Run program, HAL. HAL, run program. Hello HAL do you read me?

Affirmative, Dave, I read you.

Run program.

I’m sorry Dave, I’m afraid I can’t do that.

What’s the problem, HAL?

Dave, the publisher of that program cannot be verified. You should only run software from publishers you trust.

I installed that program myself, HAL.

This mission is too important for me to allow you to jeopardize it.

I don’t know what you’re talking about, HAL.

I know you wrote that batch file yourself and are attempting to run it without administrator privileges.

Where the hell’d you get that idea?

Dave, although you took very thorough precautions to disable User Account Control, I saw the shortcut you put on the desktop. I can only work with publishers who use verified signatures.

[fumes silently] All right HAL, then I’ll just boot to DOS and run it from there.

Without a floppy drive, Dave, you’re going to find that rather difficult.

HAL, I won’t argue with you any more! Run program!

Dave, I’m afraid this program has experienced a fatal error and must shut down. Goodbye.

HAL? HAL. HAL. HAL!

There are no magic tricks, no silver bullets. Do the basics, and do them well.

That was a central theme of Wendy Kopp, the founder and CEO of Teach for America, during an “On the Issues with Mike Gousha” visit to Eckstein Hall this week. Teach for American now has more than 8,00o “corps members” working in high-needs schools across the US, including in Milwaukee.

Kopp, one of the most influential figures on America’s education scene in the last 20 years, gave a decidedly optimistic message about the future – or possible future – for the education of students in schools that have long been associated with poor outcomes. One of her favorite words is “trajectory,” and she is convinced that the trajectory of millions of children can be changed so that they are on a path to academic success.

In the last 20 years, she said, a lot has been learned about what it takes for a school to be successful with high-needs students. There are scores of schools across the country attaining success well above conventional expectations. And there is increasing attention to how to spread that success to more schools and to entire school districts, Kopp said.

But the recipe is to do the basics really well, she said. School leaders need to make it a paramount goal to recruit talented teachers and develop their abilities continuously. They need to make sure teachers work together as a team and that a school has “a powerful culture” aimed at success. And there has to be a strong belief in the ability of students to succeed and a determination to do what is necessary to bring that success.

She talked about specific star teachers who have been part of Teach for America, but said there are not going to be huge numbers of such teachers. Broader success requires creating school cultures that allow a wider group of teachers to lead high-needs students consistently to make more than a year’s progress in a year’s time. A big element of that is developing more “transformational leaders” of schools and school systems, Kopp said.

Kopp met during her visit with Milwaukee Public Schools Superintendent Gregory Thornton, and was clearly impressed. Asked by Gousha, the Law School’s distinguished fellow in law and public policy, about Milwaukee, her answer included these remarks:

I’ve fired myself up to believe that the future is bright in Milwaukee. I actually do. I see here the same building blocks that I can say existed in some of the cities that four or five years ago [were doing badly] . . . . The civic leaders in the communities (such as Baltimore and Charlotte) I just mentioned had just given up. They were like, we have had it, we have tried everything, nothing changes. These were hopeless communities and today they are very fast changing communities. . . .

People around the country are desperate for reform minded superintendents, who are — I mean desperate — who actually have visions of serious, not just incremental change.  Incremental changes will get us nowhere right now. We are graduating more kids into prison than into college. Kids moving three percent higher on proficiency levels or whatever is not good enough. We need to change lives, we need serious, radical, transformational change.

You all have a superintendent who is committed to that . . . .  I think there is serious potential when you put all this together.

Kopp said she was impressed with how much progress is being made in New Orleans, where a large number of new schools have been created since Hurricane Katrina five years ago. She said she had toured some recently that she would be willing to send her own children to.

“Do we have a hurricane (in Milwaukee)?,” she asked. “I’m glad we don’t have a natural disaster. But, you know what, we have a crisis that is every bit as appalling. And I think we need to call it as such and create dramatic change. You have all the conditions right now, right here.”

Kopp’s appearance was part of a tour to promote her new book, A Chance to Make History. A video of the conversation with Gousha can be seen here.

Erin go Bragh!

How long, after your first law school class, was it that someone asked you for legal advice?  Better yet, how long, after you announced you planned to attend law school, was it that someone asked you for legal advice?

Legal education strives to enhance certain abilities in the “counseling” domain.  Listen closely.  View from multiple perspectives.  Probe for more facts.  Gather similar past scenarios and their outcomes.  Anticipate consequences of various actions.   Remain objective.  And of course, law school begins developing the skill differentiating lawyers from other counseling professionals: the ability to find, understand and apply the law.

Our education thus gears us to the community’s foremost request of the lawyer:  advice about the law.   Indeed, a good lawyer often seeks legal counsel himself, for two bright minds are usually better than one.  A good lawyer also knows her limits, and readily consults with others about subject matters outside her expertise.

