June 8, 2016

Donald Trump and the Belief in Law

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Category: Judges & Judicial Process, Political Processes & Rhetoric, Public, Uncategorized
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Donald_Trump_-_CaricatureAmong Donald Trump’s many provocative statements, his recent claims that a specific federal judge with a “Mexican heritage” and Muslim judges in general would be biased against him have apparently struck a special chord.  Even Trump’s fellow Republicans have been highly critical.  Senator Mitch McConnell of Kentucky, for example, completed disavowed Trump’s claims, noting “All of us come here from somewhere else.”

Most of the criticisms deplore Trump’s lack of respect for American diversity and also his racism.  House Speaker Paul Ryan said in this regard that Trump’s comments amounted to “textbook racism.”  However, I wonder if some part of the strong negative reaction also relates to Trump’s challenge to an American belief in law and in the courts’ ability to apply law in a fair and objective manner.

I have argued in several of my writings that a belief in law should be recognized as an important tenet of American ideology, with “ideology” being understood as a normative expression of dominant beliefs rather than as a manipulative falsehood.  Americans have traditionally believed in law, which is presumably understandable, made in public, and useful for one and all.  In addition, law is supposed to be applied without bias, and independent courts in particular are expected to adjudicate disputes fairly and to decide similar cases in similar ways.  “Ideologues” — that is, believers in and promoters of this ideology– routinely assure us that Americans live by the rule of law more so than any other nation. Read more »

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June 7, 2016

Eckstein Hall Conference Focuses on Provocative National Security and Liberty Issues

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Category: Civil Rights, Public, Speakers at Marquette
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Was Apple protecting people’s privacy or its corporate interests when it wouldn’t help the FBI get information from a terrorist’s iPhone? When Edward Snowden released a trove of secret information about national security operations, was he a whistle-blower or a criminal? Did the Patriot Act of 2001 open the door too wide to mass surveillance of Americans?

More broadly, where should the line be drawn between trying to protect the nation from terrorism and protecting the rights and liberties of Americans?

These are all complicated, interesting, and timely questions—and all were discussed during a provocative half-day program at Marquette Law School on June 2 that brought together leading national figures to shed light on these issues before a full-house audience in the Appellate Courtroom. Read more »

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June 6, 2016

Commonly Confused Words, Part VI

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Category: Legal Practice, Legal Writing, Public
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previewBack with more sets of commonly confused words. While some may think the words on my lists are elementary, I assure you that I am choosing specific sets because I have seen law students and lawyers misuse them. In an effort to help eliminate that misuse, I present ten more sets of commonly confused words.

Disinterested/uninterested – The distinction between these two words is subtle, but it’s important. “Disinterested” means impartial, unbiased, having no stake in the outcome. E.g., To settle the dispute, we want a disinterested third party. “Uninterested” means not engaged, unconcerned, or bored. E.g., I am uninterested in the NBA playoffs. That means I pretty much don’t care about NBA playoffs or their outcome. They don’t interest me. I would not say, I am disinterested in the NBA playoffs. While with both sentences, I am saying I have no stake or interest in the outcome, “disinterested” implies an impartiality that I don’t mean. I am not impartial or unbiased (disinterested) about the playoffs; I affirmatively have no interest in them (uninterested).

Discreet/discrete – Though pronounced the same way, these two words mean two different things. “Discreet” means cautious or reserved, particularly in conduct or speech. A person who is discreet knows not to talk about a sensitive subject in public. “Discrete” means something that is separate and distinct. For example, in any given case, there may be two or more discrete legal issues; that is, two or more separate and distinct legal issues.

Elicit/illicit – These two words sound nearly the same when said, though the context of the conversation will often provide the cues a listener needs to know which word is which. In writing, though, you want to be sure to choose the correct word. “Elicit” means to draw out or draw forth, usually a response or a reaction. The defendant’s testimony about the crime elicited gasps from the jurors. “Illicit” means something illegal or unlawful, and therein is the best way to remember it. Illicit = illegal. Defendant was arrested for his illicit conduct.

