June 26, 2015

Persuading People Who Don’t Want to Be Persuaded

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Category: Legal Writing, Public
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I just finished a recent book by Steven D. Levitt and Stephen J. Dubner. If the names Levitt and Dubner sound familiar, it’s because you may have heard of their popular (and interesting) Freakonomics books (here and here). In the book I just finished, Think Like a Freak, Levitt and Dubner set out to teach readers how to “retrain [their] brain[s]” so that they, too, can “think like a freak.” The book defines what it means to “think like a freak” (it’s not a bad thing; it’s critical and curious thinking with a twist), and offers its step-by-step guide. But one chapters stuck out to me as particularly relevant to lawyers (and law students): How to Persuade People Who Don’t Want to Be Persuaded.

Now, the easy thought here is that this advice will apply to brief writing. And, yes, that’s true, but I think we can think of persuasion more broadly. Even a lawyer’s “objective” work has an element of persuasion to it. A demand letter must “persuade” its reader to comply; an internal office memo must “persuade” its reader that the analysis is the correct (or at least best) one.

So, what do Levitt and Dubner say?

First, we must “understand how hard persuasion will be—and why” (168). Read more »

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June 25, 2015

ObamaCare Upheld . . . Again

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Category: Health Care, Judges & Judicial Process, Public, U.S. Supreme Court
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1024px-William_Hogarth_004Today the U.S. Supreme Court announced its decision in the widely anticipated case of King v. Burwell, ruling that the language of the statute authorizes tax credits for individuals who use health insurance exchanges set up by the federal government as opposed to the states.  The result of the ruling is that the Affordable Care Act continues to operate and that millions of previously uninsured Americans will continue to receive health insurance under ObamaCare.  Many observers had predicted an adverse ruling from the Court, and a period of uncertainty (if not chaos) if the use of federal health insurance exchanges was struck down.  Today’s ruling by the Court means that there will be no disruption in the workings of the Affordable Care Act.  Coupled with this week’s passage of “fast track authority” for a Pacific trade bill, the ruling also cements a record of legislative accomplishment for President Obama that will add to his legacy.

Somewhat surprisingly, the Court voted 6-3 in favor of the Administration’s proffered reading of the statute.  Some observers had predicted a narrower margin.  Chief Justice John Roberts wrote the opinion for the majority.  The Chief Justice’s opinion also was crucial in upholding the Affordable Care Act in the NFIB v. Sebelius case in 2012, and it therefore appears that future historians will inevitably evaluate John Roberts’ career as Chief Justice in light of his prominent role in the survival of ObamaCare. Read more »

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June 17, 2015

Law School and Public Policy Forum Offer Web Site on Future of Cultural Assets

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Category: Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public
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Set aside the hot subject of a new basketball arena for downtown Milwaukee – that’s a horse race that’s already far down the track – and we still face a lot of major policy questions about the future of the Milwaukee area’s cultural and recreational assets.

Museums, the zoo, parks, playgrounds, the convention center, cultural organizations– these are important assets to the community and keys to the overall quality of life of people living in and visiting the Milwaukee area.

What should do to keep them vibrant and how should we pay for what we do?

Marquette Law School and the Public Policy Forum, a non-partisan local research organization, are partnering in an effort to help educate people on the issues surrounding these important aspects of our community. The two institutions have created a Web-based tool for learning about the issues and developing your own thoughts on what should be done and how it might be financed. Read more »

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June 15, 2015

Legislative Diplomacy After Zivotofsky

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Category: Constitutional Law, International Law & Diplomacy, Public
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The Supreme Court’s decision in Zivotofsky v. Kerry held that Congress violated the separation of powers by enacting a statute that purported to compel the President to issue statements that contradict his policy of strict neutrality on the status of Jerusalem. In a recent post, I analyzed a disagreement between the majority and the dissent on the significance of foreign perceptions of U.S. law. I’ve now written a second post on the case, this time exploring Zivotofsky‘s implications for the constitutionality of diplomatic communications between Congress and foreign governments. It’s available over at Lawfare.

 

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June 12, 2015

The Necessity of Revising

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Category: Legal Writing, Public
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keep-calm-and-revise-11I had a student a couple of years ago who described herself as a “one-sit wonder.” That is, in all of her previous schooling, she was quite adept at pounding out a more than serviceable paper in one sitting. Once she arrived in law school, she realized that style of writing was probably not going to work. (And, to be fair, it probably shouldn’t work in any other setting, either, but I do realize that it’s the way most students do write.)

There’s rarely anyone who can pound out what should be considered “final copy” in one sitting. Really good writers realize that writing is a process; the point of that first draft is to give you something to revise. In the writing process, you should be leaving behind a trail of drafts, some of them quite rough, before you finally arrive at the polished final copy.

Why is it important—no, necessary—to revise? Read more »

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

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Category: Constitutional Law, International Law & Diplomacy, Public
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On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.

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June 11, 2015

Predicting King v. Burwell: This Term’s Most Consequential SCOTUS Case

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Category: Health Care, Public, U.S. Supreme Court
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I am just going to come out and say it:  I have been a long-time proponent of universal, single-payer style heath care for our nation. I am a firm believer that private insurance companies should play no role whatsoever in the provision of health insurance for Americans. It is for this reason that I was so dismayed when President Obama proposed a health care reform regime with the existing private health insurance infrastructure (and Medicaid) as its foundation. I was even among those political wonks who wanted Congress to vote down the Affordable Care Act (ACA) once it became apparent that the ACA exchanges were not going to offer a “public option” to exchange participants. In the years since the law’s passage, I have become an ardent supporter of the law because it is moving our nation in the direction of universal health insurance coverage.

As a law student and constitutional law scholar, I am surprised that the Supreme Court opted to take King on appeal. By the time SCOTUS granted certiorari, the circuit split had been resolved by an en banc ruling of the DC Circuit. What is more troubling is that the petitioners do not appear, by any objective standard, to have standing to bring this suit. Standing is a concept that all first year law students are well acquainted with; it is equally obvious that the petitioners have suffered no judicially cognizable injury by operation of the IRS regulation interpreting the exchange subsidies as applicable to state-run and federally-run insurance exchanges. I have read the petitioners’ standing argument — it is so ridiculous that it does not bear recital here.

Even if one is able to get past the standing issue, an interpretation of the challenged statutory language that petitioners claim limits the availability of subsides to state-run insurance exchanges runs contrary to the canons of statutory interpretation. A comprehensive law that regulates the health insurance system of an entire nation and affects a good portion of our nation’s economy should not hinge on the meaning of a term that is ambiguous in isolation, but definite and decisive when taken in the context of the statute. The term “state,” as used in the ACA, has a broad meaning that encompasses “state” in the scholarly sense of a nation-state and the customized meaning of “state” as a sub-national unit of government.

There are many moral and political arguments that one can make in favor of upholding the decisions of the DC and Fourth Circuits. As a law student writing from a legal perspective, I put these arguments to the side. What is unfortunate for the four (or more) members of the Supreme Court who voted to take up this silly challenge is that the law (and precedent) is not on their side. I predict that the Supreme Court will uphold the decisions of the DC and Fourth Circuits on a 5-4 vote, with Chief Justice Roberts joining the court’s four moderate justices.

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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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