July 8, 2014

The Importance of Document Design

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Category: Legal Practice, Legal Writing, Public
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Jim Dimitri’s article, WordWise:  Best Practices in Document Design, is a must read for any lawyer interested in taking advantage of document design in drafting legal documents. Dimitri advises that a writer should “use the most readable font” and “use effective vertical and horizontal spacing” in designing a legal document. Dimitri’s article is useful not only for the advice he gives, but because he defines key concepts in document design, such as monospaced fonts (which “use the same width for each letter”) and proportionally spaced fonts (which use “different widths for different letters”). Dimitri suggests that a writer use proportionally spaced fonts because they are easier to read.

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July 3, 2014

US Supreme Court Review: Constitutional Criminal Cases

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

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

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July 2, 2014

Chevron and the Hobby Lobby Decision

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Category: Business Regulation, Public, Religion & Law, U.S. Supreme Court
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Hobby Lobby logoThe majority opinion in the Supreme Court’s decision in the Hobby Lobby case is founded on the Religious Freedom Restoration Act (RFRA) and the restrictions it places on the Secretary of Health and Human Services (HHS) when she regulates and enforces the Affordable Care Act (ACA). While the issues raised by Justice Ruth Bader Ginsburg’s dissenting opinion as to the battle of interests protected by the Constitution are significant, an important practical legal issue that was not addressed in the Hobby Lobby case is the power of HHS to interpret the meaning of the ACA. Considering the majority’s reliance on two terms that go undefined by the Court — “sincere religious belief” and “closely held corporation” [see page 29 of the slip opinion and footnote 28] — and the fact that none of the other Hobby Lobby opinions address the meaning of these terms, it is essential that these terms be defined as they fit into the ACA context.

The Court’s failure to address how HHS might interpret the meaning of these terms is reasonable considering that HHS has not acted to interpret the meaning of a “sincere religious belief” or a “closely held corporation” in the context of the ACA. In fact, the majority states explicitly that courts will be able to separate those with “sincere religious beliefs” from those who do not. However, despite the majority’s reference to the ability, and impliedly the power, of courts to interpret the terms “sincere religious beliefs” and “closely held corporations,” terms such as these have been regularly interpreted by federal agencies as they apply to the statutes these agencies enforce. Read more »

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US Supreme Court Review: Fourth Amendment Cases

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Category: Constitutional Law, 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.)

On the criminal side of the Court’s docket, I found this term’s statutory interpretation cases more interesting than the constitutional cases. In the latter category, the Fourth Amendment decisions were probably the most significant. They were:

  • Fernandez v. California, 571 U.S. __ (2014) (police permissibly conducted warrantless consent search of home notwithstanding objection of one occupant).
  • Prado Navarette v. California, 572 U.S. __ (2014) (anonymous 911 call sufficiently justified stop of vehicle).
  • Riley v. California, 573 U.S. __ (2014) (warrant required for search of arrestee’s cell phone).

In reviewing these three cases, I think the most intriguing comparison is between Fernandez and Riley. The two decisions serve to highlight apparent inconsistencies in the Court’s stance toward search warrants.

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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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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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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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