The Wisconsin Supreme Court’s Caperton Moment

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Category: Election Law, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
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wisconsin-supreme-courtThe definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal. Read more »

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Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

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Category: Political Processes & Rhetoric, Public, Wisconsin Law & Legal System
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In 1851, the state of Wisconsin adopted the simple word Forward as its state motto. It’s a powerful word that has symbolized the State’s progressive history. Lately, though, it seems like we’ve been going backward rather than forward. Case in point: open records law.

Wisconsin’s open records law has been around since 1981. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins with a broad declaration of policy: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.

Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute, said, “Transparency in government is not a liberal or conservative issue, it is a good government issue. Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable.”

And the law has been used to do just that. Read more »

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A Rebellion of Giants: Dixon, Ryan, and Taming the Railroads in the Gilded Age

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Category: Legal History, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
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Chief Justice Luther S. Dixon

Chief Justice
Luther S. Dixon

This is the fifth in a series of Schoone Fellowship Field Notes.

Eastern jurists such as John Marshall, James Kent, Oliver Wendell Holmes, and Benjamin Cardozo have received the lion’s share of attention from law professors and historians over the years. Two fellow giants from the Midwest, Michigan’s Thomas Cooley and Iowa’s John Dillon, have been relegated to comparative obscurity.

Cooley and Dillon played a central role in shaping the contours of modern American constitutional law. They forged their philosophies in the heat of two critical judicial debates over the role of railroads in American society. Two Wisconsin justices, Luther Dixon and Edward Ryan, were also leaders in those debates, and their contributions to American constitutional law deserve to be better known. Read more »

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Decline in Wisconsin Prison Population Results From Fewer Drug Offenders Behind Bars

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As I discussed in this post, Wisconsin has achieved one of the nation’s higher rates of reduction in imprisonment over the past decade. To be sure, New York, California, and a few other states have far outpaced Wisconsin in this regard, and Wisconsin’s prison population remains nearly ten times larger than it was in the early 1970s. Still, we may appreciate some overall net progress in the Badger State’s numbers since the mid-2000s. As indicated in the chart after the jump, reduced imprisonment of drug offenders has played a central role in driving this trend.   Read more »

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New Article on Good Conduct Time

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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I have a new article in the Wisconsin Lawyer about good conduct time, a program that permits prisoners to earn accelerated release based on how well they do behind bars.  Most states offer GCT to their prison inmates, but Wisconsin does not.  (Inmates in local jail facilities here may earn GCT, but not the 20,000+ longer-term inmates in state prisons.)  In the new article, I argue that Wisconsin policymakers should consider adopting a GCT program for prisoners as part of their ongoing efforts to reduce the size of the state prison population, which remains near historic highs.  For readers interested in more on this topic, I’ve created a page on my personal blog that collects my writings on GCT.

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Wisconsin: The Final Firework in the Antislavery Legal Movement

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Lemuel Shaw

Mass. Chief Justice
Lemuel Shaw

This is the fourth in a series of Schoone Fellowship Field Notes.

Putting Wisconsin’s antislavery heritage in perspective. Wisconsin takes great pride in its antislavery heritage, particularly the Northwest Ordinance (1787), which ensured that Wisconsin would be a free state, and the Booth Cases (1854, 1859), in which Wisconsin stood alone in defying the federal government’s attempt to turn northerners into slavecatchers. This pride is justified but needs perspective. When Wisconsin arrived on the American stage as a new state (1848), American slavery was two centuries old and the legal reaction against slavery had been underway for 70 years. The Booth Cases were important, but they were merely the final fireworks in the drama of American law and slavery. Read more »

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Early Wisconsin Law: A New York State of Mind

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Chancellor James Kent

Chancellor James Kent

This is the third in a series of Schoone Fellowship Field Notes.

Legal cross-currents among states. Measuring the legal influence states have on each other is an intriguing but difficult task. Some scholars have approached the task by measuring the number of times a state’s supreme court decisions are cited in other states. Typically they have used these numbers to rank each state and have left it there. Little consideration has been given to regional variations in influence or changes in influence over time, or to the fact that judges rely on legal treatises as well as other courts’ decisions.

