Wisconsin’s Local Governments Face a Time Crunch in Redrawing Boundaries

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This is the first in a series of posts this fall concerning redistricting in Wisconsin—a focus of the Law School’s Lubar Center for Public Policy Research and Civic Education. 

In a race against time to draw new district lines for local governments, three of Wisconsin’s four largest counties are off to a slower-than-recommended start—a delay that could throw the state’s three biggest cities behind schedule as well.

Perhaps not coincidentally, those three counties—Milwaukee, Dane, and Brown—are the same ones that have created independent advisory bodies to devise their supervisory district maps. That means they faced the added challenge of inventing a new redistricting process when their timeline was more compressed than ever before.

By contrast, the Waukesha County Board used its traditional process, working through a board committee, and approved a preliminary supervisory district map on September 14, one day ahead of the target date recommended by the Wisconsin Counties Association.

All of the state’s counties and municipalities, along with the Racine Unified School District (RUSD), are under pressure to finish redistricting before December 1, when candidates can begin circulating nomination papers to run in the spring 2022 elections. If any of them miss that deadline, the legal consequences are uncertain. Continue reading “Wisconsin’s Local Governments Face a Time Crunch in Redrawing Boundaries”

Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates

Posted on Categories Election Law, Lubar Center, PublicLeave a comment» on Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates

Political redistricting in Wisconsin is important to shaping long-term policies. The process for deciding political boundaries at all levels is controversial and hot. The courts, more so than legislative chambers, are likely to be the central arenas for deciding a number of the important outcomes in the now-unfolding decennial cycle.

Put those three statements together and you see why Marquette Law School’s Lubar Center for Public Policy Research and Civic Education is giving redistricting special attention, with the goal of providing evenhanded background and insight.

A blog post that will follow this is the first in a series of Lubar Center posts on the Marquette Law School Faculty Blog that will focus on aspects of the current work on redistricting.

Reporting and writing the posts is Larry Sandler, a freelance journalist with more than 38 years of experience covering government and business in southeastern Wisconsin for the Milwaukee Journal Sentinel and other publications. Continue reading “Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates”

Milwaukee’s population loss in the 2020 Census surprised some, but makes sense on closer examination

Posted on Categories Lubar Center, Milwaukee Area ProjectLeave a comment» on Milwaukee’s population loss in the 2020 Census surprised some, but makes sense on closer examination

The 2020 census found a population decline of 17,611 in the City of Milwaukee since 2010. This 3% population decline came as a surprise because it exceeded recent estimates based on other data. Some observers—most prominently from City Hall—have suggested the Census Bureau undercounted Milwaukee. This concern is worth taking seriously given the difficulties of the pandemic and the Trump administration’s ultimately unsuccessful but well-publicized efforts to include a question about citizenship on the census.

However, a careful consideration of the census data shows no real evidence for an undercount. On the contrary, the 2020 census count is consistent with long-observed facts about Milwaukee’s demographic trajectory and other, independent data sources.

A big reason why a shrinking population feels intuitively wrong to many Milwaukeeans is that some parts of the city really are growing—specifically the places people most often visit. Continue reading “Milwaukee’s population loss in the 2020 Census surprised some, but makes sense on closer examination”

Liberals and conservatives both perceive the Supreme Court as acting against their preferences

Posted on Categories Marquette Law School PollLeave a comment» on Liberals and conservatives both perceive the Supreme Court as acting against their preferences

The latest Marquette Law Poll found that approval of the U.S. Supreme Court fell by 11 percentage points from July to September. This change was driven by a 22-point decline among Democrats and a 10-point decline among Independents. Republican approval stayed about the same.

This follows the Court’s narrow September ruling declining to halt Texas’ ban on abortions after six weeks of pregnancy. Other recent controversial decisions included striking down the CDC’s eviction moratorium and preventing the Biden administration from ending Trump’s “remain in Mexico” policy for asylum seekers.

Majorities of Republicans approved of all three of these decisions. Democrats disapproved of each, but more of them lacked an opinion about the CDC moratorium decision and the remain-in-Mexico decision.

