Collecting Posts on the Public Trust Doctrine in Its American Birthplace

Posted on Categories Environmental Law, Legal History, Water LawLeave a comment» on Collecting Posts on the Public Trust Doctrine in Its American Birthplace

Thank you to my colleague, Professor David A. Strifling, director of Marquette Law School’s Water Law and Policy Initiative, for his generous post a few weeks ago concerning Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). The book ranges over almost two centuries and the different stories that led to the Chicago lakefront’s varied but largely integrated and altogether splendid whole. Given these temporal and geographic variations, “the core insight that shapes Kearney and Merrill’s Lakefront”—that “[t]he making of Chicago’s extraordinary landscape along Lake Michigan required law, lots and lots of law” (Professor Hendrik Hartog of Princeton University)—made intuitive sense to us from the beginning. Or at least it did to my coauthor, a noted scholar of property law.

Major areas along the Chicago lakefront (map by Chicago CartoGraphics): Figure 0.2 from Lakefront: Public Trust and Private Rights in Chicago (Cornell, 2021)

Yet as our book’s title suggests, however much other law has been involved, the public trust doctrine has been at the forefront of lakefront controversies, at least since the Supreme Court of the United States used the Lake Front Case (more formally known as Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892)) to announce the American experiment with the doctrine. So Professor Merrill and I took a guest-blogging opportunity at the Volokh Conspiracy this past week to focus on the public trust doctrine. Here are links to our series of posts:

You can find us a month or so from now guest-blogging at The Faculty Lounge, where we expect to consider the rules that govern—or might govern—who has standing to raise the different sorts of legal claims whose disposition has helped shape the Chicago lakefront. Each of these rules is in some way problematic, and differences among them have had notable effects on what a resident or tourist today finds on the lakefront—and what he or she does not. “[L]ots and lots of law,” it has been said.

Recalling (and Rehearing) Howard Eisenberg

Posted on Categories Marquette Law School, Marquette Law School History3 Comments on Recalling (and Rehearing) Howard Eisenberg

Howard B. Eisenberg

Howard B. Eisenberg, dean of Marquette Law School from 1995 to 2002, died nineteen years ago today. That number may not have independent significance or resonance (unlike, say, 18, in Jewish tradition as I understand it, or 20, for a round number), but we may agree that it is now some time ago. Yet no one will doubt that Howard’s spirit—indeed, legacy—lives on here at the Law School, even in Eckstein Hall, opened more than eight years after his death.

Our Office of Public Service, which we created in 2006 and now house in the Howard B. Eisenberg Suite, has been our most significant institutional effort to ensure his legacy of “doing good,” as Alan Borsuk noted as recently as a week ago, in this Marquette Lawyer article. In light of this evidence surrounding us all, there seems no need to post at length on his yahrzeit. “Si monumentum requiris, circumspice,” one is tempted to say (well, I am, anyway).

Yet I wanted to use this blog to mark the anniversary, pointing anyone interested to two previous posts: one by me, twelve years ago today, whose virtue is that it contains a link to the wonderful 2002 special issue of the Marquette Law Review, remembering Howard in so many different ways (and through so many different eyes); and the other a decade ago, by our longtime colleague, now-retired Professor (and Justice) Janine P. Geske, whose welcome advantage is that it enables you to hear Howard’s very voice on a special topic: “What’s a Nice Jewish Boy Like Me Doing in a Place Like This?”

May his memory be for a blessing.

Chicago’s Lakefront: The Rise of the Public Trust Doctrine (and Much More)

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Urbs in Horto”— city in a garden—is the motto Chicago’s founders chose upon the city’s incorporation on March 4, 1837. At the time, this was more of a vision than a statement of fact, as the city had few public parks then, and preserving its existing open spaces seemed uncertain at best. Given the industrial waterfronts in many other large cities, it is a marvel that Chicagoans made that early vision a reality, at least along the water, by creating the city’s magnificent lakefront parks and protecting open space over nearly two centuries. How did it happen, and what are the lessons for urban development more generally? The definitive account is provided in Lakefront, a remarkable new book twenty years in the making, coauthored by Marquette Law School Dean (and Chicago native) Joseph D. Kearney and Columbia University’s Thomas W. Merrill.