Liable/guilty – And while we’re on the subject of illegalities, let’s distinguish between guilt and liability. While the words may be interchangeable to lay people, in law they tend to have some specific meanings. Someone convicted of a crime is guilty, but someone who violates some civil standard is liable. Read more »

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June 3, 2016

Justice Kennedy Criticizes “Notoriously Unclear” and “Ominous” Scope of the Clean Water Act

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Category: Environmental Law, Public, Water Law
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The Clean Water Act requires regulatory agencies to make difficult choices about exactly where “water ends and land begins.”[1]  Whether a particular property contains “waters of the United States,” the touchstone for federal jurisdiction under the Act,[2] is not easy to determine, especially when the question involves not traditionally navigable waters but wetlands.  public trustThe Environmental Protection Agency defines “wetlands” as areas such as swamps, marshes, and bogs that are periodically inundated with water.  Severe consequences flow from unpermitted actions that impact “waters of the United States.”  The Act imposes criminal liability and civil penalties to the tune of $37,500 per day of violation.[3]  Upon request, the Army Corps of Engineers will issue jurisdictional determinations (“JDs”) specifying whether a particular property contains jurisdictional waters.  In recent years, the Supreme Court has wrestled with various aspects of wetlands issues again and again and again and again.  The most recent such case, United States Army Corps of Engineers v. Hawkes Co., No. 15-290, raised the question of whether Corps JDs constitute “final agency action” that is immediately appealable in federal court under the Bennett v. Spear analysis rooted in the Administrative Procedure Act.

Earlier this week, the Supreme Court unanimously ruled that JDs constitute final agency action and are immediately appealable.  The Court quickly rejected the Corps’ two arguments to the contrary: first, the rather unreasonable suggestion that affected citizens could simply proceed without a permit, risking an enforcement action during which one could argue that no permit was required; and second, that upon receiving a “positive” JD, affected citizens could apply for a permit and seek judicial review of the JD upon the conclusion of the lengthy permitting process (the property owners in Hawkes estimated that it would cost well over $100,000 to “earn” the appeal right under that scenario).

Despite its importance, the decision is not particularly surprising given the tenor of the oral argument as well as the Court’s recent decision in Sackett v. Environmental Protection Agency, 566 U.S. — (2012) that an EPA compliance order is immediately appealable to federal court when it was based on the factual assumption that a parcel contained wetlands.  Perhaps for that reason, it’s not the majority opinion that has everyone talking; instead, Justice Kennedy stole the show with a three-paragraph concurrence.

Read more »

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May 19, 2016

New Marquette Lawyer Sheds Light on Urban Neighborhoods—and Much More

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Marquette LawyerPair up the wisdom of a leading national expert on understanding urban neighborhoods with an effort to increase the vitality of a large section of Milwaukee’s west side and what do you have? You have the cover package of the Summer 2016 issue of Marquette Lawyer magazine.

Professor Robert J. Sampson, the Henry J. Ford II Professor of Social Sciences at Harvard University, delivered the Robert F. Boden Lecture at Marquette Law School in September 2015, drawing on his work in Chicago and Boston examining the fabric of urban neighborhoods. ”Neighborhood Inequality and Public Policy: What Can Milwaukee Learn from Chicago and Boston?” offers an essay version of Sampson’s lecture, along with reactions from several Milwaukee leaders.

A partner piece describes efforts by Marquette University and other major institutions to improve housing, business and commercial life, safety, and community amenities in near west side areas of Milwaukee—generally between the Marquette campus and the Harley-Davidson offices and factory a couple miles to the northwest. “Writing a New West Side Story” describes the ambitious undertaking under the leadership of Marquette’s President Michael R. Lovell.  The piece concludes with a comment by Provost Daniel J. Myers.

The cover package also includes a reflection by Mike Gousha, distinguished fellow in law and public policy, on the Law School’s public policy initiative, which aims to increase dialogue about major issues and shed light on subjects such as what can help urban neighborhoods. The dean’s column at the beginning of the magazine also speaks to Milwaukee, urban America, and the Law School’s interest in these matters.  Read more »

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May 18, 2016

Opposing Views, One Conversation at Session on Milwaukee Education

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Category: Education & Law, Milwaukee, Political Processes & Rhetoric, Public, Speakers at Marquette
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Until Tuesday, Dale Kooyenga and Lauren Baker had never met. That alone is an argument for why their discussion before a capacity audience in the Appellate Courtroom of Eckstein Hall was worthwhile.

Kooyenga is a member of the state Assembly, a leader among Republicans pushing for education policies that embrace school choice, and a key figure behind a controversial new law that gives Milwaukee County Executive Chris Abele powers to control what happens in some low-success Milwaukee public schools.

