Wisconsin Supreme Court Accepts Five New Cases for Review, Including Challenge to a Prison Discliplinary Action

Supreme Court sealThe Wisconsin Supreme Court has accepted five new cases for review, including a case that will focus on the fairness of prison disciplinary proceedings following a prison riot.

In Brunton v. Nuvell Credit Corp., the court will determine whether a defendant waived a challenge to improper venue under Wisconsin Statute section 421.401, the venue provision of the Wisconsin Consumer Act.  The plaintiff in the action admits that the case was brought in an improper venue (Dane County), but section 421.401 contemplates that a defendant may “appear[] and waive[] the improper venue.”   The defendant did appear, and litigated the case for over a year before filing its motion for summary judgment on jurisdictional grounds due to the improper venue.  The plaintiff argues that the defendant’s appearance and litigation activity constituted a waiver of the venue challenge.  The court will determine whether a waiver did take place within the meaning of section 421.401.

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Favorite Law School Activities: Equestrian Team

My most useful and enjoyable extracurricular activity in law school had absolutely nothing to do with law school or the law, which was why it was both useful and enjoyable.  Let me explain.

When I started law school, I had moved to a new city and state, and I did not know anyone other than my classmates.  My high-school and college friends were several states away, as was my family.  Because everyone I knew was a law student, law school became all-consuming, and it was easy to miss what was going on in the “real world.”

A few months into my first year, I noticed a flyer inviting people to participate in the university’s equestrian team.  I had been riding since I was four years old, so the team seemed like a good fit for me.  I joined the team and became the only law student — the only member who was not an undergraduate, actually.  The team practiced one night a week, and those practices were important to me for a number of reasons. 

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Restrained Judicial Activism

In contemporary legal discussion, “judicial activism” is roundly condemned.  This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations. 

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