring people in.

Speaking of those who are particularly intent on the church’s fighting abortion, Listecki told Gousha, Marquette Law School’s distinguished fellow in law and public policy, “These are my friends. Do they sometimes give me heartburn? Yes, they do.” The way the church’s position is articulated by some can push people away, and that was what Pope Francis meant, the archbishop said.  Read more »

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Paul Taylor: A Positive Look at Big Changes in America’s Population and Sociology

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The title of Paul Taylor’s recent book refers to “a looming generational showdown” as America changes. But Taylor, a senior fellow at the Pew Research Center in Washington, didn’t strike a particularly ominous tone as he described what lies ahead during an “On the Issues with Mike Gousha” session at Eckstein Hall on Tuesday.

There were three reasons for that. First, Taylor described himself as “a glass half-full guy,” generally inclined to be optimistic. Second, he said America has dealt successfully with many challenges in its history. And third, he said the foremost challenge – how a big surge in Social Security and Medicare benefits for retirees will be supported by the workforce of a few years from now – can be handled successfully if Congress and the president are willing to do so.

In his book, “The Next America: Boomers, Millenials and the Looming Generational Showdown,” and in his conversation in the Appellate Courtroom, Taylor gave a wide-ranging, insightful, and occasionally light-hearted tour of big changes in the demographics of America. Read more »

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Paul Ryan Speaks Well of Obama — on One Issue

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Kind words for Democratic President Barack Obama from Rep. Paul Ryan, a leading figure in the Republican Party and chair of the House Ways and Means Committee?

Yes – but on only one subject, the pursuit of trade agreements with countries in Europe and Asia. And a you might include tax reform, where there may be some room for bipartisan cooperation, Ryan said.

In an “On the Issue with Mike Gousha” session at Eckstein Hall on Monday, Ryan discussed a wide range of subjects, from his thoughts on fighting poverty to Obama’s handling of foreign policy (no kind words on that score) to Ryan’s decision not to run for president in 2016. Read more »

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Mission Week Expert Describes Progress and Problems on Global Water Issues

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Great progress has been since 1990 in making clean water available to hundreds of millions of people, but there remains great need to extend that progress to hundreds of millions more, a leading figure in such efforts said Thursday at Marquette Law School.

As part of Mission Week at Marquette University, Vanessa Tobin spoke with Mike Gousha, the Law School’s distinguished fellow in law and public policy, in an “On the Issues with Mike Gousha” program. Tobin is senior technical advisor for water supply, sanitation, and water resources for Catholic Relief Services. She worked for 24 years for UNICEF on dealing with these needs and others around the world before joining Catholic Relief Services in December, 2011.

Tobin said that for people in nations such as the United States or her native England, “we take our hygiene and sanitation for granted. . . . These are luxuries in many countries.” For about 750 million people, primarily low-income residents of  sub-Saharan Africa and parts of Asia, unpolluted water is not available and poor sanitary conditions affect the health of millions of people, particularly children five and under. Read more »

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Barrett: Streetcar Plan Is a Bet on the City’s Future

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“I’m betting on the future of this city, and I’m saying we have to invest.”

The specific investment Milwaukee Mayor Tom Barrett was speaking of during an “On the Issues with Mike Gousha” event at Eckstein Hall on Tuesday is the proposed streetcar that would serve parts of downtown Milwaukee.

Barrett has been an energetic advocate for the streetcar plan, which has become a political controversy of a major order. The proposal appears to be coming to an important point (but not a final decision), with two votes scheduled for Wednesday by the Milwaukee Common Council that would create tax incremental districts in the area to be served. The districts would go far to make financing feasible. But supporters are saying that, even if the streetcar wins, there very likely will be a second round of voting in February, as well as other possible avenues of opposition to pursue.

Barrett told a full house in the Appellate Courtroom that downtown Milwaukee has seen a boom in development and that the streetcar would help continue that. He showed photos of major business projects underway and said 800 new residential units are being readied for the market. “I want that momentum to continue,” the mayor said. Read more »

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The Wisdom of King Theodoric

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Category: Legal Education, Legal History, Legal Practice, Legal Profession, Marquette Law School, Public, Speakers at Marquette
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theodoricYesterday I was honored to speak at the mid-year graduation ceremony at Eckstein Hall.  Twenty three graduating students and hundreds of friends and family came together with Dean Kearney, faculty and administrators to celebrate the event.  What follows are my prepared remarks.

Dean, fellow faculty, invited guests, and most importantly, December graduates.  I am honored to be with you on such a momentous day.

Class of 2014, today is the day that you thought would never come.  Today is the day that you embark on your legal careers.  Even in normal times, the transition from law school to practice can be an anxiety-inducing event.  But these are not normal times.

