November 10, 2014

Marquette Team Wins Best Petitioner Brief at National Criminal Procedure Tournament

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Congratulations to 3Ls Katie Seelow and Derek Waterstreet for being awarded the best Petitioner’s brief in the National Criminal Procedure Tournament this past week in San Diego.  The team’s advisor is Professor Thomas Hammer, and the team coaches are 3L Vanessa Paster and Attys. Brittany Kachingwe, Sarah McNutt, and Jennifer Severino.  3Ls Becky Van Dam and Joseph Wasserman also competed.  That team is advised by Professor Susan Bay and coached by Vanessa Paster and Attys. Nick Cerwin and Chad Wozniak.  Jennifer Severino traveled with the teams to support them in competition.

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November 6, 2014

Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

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Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
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the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

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November 4, 2014

Mike Spector: The Passing of a Public Servant

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Category: Marquette Law School, Milwaukee, Public
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IMichael-Spector1 set out in June to write a story for the current issue of Marquette Lawyer magazine about the state of the idea of local control of schools. I started with the expectation of saying local control was pretty much a fiction now, amid all the laws and regulatory mandates coming down from the federal and state governments.

The first person I went to talk to was Mike Spector. I knew if I wanted wisdom, perspective, and common sense, he was at the top of the list. And he knew a huge amount about schools – for decades, he was a leader as a lawyer and citizen in education matters in the Milwaukee area and throughout Wisconsin.

And it only took him a few minutes to shift my thinking on the piece I was going to write. He talked about the law on local control in Wisconsin. He talked about the history of specific issues. And he pointed out how local school boards, school administrators, and teachers can still put their own imprint on the education they offer. Look at how different communities have different education cultures and practices, he said, citing his home community of Shorewood, where he was involved in school governance for many years, and how its education culture differs from nearby communities. Read more »

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November 3, 2014

Here’s What We Don’t Know About Election Day

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Category: Political Processes & Rhetoric, Public
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By now, we’ve seen the ads.  We’ve heard the talking points. We have at least some idea of which policy positions Scott Walker and Mary Burke favor or oppose.  But with only hours remaining before the votes are counted, there is still plenty we don’t know about the 2014 gubernatorial election in Wisconsin.

Some of it has been hashed over pretty thoroughly.  Turnout, for instance.  Simply put, the Burke campaign needs less-likely Democratic voters to go to the polls in numbers that more closely resemble a presidential election, or at the very least, the 2012 recall election for governor.  Three million people in Wisconsin voted in the November 2012 presidential contest.  Two-point-five million voted in the June recall election.  If turnout looks more like the governor’s race of 2010, when 2.1 million people went to the polls, the Burke campaign will face enormous odds, given historically strong turnout by Republican voters in the state.  But turnout is hardly the only “great unknown” Tuesday.  Here are a handful of others to consider.

1) Do Democrats return to the fold?  Exit polling data from the June 2012 recall election suggests a number of Democrats voted for Governor Walker because they didn’t agree with the recall. Even AFL-CIO President Richard Trumka told me recently that some of his members supported Walker in 2012 because of their discomfort with the recall.  And Trumka is hardly a fan of the governor.  Walker acknowledges that those voters exist.  The question is will they stick with him in this election, or return to their Democratic-voting ways.  Read more »

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November 1, 2014

Welcome to Our November Blogger

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fall-leaves-1432747-1-mOur November guest blogger with be 3L Jennifer McNamee. Jennifer hails from St. Louis and attended Marquette for her undergraduate degree. She is interested in civil litigation and bioethics. Many thanks to our previous guest, 3L Tyler Coppage.

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October 31, 2014

Supreme Court Roundup Part One: McCutcheon v. FEC

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Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
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Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Read more »

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October 30, 2014

What Is the NBA?

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Category: Corporate Law, Public, Sports & Law
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basketballProfessor Nadelle Grossman has another forthcoming publication, “What Is the NBA?”, written for the faculty symposium issue of the Marquette Sports Law Review.  The abstract is below, and you can access the full article at SSRN:

The NBA’s organizational structure is curious.  While courts at times refer to the NBA as a joint venture and at other times as a single entity, their analyses are conducted not for state organization law purposes but to assess the NBA’s compliance with federal antitrust law.  Commentators, too, consistently address the NBA’s organizational structure only under antitrust law and not state organization law. As I argue, given the different purposes of these two legal regimes — antitrust law to protect consumers through preserving competition, and state organization law to ensure managers are faithful to the business purpose and to create a default structure among owners and managers — conclusions about the NBA’s organizational structure for purposes of compliance with antitrust law does not control the analysis of the NBA’s structure for purposes of state organization law.

To fill the gap in case law and commentary, this article analyzes the NBA’s organizational form under state organization law.  This analysis is important because the NBA’s organizational form impacts the rights and duties of the member team-owners of the NBA.  If, for example, the NBA is a joint venture partnership under state organization law — that is, an association of team owners who have come together to pursue a limited scope business for profit — then by default, its members would owe fiduciary duties to the other members and any member could seek judicial expulsion of a recalcitrant member.