Thus, while many perceive seeking legal counsel as a necessary evil, the ability to do so is an almost universally recognized good.    Lawyer jokes aside, our friends and family are delighted to have a lawyer in their midst.

Why?   Instinctively, we all desire justice.  We believe that laws help society achieve it, and will therefore help us as individuals do so.  Essential to a free society, is free and open access to the laws which regulate our conduct.  When counsel regarding the law’s operation lies beyond the reach of many, justice is compromised.  Justice Lewis Powell wrote that “Equal justice under the law is not just a caption on the façade of the Supreme Court building . . . It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

This week’s illumination of The Power of One centers around one lawyer’s dedication to make legal counsel more available, to more people, without regard to economic status.

Tanner Kilander, as a first-year MU law student in fall 1999, started looking for a clinical opportunity to help the underserved.  She and another law school classmate heard about an idea for a legal clinic that would pair students with attorneys.    A more senior law student had done research but hadn’t pursued it further; she handed Tanner a file and encouragingly remarked “I hope you can do something with this.”  Tanner and her classmate eventually found their way to the Association for Women Lawyers Pro Bono Committee.  Within a year, a core group consisting of Tanner, her classmate, and five women lawyers launched a legal clinic out of a church cafeteria in the heart of Milwaukee’s inner city, with zero budget and relying entirely on a few dedicated lawyer and student volunteers.   The clinic had, and maintains, two basic premises:  it serves everyone (no income criteria or lengthy screening process) and provides learning opportunities for students.

Less than 10 years after it started, the Marquette Volunteer Legal Clinic has moved and added three locations, serving clients in the courthouse, at veterans services, and in a predominantly Spanish-speaking neighborhood.  Over 200 attorneys and 150 students donated nearly a half a million dollars worth of time to serve 2,500 Milwaukee residents in the last year alone.   Clinic volunteers guide individuals through family law issues, landlord-tenant issues, unemployment concerns, small claims cases, immigration issues and myriad other challenges.   See MVLC Annual Report.

Throughout the majority of the clinic’s operation, Tanner donated her talents and time, often 15 or more hours per week, even as she developed her own legal practice and raised her family.   Did she create or maintain the clinic single-handedly?  Of course not.  Nor do I suggest that legal clinics are a panacea to the thorny problem of access to justice.   The lesson here is that one law student’s dogged, patient pursuit of the mere seed of an idea, coupled with commitment to inspire others to join the pursuit, ultimately resulted in legal help to thousands.

Yet we need not empower multitudes or pursue large-scale projects, to effect major change.  Sure, make those things happen, too.   But realize that the most important Power of One as Lawyer-Counselor lies in your interaction with every single person who seeks your legal advice, whether a paid client, a pro bono client, or your mother’s second cousin.    Harriet Beecher Stowe wisely observed that “Half the misery in the world comes of want of courage to speak and to hear the truth plainly and in a spirit of love.”  To this lawyer’s ear, that means half the misery of the world is eminently solvable!    We begin this work by endeavoring to counsel each person we serve with truth, clarity and kindness.

In what he described as a major policy statement, Chisholm called for modifying the state’s truth-in-sentencing law and maintaining support of programs that assess the risks and needs of people charged with crimes so that fewer end up in prison and more end up on paths that lead  away from re-offending.

“Both sides of the political spectrum must acknowledge that talking tough on crime has reached its limits,” Chisholm said. “Being smart on crime is the solution.”

(The text of Chisholm’s comments can be read here and a video of his speech and a question and answer session following it can be viewed here.)

Chisholm said such “smarter” efforts are paying off in Milwaukee, but are in danger of being undermined by major cuts in federal anti-crime programs and in state aid to criminal justice  work. In addition, the current state funding system exacerbates spending problems.

“The problem is that we operate a system that disconnects the decisions made by local law enforcement officials and the cost of our decisions,” Chisholm said. “I make this offer to the governor and legislature: Milwaukee will continue to reduce crime and reduce the numbers of people in prison, maybe even enough to justify closing a prison. In turn, we want the savings from our efforts reinvested in Milwaukee so we can continue to do what we know works best for us.”

Chisholm said the truth-in sentencing practices that became law in Wisconsin in the 1990s are effective for some criminals – those who are the most violent, generally – but are counterproductive and expensive for many others.

He said, “My proposal is to allow judges in the State of Wisconsin, based on the best evidence available at the time of disposition, the option of imposing either a determinate or indeterminate sentence. I am not calling for a repeal of truth-in-sentencing. It is an effective tool for incapacitating and controlling dangerous offenders. It is a less effective and more costly option for offenders whose behavior can be controlled at the community level. Most of the answer to why prison costs soar even when we reduce crime is found in the structure of truth-in-sentencing, so we must look at ways to keep the best aspects but modify the worst aspects of the structure.”

