July 1, 2014

Welcome to Our July Blogger

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July 4th FireworksOur July guest blogger with be rising 3L Joel Gracyk. Joel hails from Chaska, Minnesota, and is interested in constitutional law and legal writing. He is the incoming Editor in Chief of the Marquette Law Review.

And a belated thank-you for the excellent series of posts from our previous guests, Ric Gass ’70 and 2L Danielle Nardick!

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US Supreme Court Review: Should the Court Care How Effective a Statute Is?

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Category: Criminal Law & Process, Federal Criminal Law & Process, Public, U.S. Supreme Court
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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In my previous post, I noted a number of the considerations that the Supreme Court emphasized in its criminal statutory interpretation cases from the past term. In this post, I will highlight one recurring point of controversy, that is, whether the Court should try to maximize the effectiveness of statutes in achieving their overarching purposes.

Abramski, the firearms purchase case, provides a good illustration.   Read more »

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June 30, 2014

US Supreme Court Review: Statutory Interpretation in Criminal Cases

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public, U.S. Supreme Court
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US Supreme Court OT2013 logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In the first post in this series, I discussed two causation cases in some detail.  In this post, I will more briefly summarize the full set of the Court’s criminal statutory interpretation cases from the past term and then offer a few overarching observations.

Here are the cases (excluding habeas corpus decisions):   Read more »

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The Supreme Court Considers Google Street View

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Category: Computer Law, Privacy Rights, Public
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Google Street View CarAll of the interest in the Supreme Court tomorrow is likely to be focused on Hobby Lobby and, to a lesser extent, Harris v. Quinn. But I’ll be watching something that happens before either of those decisions is announced. I’ll be looking to see if the Supreme Court granted cert in the StreetView case. I hope the answer is no.

The StreetView case — Google v. Joffe — is one that I’ve blogged extensively about over the past year. See Part I, Part II; see also my coverage of the Ninth Circuit opinion, Google’s petition for rehearing, and the filing of Google’s cert. petition.) Briefly, Google’s StreetView cars intercepted the contents of transmissions from residential wi-fi routers whose owners had not turned on encryption. A number of class actions have been filed claiming that the interceptions were violations of the federal Wiretap Act. Google moved to dismiss them, arguing that radio communications (like wi-fi) basically have to be encrypted to be protected by the Wiretap Act. The district court and the Ninth Circuit disagreed, holding that the exception Google points to applies only to traditional AM/FM radio broadcasts.

Although I disagree with the Ninth Circuit’s reasoning and would find it professionally advantageous if the Supreme Court decided to take the case, I hope it denies cert. Here’s why. Read more »

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June 27, 2014

US Supreme Court Review: Crime and Causation

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public, U.S. Supreme Court
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US Supreme Court logo(This is the first post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term. Other posts, when they appear, can be found here.) The Court’s criminal docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.   Read more »

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Series: Looking Back at the U.S. Supreme Court’s 2013 Term

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US Supreme Court banner
I’m excited to announce a new summer series here at the Marquette Law Faculty Blog, one in which members of our faculty will be analyzing some of the most important U.S. Supreme Court decisions in their areas from the term that just concluded. Our first post is from Michael O’Hear on Burrage v. United States and Paroline v. United States, two important criminal law cases decided in January and April 2014, respectively. Posts in the series will have titles starting with “US Supreme Court Review.”

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June 26, 2014

An Expanded Role for Jay Ranney as Schoone Visiting Fellow

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ranney-TNAs set forth in this release, the Law School has appointed Joseph A. Ranney as its Adrian P. Schoone Visiting Fellow in Wisconsin Law. Ranney will use his fellowship to write a book that examines the role states have played in the evolution of American law, with a focus on the contributions made by Wisconsin. Ranney is (and will continue to be) a partner at DeWitt, Ross & Stevens, S.C., in Madison and a longtime member of Marquette University Law School’s part-time faculty. His previous books include Trusting Nothing to Providence: A History of Wisconsin’s Legal System (1998), considered the leading legal history of the state, and In the Wake of Slavery (2006), examining the path of the law and its effects in the Reconstruction-era South. He is also well known to the Wisconsin bar for his frequent contributions to Wisconsin Lawyer, the official magazine of the State Bar of Wisconsin, and he has made a number of contributions to the Marquette Law Review. The fellowship is made possible by the Law School’s Adrian P. Schoone Fund for the Study of Wisconsin Law and Legal Institutions, announced last year, and its fruits no doubt will include contributions by Jay Ranney to this faculty blog during the course of his fellowship. It is a pleasure to welcome him to his new role.

 

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June 25, 2014

Marquette Law School Wins 2014 Diversity Matters Award

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Category: Legal Profession, Marquette Law School, Public
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The Law School Admission Council (LSAC) honored Marquette Law School at its spring conference with the 2014 Diversity Matters Award.  The LSAC Diversity Initiatives Office and Discover Law sponsor the award.  The award recognizes Marquette’s commitment to diversity and its programming for high school students and college students from racial and ethnic groups underrepresented in law school and the legal profession.  Marquette received the third place award two years ago.