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October 29, 2014

The Continuing Story of a Strongly Divided Electorate

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And in the end, we are at the point where we started – a state that is narrowly divided when it comes to the total number of people on each side of its politics and deeply divided when it comes to how strongly people feel about key issues.

That’s the way it was in 2011 and 2012 in the tumultuous events that led to a recall election for  governor. That’s the way it was in an analysis of voting patterns in Wisconsin, and especially in the Milwaukee area, by Craig Gilbert, the Milwaukee Journal Sentinel Washington Bureau chief, which was the cover story of the current Marquette Lawyer magazine. That’s what the Marquette Law School Poll showed at the start of 2014, as the run-up began to the election for governor, to be held on Tuesday.

And as Charles Franklin, professor of law and public policy and director of the Marquette Law School Poll, said Wednesday, that’s what the final pre-election results showed. Franklin spoke at the conclusion of the “On the Issues with Mike Gousha” session at which the last poll data prior to the Nov. 4 election was released. Read more »

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Casual Convergence in Unincorporated Entity Law

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offices-at-night-smProfessor Nadelle Grossman has a forthcoming book chapter entitled “Casual Convergence in Unincorporated Entity Law” in the Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman & Mark J. Loewenstein eds., Edward Elgar Publ’g forthcoming 2015).  The abstract is below. You can access Prof. Grossman’s full book chapter at SSRN.

As seemingly uniform as the surface of the sea, unincorporated entity acts in most states are drafted from one of the National Conference of Commissioners on Uniform State Law’s (NCCUSL) uniform acts.  In fact, by the end of 2013, seven states had adopted NCCUSL’s latest uniform act governing limited liability companies (LLCs), called the Revised Uniform Limited Liability Company Act, or RULLCA, and more have since followed.

Supporters of uniformity, including NCCUSL, argue that uniformity among state LLC acts generates administrative and cost savings.  Critics, on the other hand, argue that uniformity undermines state experimentation to achieve more efficient LLC laws.

However, I argue in the chapter that these debates about uniformity are misguided.  Read more »

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October 28, 2014

An Interview with Professor Linda Edwards

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faculty_lindaedwards2014-04This fall, Professor Linda Edwards joins Marquette Law School as the Robert F. Boden Visiting Professor of Law.  She is the E.L. Cord Foundation Professor of Law at UNLV.

You have written a wonderful book on the great briefs. What are some of your favorite briefs and why do you like them?

One of my favorites is the Petitioner’s brief in Miranda v. Arizona. Scholars, law teachers, and practitioners usually read judicial opinions rather than the briefs that produced those opinions. The Miranda brief is one of the few that has received attention in its own right. I took my turn to comment on it in Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev. 885 (2010). Instead of a dry parsing of the cases, the argument section tells an engrossing story of the birth of the right to counsel. It’s also a story about the kind of people we want to be. It’s well-written too. In an era when lawyers tended to write in a boring, ponderous style, the Miranda brief is engaging and easy to read. It combines strong legal analysis, great policy arguments, and a passion for justice—a great example for us all.

Another of my favorites is the primary defense brief in the set of consolidated cases that came to be known as Furman v. Georgia. The primary brief challenging the death penalty for those cases was actually filed in Aikens v. California. The thing I like most about this brief is the daring choice it makes in the fact statement. It does not try to minimize the crimes or argue that the defendant was innocent or that his hard life provided an excuse for his actions. All of those would have been losing arguments. Instead, it admits that the crimes were horrendous and that the defendant probably did them, but it uses our human reaction to those killings to argue that state-imposed killing is little better. It was a risky argument, but it was honest and much better strategy than the alternatives. I really admire the courage and skill it took to pull it off.

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October 27, 2014

You Knew Your New iPhone Was Cool, but Did You Know….?

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Category: Computer Law, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Public
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apple-logo-redApple is marketing its newest smartphone operating system, iOS 8, as a bulwark of personal privacy. Apparently, not even Apple itself can bypass a customer’s passcode and extract data from an iPhone that runs the new operating system. This means that even in response to a court order, the company will be powerless to comply.  Competitors are likely to follow suit.

This is a development with profound implications for law enforcement, which views the ability to obtain such data with a warrant as crucial in its efforts to combat crime and terrorism.  Defenders of the new technology point out that law enforcement may be able to obtain the same data in different ways; for example, if the data is stored “in the cloud” or if the password can be deduced somehow.

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SCOTUS Arguments Can Become “Must-See Television”

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Category: Public, U.S. Supreme Court
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CaptureThe United States Supreme Court prohibits cameras during its oral arguments, although each argument is audio-recorded. But, as Last Week Tonight host John Oliver points out, audio recording makes television coverage of those arguments “basically unwatchable” because television must present its coverage of the arguments by using artist renderings of the proceedings with audio clips.

Yet, as Oliver also points out, what happens at the United States Supreme Court is important and the public should pay attention. Oliver has a solution: the real dogs, fake paws Supreme Court. (Warning: some language is Not Safe For Work (NSFW).) Read more »

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