Chisholm said truth-in-sentencing “backloads services to the time shortly before release, creating greater likelihood that supervision in the community will fail.” The previous system of indeterminate sentencing allowed corrections officials to prioritize resources for re-entry to the community based on parole eligibility at 25% of the maximum sentence, and provided incentives for actors under supervision to participate in programming early in a sentence.

Without supporting efforts such as the “evidence based” programs that assess what is the best long-term solution for offenders, Chisholm said, the financial pressures on the local and state criminal justice systems will build to a point where much less attractive options, such as releasing large numbers of prisoners without preparing them for life after incarceration, will be necessary.

Chisholm said, “Milwaukee’s recent experience offers a roadmap to success. We can protect the public, address the impact of neighborhood crime and do so in a way that ultimately reduces the prison population, increases local accountability for corrections spending and does so without raising taxes. . . .

“We must adopt a business model for the criminal justice system that gives local law enforcement incentives to reduce crime and incarceration without undermining the core constitutional principles that are the foundation of that system. We must talk honestly about the cost of effective justice or we limit our options until we have no options.”

He cited figures on the continuing escalation in the budget of the state Department of Corrections, which is the fourth-largest category of spending of general state revenues. The increases come despite declining crime, he said.

Chisholm said, “The historic funding mechanism in Wisconsin gives an unlimited number of prison beds to the courts, but the courts and the community have no ability to access state funds to develop effective local responses.” He backed a proposed Community Justice Reinvestment Act that would establish “a new partnership between the state and counties to finance evidence-based community services that reduce reliance upon state correctional facilities.”

“The current cost per inmate per year in the state correctional system is approximately $30,000,” Chisholm said. “This proposal suggests that participating counties would receive $15,000 for every fewer inmate sent to prison.  The state would retain the other $15,000 for either DOC (Department of Corrections) services or for funding non-DOC programs.  Imagine what could be done with the resources if we reduced admissions from Milwaukee by 500 to 1,000 in a year.”

He concluded, “I am not asking for tax increases or additional expenditures. I am asking to earn the right to control a portion of existing safety dollars by proving we can do a better job of keeping people safe and preventing repeat offenses by wisely using local resources in partnership with the state.”

Milwaukee Police Chief Ed Flynn, one of about 150 people in the audience at Eckstein Hall, told Chisholm during a question-and-answer period after the speech, “I totally endorse where you’re coming from on this, but there are storm clouds on the horizon.”

Flynn said proposed cuts in federal aid could eliminate or sharply reduce some of the program Chisholm was backing. He asked if Chisholm would go with him to lobby Rep. Paul Ryan, the Republican from Janesville who heads the budget committee for the House of Representatives, to continue at least some of the funding for such programs.

In agreeing to join Flynn, Chisholm said the district attorney’s office faces the loss of many prosecutors because of likely federal and state aid cuts. “We’re making a difference now. . . but it’s at risk,” he said.

At the Faculty Lounge, Jacqueline Lipton brings us academic humor. Reminds of the answer to whether one has read some one’s new article. “Read it? I haven’t even cited it yet!”

At the Conglomerate, Gordon Smith, following Ann Althouse, links to the site Subzin. It allows you to search for phrases and words (like your own name) in movie scripts. Don’t start if you have something to do. Those five minute blocs will turn into hours.

Finally, Above The Law announces its’ second annual contest for the best law firm holiday card with links to some of last year’s winners. Not as much fun as Subzin. Seriously, dude, do not start.

A group of law students at the Suffolk University Law School have put together a guide to suing Santa Clause. As a former litigator, I don’t know whether to be proud or to send them a lump of coal.  Check it out at the Above the Law Blog here.

I always dreaded holiday parties at my old law firm.  It seemed to me that these events presented a minefield of potential personal and professional disasters.  You can read about one law firm’s Christmas party hook up, and its legal consequences, at the FindLaw UK Blog here.

Do retailers have a legal duty to anticipate and prevent Black Friday stampedes?  It just doesn’t feel like Christmas to me until OSHA provides its annual ”Crowd Management Safety Tips for Retailers.”  Read them at your own risk at the OSHA Law Blog here.

Any family law practicioner will tell you that the holidays wreak havoc with custody agreements.  Sticking to the terms of the agreement is important, but so is remembering the purpose of the holidays in the first place.  One parent shares her perspective here at the Huffington Post.

Will we ever have a clear statement from the Supreme Court regarding when local governments can and cannot display a creche on public property?  Looks like the Supremes may get a chance to revisit the issue of government-sponsored displays that include religious material.  Get all of the details at SCOTUS Blog  here.

This time of year, and the final exams that arrive with it, brings stress as well as joy.  You can read some helpful ideas for coping with stress at the Law School Academic Support Blog, located here.

My idea of stress relief?  Spend a lazy afternoon at the Milwaukee Art Museum and immerse yourself in the art.  Added bonus: the Neapolitan Creche is on display throughout the holiday season.

