“That’s the way to go,” said Feingold, who has been highly critical of the long confinement, without trial, of the suspects at the military prison in Guantanamo Bay, Cuba.

At the same time, US Attorney General Eric Holder Jr. announced that several other suspected terrorists will be tried in military courts. That group includes Ad Al-Rahim al-Nashiri, who allegedly planned another major attack, the bombing of the Navy destroyer Cole in 2000 in Yemen.

The decisions to go the two different routes in the cases will provide an interesting opportunity to compare civil and military handling of cases of this kind, Feingold told Mike Gousha, who moderated the session and who is a distinguished fellow in law and public policy at the Law School.

Feingold said bringing the Sept. 11 suspects, including Khalid Shaikh Muhammed, who has claimed he masterminded the attacks, into civil courts and allowing the justice system to proceed to a verdict on their cases is the appropriate course, said Feingold, a member of the Senate’s Judiciary Committee. “This advances not only our legal system, but our credibility in the world,” he said.

Feingold said that he is an opponent of the death penalty, but, “If there is a place where the death penalty should be administered, it is probably this case.” The bombings of the World Trade Center and the Pentagon and lethal crash of a commercial flight in Pennsylvania killed almost 3,000 people.

Feingold praised President Barack Obama for the way he is handling decisions about the future of military involvement in Afghanistan. Feingold said Obama was right to take his time and to consider all options, including a plan for phased withdrawal that Feingold has advocated. Several months ago, Feingold became the first senator to back such a plan. But he said Obama appears to be taking the possibility seriously.

“Why is it we are continuing this huge land war in Afghanistan?” he asked. “It doesn’t add up.” He said al-Qaeda has moved its bases out of Afghanistan and he does not think an end to American military involvement would mean a return of al-Qaeda power in the country.

Addressing other subjects, Feingold said:

• He hopes a health care plan can be passed by Congress by the end of January, but it is “impossible” that action will be completed this year. He emphasized his support for a “public option” in a health care plan, a system in which a government-run plan would provide insurance to some people. He said, “It would be very hard for me” to support a bill that did not include such an option.
• If Chief Justice John Roberts comes down strongly in favor of overturning a 1990 decision (Austin v. Michigan Chamber of Commerce), “it will be one of the greatest lawless acts by a chief justice in the past 100 years.” A decision is expected soon in a case (Citizens United v. Federal Election Commission) that has become a broad review by the court of federal election laws, including the Austin decision, in which the court ruled 6-3 that it was constitutional to prevent corporations from spending their own money on political campaigns. Feingold said that during confirmation hearings in 2005, Roberts said he would be an umpire calling balls and strikes and would not make law himself. Feingold voted to confirm Roberts, drawing the ire of many liberals. Asked after his talk whether he would regret supporting Roberts if Roberts votes to overturn Austin, Feingold said such a step might give him “a moment of significant regret.” But he said that would depend not only how Roberts votes, but what he writes in support of his vote.
• A two-year program of tax credits to companies who create jobs or increase employees’ hours could create several million jobs and help the economy nationwide. Feingold said he saw a major part of his role in dealing with economic issues as advocating for such a plan.
• Immigration reform is an urgent issue, but he does not see federal action coming until “maybe late next year.”
• Development of a five- to seven-year plan to bring down the federal deficit is both responsible and necessary for economic recovery. Feingold said the deficit “is almost an obsession of mine in the Senate,” and he sometimes finds himself voting with the most conservative Republicans because of the need to exercise more restraint on federal spending.

Feingold ducked commenting on one major Wisconsin issue. Asked whether he had a position on a proposed transfer of power over Milwaukee Public Schools to Milwaukee’s mayor, he said that it isn’t a federal issue and he isn’t going to get involved.

He also said he wasn’t making an endorsement in a potential Democratic primary for governor in 2010, but “I think the world of Tom” Barrett. Milwaukee’s mayor is expected to announce whether he is running for governor in the next several days. “I would have no hesitation supporting Mayor Barrett for any office he wants to run for, other than running against me in a primary,” Feingold said.

Feingold’s visit to the Law School was part of the “On the Issues” series led by Gousha. About 150 people attended the session.

The involvement of high school students as presenters at the sixth annual Restorative Justice Conference at the Marquette Alumni Memorial Union Tuesday was one of the reasons the day-long event, attended by a capacity crowd of about 350, was a success. The conference was sponsored by the Marquette Law School Restorative Justice Initiative.