Baker is the executive director of the Milwaukee Teachers’ Education Association, the union that is an influential force in Milwaukee politics and MPS decision making. The union opposes almost all the plans Kooyenga supports.

Never the twain shall agree? That’s likely, given the adamancy of their positions. But never the twain shall meet? That ended at the Law School event, which was titled “The Future of Education in Milwaukee: One Conversation, Two Viewpoints.” Read more »

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May 15, 2016

For Sale: George Zimmerman’s Property

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Forsale2-300x236Most law school classes in Property begin with the venerable bundle of sticks metaphor.  The “bundle” includes those rights and interests held by the owners of property.  The assorted “sticks” take on different shapes and sizes, and owners invoke one or more of them to a different extent as the times change.  In the opinion of many, the right to sell one’s property has supplanted the right to use one’s property as the most important “stick” of  in the present.

The recent efforts of George Zimmerman to market the gun he used to shoot Trayvon Martin is a particularly distasteful example of an attempt to sell one’s property.  While patrolling as part of a self-styled neighborhood watch in a gated community near Orlando, Florida, Zimmerman confronted and fought with the seventeen-year-old Martin.  In the midst of the struggle, Zimmerman fired his 9 mm Kel-Tec PF-9 pistol and killed Martin.

Zimmerman was tried for the murder in early 2012, and the media absolutely feasted on the courtroom proceedings.  Zimmerman and his attorneys successfully argued the shooting was in self-defense.  Zimmerman was acquitted in February, 2012, and he publicly delighted in his victory at trial.  What’s more, the United States Justice Department at that point returned the weapon to Zimmerman.

This past week, Zimmerman put the gun up for sale on several gun auction sites. Read more »

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May 9, 2016

Commonly Confused Words, Part V

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Category: Legal Practice, Legal Writing, Public
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I’ve previously posted on words that writers, particularly lawyers, commonly confuse. Those posts are here (that/which/who, more than/over, few(er), less, amount/number, farther/further, since/because/as, among/between, who/whom, attain/obtain), here (a/an/the, counsel/council, e.g.,/i.e., it’s/its, principal/principle, then/than, utilize/use, you’re/your, affect/effect, tortious/tortuous, tack/tact, capitol/capital, motioned/moved, flesh/flush), here (although/while, assure/insure/ensure, complement/compliment, rational/rationale), and here (a couple, a few, some, several, and many).

Today, I’ll cover seven more pairs of commonly confused words.

Born/borne – Both words are past participles of “to bear”; however, only one relates to birth. Use “born” when referring to literal or figurative birth, such as: She was born in California or Wisdom is born from years of experience. “Borne,” on the other hand, refers to the other meanings of “to bear”: such as, to carry, to produce, or to bring about. “Borne” would be proper in the following: Costs associated with this litigation will be borne by the defendant.

 Good/well – “Good” is an adjective, “well” is an adverb. That is, “good” describes and “well” modifies or qualifies. A good lawyer writes well. “Good” in that sentence describes the noun, “lawyer.” (What kind of lawyer? A good one.) “Well” qualifies the verb “writes.” (How does the lawyer write? Well.) The exception to this good/well distinction involves health. If you’re asked How are you?, the grammatically correct answer would be I am well (i.e., your health is good).

Do not use “good” to modify a verb. We might say That lawyer is good at writing, but we certainly wouldn’t say That lawyer writes good.

 Lay/lie – My wonderful colleagues Anne Enquist and Laurel Currie Oates from Seattle University have best explained the distinction between these two words in their book Just Writing: Grammar, Punctuation, and Style for the Legal Writer (4th ed. 2013). I am drawing from their explanation nearly verbatim but for style changes to fit the form here. Read more »

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April 28, 2016

Waukesha Diversion Application Inches Closer To Conditional Approval, But State Law Questions Remain

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Category: Environmental Law, Public, Water Law
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Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert visited Marquette Law School on February 4 for a wide-ranging conversation about Waukesha diversionWaukesha’s application to divert water from Lake Michigan pursuant to the Great Lakes Compact.  At the time, few observers expressed confidence about the application’s prospects for approval.  Now, after several intervening meetings by the Regional Body that governs the Compact, we have more clarity on a path forward.