Attitudes to Supreme Court decisions
Marquette Law School Supreme Court Poll, September 2021, n = 1,411
Heard nothing at all Heard of but not enough for an opinion Favor Oppose
End CDC moratorium
Republican 18% 20% 57% 5%
Independent 13% 34% 39% 14%
Democrat 17% 33% 22% 27%
Reinstate remain-in-Mexico policy
Republican 13% 8% 76% 2%
Independent 21% 24% 34% 20%
Democrat 14% 25% 17% 43%
Uphold 6-week abortion ban
Republican 11% 15% 57% 17%
Independent 10% 16% 27% 47%
Democrat 7% 12% 9% 71%

In light of this, it makes sense that Democratic approval of the court plummeted, but why didn’t Republican approval grow? Continue reading “Liberals and conservatives both perceive the Supreme Court as acting against their preferences”

A Tenancy in Common Tragedy

Posted on Categories Property Law, Public, Real Estate Law2 Comments on A Tenancy in Common Tragedy

pic of Surfside, Florida condo building, showing collapseThere is lots of blame to go around for the horrifying collapse of the Champlain Towers condominiums complex in Surfside, Florida, in June 2021:

(1) Engineers’ reports on structural flaws in Champlain Towers could have been more forceful and explicit,

(2) Members of the Champlain Towers condo board could have been more attentive and willing to act regarding the dangerous conditions, and

(3) State and local governments could have made inspections earlier and warned that the residents of Champlain Towers of their vulnerability.

Add to the list of causes for the disaster the tenancy in common (TIC) and the modern-day attitudes about ownership of property that the TIC brings to the surface.

Many will recall from first-year Property that a TIC is a shared tenancy in which each owner has a separately transferable share of the property but may not claim ownership of a specific part of the property.  All of the tenants in common are able to use the whole property.  TICs emerged in early-modern England and were much treasured by the gentry as a way to consolidate family interests.  Family bloodlines, after all, were often indistinguishable from family property lines.

A variety of the TIC has lived on into the contemporary United States and is common in what seems sometimes like our ubiquitous condominium complexes. Continue reading “A Tenancy in Common Tragedy”

What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law

Posted on Categories Environmental Law, Legal History, Public, Water Law1 Comment on What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law


As summer began, one of my colleagues introduced readers of this blog to Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). The book explores how Chicago, a city known for commerce, came to have such a splendid public waterfront—its most treasured asset. Tom and I worked on the book for more than 20 years, but apparently we had more that we wanted to say. So, over the past couple of months, we gratefully accepted invitations from three national law blogs to present some reflections based on Lakefront. These posts, though drawing on, are not excerpts from the book, and each of the three series has a strong thematic element or substantive focus.

1. Volokh Conspiracy—The Public Trust Doctrine. Our first series of guest posts, appearing at The Volokh Conspiracy this past June, focused on the public trust doctrine, both in its original American conception (on the Chicago lakefront) and in its development (also there) over more than a century. We explained also that the preservation of Grant Park as an open space, in downtown Chicago, had nothing to do with the public trust doctrine, but stemmed from the public dedication doctrine. Having previously collected these posts, I include the link to that collection and thus to that series, for the sake of completeness here.

2. The Faculty Lounge—Standing to Enforce Public Rights. Our second series last month (July) at The Faculty Lounge concerned standing to enforce public rights. We began by explaining that standing in the law is nearly always discussed in terms of the Supreme Court’s doctrine governing who may sue in federal court consistently with Article III of the Constitution—and that this is unfortunate. For a wider array of standing rules comes into the picture when one considers common-law doctrines governing who may sue to enforce public rights—making Lakefront, which unpacks a century and a half of controversies over various such rights, a valuable resource.

Here is a sort of table of contents for the future reader:

We concluded by urging something of an intermediate rule, given the concerns that we identified in the cases of the most restrictive standing rule (viz., underenforcement of public rights) and the least restrictive standing rule (overenforcement).

3. PrawfsBlawg—Possession vs. Ownership in Property. The third series appeared earlier this month at PrawfsBlawg. Its focus was the role of possession in property. We framed the central question thus: “In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?”

Here is the table of contents, if you will, to this third five-part series:

With respect to the substance of this series, suffice it to say here that, at least on the Chicago lakefront, courts have been reluctant to interfere with possession—and further, in its absence, often have been reluctant to uphold seemingly strong legal claims of property rights. There is, necessarily, much history along the way, including versions of the stories of Cap’n Streeter and of how Jean Baptiste DuSable Lake Shore Drive (as Lake Shore Drive was renamed this summer) came to be—and why it stops where it does.