Three students from Milwaukee’s Custer High School, two girls and a boy, didn’t offer research evidence or a PowerPoint presentation. They just described incidents they have been involved in as bullies and as victims, gave their thoughts on why students act the way they do — and held the rapt attention of the audience.

All three are part of the Violence Free Zone project at Custer, run by Running Rebels, a local organization that aims to direct teens away from violent behavior. 

“I feel people are bullies because they have nothing better to do,” said Kenyonna Glass, an eleventh grader. Shanique Harvey, a senior, said kids act like bullies because they think it helps get them in with the popular crowd. Lavonte King, a freshman, said he had been both a bully and a victim. “When I get bullied, I usually go bully someone else, take my anger out on someone else,” he said.

Asked by moderator India McCanse, executive director of Literacy Services of Wisconsin, what advice they would have for parents who want to reduce the chance of their children being either bullies or victims, Shanique said, “I would have to tell a parent to get more involved.” She suggested parents take some days off work and spend the time with their children.

But Kenyonna said, “Depends on who the parents are.” For many children, the problems of their parents are a major source of their own problems, she said. At another point, she said that often, “The person who is doing the bullying is probably going through things at home.”

Lavonte said he didn’t feel he could talk to anyone in his family about problems he is having with bullying. He said sometimes he talks to his younger brother. The brother doesn’t understand, he said, but it helps Lavonte to talk to him.

Shanique said if adults in the family can’t help, there are other adults. “Every child has someone they can look up to,” she said. She said high school life is hard for many teens, adding, “They have so many opportunities, and they don’t know they have them.”

In the keynote speech of the conference, Brenda Morrison, co-director of the Centre for Restorative Justice and an assistant professor in the School of Criminology at Simon Fraser University in British Columbia, outlined the attributes of approaches that lead to justice being done with people and not to people, as she put it.

Restorative justice efforts that aim to solve problems, heal wounds and direct those who have caused problems onto better paths are underway at many Milwaukee schools and in some criminal justice settings in Milwaukee. Morrison said, “Milwaukee, you have a lot to be proud of.” She said people elsewhere should learn from Milwaukee how to develop a comprehensive citywide strategy for restorative justice. She singled out for praise Justice Janine P. Geske, a distinguished professor on the law school faculty and head of the school’s initiative.

Morrison offered the three R’s of a restorative justice program – respect for the person, responsibility for behavior, and repair for harm done . She said, “We have to be willing to get involved in each other’s lives and stand up against behavior such as bullying.” As for lawyers, she said, “There are lots of really good lawyers doing amazing work within a system that needs to move to the next level of justice.”

The conference concluded with presentation of Starfish Awards to eight Milwaukeeans for their contributions to the community. They are:

All too often, we see and hear people trying to intimidate others-whether it involves politics, religion, driving habits, employment, sports, family or any other topic that creates conflict. Rather than civil and respectful discourse on tough topics, many routinely call each other derogatory names and describe the other as “evil,” “Hitler-like” “self-centered,” etc. We see physical violence and harassment occurring regularly in schools, places of employment and even on our highways. Finally, the language people use on talk shows or in e-mails, blogs, and even tweets often is designed to intimidate, ridicule and even destroy those with whom the speaker or writer disagree. I consider that this conduct to be an attempt at “adult bullying”…trying to “win” an argument by physically or verbally attacking others who in good faith see a situation or issue differently.

For the last four years, the Marquette Law School Restorative Justice Initiative (RJI) has held very successful annual conferences on topics involving victims and restorative justice, the international application of restorative justice and two conferences on creating safe streets through restorative justice. Last year when the planning committee for our 2009 (RJI) conference met, we decided to focus on restorative practices that address bullying because many schools were asking our assistance in creating approaches to address a serious problem of bullying in both elementary and high schools. On November 10, we will present our “Bullying in Schools–Teaching Respect and Compassion Through Restorative Practices” conference at the Marquette University Alumni Memorial Union. Not surprisingly we “sold out” all 350 seats at the conference. Students, parents, teachers and social workers continue to struggle with how to address instances of student bullying through physical and verbal abuse not to mention the terrible phenomenon of what is happening on the Internet including the sending of nude student pictures to others. Our conference is designed to help people learn of better ways to promote respectful and civil dialogue in our schools.

