March 19, 2015

The Notorious R.B.G.

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Category: Feminism, Judges & Judicial Process, Public, U.S. Supreme Court
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20150103_135911-1Those of us who teach in gender and feminist studies have long been familiar with Justice Ruth Bader Ginsburg; we regularly deal with her work as both a lawyer and as jurist. This past January, I had the honor of hearing her speak at a conference in Washington, D.C., and was awed by her. So over spring break, I decided to start reading a new book, The Legacy of Ruth Bader Ginsburg, edited by Scott Dodson. I’m not that far into the book yet, but what I’ve read has only made me admire her more.

I’m far from being Justice Ginsburg’s only admirer. She has quite the following, including this woman, who had a portrait of Justice Ginsburg tattooed on her arm. One man put her 35-page dissent in Burwell v. Hobby Lobby to music. Another admirer dubbed her “The Notorious R.B.G.,” a take-off on rapper The Notorious B.I.G, and there’s a whole blog devoted to all things R.B.G. Google “Notorious R.B.G.” to find t-shirts and other merchandise. It’s a title the Justice herself seems to enjoy. (Listen to the video clip here.)

Ironically, while I was starting my book over spring break, Justice Ginsburg celebrated her 82nd birthday. She seems in no way ready to step down from the court. After all, she reminds us, Justice John Paul Stevens served until he was 90. In honor of her birthday, one site gathered some of her best quotes. My favorite: “People ask me sometimes . . . When will there be enough women on the court? And my answer is: When there are nine.”

Wouldn’t have expected anything less from her.

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Congratulations to the 2015 Marquette Evans Competition Teams

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Category: Legal Writing, Marquette Law School, Public
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Congratulations to 3Ls Melissa Fischer, Nicole Ostrowski, and Julia Westley for reaching the quarterfinals of the Evan A. Evans Constitutional Law Moot Court Competition this past weekend.  Professor Blemberg advised the team.  3Ls Brendan Leib and Peter Smiley also competed and were advised by Professor Scott Idleman and Professor Jake Carpenter.  The teams were coached by Attorneys Elizabeth Bronson, Paul Jonas, Matthew Martz, Martin St. Aubin, and Drew Walgreen.  All of the coaches are Marquette alumni who competed in moot court.

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March 17, 2015

Decline in Wisconsin Prison Population Results From Fewer Drug Offenders Behind Bars

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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As I discussed in this post, Wisconsin has achieved one of the nation’s higher rates of reduction in imprisonment over the past decade. To be sure, New York, California, and a few other states have far outpaced Wisconsin in this regard, and Wisconsin’s prison population remains nearly ten times larger than it was in the early 1970s. Still, we may appreciate some overall net progress in the Badger State’s numbers since the mid-2000s. As indicated in the chart after the jump, reduced imprisonment of drug offenders has played a central role in driving this trend.   Read more »

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March 16, 2015

MULS Conference to Consider Human Trafficking and Restorative Justice

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Category: Criminal Law & Process, Human Rights, Immigration Law, International Law & Diplomacy, Labor & Employment Law, Marquette Law School, Milwaukee, Poverty & Law, Public
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MartinaVImage_0On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.”  As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally.  Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area.  The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.

The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C.  Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.

On Friday, the Conference will continue with a full schedule of speakers and panels.  A panel of victim-survivors will share their experiences.  Local leaders and activists will discuss the impact of trafficking and current efforts to help victims.  Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.

The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.

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March 13, 2015

Pi and the Law: What Is Constant and What Is Not

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Category: Immigration Law, Public
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pi_day_pieTomorrow is Pi Day. In fact, it is the ultimate Pi Day given that Saturday’s date is 3.14.15. Enjoy a delicious piece of apple pie at 9:26.53 and you’ve taken the festivities about as far as you can hope to. Mathematicians, on the other hand, have carried this irrational national number out to over a trillion decimal places and determined that pi is a transcendental number (it cannot be expressed by any finite series or arithmetical or algebraic operation). Conceptually, pi symbolizes the ratio of the circumference of a circle to its diameter. It is constant, and perhaps that is what we should celebrate most.

There are few things in today’s world that are constant. One could argue that things today change at greater speed than ever before in history. Invention drives change–whether it is a new technology, process, or connection. In particular, scientific discoveries advance change, yet these discoveries rely on unwavering empirical laws and principles.

We, as lawyers, do not have the luxury of such a solid foundation. That is, our field depends on laws that are always changing—if not in form, then in interpretation. We must be nimble, able to change our theory as facts of the case are revealed, as new laws are passed, as politics and technology change, as the jury is selected, or as the judiciary announces a decision. There is no mathematical equation that provides a determinative estimation despite all the rules, codes and regulations that we study. And the closest thing to a constant that we have is the Constitution, which we all know has been interpreted differently over time.

This variability may provide the flexibility society needs to evolve while maintaining order. However, for some individuals, this lack of predictability can make life chaotic and tumultuous.

For example, consider immigration law. This field continues to evolve and change rapidly with new political leaders and bickering legislatures. While the law is trying to adapt to the changing landscape of the United States, individuals’ lives, plans, and goals linger.

Through my experiences with the Marquette Volunteer Legal Clinic and my work as a study abroad coordinator in the Office of International Education, I have seen this phenomenon first hand. For instance, I work with students who want to study abroad as Deferred Action for Childhood Arrivals (DACA) recipients. While the law currently provides a process to gain permission to leave and re-enter the country, they are not guaranteed the right to re-enter even having obtained permission. Further, with upcoming elections looming, it is uncertain if DACA will remain an option for students. Needless to say, under such a cloud of uncertainty, their ability to focus on their academic pursuits, including studying abroad, becomes seriously compromised.