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June 20, 2014

Is Hachette Being Hoisted by Its Own DRM Petard?

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Category: Computer Law, Intellectual Property Law, Public
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booksRebecca Tushnet points to this column by Cory Doctorow arguing that Hachette is being held hostage in its fight with Amazon over e-book versions of its books because of its “single-minded insistence on DRM”: “It’s likely that every Hachette ebook ever sold has been locked with some company’s proprietary DRM, and therein lies the rub.” Doctorow argues that because of the DMCA Hachette can no longer get access, or authorize others to get access to, its own books:

Under US law (the 1998 Digital Millennium Copyright Act) and its global counterparts (such as the EUCD), only the company that put the DRM on a copyrighted work can remove it. Although you can learn how to remove Amazon’s DRM with literally a single, three-word search, it is nevertheless illegal to do so, unless you’re Amazon. So while it’s technical child’s play to release a Hachette app that converts your Kindle library to work with Apple’s Ibooks or Google’s Play Store, such a move is illegal.

It is an own-goal masterstroke.

Everyone loves irony, but I can’t figure out how to make Doctorow’s argument work. First, I can’t figure out what the anticircumvention problem would be. Second, I can’t figure out why Hachette wouldn’t be able to provide other distributors with e-book versions of its books. Read more »

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June 17, 2014

R.I.P., Gabriel Kolko (1932-2014)

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Category: Political Processes & Rhetoric, Public
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gabriel-kolko-tnI was saddened to read of the recent death of prominent historian Gabriel Kolko. He suffered from an incurable neurological disease and relocated to the Netherlands. He then took advantage of that nation’s legal euthanasia option and died in Amsterdam on May 19.

When I was an undergraduate, I read and found immensely provocative Kolko’s “The Triumph of Conservatism: A Reinterpretation of American History, 1900-1916” (1963). Kolko argued in the book that big businesses of the early twentieth century actually wanted the federal government to regulate them in order to avoid more restrictive legislation from state legislatures. Self-styled “Progressive” reformers, in Kolko’s interpretation, were wolves in sheep’s clothing. They worked in sneaky ways to preserve corporate power and to short-circuit efforts to rein in exploitative corporate profit-seeking.

In the later stages of his career, Kolko turned increasingly to American war-making and foreign policy, and his works included: Read more »

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June 16, 2014

Diederich College Appointment of John Pauly as Colnik Chair

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Category: Media & Journalism, Public
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John PaulyJohn Pauly came to Marquette University in 2006 to lead the Diederich College of Communication, and we were deans for two years together — or at least next door to one another, as he was in Johnston Hall and I immediately east in the “old building,” as we in the Law School now call Sensenbrenner Hall. Then Dean Pauly became Provost Pauly in 2008, and so for five years I reported to him, although that phrasing does not convey all the support that Provost Pauly gave to the Law School and to me as dean. Throughout these years and his administrative positions, I admired the way John remained engaged in his discipline — journalism — in a way also integrated with the larger work of the Marquette University faculty. I remain particularly drawn to his substantial essay, “Is Journalism Interested in Resolution, or Only in Conflict?,” published in the Marquette Law Review in 2009 as part of a dispute resolution symposium at the Law School (introduced here by conference organizer, Prof. Andrea K. Schneider). There are other examples of his contributions, including a post last month on our blog concerning the study of political polarization conducted by Craig Gilbert, Washington Bureau Chief of the Milwaukee Journal Sentinel and the Law School’s Lubar Fellow for Public Policy Research last year.

In any event, for all these reasons (and for any additional engagement with the Law School that it might occasion), I am delighted that my colleague Lori Bergen, dean of the Diederich College of Communication, has appointed John Pauly as the college’s Gretchen and Cyril Colnik Chair in Communication. In making the announcement, Dean Bergen noted that Prof. Pauly’s research and teaching “in the history and sociology of the mass media, cultural approaches to communication, media ethics and criticism, communication theory and the theory and practice of literary journalism have brought him international distinction as a scholar.” This appointment as Colnik Chair is a signal and well-deserved honor for a much-respected colleague and reflects not just terrific judgment concerning John Pauly’s past contributions to Marquette University and the community of scholars but also a prediction of more such. Kudos and congratulations to all involved.

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June 12, 2014

Returning College Athletics to College Students

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Category: Higher Education, Public, Sports & Law
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kansas city chiefs football gamesThere is a simple way to end the hypocrisy that is modern college sport and at the same time preserve the much-beloved pageantry of men’s college football and basketball.

First of all, we need to embrace the idea that college athletics should be a part of the educational mission of colleges, and not part of their “providing entertainment” function. Subject to the exception for men’s football and basketball set out below, participation in college athletics should be limited to regularly enrolled students who chose to attend their college free from the enticement of special financial support.

The first step is to abolish all athletic grants-in-aid (euphemistically called athletic scholarships) except for those awarded in men’s football and basketball. Except for a few pockets of fan support for college baseball and hockey and women’s basketball, the simple fact is that most sports fans do not care about college sports other than football and men’s basketball. Read more »

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