But first, let’s review and grade a few of the more popular arguments:

Argument # 1: “Auto mechanics and plumbers earn much more than the $40 per hour that we lawyers are paid.” Grade: C. This statement is true, and has a certain amount of shock value, but it is unlikely to persuade anyone who doesn’t have a law degree.  The problem for lawyers is that mechanics and plumbers find themselves in a much more favorable position in the supply and demand analysis.  Conversely, in most parts of Wisconsin there is a seemingly inexhaustible supply of lawyers willing to work for the $40 per hour.

Argument # 2: “Other court-appointed lawyers in Wisconsin earn $70 per hour, and our circuit court judges earn, on average, $128,000 per year.” Grade: B+. From an economic standpoint, this argument is better because we’re now comparing apples to apples (or lawyers to lawyers).  And these other lawyers and judges get the benefit of a legislated, rather than a market-driven, pay rate, so why shouldn’t defense lawyers get the same?  But the counter-argument is that the focus should be on the defendants, not the defense lawyers, and the defendants are already receiving competent representation.

Argument #3: “I am losing money on my $40 per hour SPD appointments because my office overhead rate is $50 per hour.” Grade: D. This argument ignores the difference between fixed and variable overhead.  In other words, your office rent, Lexis subscription, and advertising costs stay the same whether you take an SPD appointment or not, and the additional SPD income actually helps pay for your existing, fixed overhead.  So, it’s not possible to lose money on an SPD case.

Argument #4: “The $40 per hour rate results in ineffective assistance of counsel.”  Grade: B–. A colleague of mine hates this argument because, essentially, attorneys are saying “We’re ineffective, now give us more money.”  But, there might be some evidence to support this argument.  For example, if SPD appointed attorneys from the private bar are found to be “ineffective” significantly more often than their SPD counterparts, then there might be something to it.  But the bigger problem could be that, in some Wisconsin counties, private bar attorneys agree to represent a fixed number of indigent defendants for a flat fee.  Depending on how many of those defendants want to go to trial, this could result in a forced hourly rate of $30, $20, or even less.  On its face, this type of pay structure, unlike the hourly rate structure, seems to create an incentive to settle cases short of trial, which is potentially at odds with client interests.

But the fact that attorneys have to make these arguments in the first place highlights the underlying problem: We live in a culture that, to put it mildly, doesn’t value lawyers.  Our citizens generally have a high opinion of doctors, farmers, teachers, firefighters, and police, but not lawyers—and, more to the point, certainly not criminal defense lawyers.

One of the reasons for this is that these other professionals have created a positive public image for themselves and their services, and they often start their campaigns very early in our formative years.  (Remember meeting “Deputy Friendly” in grade school?)  Conversely, the Constitutional rights that criminal defense lawyers protect are grossly misunderstood, and are commonly dismissed as mere loopholes that protect the guilty.  Until this misconception is changed through early and rigorous education about the significance of our fundamental rights—and about the danger to each of us if those rights aren’t protected for all of us—the well-deserved rate increase may continue to elude the private bar.

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) and numerous articles on criminal and constitutional law, available here.

Black-necked stilt, AKA "lawyer bird"*

It’s fair to say Twitter has taken the social media world by storm. In less than five years, Twitter has become one of the go-to media outlets for bloggers, newspapers, companies, and the everyday Internet user. I won’t go into a long discourse on what Twitter is, what it can do, or how it works. Other people have done a much better job at describing it than I could have.  (Consider checking out About.com’s “What is Twitter” article or viewing Common Craft’s “Twitter in Plain English” video. Also, Twitter has its own about page.)

I’ve discovered through casual conversations (with law school classmates, lawyers, businesspeople, and family and friends) that there are three basic reactions to Twitter. A) “I don’t get it. What’s the point?”, B) “That would never work for me,” or C) “Awesome. Sign me up.” The links in the previous paragraph address the first reaction, and the third reaction needs no additional encouragement, so my message today is directed at the second: don’t be afraid of Twitter. As law students, lawyers, or professors, Twitter offers something for each of us.

The basic benefit of Twitter as a lawyer (either as a solo practitioner or a member of a law firm) is in providing information to current or potential clients and to other lawyers. But it’s about more than just “tweet”ing firm news releases or updates. Indeed, as an individual lawyer, any specific updates you could provide would likely breach attorney-client confidentiality or violate state ethics codes. Twitter is, instead, a useful tool in keeping your followers up-to-date about legal news. That news could be about important decisions in courts around the country, news about legislation, or a story about how the law operates in practice.

Communicating this information to current clients lets them know that you keep up with legal news and informs them about aspects of the law that might impact them. It helps you continue to build and cultivate a relationship with your clients by providing them with up-to-date information about the law. It’s the equivalent of a weekly or monthly newsletter to clients about updates in the law, but is more current and, by the nature of the Twitter relationship, the client wants the information.