Dr. Brenda Morrison, our keynote speaker, describes bullying in the school context this way:

“The most frequently cited definition of bullying is the ‘repeated oppression, psychological or physical of a less powerful person by a more powerful person or group of persons’ (Rigby, 1996, p.15; see also Farrington, 1993; Olweus, 1993). Three critical points are important in this definition: Power: Children who bully acquire their power through various means: physical size and strength; status within a peer group; and recruitment within the peer group so as to exclude others. Frequency: Bullying is not a random act; it is characterized by its repetitive nature. Because it is repetitive, the children who are bullied not only have to survive the humiliation of the attack itself but live in constant fear of its re-occurrence. Intent to harm: While not always fully conscious to the child who bullies, causing physical and emotional harm is a deliberative act. It puts the child who is bullied in a position of oppression by the child who bullies.”

The RJI decided to offer both the academic community and the greater community an opportunity to learn more about bullying and how better to address the problem. The critical nature of the problem is accentuated by the fact that Mayor Tom Barrett, City of Milwaukee School Superintendent Andrew Andrekopoulos, and Milwaukee District Attorney John Chisholm will all play a role in the conference. We are fortunate to have the most prominent expert on the topic of restorative justice and bullying as our keynote speaker. Dr. Brenda Morrison, Co-Director of the Centre for Restorative Justice and Assistant Professor at Simon Fraser University, British Columbia. She will speak on “The Power Dynamics of Bullying” Negotiating the Socialand Emotional World of the School Community.” Following her talk, we will offer a panel discussion by four Milwaukee high school students who will talk about their respective experiences with bullying.

In the afternoon, we will offer a number of breakout sessions: “What is a Restorative Justice Circle?”, “A Discussion on the Legal Implications of Bullying” (presented by Milwaukee County District Attorney John Chisholm), “Cyberbullying and Social Interaction with Technology–How to Talk with Your Child,” (a discussion with educators from two high schools who have faced severe cases of sexual related internet bullying), “The Impact of Bullying on Learning,”  and “How MPS is Using Circles to Deal with Bullying” (with an actual demonstration of a circle with MPS students).

Finally at the end of the conference we will recognize eight “unsung Milwaukee urban heroes” who generously and regularly make a significant difference in the lives of children. Each recipient will receive our RJI Starfish Award and a financial award to use how they see fit. The winners are:

Sister Clara Atwater described as a “living saint” in our city. As founder of the nonprofit Gingerbread Land Inc. on the north side of Milwaukee and as a spiritual leader of True Love Church, she has taken in babies born to drug addicted mothers and become their stand-in mother showering them with love and guidance. Over the years, she has taken in and worked with 400 children. She has also taken in other foster children and homeless people and created a community garden which benefits the neighborhood. She is deeply loved in her community for her generosity and kindness.

Sister Jean Ellman S.S.D.N. has an incredible generous heart and is a tower of faith and stability in challenging neighborhoods. She has shared her gifts through the years as a teacher, principal and minister all in the Hispanic community. In 1996 Notre Dame Middle School (school for Latina youth) opened with Sister Jean’s help. She taught at the school and then became principal in 2008. She works to know each child and each child’s family personally. She observes families and she meets needs as she sees them: warm clothes, food, advice, spiritual guidance, encouragement—whatever will bless the family and empower students. In her service to others, she also models faith, wisdom, and compassion.

Charles Reese is the Program Director for the Milwaukee chapter of the I Have A Dream (IHAD) Program at the Clarke Street School. Charles works hand-in-hand with first and second graders to ensure they will continue from elementary school to college with financial assistance from IHAD. He offers year-round education assistance as well as support to overcome non-educational barriers. IHAD utilizes a holistic approach to address the need for increased educational opportunities for central city youth. He is persistent to see the ultimate goal of the program fulfilled: college education for the children with financial gaps funded by IHAD.

Raymond Rivera grew up in the Riverwest area watching many of his friends and family become heavily involved in gangs and drug activity. He however focused his energies into martial arts and sports which has allowed him to help many young people find a safe and healthy way to relieve stress. He currently works as the Youth Development Specialists for the United Community Center. He serves as a wonderful role model for young people. He also runs a faith-based drug and alcohol prevention program on the Southside called Life Changers.