Uncertainty can also arise from how the law is applied by judges. Take for example asylum cases. Despite having a very narrow and defined standard, judges apply it very differently when granting or not granting this status. During a talk by Dr. Noelle Brigden last fall, this chart was shown. I was shocked by the disparity in case decisions. Some judges seldom granted asylum, yet others almost always granted this status. How can that be justified by law? I find it troubling that a person’s fate may rest not on the merits and needs of immigrating to the U.S. but rather on who is sitting on the bench.

As a law student, I continue to better grasp how the law and its practice equate to consistent justice. As the government becomes increasingly polarized, technology advances, the economy fluctuates, and the law morphs, today I take solace in celebrating pi, Archimedes’ irrational constant, with a piece of my favorite, homemade, and very transcendental, chocolate pie. Bon appetit!

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March 12, 2015

New Article on Good Conduct Time

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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I have a new article in the Wisconsin Lawyer about good conduct time, a program that permits prisoners to earn accelerated release based on how well they do behind bars.  Most states offer GCT to their prison inmates, but Wisconsin does not.  (Inmates in local jail facilities here may earn GCT, but not the 20,000+ longer-term inmates in state prisons.)  In the new article, I argue that Wisconsin policymakers should consider adopting a GCT program for prisoners as part of their ongoing efforts to reduce the size of the state prison population, which remains near historic highs.  For readers interested in more on this topic, I’ve created a page on my personal blog that collects my writings on GCT.

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March 6, 2015

Mercenary Justice?

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Category: Criminal Law & Process, Milwaukee, Poverty & Law, Public, Race & Law
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Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri. Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants. For instance, the DOJ charges:

Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)

I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of surcharges, fees, forfeitures, and the like.

Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175).   Read more »

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Revisiting the Subjunctive Mood: Great for Persuasion

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A perhaps often overlooked technique that can help your writing gain some persuasiveness is the subjunctive mood. It’s possible that you remember the subjunctive less from your English classes than from your foreign languages classes—at least that’s the case for me. When learning to conjugate verbs in another language, you’ll often bump up against the subjunctive.

Verbs have moods. According to Patricia Osborn in How Grammar Works: A Self-Teaching Guide 182 (2d ed. 1999), mood “simply means the attitude of the speaker toward the words being spoken.” In English grammar, there are three moods: the indicative, the imperative, and the subjunctive. The imperative mood is the most common and indicates that the speaker is simply to convey meaning. For example, I look forward to warmer weather is written in the imperative mood. The verb to look is properly conjugated to match the subject, I. (Although my example is in the present tense, the imperative mood works in all verb tenses.) The imperative mood is for giving commands. For example, Hurry up! is imperative. Again, the verb to hurry is properly conjugated for the understood subject, you.

The subjunctive, by contrast, “uses an out-of-the-ordinary verb form to call attention to something extraordinary” (Osborn, 183). It is, as Osborn labels it in her text, “The [m]ood of [p]ossibilities.” Read more »

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March 5, 2015

Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

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Category: Congress & Congressional Power, Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch, Public, Speakers at Marquette
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DSC_2573

Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Read more »

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March 4, 2015

Wisconsin: The Final Firework in the Antislavery Legal Movement

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Category: Legal History, Public, Wisconsin Law & Legal System
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Lemuel Shaw

Mass. Chief Justice
Lemuel Shaw

This is the fourth in a series of Schoone Fellowship Field Notes.

Putting Wisconsin’s antislavery heritage in perspective. Wisconsin takes great pride in its antislavery heritage, particularly the Northwest Ordinance (1787), which ensured that Wisconsin would be a free state, and the Booth Cases (1854, 1859), in which Wisconsin stood alone in defying the federal government’s attempt to turn northerners into slavecatchers. This pride is justified but needs perspective. When Wisconsin arrived on the American stage as a new state (1848), American slavery was two centuries old and the legal reaction against slavery had been underway for 70 years. The Booth Cases were important, but they were merely the final fireworks in the drama of American law and slavery. Read more »

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March 2, 2015

Learning Outcomes: Consistently Developing Predictably Competent Graduates

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Category: Legal Education, Marquette Law School, Public
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DiplomaConsistency and predictability—these are two principles that I have come to appreciate during my first year of law school. Schedule—predictable, every Tuesday/Thursday, 5:30-9:00. Exams—unpredictable, but consistently challenging. Reading—consistent onslaught of interesting, yet challenging cases.

In the majority of the prescribed 1L courses, stare decisis has been discussed as one doctrine that helps the court gain credibility by producing predictable decisions. This doctrine has sparked a few observations about consistencies and inconsistencies with respect to the law—observations that warrant reflection.

In the upcoming month, I look forward to sharing these not-so-fleeting thoughts with you as a student blogger for March. Read more »

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March 1, 2015

Same-Sex Marriage Referendums: Major Metropolitan Areas Out of Step With Less Populated Regions

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Category: Election Law, Political Processes & Rhetoric, Public
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In most states same-sex marriage has become the law of the land by judicial decision. In a smaller number, the institution has been recognized by acts of the state legislature. Although there were numerous public referendums attempting to ban same sex marriage before 2008, in recent years only twice have the voters of a state had the opportunity to vote directly on the recognition of marriages between individuals of the same gender.

Both opportunities came in November 2012, as voters in Maryland and Washington State confirmed their state’s recognition of a new definition of marriage. However, both episodes revealed a sharp divide between the majority views of those who live in major metropolitan areas and those who live in less densely populated areas.

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