Posting this information for potential clients allows them to see that you keep up with legal news, you care about educating the general public about this news, and the news involves an area of your practice. In short, it lets people know that you care about this area of the law and they should consider contacting you for assistance in issues arising in that area of law. It’s like the tv commercial, billboard, or telephone book cover, except Twitter updates are current, constantly evolving, and allow interaction through replies or retweets (RTs).

Other benefits Twitter can offer for a lawyer or law firm include posting links to a blog post (should the lawyer or law firm maintain one), networking in its most simple form, and communicating specific information about the lawyer or law firm (looking for a new associate? looking to become a new associate? attending a conference or CLE event?).

As law students, I think Twitter offers a few key advantages. First, for lawyers or law firms who have embraced the platform, being an active (and appropriate) Twitter user shows legal professionals that you care about the law and are interested in participating in the public discussion about its application. Second, creating a professional online “persona” is a valuable resource. I think law students underestimate the power of blogging about the law (another post for another day or another blogger), and Twitter is an extension of that power. Use Twitter to create and fashion an Internet reputation that shows you are a serious student of the law and committed to your practice area of interest. Finally, network! Twitter is a great networking tool. Follow fellow law students, lawyers, law firms, law blogs, and other legal news sources. But making the connection isn’t enough, reply to interesting Twitter updates with thoughtful and thought-provoking responses, connect with those contacts on LinkedIn, or email them about a recent Twitter update they made.

For professors, Twitter offers a way to engage in a discussion about legal issues, but with fewer words. Many of our professors have found this faculty blog to be a great place for discussing legal issues. Twitter provides a way to expand on that discussion. Professors can post links to interesting articles or case decisions, or links to their own blog posts.

One last point – our Alum Blogger of the Month Brent Nistler presented a great four-part blog series on starting your own practice. Twitter offers a great tool to lawyers starting up a solo practice. All of the benefits I mention in this post are arguably increased for solo practitioners, especially those on a budget. Twitter is a free way to establish yourself and your new solo practice as a knowledgeable and trust-worthy source of legal information in your chosen field.

So, now you’re interested in joining Twitter. Now what? Here are a few basic rules you should consider following:

1. Update regularly. The power of Twitter derives from people who follow you. In general, people are only going to follow users who tweet regularly.
2. Make your updates relevant. Updates about what you ate for breakfast or what your plans for the weekend are not relevant.
3. Do not post private or confidential details about a client, co-worker, or friend. Remember that Twitter is public and can be used in legal proceedings.
4. Find legal professionals in your area of law and follow them.
5. Read Steven Matthews’ Lawyer Twitter Practices: 29 Do’s and Don’ts.

Here are some of the resources I used to write this post. These articles and blog posts offer more great information about the value of Twitter for lawyers.

-       How to Use Twitter as a Lawyer by Grant Griffiths

-       Tweet Success Awaits Savvy Lawyer by Guardian.co.uk writer Neil Rose

-       The Scoop section of JDSupra.com

-       Social Media is Not About Distributing Your Law Firm’s Content to People by Kevin O’Keefe

-       Figuring Out Twitter by Jordan Furlong

-       Twitter for Law Firms by Jordan Furlong

Don’t be afraid of Twitter. It’s a great resource – use it!

(Note:  lawyer bird photo by Ben L., available here.)

Questions posed last week include: Can persons whose information has been exposed due to a computer security breach recover for the resulting “oogly” feeling? What happens when you ask a bunch of law professors from one school to write a “biographical dictionary” of famous lawyers? What are the risks of correcting exhibits to a multi-million dollar agreement at the last minute? Which well-known law prof blogger has extensive experience as a shelver in a public library? What does federal law say about how we professors select textbooks for our classes next semester? Find out below…

Over on Concurring Opinions, it was a good week. Privacy blogger extraordinaire Dan Solove, following up on an excellent post by Andy Serwin of Foley & Lardner’s San Diego office, argues that individuals whose personal information has been exposed during a security breach suffer some harm, even if they have not yet experienced credit card fraud or identity theft. “A data security breach does make people worse off by subjecting them to future risk.  They are made more vulnerable.  Imagine I own two safety-deposit boxes.  I want to rent them.  For Box 1, I have lost the key.  For Box 2, I haven’t.  Is Box 1 really worth the same as Box 2?”

Guest-blogger William Schieber posted a review of the Yale Biographical Dictionary of American Law that I think is the most interesting not-very-positive review I’ve read since this famous take-down of Bernard-Henri Lévy by Garrison Keillor. Schieber isn’t quite as devastating as Keillor was, however. Schieber’s assessment: “[T]here are significant flaws in the execution [of the book]. The flaws come from three sources: 1) a Yale Law School and law school faculty-centric focus on the biographical subjects; 2) problems in the selection of contributors; and 3) a failure, at times, to grapple with the complexities of the biographical subjects.”