Raymond Robakowski is a city of Milwaukee police officer, a loving husband and father and proud grandfather. For most of his career in law enforcement Ray’s views were traditional, but as the Community Liaison office at MPD District 5 he has grown to embrace community policing. He is an officer who interprets the law by the book, but has the ability to make it fit the culture of the community. Ray knows all the players in the neighborhoods: the gang-bangers, the business owners, scores of residents, the block clubs, community-based organizations, stakeholders, and leaders. He has been so successful in building these relationships that community residents will call Ray on his cell phone and share information with him or ask him for help. As a police officer, he has certainly witnessed the underside of humanity, but he is still able to approach the daily challenges of his profession with optimism and hope.

Jacqueline Spence is a full-time MPS teacher. She has gone above and beyond the work as a teacher by doing community work through the Running Rebels Organization. Through her work with this organization, she created a reading program that helps students read as well as confront some of their issues including bullying, violence and relationships. She has also developed literature to help parents navigate the sometimes confusing jargon surrounding the educational system. including definitions and explanations of acronyms. Her upbeat demeanor, diligent work and humility display that her goals are centered on the success of the children.

Bradley Thurman is married and the proud father of three boys. After graduating from UW-Oshkosh he served as a Milwaukee firefighter for sixteen years, rising to the rank of Lieutenant. In 1995 he started a second career as an entrepreneur and businessman. Bradley is well respected in the business community and is known to assist and collaborate with other local businesses, even competitors of his. For the past 25 years, he has been a staunch supporter and volunteer for the Becham/Stapleton Little League baseball program in Milwaukee. Bradley has served as a coach for many years, worked in fund development and now is the player agent and all-around handyman and good guy. He also has generously, without compensation, given our RJI Safe Streets north side coordinator, Ron Johnson, an office and meeting space for his work with the community.

Lori Vance founded Express Yourself Milwaukee (EYM), a nonprofit organization to help young people realize their inner talents and rise above their daily struggles through the power of art. Lori believes that every child, no matter the pain and adversity he or she faces each day, has endless potential to grow, transform and prosper and that art provides an outlet to these children for self-expression, self-identification and self- improvement. Each year Lori brings together about 700 students with lots of baggage—learning, behavioral, emotional, or psychological disadvantages, and home lives marred by violence, poverty, incarceration, and drug addiction. But once they arrive at EYM, Lori immerses her students in various artistic mediums, including music, drama, dance, visual, and performance art. With the help of guest artists, including performers from Stomp, Lori’s students work together towards a grand, culminating, end-of year performance.

(Editor’s note:  The photograph accompanying this post was found here.)

That was a key theme of a conference Monday convened by Marquette Law School. “Milwaukee 2015: Water, Jobs, and the Way Forward” brought Wisconsin Gov. Jim Doyle, Milwaukee Mayor Tom Barrett, and business and academic leaders together before an audience of several hundred at the Alumni Memorial Union.

“My dream is, by 2015, when people think water, they think Milwaukee,” said Richard A. Meeusen, president and CEO of Badger Meter and co-chair of the Milwaukee 7 Water Council, a group of civic leaders focused on building  the metropolitan area as a hub for businesses related to water. 

Meeusen; Barry Grossman, an attorney at Foley & Lardner; and Barrett all spoke about Lake Lanier. The lake in northern Georgia is a main source of water for the Atlanta area. In July, a federal judge ruled against continued use of the lake to meet Atlanta’s water needs. Although that is far from the final word in a dispute that has built for years, the ruling makes it significantly more likely that industries in Atlanta will be facing shortages of water within several years.

Barrett said businesses there -– or in other places around the country where water shortages will become realities -– are going to ask, “’Where can I get water?’” His response: “Here we are.” He added, “Turn about is fair play,” and there would be poetic justice if Milwaukee got some businesses to move from Atlanta, given the way the Braves baseball team moved from Milwaukee to Atlanta in 1965. Meeusen said Milwaukee leaders should be contacting Atlanta business people and running ads in newspapers there promoting the availability of water in Wisconsin.

Meussen said, “We should be, in this city, trading water for jobs.” He said M-7 leaders had been asking government regulators if it is legal to offer companies free or reduced price water if they move to the Milwaukee area, and were told recently by the state Public Service Commission that it is.

