April 4, 2016

Congratulations to the 2016 Jenkins Honors Moot Court Semifinalists

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Category: Legal Writing, Marquette Law School, Public
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Congratulations to all who competed in the 2016 Jenkins Honors Moot Court Competition and special congratulations to this year’s semifinalists:  Samuel Draver, Alicia Kort, Alan Mazzulla, Kayla McCann, Sara McNamara, Amardeep Singh, Natalie Wisco, Samuel Woo. Teams are advancing after four rounds of preliminary competition this past weekend.

Thank you to the numerous judges who graded briefs and heard oral arguments, as well as to all the competitors, who prepared hard for the competition and fought good battles this weekend.

The semifinal round will be held on Thursday, April 7 at 6:00 p.m. The teams will be matched as follows:

Samuel Draver and Alan Mazzulla against Alicia Kort and Natalie Wisco in the Trial Courtroom; and Kayla McCann and Samuel Woo against Sara McNamara and Amardeep Singh in the Appellate Courtroom. Marquette students, faculty, and guests are invited to attend the rounds.

Good luck to the semifinalists.

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March 30, 2016

At a Time of High-Charged Events, New Law School Poll Sheds Even-Handed Light

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Category: Marquette Law School Poll, Political Processes & Rhetoric, Public
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There are ways in which the volatility of the current political scene seeped into the release Wednesday of the latest round of Marquette Law School Poll results. But there are more ways it didn’t.

An extraordinary time in American politics has brought an extraordinary week in Wisconsin politics, with the state’s presidential primary on April 5 standing as the next major event on the political calendar. All five of the remaining major candidates for president have spent at least two days in the state this week, with several developments of national significance occurring on our home turf.

The passions of thousands attending events with Republican candidate Donald Trump and Democratic candidate Bernie Sanders, the political drama of the battle (including insults) between Trump and Ted Cruz, the search by Hillary Clinton for ways to build more fire behind her support in Wisconsin, a three-hour “town hall meeting” with Trump, Cruz, and John Kasich, telecast by CNN from Milwaukee’s Riverside Theater – this is just aa partial list of events in Wisconsin this week.

So stakes are high as Wisconsin returns to being a battleground in the presidential race. High stakes bring high tension and high levels of partisanship.

And then there was a release of the poll at Eckstein Hall, with Professor Charles Franklin, director of the Marquette Law School Poll, and Mike Gousha, distinguished fellow in law and public policy at the Law School, leading a tour of the new results. Calm. Level-headed. Insightful. Strictly non-partisan. Much the same as several dozen poll-release events since the Marquette Law School Poll started in 2012.   Read more »

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Finally, a Little Good News for Governor Walker

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Category: Marquette Law School Poll, Political Processes & Rhetoric, Public
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We’ll leave it to others to analyze the results of the latest Marquette Law School Poll and what they tell us about the April 5 presidential primary.  Instead, let’s focus for a few moments on the other favorite political pastime in Wisconsin: Debating the fortunes of Governor Scott Walker.

His job approval rating remains well under water. But is it possible that the governor could be smiling, even just a little, after today’s release of the Law School survey?

At first glance, it’s yet another poll where Walker fares poorly.  Fifty-three percent of registered Wisconsin voters disapprove of Walker’s job performance.   Only 43 percent approve.  But the numbers are finally showing signs of improvement for Walker.  He hit a low of 37 percent job approval last fall, shortly after his presidential campaign flamed out.  Since then, his job approval number has hovered around 38 or 39 percent in Law School polling.  But the new survey shows Walker back in the low 40’s.   Nothing to shout about, but progress in what most observers see as a long, hard slog back to more solid political ground. Read more »

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March 23, 2016

Baseball Diplomacy

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Category: International Law & Diplomacy, Public, Sports & Law
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It has been great fun to watch President Obama in Cuba (and to get to say things like–hey, I was there!) over the last two days.  The one thing we did not get to do on our trip was attend a baseball game since we were rained out twice.  Sigh.  But we did talk about the potential impact of baseball exchanges on the economy and there is no question that both Cuban baseball and obama-cuba-baseball-300x229Major League Baseball will have much to discuss as the thaw continues.  Funnily, I was interviewed on Monday by a Swiss journalist–newspaper article here–about the impact of baseball based on my 2001 article called Baseball Diplomacy examining the controversy back then over the Baltimore Orioles playing a game in Cuba in 1999.  In what now seems like ancient history, I wrote about the Elian Gonzales affair, the Helms-Burton act, and, more pertinently to baseball, the economics of playing baseball in Cuba.  I also discussed how Cuban players are treated when they arrive in the U.S. depending on whether they come directly or via a third country.  I imagine that all of these rules will be updated and changing in the next few years.  And it will be fascinating to watch.  Here’s looking forward to more baseball in both directions!