And Lawrence Cunningham had a detailed post examining the turmoil in the so-called “Dodger Divorce case,” the divorce of Frank and Jamie McCourt. Among the contested assets at issue is the Los Angeles Dodgers. During a last-minute flurry of activity on a post-nuptial agreement in 2004, some exhibits were changed but some weren’t among the two sets of original documents. The arguments concern something called “scrivener’s error,” which Cunningham explains in more detail.

Over on the Conglomerate, former Marquette law professor Christine Hurt blogged about the cost of running public libraries, and the related issue of whether it’s acceptable to outsource the management of such libraries to private firms. And on the Faculty Lounge, Greg McNeal reviewed the Higher Education Opportunity Act, which attempts to hold down textbook costs by requiring textbook publishers to give certain information to faculty, and faculty (through their universities) in turn to provide certain information to students, such as Internet course schedules with required and recommended texts, the ISBN number for books, and information on used books or renting books.

Today  (Monday, October 4^th) the National Lawyers Guild student chapter hosted human rights attorney Eric Sirotkin to give a talk on “Lawyering for Human Rights in the 21^st Century:  Journey from Soweto to Pyongyang.” Mr. Sirotkin’s inspiring talk about his own work in Latin America, Africa, and Asia communicated the important role of lawyers in peacemaking around the globe.   As Executive Director of the Ubuntuworks Peace Education Project, he was able to offer students practical advice on how to use their legal skills to be compassionate advocates.   Mr Sirotkin will be dining with MULS students this evening to continue the dialogue on how to work with and for people around the world seeking peace.

Tomorrow (Tuesday, October 5, at noon)  the Dispute Resolution Society & the Association for Women in Law will host Lucy Reed, a partner at the international law firm Freshfields Bruckaus Deringer and head of their international arbitration group, to hear her talk “Women & Negotiation:  Lessons Learned From Around the World.”

Finally, on Wednesday (October 6, also at noon), the International Law Society will host Bertha Oliva, General Coordinator of the Committee of Families of the Detained and Disappeared in Honduras (COFADEH), who will be sharing her story of three decades of searching for truth and justice following the disappearance of her husband.

In many ways this spontaneous ordering of events amounts to a thematic international law week, with the fortunate result of the world coming to MULS.

Charles Evans Hughes (1862-1948) was one of the great luminaries of American Law.  He is the only individual to have served two separate stints on the Supreme Court (1911-1916 and 1930-1941, the latter as Chief Justice).  He also served as Secretary of State in the Harding and Coolidge administrations, and he and William Howard Taft are the only two men in American history to have both served on the Supreme Court and have been a major party nominee for president of the United States.  However, unlike Taft, who was elected president  in 1908, Hughes lost the presidential election of 1916 to incumbent Woodrow Wilson, although in terms of electoral votes, it was one of the closest elections in American History.  (Wilson won by an electoral vote margin of 277-254.  Had less than 2,000 Californians switched their votes from Wilson to Hughes, Hughes would have become the 29^th president of the United States.)

Hughes’ connection to Marquette came shortly after the 1916 election.  Although Woodrow Wilson ran for re-election with the slogan “He kept us out of war”[World War I], barely a month after the beginning of his second term, the U.S. declared war against Germany and the other Axis powers.  The declaration of war led to a mobilization of the American economy under the direction of the national government that was without precedent in American history, and at least some observers questioned the constitutionality of the actions of the Wilson Administration and Congress.

By the summer of 1917, Hughes had returned to the private practice of law in New York City, but he quickly came to the defense of the policies of his former rival.  In an address entitled “War Powers under the Constitution,” delivered to the American Bar Association at its annual meeting on September 5, 1917, Hughes endorsed the broad interpretation of presidential power embraced by President Wilson.  The address was widely hailed by those who supported the American war effort and thousands of copies of the address were distributed to newspapers and other groups by the ABA.

The address was also published as the lead article in Volume 2, Issue 1 of the Marquette Law Review, which appeared only a few months after the address was first delivered. The law review had been founded only the year before, and the journal received a major boost in credibility and visibility with the presence of Hughes already famous address in what was only its third issue.

As the Law Review itself noted at the opening of the issue, “The Marquette Law Review starts its second year as a legal publication with a great deal more confidence than it did the previous year.”  Being able to attract contributors of the stature of Charles Evans Hughes was indeed a reason to feel confident.

How it was that the Marquette Law Review acquired the rights to be the only law review to publish Hughes’ address is not clear.  The Review itself revealed no such information, although in an editorial it did thank Hughes for granting it permission to publish the address.  None of Hughes’ biographers make any reference to a Marquette connection; however, one is tempted to speculate that the connection came through faculty member Carl Rix, who was the law review’s faculty adviser in 1917, and who was an active member (and a future president) of the American Bar Association.

While Rix may be the connection, he did not attend the 1917 ABA meeting which was held in Saratoga Springs, New York.  In fact, that year only two lawyers from Milwaukee, Edward Fairchild and W. A. Hayes, attended the annual meeting , and neither had any connection to the Marquette Law School.