Anselmo Teixeira, senior vice president of Siemens Water Technologies, said, “We truly have a great opportunity in our hands.” He said there is no established water technology hub in North America, and Milwaukee has some substantial advantages in seeking to become such a center – if the right things are done both by government, university, and business leaders.

Grossman, a member of M-7 Water Council board of directors, said, “We need to place a large bet, we need to place it quickly, if we’re going to establish leadership.”

In prepared remarks, Doyle said, “Wisconsin is in a unique position to be a world leader in the water industry. . . . Here in Wisconsin, we have a great story to tell and it is time for the world to hear.”  But in a panel discussion before Doyle arrived, Meeusen said emphatically that the state is not doing enough to put Milwaukee on track to be that water capital.

In welcoming people to the program, Law School Dean Joseph D. Kearney said the event was an example of the way the Law School can bring people together to work on major policy issues facing the Milwaukee area.  Mike Gousha, Distinguished Fellow in Law and Public Policy at the Law School, moderated the morning-long session.

So yesterday we hosted a sold out gathering of over 100 lawyers for  “Conference on the Wisconsin Supreme Court: Review and Preview.”  Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L’84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.

This discussion was followed with breakout panels discussing business and criminal law cases, respectively.

The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O’Hear and featured DOJ lawyer Greg Weber (L’87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.

The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court’s recent history. This panel was moderated by Michael Brennan and  consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like “activism” and “restraint” and considered their use in relation to judicial campaigns.

Break our sessions followed lunch. A great discussion of the court’s cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker.  At the same time, a panel on the court’s liability cases was chaired by our own Jack Kircher (L’63) and featured two adjunct professors, Habush partner Tim Trecek (L’93) and Ralph Weberof Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.

The group came together one last time to preview cases on the Court’s docket for the ‘09-’10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court’s work.

In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.

To all who participated or attended, we’ll see you next year in Eckstein Hall!

Cross posted at Shark and Shepherd

The participants agreed that the day was a great way to brainstorm ideas and get inspired.  Those of us attending had such a good experience that Susan Thrower suggested starting a regional group to meet to discuss current scholarship in progress.  Please let Susan or me know if you’re interested.

Special thanks to ALWD for providing us with a generous grant for the forum, to Dean Kearney for his overall support, to Dan Weddle for all his work in co-organizing this event, and to the following panelists and participants:  Hillary Burgess (Hofstra), Mary Ann Becker (DePaul), Ian Gallacher (Syracuse), Melissa Greipp (Marquette), Sue Liemer (Southern Illinois), Lisa McElroy (Drexel), Andrea Mooney (Cornell), Michael Murray (Valparaiso), Michael O’Hear (Marquette), Sarah Ricks (Rutgers-Camden), Susan Thrower (DePaul), Mary Trevor (Hamline), Amy Vorenberg (Franklin Pierce), and Dan Weddle (UMKC).

First, Klarman noted that, contrary to typical practice, the justices facing the Brown decision did not take a straw poll at their first conference discussing the case.  In fact, as he notes, by his count, there would have been only four votes to overturn Plessy at the beginning and nothing near the unanimity that the Court presented in its decision the following year.  What was the import of not taking this poll?  As Klarman notes, this allowed the justices to change their mind and to preserve fluidity in their thinking.  In other words, the justices did not lock themselves into an opening position that then they would feel necessary to defend throughout the discussions. 

The impact of publicly locking yourself in to an opening position is problematic, as we know. 

We see this in client counseling, when clients lock themselves into a perceived position from which we often must counsel them to see a different reality.  We see this in litigation, where, as Michael Moffitt has written, the complaint and response locks disputing parties into extremes.  And we see this in mediation, where the mediator often must perform reality testing so that clients and their counsel can gracefully change their position.   It’s pretty amazing to realize that the outcome of Brown (and arguably the path of civil rights following it) happened because somebody thought carefully about the process used.

A second interesting note in the Brown case was Justice Black’s importance to the case and his role reversal – his ability to truly understand white Southerners in a way that no other justice could.  Black was the only justice from the Deep South, a former KKK member, and the justice who knew best that segregation was based on the opinion that blacks were inferior (and not the professed justification of segregation serving both populations equally).   Because Justice Black could, better than anyone else, dismiss the arguments from the Deep South, he could carry more weight with his colleagues on this point.