 

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March 21, 2016

My Negotiating Top Ten

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handshakeMy list is constantly evolving; however, these ten tips form the foundation of my negotiating strategy and approach.

10. Research. When a new deal comes my way, I do research on who is on the other side of the negotiations. If you are able to find some common ground or interests, you can use some piece of information to start the negotiations in a non-adversarial manner. Knowing something about an alma mater, a law firm, or another part of their business can strike up an interesting aside before the heavy lifting starts.

9. What is your leverage? Look at the negotiation from the other side. It is great when one party can say, “take it or leave it” and really mean it; however, in my experience that is often a rarity. Strength in negotiation comes from knowing what may cause the other side to move on a position. Use that knowledge to best advance your position without being unnecessarily aggressive.
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March 16, 2016

A Rejuvenated Navigational Servitude?

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Category: Environmental Law, Public, Water Law
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As a general rule, within its borders each individual state holds title to the beds of water bodies that were navigable at the time of its statehood, and has jurisdiction to regulate activity upon those waters.[1]  State authority over navigable waters is not absolute, however; in a previous post, for example, I discussed the limits imposed by the public trust doctrine.  The “navigational servitude” is another important constraint on state power.  It flows from the Commerce Clause and asserts “the paramount power of the United States to control [navigable] waters for purposes of navigation in interstate and foreign commerce.”[2]  This power justifies, for example, the acquisition and holding of private lands “to deepen the water . . . or to use them for any structure which the interest of navigation, in [the government’s] judgment, may require.”[3]  When validly exercised, the navigational servitude excuses the federal government even from the Fifth Amendment’s Takings Clause, because “the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.”[4]  Today, however, the navigational servitude has largely retreated into obscurity.  It is often viewed as a relic from a bygone era when rivers were the nation’s primary mode of commerce and long-distance travel.

AirshipThe advent of emerging technologies that will make water travel more attractive may catapult the navigational servitude to renewed prominence.  In the not-too-distant future, transformational technologies like hovercraft and airships may become common modes of commercial and public travel over navigable waters.  Integrating the resulting water-based activity into our legal and social systems would require involvement at all levels of governance, including the courts.  In fact, a fascinating example of a related dispute has already reached the United States Supreme Court. Read more »

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March 15, 2016

Differences Between Supreme Court Candidates Clear in Eckstein Hall Debate

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Antonin Scalia and Ruth Bader Ginsburg were among the US Supreme Court justices who were invoked Tuesday night as role models by the candidates in the race for a seat on the Wisconsin Supreme Court that will be on the ballot April 5.

But did either of them ever have to go through the kind of election campaigning that Justice Rebecca Bradley and Appeals Court Judge JoAnne Kloppenburg are immersed in now?

A one-hour debate between Kloppenburg and Bradley  at Eckstein Hall was moderated by Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy and a political analyst for WISN television. The debate was shown live on WISN and other stations around the state, with some stations scheduling it for broadcast later. Read more »

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March 13, 2016

MU Team Excels at Corporate Law Moot Court Competition

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Category: Corporate Law, Marquette Law School, Public, Uncategorized
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ruby valeCongratulations to the team representing Marquette University Law School at the Ruby R. Vale Interschool Corporate Law Moot Court Competition in Delaware this past week.  Kyle Thelen, Alex Ackerman and Samuel Casson were awarded “Best Brief” at the competition and advanced to the Quarter Finals, where the judges deliberated for a full 45 minutes before declaring that our Team was edged out “by less than a razor thin margin.”  All in all, it was an outstanding performance.  Thank you to the Team, for all of their hard work, and to all of the faculty and students who helped the Team in its preparations.

Photo: Ruby R. Vale

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March 10, 2016

County Exec Debate Presents Big Differences in Level-Headed Ways

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Category: Milwaukee, Political Processes & Rhetoric, Public, Speakers at Marquette
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Chris Abele and Chris Larson have big differences and their race for Milwaukee County executive is intensely contested.

But their one-hour debate at Eckstein Hall Thursday evening, broadcast live by WISN (Channel 12), was an even-tempered and unflashy presentation of their positions on many of the specific issues and their general approach to what the county executive should do in the next four years. In other words, it was a good way for voters in large numbers, given the television audience, to get a direct view of what the candidates say, as well as some impression of how the two handle themselves.

