June 3, 2015

Elonis v. United States: SCOTUS Again Adopts Narrowing Construction of Criminal Statute

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Category: Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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As I noted in my post last week, the Supreme Court has a variety of interpretive tools at its disposal to rein in the ever-expanding reach of federal criminal law. Right on cue, the Court demonstrated the use of one of these tools this week in Elonis v. United States.

Elonis, a self-styled rapper, posted a variety of lyrics with violent themes on his Facebook page. Some of these lyrics related to his wife, some to coworkers, and some to law-enforcement personnel, among others. Elonis was eventually convicted under 18 U.S.C. §875(c), which prohibits individuals from transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The Supreme Court reversed, ruling that Elonis’s jury had been improperly instructed.   Read more »

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June 2, 2015

After Forty Years, Axelrod Still Sees the Good Side of Politics

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette
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David Axelrod’s new book is titled “Believer: My Forty Years in Politics.” If he had had his way, the title would have been “Believer: How My Idealism Survived Forty Years in Politics,” he told a packed Appellate Courtroom in Eckstein Hall during an “On the Issues with Mike Gousha” program Tuesday.

That option was too wordy in the eyes of the publisher, said Axelrod, the chief strategist for President Barack Obama’s successful runs for president in 2008 and 2012.

But in his visit to Marquette Law School, Axelrod emphasized his belief that good things can be accomplished through politics, an emphasis underscored by his current work as director of the University of Chicago Institute of Politics, where one of his goals is to encourage young adults to get involved.

“We have the ability to shape our future, and the way we do it is through politics,” Axelrod told Gousha, the Law School’s distinguished fellow in law and public policy. “Politics at its best can make a great deal of difference,” he said. “It’s our opportunity to seize the wheel of history and, ever so gently because it’s hard to turn that wheel, turn it in the right direction.” Read more »

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June 1, 2015

Welcome to Our June Blogger

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Deck chairsOur June guest blogger with be rising 2L Erik Eisenheim. Erik is originally from Marinette, Wisconsin, currently lives in Green Bay, and is interested in antitrust law, telecommunications law, securities regulation, and constitutional law. Many thanks to our previous guest, 3L Amy Heart.

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May 29, 2015

Yates v. United States: Overcoming Plain Meaning

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Category: Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)

Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”

On appeal, the question was simply whether a fish counted as a “tangible object.”   Read more »

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May 26, 2015

The School of Don Walker

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Category: Marquette Law School History, Milwaukee, Public
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Several people have used the phrase “old school” when talking about Don Walker. I know what they mean and it is certainly intended as a compliment.

But I want to make sure no one thinks that what Don did as a news reporter and editor for 37 years in Milwaukee was in any way out of date.

The Don Walker approach to news was to get to know all you can about important subjects and to tell what you know to the public in as clear and straight-forward a way as you could. That’s something we need so much these days. That’s why whatever he wrote, whatever subject he was covering, his reporting was a must-read for anyone who wanted to know what was going on.

That’s one big reason – but only one – why Don will be missed. He collapsed and died Friday at home, apparently of a heart attack. He was 62.    Read more »

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May 24, 2015

The Rule of Law in the United States

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Category: Political Processes & Rhetoric, Public
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US Supreme CourtThe highly regarded World Justice Project, an independent organization in Washington, D.C. that promotes the rule of law, has used 47 indicators organized around nine themes to generate a so-called “Rule of Law Index.” Using this Index, the World Justice Project then ranked 99 of the world’s nations according to the extent to which the rule of law was truly operative in those nations’ daily life. The United States ranked nineteenth.

This ranking is surely respectable. Americans could conceivably be pleased the United States compares so well to nations such as Zimbabwe, Afghanistan, and Venezuela, which do in fact appear at the bottom of the World Justice Project’s ranking. But at the same time Americans could be disappointed that the top four nations are, in order, Denmark, Norway, Sweden, and Finland. What’s more, other nations with a common law heritage such as Australia, Canada, and New Zealand also rank higher than the United States.

The ranking is especially surprising given familiar American boasting that their nation lives by the rule of law rather than by the rule of men and that their nation is exceptional in this regard. A belief in the rule of law, in my opinion, has been a central tenet of American ideology since the earliest decades of the Republic. However, all ideological tenets should be subject to vigorous critique, lest they be used for political purposes.

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May 13, 2015

Sampling the Strong Stew of Thoughts at Eckstein Hall Education Conference

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Category: Education & Law, Marquette Law School Poll, Milwaukee Public Schools, Public, Speakers at Marquette
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Given the long list of controversial and major decisions to be made soon as the process of setting Wisconsin’s state budget for the next two years comes to a head, it was remarkable how much agreement there was among speakers at the wide-ranging conference on kindergarten through twelfth grade education policy Monday at Eckstein Hall.

“Pivotal Points: A Forum on Key Wisconsin Education Issues as Big Decisions Approach” brought together key figures involved in politics, schools, and education policy before a full-house audience in the Appellate Courtroom.

Yes, there were differences. But speakers covering a spectrum of views found a lot in common, including the need for stable, adequate funding of schools and stable, effective approaches to dealing with assessing students and tackling the challenges of schools where success is not common.

