Our December Bloggers Are Here

Please join me in welcoming our two guest bloggers for the month of December.

Our Alumni Blogger for December is Christopher “Chal” Little.  After graduating cum laude from Marquette University Law School, Chal joined Meissner Tierney Fischer & Nichols as an Associate this year.  At Marquette he served as an Academic Success Program Leader, participated in the American Association for Justice 2016 Student Trial Advocacy Competition, was a member of the Moot Court Executive Board, the Business Law Association, and was the Marquette University Law School Student Liaison to the Wisconsin Bar Association Appellate Practice Section.  While in law school, Chal also served as a Summer Honors Intern at the U.S. Securities and Exchange Commission in Washington, D.C..

Our Student Blogger for the month of December is Anjali Sharma.  Anjali is currently 2L who is interested in Patent Law as well as Transactional Law. She is on the board of the Intellectual Property Society, and serves as a member of the Intellectual Property Law Review. She graduated from the University of North Dakota prior to coming to Marquette Law School.

We look forward to your posts!

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Two Views, One Conversation: Light Shed on School Vouchers at Law School Program

Even in a social media world, I’m still a big backer of the notion that serious, informative, in-person dialogue about major public issues is a good thing. The more contentious and important the subject and the more level-headed the discussion, the better. When it comes to contentiousness and importance, almost nothing in the realm of education policy rivals the subject of private school vouchers for kindergartner through twelfth grade students. Milwaukee was the place where vouchers for low-income, urban students were launched in1990. And, with the election of Donald Trump as president and Trump’s selection of voucher-advocate Betsy DeVos to be secretary of education, vouchers are a hot subject.

All of this is to say that I thought the hour-long session at Marquette Law School on Wednesday was worth listening to, and the opportunity to do that remains, as you can find at the end of this blog item. In a program titled Lessons from a Quarter Century of School Vouchers: One Conversation, Two Points of View, we brought together Scott Jensen, a key figure in the voucher movement in Wisconsin and now an adviser to the American Federation for Children, a school-choice advocacy group headed by DeVos, and Julie Underwood, a professor in the education and law schools at the University of Wisconsin-Madison and a long-time advocate for public schools.

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Court Wrestles With Vagueness and Retroactivity in Sentencing Context

honore%20daumier%20-%20le%20proveYesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.

With her opening question, Justice Ruth Bader Ginsburg forced Janice Bergmann, representing Beckles, to focus on the third issue in the case: the relationship between the guidelines’ residual clause and the commentary, which specifically listed Beckles’ offense of conviction as a crime of violence. A number of justices took issue with Bergmann’s assertion that the commentary cannot define “shapeless” language, a term taken from Johnson. After all, they noted, the guideline commentary, at least in part, interpreted the residual clause, presumably providing meaning in that manner. They also questioned whether the commission was not in the best position to clarify its own language. Bergmann responded that the guideline language was not the commission’s, but rather was drawn from the ACCA residual clause. Any interpretation and examples offered by the commission, she argued, would therefore be arbitrary.

Justice Samuel Alito was the first to direct the argument to the question of what vagueness would mean in a guideline-free world. Along with Justice Stephen Breyer, Alito reminded Bergmann that pre-guideline sentencing appears substantially more vague and arbitrary than the residual clause, as do many of the current guideline provisions. In response, Bergmann asserted that the guideline residual clause is unique among those provisions because of its identity with the ACCA residual clause, and that it shares the same characteristics embodied in the categorical approach that ultimately caused the court to declare the ACCA provision void for vagueness.

Chief Justice John Roberts and Justice Anthony Kennedy continued along similar lines by pointing to the decrease in vagueness any guideline, even a vague one, would provide as compared to the previous system of discretionary sentencing. Why, they asked, should greater precision lead to greater vagueness?

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