* * * *

To be sure, my summer was largely spent in administrative work, but I continue very much to believe in the usefulness of blog posts to foster intelligent discussion and engender learning about the law, as I suggested in one additional post that I smuggled into The Faculty Lounge. I hope for a great academic year to come on this blog.

Mike Gousha to Become Law School’s Senior Advisor in Law and Public Policy

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Mike GoushaFifteen years ago, at the suggestion of one of my faculty colleagues, I began a conversation with Mike Gousha, who had announced his intention to depart his daily broadcast television news duties at WTMJ, here in Milwaukee (“Channel 4,” if you prefer). Mike accepted our invitation to join Marquette University Law School as distinguished fellow in law and public policy. Thus was born what we came first to denominate our public policy initiative and now (since 2017) tend to refer to as our Lubar Center for Public Policy Research and Civic Education.

My occasion for noting all this—which omits for the moment everything in between—is that Mike has decided to shift to a new role at the Law School, as of the end of this new semester. In particular, he will step back from his daily obligations here and assume a sort of emeritus status. The word is especially appropriate: Although Marquette University now uses emeritus more broadly, its origin (well, its modern usage, anyway) is in academe, and Mike’s position here has been much in the nature of a faculty member. He has not taught students in law courses, but his initiative, creativity, and leadership have dramatically expanded the Law School’s role in civic education, as the creation of the Lubar Center dramatically attests.

Going forward, Mike will serve the Law School as senior advisor in law and public policy. It seems worth noting that the theory underlying Mike’s affiliation with the Law School will not change. In my initial correspondence with him years ago, I encouraged Mike to consider making Marquette Law School “the platform” for journalism and policy work that he might pursue. Since he joined us in January 2007, he has done this brilliantly—whether the particular form has been the “On the Issues with Mike Gousha” series; his crucial role in imagining the possibility, and persuading us as to the value, of the Marquette Law School Poll; introducing us to Alan Borsuk, senior fellow in law and public policy since 2009, and Charles Franklin, professor of law and public policy and director of the poll since 2012, among many other people; establishing the Law School as the go-to place for debates for important political office in this region; organizing conferences on K–12 education, national security, and Milwaukee’s regional water initiative, among many other topics; or, most recently, fashioning with John D. Johnson, our Lubar Center Research Fellow, an important series of articles in the Milwaukee Journal Sentinel as part of the Lubar Center’s Milwaukee Area Project.

That list is scarcely exhaustive, but my point, as noted, rather involves Mike Gousha’s work going forward. Like a faculty member assuming emeritus status, Mike is not likely to take up full-time work at the Law School and will surely partner with others than the Law School for aspects of his possible activities (e.g., work on a documentary such as this project last year with his wife, Lynn Sprangers, and others). But, as senior advisor in law and public policy, Mike will remain part of our Marquette University Law School community and engage in projects with us here as they appeal to him. Meanwhile, the work of the Lubar Center for Public Policy Research and Civic Education will continue on a daily basis. That can be the subject of separate communications or announcements as we plan and realize that future.

More immediately, please join me in extending good wishes to Mike in this next (Marquette Law School) chapter.

Problem-Solving Courts Can Produce Better Outcomes for Participants, But Do White Defendants Benefit More Than Black?

Posted on Categories Criminal Law & Process, Marquette Lawyer Magazine, Milwaukee, Public, Race & LawLeave a comment» on Problem-Solving Courts Can Produce Better Outcomes for Participants, But Do White Defendants Benefit More Than Black?

The emergence of drug-treatment courts and other specialized “problem-solving courts” (PSCs) has been among the most important developments in American criminal justice over the past three decades. Founded in 1989, Miami’s drug-treatment court is often credited as the nation’s first PSC. The court was developed out of a sense of frustration that conventional criminal-justice responses to drug crime failed to address underlying addiction problems, resulting in a seemingly never-ending cycle of arrest, incarceration, return to use, and rearrest for many individuals. Treatment might be offered, or even required, within the conventional system, but the results were often disappointing. However, the drug-treatment court aimed to provide treatment within a different framework. The judge kept close tabs on the defendant’s progress, working with a team of court personnel and treatment providers to ensure adequate support for the defendant’s rehabilitation and appropriate accountability for backsliding.