The practice of law has been undergoing significant change in recent years.  Venerable old law firms, with names over a century old, are disappearing, through merger and bankruptcy.  It seems that lawyers are better known for their television commercials than for their legal arguments.  And the basic day to day legal work that law firms have traditionally relied upon to meet their overhead is now being outsourced offshore to cheaper lawyers in New Delhi and Manila.

I doubt that someone of my generation can even understand the challenges that you will face in your future careers, much less presume to offer you any advice on how to meet those challenges.

Let me give you some idea of how the practice of law has changed over the last quarter of a century.  When I graduated from law school in 1988, I went to work at a large law firm (at a job that I expected to have for my entire career).  I wrote briefs in longhand on yellow legal pads, and gave the sheets to a secretarial pool for typing.  And if I wanted to do any online legal research, I had to go to the firm’s sole designated Lexis terminal, which was located in the law firm library and which was hardwired via phone line straight into Lexis headquarters (because there was no such thing as the internet). Read more »

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Calls for Doing Better Set Tone for Catholic Schools Conference

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Category: Marquette Law School, Marquette Law School Poll, Milwaukee, Public, Religion & Law, Speakers at Marquette
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Perhaps Kathleen Cepelka effectively summed up a half-day conference Wednesday on the future of Catholic kindergarten through twelfth grade schools simply by describing the state of the schools in the Archdiocese of Milwaukee.

Cepelka, the superintendent of schools in the archdiocese, told the full-house audience in the Appellate Courtroom of Eckstein Hall about the strengths of schools in Milwaukee, about positive developments in enrollment, and about the many praiseworthy people and organizations involved in making the schools as good as they are.

But, she said, the quality of some of the schools isn’t what it needs to be and there are weak levels of achievement among students in some schools.  “We are not satisfied,” she said.

That mix — loyalty and pride in Catholic schools with an understanding of the pressing need to improve —  was voiced frequently during the conference, “The Future of Catholic K-12 Education: National and Milwaukee Perspectives,” sponsored by Marquette Law School and the Marquette College of Education.  Maybe “we are not satisfied” could have been the slogan for the event.   Read more »

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Marquette Law School to Host First Annual Mosaic Conference

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Category: Intellectual Property Law, Legal Scholarship, Public, Speakers at Marquette
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Canterbury-mosaicI am very excited to announce that this weekend, Marquette will host the First Annual Mosaic Conference: Diverse Voices in IP Scholarship, co-sponsored by Marquette University Law School and Institute for Intellectual Property and Social Justice, and with additional funding provided by William Welburn, Associate Provost of Diversity and Inclusion, Marquette University. The goal of this first Mosaic Conference is to bring together intellectual property scholars, policy makers, and activists of diverse and multicultural backgrounds and perspectives to explore socially progressive and non-traditional ideas in IP law, policy, and social activism. The Conference begins with a Reception and Dinner tonight and will conclude on Sunday morning.

Throughout the global community, intellectual property regimes play a critical role in human development, socio-economic empowerment, and the preservation and promotion of social justice. Many IP regimes, however, have been structured or interpreted to reflect only the interests of an entrenched status quo; socially cognizant IP theses are often ignored or rejected as tangential or antithetical to commoditization-centered theories of IP protection, often impeding broader social utility concerns including equitable access to IP protection and output and stimulating innovation. Through the First Annual Mosaic Conference, IP scholars and practitioners will come together with policy makers, social activists, and others to present ideas for progressive and activist-oriented scholarship for assessment as to social relevance, legal significance, and doctrinal integrity. Read more »

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Some Hopeful Perspective on Foreclosures and Abandoned Homes

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Category: Milwaukee, Public, Speakers at Marquette
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Foreclosures and vacant homes in some of Milwaukee’s most challenging neighborhoods – sounds like a pretty grim subject, right? But, without sugar coating the serious problems involved, an “On the Issues with Mike Gousha” program at Eckstein Hall on Monday offered optimistic and upbeat perspectives.

Two reasons were highlighted: There are programs underway in the city that are successfully taking empty homes, reviving them, and putting them in the hands of eager owners who are want to be successful, responsible owners.  And Milwaukee’s foreclose and abandoned home problems are less formidable and being managed more successfully than in some other urban centers.

Gousha spoke with Michael Gosman, assistant director of ACTS Housing; Willie Smith, director of housing for the Northwest Side Community Development Corporation; and Aaron Szopinski, housing policy director for the City of Milwaukee. ACTS and the Northwest Side organization are both non-profits involved in turning vacant homes around and putting new owners in them. Read more »

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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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