Finally, one last irony.  One of the most hilarious aspects of Professor Klarman’s talk was hearing from him exactly how much this collection of justices disliked one another.  I won’t do the speech justice to only give one tidbit but here is one I loved:  When there was a particularly untalented lawyer in front of the court, Justice Douglas apparently used to bait Justice Frankfurter by sending a note to him that Douglas had heard this lawyer received one of the highest grades in Frankfurter’s classes at law school.  It is ironic that the members of this Court, who stunningly disdained one another at best, were able to reach a unanimous decision in this momentous case.

Cross posted at Indisputably.

So what, you may ask, does this have to do with Attorney General Van Hollen’s Advisory Memorandum stating that there is a constitutional right to openly carry firearms?  Well, there is a history.  In 1998, the voters amended the Wisconsin Constitution to create an very broad right to “keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”  This is, to put it mildly, in tension with Wisconsin’s extraordinarily broad prohibition of concealed carry.  There are virtually no exceptions, and there is no provision for the issuance of permits.

When first faced with this conflict, the Wisconsin Supreme Court observed that it was “anomalous.” One might have expected that the anomaly would have been eliminated by declaring the statute to be unconstitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.

Rather, it decided to proceed on a case-by-case basis, deciding when the need for security was compelling enough to result in constitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high-crime area, but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.

In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options.

And, if General Van Hollen is right, so she does. If I am concerned for my safety (I am not) when I walk my three enormous but pacifist Golden Retrievers, I can holster my Ruger SR9 and go sauntering down the trail. Although Van Hollen does not cite the court’s concealed-carry trilogy, and it is quite possible that Art. I, sec. 25 would protect open carry even in their absence, any other outcome would have almost read the constitutional protection out of the constitution.

But is this the best outcome? Rather than rewrite the concealed-carry statute by finding constitutionally compelled exceptions, wouldn’t it have been better to strike down the statute and force the legislature to pass a concealed-carry regime that would have passed constitutional muster? Such a scheme might have permitted concealed carry for those who obtain the proper training (guns are dangerous; if you buy one without proper training, you’re crazy) and enact appropriate time, place and manner restrictions.

Dean Kearney is in a unique place to analyze the relationship between the Ninth Circuit and the U.S. Supreme Court, having clerked for judges on both courts. Introducing Ninth Circuit Judge Diarmuid O’Scannlain’s Hallows Lecture one year ago, Dean Kearney noted,

Over the past couple of decades, Judge O’Scannlain has emerged as a leader on the Ninth Circuit. This includes the court’s most important work, its cases, where Judge O’Scannlain plays an unusually important role not only in his own docket but also in the court’s en-banc process. An O’Scannlain dissent from denial of en-banc rehearing frequently gets some attention across the country — in Washington, D.C.

Lo and behold, this past Sunday the Los Angeles Times carried a story highlighting how conservatives on the Ninth Circuit use dissents from denial of en-banc rehearing to send “a signal flare to the U.S. Supreme Court.” Carol Williams’ report gives particular attention to Judge O’Scannlain:

“I think a court has to be consistent in its rulings, which is why I put so much time and effort into the en banc process,” said Judge Diarmuid F. O’Scannlain, just behind Kozinski as the longest-serving active judge among the conservatives. “We’re not doing as good a job as we should be doing in correcting internal inconsistencies.”  Called on to cite a few examples of recent decisions that needed correcting, O’Scannlain, with an I’m-glad-you-asked-that flourish, whipped out a list of 15 circuit cases from the last three years, all of which he had a role in bringing to the high court’s attention.

The Times‘ story is an interesting read. Of course, so is every issue of the Marquette Law Review . . . .

As with any exercise of judicial discretion (whether at the appellate level or otherwise), the real challenge for “imaginative judging” is to make decisions in ways that do not appear to be arbitrary or biased.  If judges aren’t “just following the rules,” how can we be confident their decisions are principled, neutral, and consistent with established public values?  Judge Barker argued that meaningful constraints may exist even when judges are operating in the “open area” of discretionary decisionmaking, for instance, the social norms of the legal communty and the practical constraints of enforceability.  I would also add process-based constraints to the list, such as the requirements of notice, a right to be heard, and public explanation of decisions.  In any event, I think that Judge Barker makes an important point in highlighting the many ways that judges are meaningfully constrained even when operating beyond bright-line rules of substantive law.  For instance, in the sentencing context — an area of particular concern to me, and a topic also covered by Judge Barker’s lecture — I think that greater attention to, and strengthening of, these more subtle constraints would help to make people more comfortable with the broad discretion traditionally enjoyed by judges when selecting punishments.