I have gone further, measuring case and treatise citations at 20-year intervals from 1800 to 1860. The book I am writing as part of the Schoone Fellowship will present these results in full. New York, as expected, was the most influential state but, surprisingly, American courts also relied heavily on English cases heavily until the 1840s. The numbers present a striking picture of America’s increasing reliance on its own law: Read more »

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Lighting Out for the Territories

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Judge James Doty

Judge James Doty

This is the second in a series of Schoone Fellowship Field Notes.

Territorial judges: an overlooked force in American law. As Willard Hurst observed, during the past 150 years lawyers have been implementers rather than creators of law. We whose days are spent staring at a screen and poring over paperwork sometimes wish we could take a way-back machine to the days of legal creationism, if only for a little while. Yet an important group of creators—judges appointed from Washington, starting in the 1780s, to establish the law in America’s far-flung, largely unsettled new territories—are nearly forgotten today. Territorial judges were often, in the words of the French observer Achille Murat, “the refuse of other tribunals” or seekers after sinecures, and if they are remembered at all it is as much for their escapades as for their jurisprudence. But some of the territorial judges, including Wisconsin’s James Doty, stand out in American political and legal history, and the vital contributions they made to institutionalizing American law are often overlooked. The book being written under the Schoone Fellowship’s auspices will attempt to remedy that. Read more »

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Daubert Has “Teeth” (and a Pulse)

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

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Attorney General Candidates Raise Profile of Low-Key Race in Eckstein Hall Debate

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Near the end of an hour-long debate Sunday between the two candidates for Wisconsin attorney general, moderator Mike Gousha asked if either wanted to bring up something that hasn’t gotten enough attention during the campaign.

Democrat Susan Happ, the district attorney of Jefferson County, answered first and talked about consumer protection.
Republican Brad Schimel, district attorney of Waukesha County, answered that the entire race hadn’t gotten enough attention. It’s an important race, he said, and there should be more awareness of it.

Indeed, the race has not sparked widespread public attention. A Marquette Law School Poll released on Oct 1 found that about four out of five of those polled did not have an opinion of either Schimel or Happ. Overall, the race was close, according to the poll, but people expressed an opinion on who they would vote for only in response to a question that identified each candidate by party.

With a little over three weeks to go until the Nov. 4 election, the debate Sunday, in the Appellate Courtroom of Eckstein Hall, may have helped give awareness of the race a boost. The debate, co-sponsored by Marquette Law School and WISN-TV, was broadcast live across Wisconsin. The candidates are scheduled to take part in two more debates. Read more »

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Good Time in Wisconsin: Why and How

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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In a couple of recent posts (here and here), I have discussed the possibility of reinstituting “good time” in Wisconsin. I have developed the argument for good time at much greater depth in a new article that is now available on SSRN. Here is the abstract:

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress. This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions. Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.

Entitled “Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release,” the article is forthcoming in the Marquette Law Review.

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“Good Time” in Washington: A Model for Wisconsin?

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In an earlier post, I argued that Wisconsin should consider reinstituting “good time” for prisoners, that is, credits toward accelerated release that can be earned based on good behavior.  An established program that Wisconsin might emulate is Washington’s.

Washington has long been regarded as a national leader in criminal justice.  Indeed, Wisconsin has previously borrowed from other Washington innovations, such as its “three strikes and you are out” law and its civil commitment program for sexually violent offenders.  Washington’s good-time law takes a balanced, moderate approach.  It is neither among the most generous nor the most stringent in the nation.

Notably, Washington’s recidivism rate has been consistently lower than both the national average and Wisconsin’s.  Although many factors contribute to a state’s recidivism rate, some research suggests that the incentives established by a well-designed good-time program may help to reduce repeat offending.

With the rules set forth here, the Washington program works like this:   Read more »

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