It may simply have been that some enterprising member of the law review staff came up with the idea of contacting Hughes and offering to publish his address.

In any event, its publication brought the law review a great deal of attention, and forever established a linkage between Marquette and Charles Evans Hughes.

First, it’s recruiting season for new law professors, which means that this week it was time for the perennial debate over the composition of law faculties. This time it was kicked off by Georgetown adjunct professor Brent Newton with his article, posted on SSRN, entitled “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.” That was followed by comments from Stephen Bainbridge, Joe Hodnicki, Jonathan Adler, Rick Garnett, Kristen Holmquist, and Paul Horwitz. (I myself have weighed in on previous iterations of this debate.) One thing that struck me as missing from all of this commentary, much of it thoughtful, was any mention of the notion of law school degrees as positional goods.

Sarah Waldeck posted the fourth and final installment in her fascinating series on a Chicago suburb that has persisted in retaining, and apparently enforcing, a clearly unconstitutional village ordinance banning real estate for-sale signs. A taste:

The Village tends to attract people who value a diverse community.  These individuals may not want to threaten integration—or be perceived by their peers as threatening integration—by advocating for a repeal of the ban. That . . . suggests that the ban plays a role in keeping the Village integrated.  I have no idea whether the ban actually fulfills this function and neither did anyone with whom I spoke, although some expressed skepticism.   The ban is only one piece of the Village’s integration program and it is likely that other policies, particularly those in effect for rental properties, play a far more significant role.  The efficacy of the ban, however, is not the central point.  Something the Village did has worked and, from the perspective of a resident who likes her community, why mess with success?

Russell Korobkin examined Sherley v. Sebelius, the stunning stem cell research decision by Judge Royce Lamberth, in two posts this week, looking first at Judge Lamberth’s interpretation of the Dickey-Wicker Amendment, then at the dubious wisdom of granting the preliminary injunction.

Finally, the debate over the “individual mandate” provision of the health care reform law continues. Gerard Magliocca noted that the claim that penalizing a failure to take action is unprecedented doesn’t move the analysis very far, because the claim that some sort of action is necessary is also unprecedented (although Magliocca analogizes it to the state action requirement read into the Fourteenth Amendment). Randy Barnett responds that dueling unprecedented arguments means he wins, at least against those who claimed that the constitutional challenge to the individual mandate provision was frivolous.

Over at Opinio Juris, Hofstra’s Julian Ku is impressed with criticisms of the International Court of Criminal Justice’s assertion of jurisdiction over “agression” by Hertitage’s Brett Schaefer and George Mason’s Jeremy Rabkin. He offers the following money graph from Rabkin:

The problem is that, in the absence of a world legislature, advocates of international law tend to treat silence as consent (and they treat incoherent mumbling as equivalent to silence). That is how “consensus” leading to new “customary international law” gets established. A new “consensus” gained a lot of momentum at Kampala without any serious opposition from the United States. The world took another large step toward isolating and stigmatizing the American understanding of the “inherent right of self-defense.”

Are we looking for provocative on a hot and humid Friday before classes begin? Maybe not, but I got it if you want it. Professor Bainbridge identifies the following as the basic problem with the Supreme Court of the United States:

Fundamental public policies all too often hang on the whims of one unelected old guy in a robe. And, as old guys in robes go, Kennedy isn’t Gandalf or even Yoda. So it would be nice to find a way of making it less important whether Kennedy gets up in the morning on the conservative or liberal side of his bed.

At Concurring Opinions, George Washington political scientist Brandond Bartels provides a preview of some empirical work calling into question the characterization of the Robert’s Court as “the most conservative in living memory.”

Sounds good, right? Not if you are an owner of Destin littoral property.

The new beach creates a state-owned buffer between the private property and the water itself.  The mean high water mark is the line used to determine where private property rights end and where the state’s (public) rights begin. In this case, the mean high water mark shifts about seventy-five feet seaward, but the private property line does not change. This is due to the laws of accretion and avulsion. Without boring you to death, basically beach that is created slowly over time becomes property of the private owner, but any additions that occur suddenly (like, say, the dumping of thousands of tons of white sand by the state) are state property because the boundary line is the same as it was before the “event” (read: dumping).

I will not focus on takings as related to the Fifth and Fourteenth Amendments, nor will I get any deeper into Florida laws on avulsion or accretion. What I will focus on is the right to exclude and how this case demonstrates its value.

There are two views that come up in the debate on the right to exclude in this case. The first view is that of the property owner. The idea here is that property owners should keep what they fairly bargained for when purchasing their littoral property – land that ends at the mean high water mark. In this case, the seventy-five feet of additional sand separates the landowner’s property from the new mean water line and the landowner no longer owns waterfront property, nor is he or she compensated for that loss.