The drug-treatment court concept spread rapidly. Hundreds of such courts were created by the late 1990’s, and thousands exist today. Moreover, the drug-treatment court model—specialized caseload handled by an interdisciplinary team, provision of social services to address underlying causes of criminal behavior, close judicial supervision, and use of carrots and sticks to keep defendants progressing through treatment—has been adapted to handle a wide range of other offender groups. The PSCs now in operation in many jurisdictions include mental health courts, homelessness courts, DUI courts, prisoner reentry courts, and veterans courts.

Continue reading “Problem-Solving Courts Can Produce Better Outcomes for Participants, But Do White Defendants Benefit More Than Black?”

School districts that use pandemic funds wisely may see payoff

Posted on Categories Education & Law, Milwaukee, Public, Speakers at MarquetteLeave a comment» on School districts that use pandemic funds wisely may see payoff

This appeared as a column in the Milwaukee Journal Sentinel on July 25, 2021.

It’s the opportunity of a lifetime. It won’t really accomplish anything.

Both opinions are widely held as schools across the country plan for what to do with a huge wave of federal funding intended to boost both students and schools as a result of the pandemic.

“This is an opportunity to make a difference in the lives of children,” Keith Posley, superintendent of Milwaukee Public Schools, said during a Marquette Law School program posted online July 21 on how the money will be used. Posley added, “Our children deserve these funds and even more to make sure they are able to truly get the quality education that they deserve and live that American dream.”

But you need look no farther than the state Capitol in Madison to find opposite views. In late May, Assembly Speaker Robin Vos told the Milwaukee Journal Sentinel, “The amount of federal money that is going to school districts is overwhelming. It’s really kind of obscene in many ways.” The new state budget kept a tight limit on school spending across Wisconsin largely because of Republican opinions of the federal aid. Continue reading “School districts that use pandemic funds wisely may see payoff”

Differing COVID-19 vaccination rates are about more than just politics

Posted on Categories Lubar Center3 Comments on Differing COVID-19 vaccination rates are about more than just politics

For months, journalists have documented the connection between conservative political beliefs and hesitancy (if not outright opposition) to receiving a COVID-19 vaccine.

Certainly, partisanship does play a strong role in Americans’ willingness to get vaccinated, but it doesn’t tell the whole story. Take Milwaukee and Ozaukee counties, for instance. Milwaukee is deep blue. Biden defeated Trump 69% to 29%. Ozaukee is one of the WOW counties–the historic stronghold of the Wisconsin Republican party. Trump defeated Biden there by 55% to 43%.

Knowing nothing else about southeastern Wisconsin, you might be forgiven for guessing that Milwaukee would enjoy a higher vaccination rate. In fact, 70% of adults in Ozaukee County are fully vaccinated, compared with 60% in Milwaukee. Across the United States, 88 counties have a higher adult vaccination rate than Ozaukee. Milwaukee ranks 307th.

This discrepancy probably doesn’t surprise anyone who lives in either of these counties. The partisan gap between Milwaukee and Ozaukee voters is more a symptom of their differences than a cause of them. Ozaukee is one of the richest counties in the country, Milwaukee one of the poorest. Ozaukee’s advantages extend beyond income.

“Social capital” is a term that captures many things. Chief among them is the idea of “collective efficacy”–a widespread belief that working together can effectively achieve shared goals. Popularized by Robert Putnam’s book Bowling Alone, social capital can be measured in different ways. But one recent effort to create “social capital index” for each U.S. county ranked Ozaukee 22nd and Milwaukee 1,885th.

I collected 5 statistics for each county in the United States, each of which I suspected might have some influence on COVID-19 vaccination rates. They are:

  • 2020 presidential election results
  • 2020 Census self-response rates
  • each county’s social capital index score
  • share of the population living below the poverty line
  • COVID-19 deaths per capita

Here are the simple scatter plots comparing each of these values with vaccination rates. In each graph, I’ve colored red and labeled the dots for Milwaukee and Ozaukee counties.

scatter plots showing the relationship between predictor variables and vaccination rates

The correlation between 2020 vote choice and current vaccination rates is clear and strong, but many of these variables interact with each other in complex ways.

I ran a regression analysis testing each of these variables for an independent correlation with vaccination rates. First, I re-scaled each variable using z-score standardization. In other words, I subtracted the mean from each value, and divided by the standard deviation.