The Regional Body has offered a revised plan for consideration under which it could grant a conditional approval if, in exchange, Waukesha accepts a smaller water service area (and a diversion reduced by a corresponding amount.)  In its application papers, Waukesha took the position that state law required it to request enough water to supply a water service area contiguous with its sewer service area.  The boundaries extended well beyond the city limits and included parts of the City of Pewaukee and the Towns of Delafield, Genesee, and Waukesha.  During a Regional Body meeting on April 21, it became clear that the expanded service area was a sticking point for several other states, all of which hold a veto power over the application.  Partly, this is because the exception to the Compact’s ban on diversions refers only to a “community,” in the singular; it makes no reference to a water service area.  The Regional Body therefore drafted, and yesterday posted to its website, a revised map showing a reduced service area that would decrease the estimated diversion request from about 10.1 million gallons of water per day (MGD) to about 8.2 MGD.  Waukesha leaders appear willing to accept the change: “[W]e’re approaching a workable solution for residents of the city,” said Waukesha Water Utility General Manager Dan Duchniak.  The decreased water service area may satisfy the requirements of the Compact.  But does it simultaneously violate state law for Waukesha’s water service area to be non-contiguous with its sewer service area, as the city originally posited?  The answer isn’t readily apparent, but some statutory calisthenics reveal the dilemma. Read more »

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April 27, 2016

Author Says Urban Progress Requires “Durable” Policy

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Category: Milwaukee, Poverty & Law, Public, Speakers at Marquette
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A few phrases provide a taste of the serious serving of thoughts about urban centers in America offered by Patrick Sharkey, a sociology professor at New York University, at an “On the Issues with Mike Gousha” program at Marquette Law School on Tuesday.

“Multi-generational cumulative exposure.” Sharkey is author of the book, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality, and is working currently on issues related to violence and low-income communities. A key to his findings is that the problems facing people who live in poor, predominantly minority areas have built up for generations and show themselves in multiple serious ways, including the educational success and future prospects of children.

“A durable urban policy agenda.” Sharkey said that one thing that has shown positive results is sustained effort to help people with housing, jobs, education, and other matters – with the emphasis on the word “sustained.” So many initiatives are launched and then dropped, he said. He said he doesn’t see durable policy coming from the federal government. The waning of such efforts after the late 1960s is one of the main reasons progress in closing racial gaps stopped, he said. But durable efforts have been undertaken on more local levels, and that gives him some cause for optimism. Read more »

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April 26, 2016

Should College Athletes Be Paid to Play?

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Category: Sports & Law
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sports1On April 19th I participated in a lively panel discussion debating the pros and cons of paying Division I Football Bowl Championship football and men’s basketball players for their services, hosted by The Ohio State University Sports & Society Initiative, which was recently started by its College of Arts & Sciences.  Despite the commercialized nature of these sports, I advocated that college student-athletes should not receive economic benefits based on their playing ability, including cash stipends, in excess of the full cost of attendance at their respective universities.  In my view, there should be greater emphasis on ensuring they receive a meaningful education and earn a college degree that well prepares them for a career other than professional sports, which could include lifetime free tuition and cash bonuses for earning an undergraduate degree. Other panelists included sports economist Andrew Zimbalist, who expressed substantially the same views, as well as Joe Nocera, a New York Times writer, and Vince Doria, a former ESPN senior vice president, who both asserted that college football and basketball players should be paid based on their individual athletic ability and accomplishments.  A video of this panel discussion along with a second panel of former Ohio State football, men’s and women’s  basketball players (including Maurice Clarett, Lawrence Funderburke, and Shawn Springs), and a women’s golfer discussing this issue is available here.

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April 19, 2016

Take Part in Sports, But Minimize the Risks, Sports Concussion Expert Says

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Category: Public, Speakers at Marquette, Sports & Law
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Julian Bailes does not say that kids younger than 14 – or anyone else – shouldn’t take part in contact sports such as football.  But they should know the risks, follow the rules, and make sure they are involved with coaches and others who do the right things when it comes to the health of players.

Bailes is someone whose views are particularly worth attention. A former team physician for the Pittsburgh Steelers, he has been a central figure in medical work that has brought to light the links between repeated hits to the head and long-term brain damage among football players.

During an “On the Issues with Mike Gousha” program Tuesday at Marquette Law School, Bailes outlined the history of awareness of the toll that concussions and “sub-concussive” hits to the head can have, going back more than a century. But it has been in recent years that work by doctors, most notably  Bennet Omalu and Bailes, has established the high incidence among former professional football players of a form of brain damage known as CTE. Read more »

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