The four-hour conference opened with welcoming remarks from Marquette University President Michael R. Lovell and ended with something close to agreement by a Republican and Democrat involved in State Assembly education policy that “low performing” schools need support and help more than they need to be closed. Read more »

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May 8, 2015

The Chief’s Lawsuit

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Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Public, Wisconsin Supreme Court
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220px-Shirley_AbrahamsonA lawsuit filed in federal court by a sitting Chief Justice of a state Supreme Court against her colleagues is certainly unusual, if not unprecedented.  The reaction to the filing of the complaint in Abrahamson v. Neitzel  by the mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: “Will the Real Chief Justice Please Stand”) to viewing this latest development as part of an ongoing tragedy (The New Yorker: “The Destruction of the Wisconsin Supreme Court”).  However, the legal question at the heart of the Chief’s lawsuit is actually quite interesting.

Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court take effect in the middle of the sitting Chief Justice’s term, or does it take effect upon the conclusion of the term of the current Chief?

Complicating the issue is the fact that an $8,000 salary differential exists between the position of Chief Justice and the other six Justices on the Court.  Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary.  Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution. Read more »

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Katie Maloney Perhach Discusses Her Leadership Role at Quarles & Brady

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Category: Education & Law, Legal Practice, Legal Profession, Marquette Law School, Public
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Marquette Law alum Katie Maloney Perhach discusses her leadership role at Quarles & Brady in this interview with the Milwaukee Journal Sentinel.  She is managing partner for the Milwaukee office and the chair of its Financial Institutions Litigation Group.

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May 4, 2015

Congratulations to Scott Butler–2015 Outstanding Young Lawyer of the Year

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Category: Legal Practice, Legal Profession, Marquette Law School, Public
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Congratulations to Marquette Law graduate, Scott Butler, for being named the 2015 Outstanding Young Lawyer of the Year by the Young Lawyer’s Division of the State Bar of Wisconsin.  Butler is an associate attorney with Fitzpatrick, Skemp and Associates in La Crosse.  In addition to his successful practice as a civil litigator, Butler serves on several legal and community organizations in the La Crosse area, including the Wisconsin Association for Justice and the La Crosse County Bar Association and New Horizons Shelter and Outreach Center.

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May 1, 2015

Welcome to Our May Blogger

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tulip iiOur May guest blogger with be 3L Amy Heart. Many thanks to our previous guest, 3L Elizabeth Oestreich.

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April 28, 2015

New Marquette Lawyer magazine takes long-term view of major issues 

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Category: Civil Rights, Marquette Law School, Public, Speakers at Marquette
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The long-term view: That’s a theme that underlies much of the content in the just-released Spring 2015 issue of Marquette Lawyer magazine. The way events and trends that date back decades shed light on major issues today is at the heart of several of the feature articles in the magazine.
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That is especially true of the cover story, “Screws v. United States and the Birth of Federal Civil Rights Enforcement,” an essay version of Marquette Law School’s 2014 E. Harold Hallows Lecture by Judge Paul J. Watford of the U.S. Court of Appeals for the Ninth Circuit. Watford recounts the history behind a 1945 U.S. Supreme Court decision which opened the way for more widely known landmark decisions on civil rights. Accompanying the article is a commentary piece by John J. Pauly, Gretchen and Cyril Colnik Chair in the Marquette University Diederich College of Communication, and Janice S. Welburn, dean of university libraries at Marquette University.

A November 2014 conference at the Law School on the state of kindergarten through twelfth-grade Catholic schools, both nationwide and in Milwaukee, is the basis of “Much to Preserve—and Much to Change: The Challenges Facing Catholic K-12 Education,” by Alan J. Borsuk, senior fellow in law and public policy at the Law School. The article reports on the decline in enrollment in Catholic schools, going back to the 1960s, and current efforts to reverse that trend.

Columbia Law School’s Robert E. Scott, a leading expert on contract law, proposes a path for navigating different theories of contract law in “Contract Design and the Goldilocks Problem,” a print version of his 2014 Robert F. Boden Lecture at Eckstein Hall. Scott analyzes the interpretive approaches, going back decades, of contract law titans Samuel Williston (focused on text)and Arthur Corbin (emphasizing context) and suggests a middle path. The magazine includes reactions to Scott’s approach from George Triantis of Stanford Law School; Victor A. Lazzaretti, L’93, of Emerson Electric Co. in St. Louis; Nadelle E. Grossman of Marquette Law School; and Stewart Macaulay and William C. Whitford of the University of Wisconsin Law School.

The magazine includes excerpts from nine articles by Law School faculty members in the current issue of the Marquette Sports Law Review. Each excerpt focuses on an aspect of the interaction between law and the world of sports. The nine professors are Michael K. McChrystal, Nadelle E. Grossman, Matthew J. Mitten, Kali N. Murray, Chad M. Oldfather, Judith McMullen, Edward A. Fallone, Jay E. Grenig, and Lisa A. Mazzie.

Dean Joseph D. Kearney takes a long-term view of the Legal Aid Society of Milwaukee, including the Law School’s involvement with the society’s work, in remarks that he made at a Legal Aid Society event.

The magazine begins with the dean’s column and law school news and concludes with the Class Notes section, including extended profiles of several accomplished Marquette lawyers: Jessica Poliner, L’06; Tim Reardon, L’88; R. L. McNeely, L’94; and Daniel Chudnow, L’84.

The full magazine may be found by clicking here.

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