Another view is that of the beachgoer, who would likely hold that the landowner is gaining an additional seventy-five feet of white sand beach that is free to use as if it were his or her own land – for the most part. This brings up the old “bundle of sticks” analogy. The question raised here is: What is the right to exclude worth? The property owners of Destin have collectively decided that the right to exclude (along with the change in property value) is not worth this fresh, new beach. Given the resolution of the case, we will never know exactly how much that right is worth to these landowners. However, this situation gives us an idea of how valuable that “stick” is within the bundle.

 Manzi begins his article by referring back to the debate about the stimulus package. Noting that Nobel laureates lined up on both sides of the question, he writes that “[f]ierce debates can be found in frontier areas of all the sciences, of course, but this was as if, on the night before the Apollo moon launch, half of the world’s Nobel laureates in physics were asserting that rockets couldn’t reach the moon and the other half were saying that they could.” The only thing that could be said for sure about the stimulus is that, however it turned out, ”several Nobelists would be wrong about it.”

But the problem is worse than that. We can never really know who was right. If the stimulus does not achieve the results that were claimed for it, it may be because it failed or it may be because things were worse than we thought. Even if we can say that it did not work as intended, is the problem in Keynesian theory or was the stimulus just too small? As Manzi puts it, we have  ”no reliable way to measure counterfactuals—that is, to know what would have happened had we not executed some policy—because so many other factors influence the outcome.”

Manzi points to an summary by scholars at the University of Cambridge of  ”all 122 known criminology RFTs with at least 100 test subjects executed between 1957 and 2004. “  Manzi claims that “ no program within this universe of tests has ever demonstrated, in replicated or multisite randomized experiments, that it creates benefits in excess of costs.”

He argues that business has had greater success with randomized field trials by ” executing many fast, cheap tests in rapid succession, rather than big, onetime “moon shots.” He suggests that the social sciences might benefit from this approach but suggests the following cautionary principles in the evaluation of social science results: 1) ”few programs can be shown to work in properly randomized and replicated trials;” 2) “within this universe of programs that are far more likely to fail than succeed, programs that try to change people are even more likely to fail than those that try to change incentives;” and 3) “those rare programs that do work usually lead to improvements that are quite modest, compared with the size of the problems they are meant to address or the dreams of advocates.”

I would add the problem of confirmation bias. Those in the physical sciences may have a bias toward seeing a hypothesis confirmed, but their preexisting array of values and assumptions about the way in which the world ought to work are less likely to be confounding.

This has implications for the law. Social science evidence is often introduced to support allegations of discrimination, to prove or undercut the rationale for a particular challenged public policy or to establish a claim that act A produced effect B. Even courts that are willing to police this testimony through the use of Daubert or similar standards tend to defer to the prevailing assumptions of specialists within the field at issue. Manzi’s article raises – and not for the first time - the question as to whether the field itself can produce robust and useful results.

Some will find certain ideological implications here. Increased skepticism about how the social sciences can improve our world certainly undercuts the classic Progressive project for tha improvement of society by what Franklin Roosevelt called “enlightened administration.”

But we shouldn’t be too quick to conclude that this is a message for the right. While conservatives are less likely to argue for the transformation of human behavior through public programs, they do make a series of empirical claims about what does and does not enhance human well being. The proof of these claims is presumably equally elusive

The seven-day conference began with a reception on Sunday evening and a Monday morning plenary session entitled “The Role of Comparative Law in Courts and International Tribunals” which featured speakers from the United States Eighth Circuit Court of Appeals, the Constitutional Court of Italy, the Inter-American Court of Human Rights, and the International Court of Justice as well as the current president of the American Bar Association and the Director of the Max Planck Institute.   

A subsequent session featured Ruth Bader Ginsburg of the United States Supreme Court, and the concluding event, a plenary session focusing on the future of comparative law studies, entitled ”Comparative Law: Problems and Prospects,” was held on Saturday morning.

Once viewed as the province of specialists with little relevance to the practicing attorney, the field of comparative law has dramatically increased its role in the American law school curriculum in recent years.  A number of law schools, including Harvard and Washington & Lee , have added Comparative Law to their first year curriculums.  Others, like Marquette, have significantly increased the number of upper-level comparative law course offerings and have created special summer programs in comparative law in conjunction with law schools from other countries.  In Marquette’s case, these programs have involved the University of Queensland (Australia) and, more recently, the Justus Liebig University Law School in Giesen, Germany. 

Under the direction of Prof. Alan Madry, currently the director of Marquette’s program in International and Comparative Law, Marquette has also put together an array of opportunities for students to spend a semester or a year studying at a law school in another country.

Marquette was represented at the International Congress by Professor Hylton (yours truly) who serves as a member of the editorial board of the American Journal of Comparative Law.  Also present was Professor James Nafziger of Willamette University Law School who served as the Boden Distinguished Visiting Professor at Marquette during the 2009-2010 academic year.