Lakefront is, at its core, a story about Chicago and the development of its world-renowned lakefront. But Kearney and Merrill also make a significant contribution in untangling the American development of the public trust doctrine, which has been called “unquestionably one of the most important elements of U.S. natural resources law.”[1] The Supreme Court has recognized the doctrine’s ancient origin and its roots in Roman law.[2] Scholars have traced it to the Code of Justinian. Today the doctrine is generally thought to protect and preserve certain natural resources of a “special character,” through a perpetual trust intended to prevent the unimpeded exercise of private rights upon them. But clarifying the doctrine’s operational reach has proven difficult, and it has evolved into many different strains of varying strength primarily governed by state common law. However, all agree that Justice Stephen Field’s 1892 opinion for the U.S. Supreme Court in Illinois Central Railroad Co. v. Illinois was the moment at which the doctrine became a prominent feature of American law. Lakefront provides groundbreaking new details and a blow-by-blow account of how the case originated from the battles between public and private rights on the Chicago lakefront.

Continue reading “Chicago’s Lakefront: The Rise of the Public Trust Doctrine (and Much More)”

Sports Law Experts See Major Changes Coming Soon to College Sports

Posted on Categories Public, Speakers at Marquette, Sports & LawLeave a comment» on Sports Law Experts See Major Changes Coming Soon to College Sports

Will this summer be a turning point for college athletics?

The full answer to that is complex, multi-faceted, and, of course, still to emerge. But two experts in sports law summarized their responses concisely during an “On the Issues with Mike Gousha” program, posted on the Marquette Law School web site on May 27:

“I think so,” said Steve Ross, Lewis H. Vovakis Distinguished Faculty Scholar at Penn State University and Executive Director of the Penn State Center for the Study of Sports in Society.

Are we at a watershed moment for college sports?

“I think we are,” said Professor Matt Mitten, executive director of the National Sports Law Institute at Marquette University Law School. “We’re coming to a crossroads within the next month.” Continue reading “Sports Law Experts See Major Changes Coming Soon to College Sports”

Can a Task Force’s Agreement on Controversial Ideas Spur a Better Tone in Politics?

Posted on Categories Political Processes & Rhetoric, Public, Speakers at Marquette1 Comment on Can a Task Force’s Agreement on Controversial Ideas Spur a Better Tone in Politics?

She’s a D, he’s an R. But State Rep. Shelia Stubbs, a Democrat from Madison who is Black, and State Rep. Jim Steineke, a Republican from Kaukauna who is majority leader of the Assembly and who is white, also are friends who have confidence that the other will act in good faith.

If you expected them not to work together in leading the Speaker’s Task Force on Racial Disparities, created by the Republican leader of the Assembly, Rep .Robin Vos, and if you expected the task force not to come to agreement on a proposals for legislation focused on law enforcement issues that have stirred controversy, you were wrong.

In an “On the issues with Mike Gousha” program posted on the Marquette Law School web site on May 19, Steineke and Stubbs were optimistic that the 18 proposals from the task force would become law before the end of June. They also expressed hope that the way they worked together could help change the contentious tone of so much that goes in Wisconsin politics. Continue reading “Can a Task Force’s Agreement on Controversial Ideas Spur a Better Tone in Politics?”

New Approaches to Judging and a Primer on Redistricting Featured in New Marquette Lawyer

Posted on Categories Marquette Lawyer MagazineLeave a comment» on New Approaches to Judging and a Primer on Redistricting Featured in New Marquette Lawyer

Summer Cover - Drawing of a CourthouseSpotlighting aspects of the life of Marquette Law School is an important goal of any issue of Marquette Lawyer magazine. Yet a successful issue does more than that. It also provides in-depth reporting and thinking about major issues that shape the law and affect lives.

Measured against such important goals, the Summer 2021 issue of Marquette Lawyer is a strong success. It offers a set of stories focusing on judges, several of them alumni of the Law School, who are taking “problem-solving” approaches to their work. This moves them beyond the conventional ways of presiding over courtrooms and cases. Instead, they lead teams trying to help people achieve stable living. There is not universal agreement even among judges as to its desirability, but the cover stories identify and explore an important trend. The magazine also includes an extensive primer on political redistricting issues that are hot subjects currently. Another article examines the surge in investors from beyond Wisconsin who are buying homes in Milwaukee. And, certainly, the magazine reports on aspects of life at the Law School, including the success of students’ pro bono work during the pandemic, an unusual honor extended to two emeritae professors, career milestones of some Marquette lawyers, and a conversation on corporate law between a Marquette faculty expert and a notable Delaware judge.