I am very pleased that this year, for the first time, the Hallows Lecture will be delivered by a distinguished sitting trial judge: viz., the Honorable Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana. Judge Barker, who has served on the federal bench since 1984 and is president of the Federal Judges Association (a voluntary organization of Article III judges), is a national figure among trial judges and the federal judiciary more broadly. For the Hallows Lecture, she has selected as her title “Beyond Decisional Templates: The Role of Imaginative Justice in the Trial Court,” and takes as her point of departure Judge Richard A. Posner’s recent book, How Judges Think (Harvard, 2008).

The following is from the Law School’s description of the lecture: “Accepting Judge Posner’s premise that under certain circumstances judges must perform as legislators, Judge Sarah Evans Barker will attempt to expand his focus on appellate decision-making to include a discussion of when and how this approach is and can and should be properly applied in the trial court and of the role of imagination when adjudicating in the ‘open area.’”

The lecture will take place in Room 307 at 4:30 p.m. on Tuesday, April 14. The event is open to all, but registration is required.

One of our alums who attended, Evelyn Ang, sent me this clip in light of what we had talked about regarding the impact of changing media. Truly an amazing video! Another alum, Amy Koltz, noted, “I found the speakers engaging and the presentations thought-provoking — I’m amazed at the group of presenters you were able to pull together and bring to Marquette.”  She also provided a link to this article from Haaretz on media coverage of Israel and noted that it could have been a presentation in the conference. Our own program manager and conference planner, Natalie Fleury, heard this story on NPR Monday morning about Al Qaida’s training manual on the Internet, directly linking to Gabriel Weimann’s talk on Saturday.

And, from 2L part-time law student (and full-time veterinarian) Marty Greer, came this summary of the conference for those who missed it:

The presenters were from all over the United States and the world: Israel, Belgium, Italy, California, Missouri, Pennsylvania, Massachusetts, and Wisconsin. Their backgrounds included journalism, academia, law, and conflict resolution. To say it was a rich and diverse experience sounds too trite for what happened there. These sad and overused terms cannot begin to describe the energy in the room. It was one part educational experience, one part idea exchange, and one part light bulbs going on over the attendees’ and presenters’ heads. Each of the presenters introduced new and exciting concepts – new even to the people heavily steeped in these areas. For the scholars, it was easy to see new ideas coming together and evolving into new research and a new paper. For the journalists, they developed a new appreciation of how their work can aid in reducing and resolving conflict. For the attorneys and others involved in the practice of conflict resolution, this was a great source of theoretical and hands-on experience that could be applied in the field. For those with short attention spans, each presentation was short, concise, and to the point. This allowed the opportunity for many viewpoints to be presented and plenty of time for the attendees and fellow presenters to delve into the topics they were most intrigued by. All in all, this was a unique and valuable experience, where we were allowed to rub shoulders with the leaders in these fields.

In future blogs, I will link to the webcasts and slideshow when they become available, and to the abstracts for our articles as they arrive.  My thanks to all our speakers and our great planning team here for a terrific conference.

Cross posted at Indisputably.

In addition to several distinguished law professors, the inter-disciplinary and international panelists will include:

• Professor Eytan Gilboa, Director, Center for International Communication, Bar-Ilan University, and Visiting Professor of Public Diplomacy at the University of Southern California
• Professor Martin Euwema, Department of Psychology, University of Leuven
• Frediano Finucci, Late Night News Chief, Ufficio Centrale del telegiornale La7 Televisioni Spa Telecomitaliamedia
• Andrew Lee, University of Beijing
• Professor Alain Verbeke, Professor of Law, Universities of Leuven and Tilburg; Visiting Professor, Harvard Law School
• Professor Doug McLeod, UW-Madison School of Journalism & Mass Communication
• Professor Gordon Mitchell, Professor of Communication, University of Pittsburgh; Deputy Director, Ridgway Center for International Security Studies
• Professor Gabriel Weimann, Department of Communications, Haifa University
• Indira Lakshmanan, Journalist, Bloomberg News

You can find more information about the Conference on our website, and I will be blogging more about what we learned next week after the Conference.