This is a time when people nationwide have been getting heavy doses of insults, sharp personal attacks, and posturing in debates between the candidates for president. That makes for more entertaining events, “better’ television,” and more lively material for reporters and commentators to write about. But it also leaves many people (count me in) wondering: Has political dialogue come to this?

So consider this praise of the candidates, of Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy who moderated the debate, and of WISN for making serious discussion between candidates the focus of a debate and for making it available to the general public. Read more »

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March 9, 2016

Full Faith and Credit for Adoption

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Category: Family Law, Public
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On Monday, the United States Supreme Court issued a summary disposition reversing the judgment of the Alabama Supreme Court in V.L. v. E.L. (577 U.S. ___ (2016)) In that case, two women had been in a committed relationship with each other for over 15 years. While they were together, E.L. gave birth to three children through assisted reproductive technology, and she and V.L. raised the children together. At some point thereafter, V.L. formally adopted the children in Georgia, with the express consent of E.L. who retained her own parental rights. The Georgia court entered a final decree of adoption recognizing both women as parents to the children.

In 2011, V.L. and E.L. split up while living in Alabama, and shortly thereafter V.L filed a petition in circuit court alleging that her former partner was denying her access to the children. She asked the Alabama court to register the Georgia adoption, and to grant her some custody or visitation rights. The circuit court granted visitation, and E.L. appealed, claiming that Georgia lacked subject-matter jurisdiction to enter the decree of adoption. The Court of Civil Appeals rejected the jurisdictional argument, but did remand the case with directions to the family court to hold an evidentiary hearing before awarding visitation rights to V.L. The Alabama Supreme Court reversed, holding that Alabama was not required to accord full faith and credit to the Georgia judgment because Georgia did not have subject-matter jurisdiction to allow V.L. to adopt the children while E.L retained her parental rights.

In its per curiam opinion reversing the Alabama Supreme Court decision, SCOTUS emphasized that states are required to afford full faith and credit to a judgment unless that judgment was rendered by a court that “did not have jurisdiction over the subject matter or the relevant parties.” Although a court can look into whether a foreign court had jurisdiction, jurisdiction is presumed if the judgment is one of a court of general jurisdiction, and the presumption cannot be rebutted simply because a foreign court disagrees with the outcome of a case. Read more »

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March 8, 2016

Limited Terms for Justices Worth Considering, Appeals Judge Says in Hallows Lecture 

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Category: Federal Law & Legal System, Judges & Judicial Process, Public, Speakers at Marquette, U.S. Supreme Court
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Judge Albert Diaz began his E. Harold Hallows Lecture at Marquette Law School last week by saying that he was going to offer thoughts on life tenure for federal judges ”which I’m pretty confident do not reflect the views of many, if not all, of my judicial colleagues.”

But Diaz, a judge since 2010 on the U.S. Court of Appeals for the Fourth Circuit, thought the ideas he presented to be worth considering, especially at a time when concerns about the U.S. Supreme Court, including how justices are appointed, are getting so much attention.

In his Eckstein Hall lecture, Diaz outlined arguments for and against both life tenure for federal judges and election of judges. He traced the debate back to the U.S. constitutional convention in 1787 and the opposing views for and against life tenure. The former prevailed, of course.

“The act of judging is not for the faint of heart,” Diaz said. “Judging is a human endeavor” and decisions are “not always free from taint.” But it is difficult to decide what “on the front end,” i.e., in determining who will be a judge, would best minimize the chances of tainted judicial work.

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March 5, 2016

Rules to Work By

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Category: Legal Practice, Legal Profession, Public, Uncategorized
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raised handMost of the lawyers I know and deal with are exceptional professionals and generally, great people. They are not the ambulance chasing, greedy, egocentric, lying, unethical, do anything for a buck hired guns that people stereotype as your traditional lawyer. As an in-house lawyer, my one client, the business, would suffer if I were to fall prey to these stereotypes. It is possible in some situations the loud aggressive pit-bull attorney finds success and is necessary. As an in-house construction lawyer, if that were my approach when dealing with other stakeholders, I would still be working on the first contract to come across my desk.

I have adopted some of the rules my six year old was sent home with after his first day of kindergarten. Listen, be safe, polite and respectful, and play nice with others. My playground is buzzing everyday with non-client parties like customers, subcontractors, vendors, GC’s, owners, regulatory agencies, the public, trade associations, unions and families. Finding a way to “play nice” with all of these competing influences and without sacrificing the duty to advocate for my client, has been my greatest challenge and biggest success.

Whether giving legal counsel or advising as a trusted business partner, in-house lawyers assist the business team with issues ranging from accidents, crisis management and work place safety to multi-million dollar contracts and employee harassment. Read more »

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