Here is a guide to the content, including links that will take you to the full articles.

Can Judges Become Helpers? The role of courts is being given new dimensions by dozens of judges across Wisconsin whose work includes presiding in treatment courts that aim to reduce recidivism by helping people put issues such as addiction behind them. “We are creating a new wave of judges,” says Chief Judge Mary Triggiano of the Milwaukee County Circuit Court. “We’ve made some profound changes in the way we judge.” In five pieces, this package describes how treatment courts work and profiles some of the judges who are involved. To read the stories, click here.

Big Need, Big Change, Big Help. Marquette Law School puts a priority on encouraging and helping students to take part in pro bono efforts. But during the COVID-19 pandemic, how were students (and volunteer lawyers) to continue in the clinics and the direct help at the center of their efforts? By switching to virtual work, of course, including launching a help line that has received thousands of calls. Read the story by clicking here.

Still Winning in the Court of Public Opinion. The Marquette Law School Poll’s second annual nationwide survey of public opinion about the U.S. Supreme Court found that majorities are satisfied with the work of the Court. People give the Court higher marks than the presidency or Congress, and believe that it bases its decisions on the law more than politics. Might an interest in keeping that standing among public opinion affect how the Court decides upcoming cases? Read the story, reporting on both public opinion and that of experts, by clicking here.

Between the Lines: The Politics, Law, and History of Political Redistricting. As the battles in Wisconsin heat up over political redistricting following the 2020 census, the Law School’s Lubar Center for Public Policy Research and Civic Education provides a primer that describes how political boundaries are determined and the history that has brought up the current system. While state legislative districts draw the most contentious advocacy, this package of stories also describes congressional and local redistricting practices, and gives perspective on what is and is not at stake currently. To read the stories, click here.

Who Owns the House Next Door? While relatively small efforts to help low-income people buy homes in Milwaukee have had successes, the big action in purchases of inexpensive homes involves investors from beyond Wisconsin who see low home prices and substantial rental income as attractive investment opportunities. This very recent and accelerating development has substantial social implications. Read the story by clicking here.

Of LLCs, ESGs, Diversity, and Virtual Annual Meetings. Delaware Vice Chancellor J. Travis Laster talks with Nadelle Grossman, professor of law and associate dean for academic affairs, about developments in corporate law. In early 2020, Laster was Marquette Law School’s annual Hallows Judicial Fellow. Read excerpts of their conversation by clicking here.

In the Law School News section, we recognize the winners of four alumni awards: Deborah McKeithan-Gebhardt, L’87, alumna of the year; James T. Murray, Jr., L’74, for lifetime achievement; Sarah Padove, L’12, the Charles W. Mentkowski Sports Law Alumna of the Year; and Raphael R. Ramos, L’08, who received the Howard B. Eisenberg Service Award.

The Law School News section also includes a story on the unveiling of portraits in Eckstein Hall of two emeritae professors, Carolyn M. Edwards and Phoebe Weaver Williams; a report on a community conversation on policing and accountability; a set of quotations from speakers to give a flavor of recent virtual Law School programs; and a description of a new book exploring the famous Chicago lakefront’s legal history, including the American public trust doctrine, which has its origins there.

The Law School News pages may be read by clicking here.

The Class Notes section, with updates on several dozen Marquette lawyers, includes an appreciation of R. L. McNeely, L’94, who grew up in Flint, Mich., and became a professor at the University of Wisconsin-Milwaukee, community leader, and lawyer. Class Notes may be read by clicking here.

A message from Dean Joseph D. Kearney, introducing the magazine and reflecting in particular on the cover stories, may be read by clicking here.

The full issue of the magazine may be read by clicking here.

From Diverse Standpoints, Experts Agree on the Need for Re-energizing K-12 Education

Posted on Categories Education & Law, Lubar Center, Public, Speakers at MarquetteLeave a comment» on From Diverse Standpoints, Experts Agree on the Need for Re-energizing K-12 Education

This story about the discussion during a program of the Marquette Law School’s Lubar Center for Public Policy and Civic Education appeared initially in the Milwaukee Journal Sentinel on May 2, 2021.