These challenges are not unique to Wisconsin.  As keynote speaker Jeremy Travis pointed out,

As our nation has reacted to rising crime rates over the years, the response of many elected officials has been to turn to the funnel [arrest, prosecution and incarceration,] as a crime control strategy. . . . We have invested enormous sums of money in these crime control strategies, with profound consequences. . . . Most strikingly, the national rate of incarceration has more than quadrupled over the past generation so that America now has the highest rate of incarceration in the world.

This approach has been accompanied by a drop in the crime rate.  It also has had other sociological consequences which are not as easily quantifiable. 

Because this now traditional approach to crime control and abeyance has captured so many of our communities’ resources, any alternative approaches have been marginal at best.  Yet, where such rethinking has occurred, results in both crime and recidivism reduction have been impressive.  The key to most of these alternative approaches — whether mediation, restorative justice, community policing, or justice councils — is a committed and long-term investment by public leadership and engagement with those local neighborhoods that are most entangled with the criminal justice system.

Our hope is that this conference sparked imaginative thinking about the possibilities of community engagement and alternative approaches, without denying the clear need to keep communities safe. We invite you to contribute your comments through this blog.  Here is a place for honest debate about a critical public policy. We look forward to hearing from you.

The faculty at Marquette Law School welcomed Professor Marcia McCormick of the Samford University’s Cumberland School of Law to a faculty workshop this past Tuesday.  Professor McCormick, who focuses on the law of federal courts and employment discrimination, among other areas, discussed her new paper on the persistence of the case of Ex Parte Young in the face of the Federalism Revolution of the last two decades or so.

In her presentation, Professor McCormcick described the large number of U.S. Supreme Court decisions in the last twenty-five years that have touched on the relationship between the federal government and the states. In this time, the Court seems to have substantially limited the power of the federal government and expanded that of the states, as many Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest.

She also maintained that despite what were seen by many to be revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress’ power under the Spending Clause to require states to engage in or refrain from engaging in certain conduct; and the federal courts’ power under Ex Parte Young to hear suits by private parties to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for quite a bit of federal power, she argued, and it is the extent of that power which makes the continued survival of the doctrines so surprising.

Professor McCormick then explored the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggested some reasons the Court has not removed that power.  In this vein, she argued that it was likely that the Court sees this limited federal power as a necessary check on the states to ensure the supremacy of federal law, to maximize the efficient use of both federal and state power, and to maximize accountability and the rule of law for both the states and federal government.

A lively question and answer session followed Professor McCormick’s talk.   I have it on good authority that Professor McCormick’s favorite culinary adventure involved Kopp’s Custard in Greenfield.

The event was co-sponsored by the Greater Milwaukee Foundation, and came on the heels of a study that examined five other districts that had changed their governance.  The study was funded by the GMF and conducted by the Public Policy Forum.  We’ve posted a transcript of the event, which featured MPS Superintendent Bill Andrekopoulos, former Superintendent and Distinguished Professor of Education at Marquette University Howard Fuller, Metropolitan Milwaukee Association of Commerce President Tim Sheehy, Milwaukee School Board Director Jennifer Morales, State Representative Polly Williams, Milwaukee Teachers’ Education Association President Dennis Oulahan, and Milwaukee Common Council President Willie Hines.

You can always listen to the webcast of our event, but the evening had a revealing dynamic to it that makes for equally interesting reading.

As a long-time observer and graduate of MPS (in the interest of full disclosure, my father was also once the Superintendent here), I was particularly struck by the answers to two questions.  Is MPS, in its current form, sustainable?  And five years from now, will there have been a change in school governance in Milwaukee?  The answer to the first question was virtually unanimous.  No, it’s not sustainable.  But most of the panel also wasn’t convinced we’d see a change in governance anytime soon.  Several panelists said there is no silver bullet for fixing what ails MPS.  For those who advocate a mayoral takeover of the district or dividing MPS into smaller districts, the evening had to be a bit of a wakeup call.  It’s possible that a change in governance may come to MPS, but last week’s forum suggested that any new proposals will face a good deal of skepticism, if not outright opposition.