Here are the results of that regression. As expected, the outcome of the 2020 presidential election remains the largest and strongest predictor of vaccine behavior, but several other variables are also important predictors.

A 1-standard deviation increase in Biden’s margin of victory correlates with an 8 percentage point increase in the share of adults who are currently fully vaccinated.

A 1-standard deviation increase in the social capital index correlates with a 3 percentage point increase.

A 1-standard deviation increase in the COVID-19 deaths per capita correlates with a 0.9 percentage point increase in vaccinations.

A standard deviation increase in the poverty rate has essentially an equal and opposite effect on vaccinations as the same size increase in social capital.

When controlling for these other variables, census self-response rate is insignificant.

Dependent variable:
percent of adults who are fully vaccinated
Biden vote margin 8.167***
Census self-response -0.281
social capital index 3.132***
covid death rate 0.901***
poverty rate -3.040***
Constant 47.550***
Observations 2,068
R2 0.590
Adjusted R2 0.590
Residual Std. Error 7.475 (df = 2062)
F Statistic 594.681*** (df = 5; 2062)
Note: *p<0.1; **p<0.05; ***p<0.01

The model fits the data fairly well, and the correlation between actual vaccination rates and values predicted by the model is much higher than the correlation of any individual variable. Despite their differences, both Milwaukee and Ozaukee are well explained by the model.

scatter plot showing actual vs predicted results of the regression model

Jury Duty in de Tocqueville’s Time and in the Present

Posted on Categories Judges & Judicial Process, Legal History, Public2 Comments on Jury Duty in de Tocqueville’s Time and in the Present

Alexis de Tocqueville was a French aristocrat sent by his country to inspect American penitentiaries during the 1830s.  He dutifully delivered his report, but he also found himself interested in more than penitentiaries.  In Democracy in America (1835), he provided a wide-ranging and to this day highly regarded account of life in the youthful, rambunctious American Republic.  Somewhat surprisingly, de Tocqueville discussed at length the role and function of jury duty.

photo of jury summons

Although de Tocqueville recognized the jury as a “juridical institution,” that is, a body that renders verdicts, he was more interested in the jury as a “political institution.”  He argued that the jury “puts the real control of affairs into the hands of the ruled, or some of them, rather than into those of the rulers.”  The jury was a vehicle through which the citizenry could exercise its sovereignty.

What’s more, jury duty struck de Tocqueville as a “free school.”  “Juries, especially civil juries,” he thought, “instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.”  As a form of “popular education,” jury duty offers practical lessons in the law and teaches jurors their rights under the law.

Overall, de Tocqueville was pleased Americans took eagerly to jury duty and felt robust, active juries were extremely important in the success of the nation.  Jury duty, he said, “makes men pay attention to things other than their own affairs” and thereby “combat that individual selfishness which is like rust in society.”

How disappointed de Tocqueville would be learn how people perceive jury duty in the present.  While people who actually serve on juries tend to say their experiences were positive ones, a huge percentage of Americans dread receiving a summons for jury duty and do their best to avoid serving.  Websites such as “How to Get Out of Jury Duty” and “10 Ways to Avoid Jury Duty” are popular. Continue reading “Jury Duty in de Tocqueville’s Time and in the Present”

The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

About four years ago I wrote a blog post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose then was to point out an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward The Wisconsin Capitol in Madison, Wis.courts, the legislature, and the governor.” Last week the Wisconsin Supreme Court finally took the field to address that trend, issuing two opinions in companion cases that effectively loosened one of the key new legislative constraints on agency authority. As a result, the pendulum has swung back toward increased agency discretion and clout. The opinions are also important because they continue a recent revival of the Wisconsin public trust doctrine, reversing a slide that I identified in a 2016 blog post.

The court granted review in the two cases  (both captioned Clean Wisconsin v. Wisconsin Department of Natural Resources (2021 WI 71 and 2021 WI 72)) to address one of the issues I focused on in the 2017 post: the scope of Wis. Stat. § 227.10(2m). That statute provides that no agency may implement any “standard,” “requirement,” or permit condition unless the condition has been “explicitly required or explicitly permitted’ by statute or by rule.  The resulting opinions, joined by an unusual mix of justices in a four-vote majority, limit the statute’s influence and slow down the “quiet revolution.”

Continue reading “The Wisconsin Supreme Court Slows Down The “Quiet Revolution””