Pedro Noguera and Rick Hess talk to many school superintendents and principals around the United States. In general, they don’t find them to be oriented toward the sharp partisan divides that dominate education debate.

“When you talk to people who lead school systems, they are less ideological,” Noguera said. “They focus on practical matters.”

By “practical matters,” Noguera meant the daily things that lead to kids getting good educations, things like good teachers, good learning practices, and school cultures that offer warmth, safety and stability. Those are things he hopes will be given renewed priority as education recovers from the COVID pandemic.

“If there’s a silver lining to come from this experience with respect to education, I hope it’s a return to a focus on education that stimulates and inspires kids,” Noguera wrote in a book, co-authored with Hess, that came out several weeks ago. Continue reading “From Diverse Standpoints, Experts Agree on the Need for Re-energizing K-12 Education”

Author Describes Amazon’s Boom – and the Downsides of What It Does to Communities

Posted on Categories Public, Speakers at Marquette1 Comment on Author Describes Amazon’s Boom – and the Downsides of What It Does to Communities

Enormous selection, good prices, quick delivery, the safety and comfort of shopping from home – what’s not to like about Amazon?

Mike Gousha put that question to Alec MacGillis, in an “On the Issues with Mike Gousha” program posted on the Marquette Law School’s web site on April 21, 2021.

“There’s a lot not to like,” MacGillis answered. He spells out what he means – as well as the reasons so many people love Amazon – in a broad and deep look at the company and its impact in his new book, “Fulfillment: Winning and Losing in One-Click America.” And he described much of what he found in researching the book in his conversation with Gousha, Marquette Law School’s distinguished fellow in law and public policy. Continue reading “Author Describes Amazon’s Boom – and the Downsides of What It Does to Communities”

Out-of-State Investment in Milwaukee’s Home Rental Market

Posted on Categories Lubar Center, Milwaukee Area Project1 Comment on Out-of-State Investment in Milwaukee’s Home Rental Market

(Click here to download the entire report.)

I bought a home last year in Milwaukee’s Uptown neighborhood. It’s a nice place—one  I’ve come to see as quintessentially Milwaukee. Kids walk to the playground at the end of the block. Adults walk to the coffeeshop. The mostly interwar-built houses are sturdily constructed on small lots. Typically, they’re worth about $30,000 less than the citywide average, so it’s the kind of place many people can comfortably afford to live. Since moving in, I’ve enjoyed getting to know my neighbors—school district employees, a firefighter, a welder, a guy who assembles circuit boards, the lady who feeds the cats. For a researcher like myself, meeting my neighbors hasn’t just meant striking up conversations on the sidewalk. I’ve also dug into the property records of the houses near mine. In doing so, I’ve learned that locals aren’t the only people interested in Uptown.

Since 2018, LLCs based outside Wisconsin entirely have purchased dozens of houses near mine. Ohio-based VineBrook Homes, Milwaukee’s most aggressive home buyer, owns five houses within three blocks of mine (part of the nearly 350 they have purchased citywide so far). Another national company, SFR3, owns several more. Sometimes the ownership is obscure. The duplex at 2702-04 North 49th Street is owned by “2704 N 49TH ST 53210 LLC.” This particular LLC lists an owner’s mailing address in San Francisco. I’ve lost track of the number of flyers I’ve received encouraging me to sell my home. One Friday night, someone even called my cell phone, offering to buy my house.

My neighborhood is one small part of a wave of single family home and duplex purchases by large corporate investors, often with Wall Street backing. Continue reading “Out-of-State Investment in Milwaukee’s Home Rental Market”

Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say

Posted on Categories Election Law, Public, Speakers at MarquetteLeave a comment» on Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say

You want to do something about the partisan polarization that puts the United States Congress into frequent gridlock? Katherine Gehl and Austin Ramirez say there is a solution that has nothing to do with any specific policy or how people define themselves when it comes to partisanship: Change the way Congress members are elected.

“It turns out what really matters is the system, the rules of the game,” Gehl said during an “On the Issues with Mike Gousha” program posted on the Marquette Law School web site on April 8, 2021. The game she referred to is the way politicians get re-elected. Single-party primary elections motivate them to take highly partisan positions that play to small, but decisive blocks of voters within their party.

“Currently the system pushes – forces — the sides apart,” Gehl said. What’s best in the big picture doesn’t count the way that it counts to do what’s best for winning a party primary or keeping others from launching primary challenges.

“Our task is to make keeping the job the same as getting results for the country,” she told Gousha, Marquette Law School’s distinguished fellow in law and public policy. Continue reading “Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say”

Congratulations to the 2021 Jenkins Honors Moot Court Competition Finalists

Posted on Categories Appellate Advocacy, Legal Education, Marquette Law School, Moot Court, PublicLeave a comment» on Congratulations to the 2021 Jenkins Honors Moot Court Competition Finalists

screenshot of zoom moot court competition, with head shots of three judges and four competitorsCongratulations to the winners of the 2021 Jenkins Honors Moot Court Competition, Ben Edelstein and Kyle Frank. Congratulations also go to finalists Alexander Lux and Natalie Mulvey. Frank won the Ramon A. Klitzke Prize for Best Oralist. Ashleigh Dickey and Matt Rademacher won the Franz C. Eschweiler Prize for Best Brief.

 

Presiding over the final round were Hon. Paul Thissen (Minnesota Supreme Court), Hon. Michael Y. Scudder (United States Court of Appeals for the Seventh Circuit), and Hon. Cynthia M. Davis (L’06) (Milwaukee County Circuit Court). This year’s final round was held virtually on Zoom but livestreamed over YouTube. More than 70 people watched the final round on YouTube.

 

Many thanks to the law school’s media and tech team for making all the tech magic happen. Thank you, too, to the law school administrators and staff who helped coordinate the event and to Dean Kearney for his support of the competition and his front-line presence as host. And special thanks to 3L Kelsey Pelegrin, who handled the details of the competition.

 

Students are selected to participate in the competition based on their success in the fall Appellate Writing and Advocacy class at the Law School.

 

Here is a link to a recording of the final round.

Jenkins Competitors Have Busy Weekend; Two Teams Advance to Finals

Posted on Categories Marquette Law School, Moot Court, PublicLeave a comment» on Jenkins Competitors Have Busy Weekend; Two Teams Advance to Finals
head shot of Ben Edelstein
Ben Edelstein
head shot of Kyle Frank
Kyle Frank

(Updated 3/30/21 12:25 PM to add registration link)

The last two weekends have been busy ones for the students competing in the Jenkins Honors Moot Court Competition. Each team argued four times the weekend of March 20-21 in the preliminary rounds to determine which teams would advance to the quarterfinal round.

On Saturday, March 27, the eight teams that advanced argued to see which would advance to the semifinals.

head shot of Alex Lux
Alexander Lux
head shot of Natalie Mulvey
Natalie Mulvey

After some very close rounds, four teams moved on to the semifinals. Those four teams were:

Alexandra (Sasha) Chepov & Zak Wroblewski;
Ben Edelstein & Kyle Frank;
Lauren Brasington & Carsyn Bushman;
Alexander Lux & Natalie Mulvey

These four teams competed on Sunday, March 28. The two teams that emerged as finalists are:

Ben Edelstein & Kyle Frank
Alexander Lux & Natalie Mulvey

Congratulations to the finalists, and thank you to the many alumni and area attorneys who helped with the competition by grading briefs or judging oral arguments. Thanks, too, to the law school’s tech department and to Steve Nelson who kept this weekend’s virtual competition glitch-free.

The final round of the competition will be held virtually on Tuesday, April 6, at 3:30 PM, and will be lived streamed on YouTube.

The final round will be judged by The Honorable Michael Y. Scudder (U.S. Court of Appeals for the Seventh Circuit), The Honorable Paul Thissen (Minnesota Supreme Court), and The Honorable Cynthia M. Davis (L’06) (Milwaukee County Circuit Court).

The Jenkins Completion is named in honor of the late James G. Jenkins, the first Wisconsin judge of the United States Court of Appeals for the Seventh Circuit (1893-1905) and the first dean of Marquette Law School (1908-1915).

The event is free and open to the public, but registration is required to receive the link. You can register here.