Judge Sykes in the Classroom—Criminal Law

The summer 2026 issue of the Marquette Lawyer magazine has a number of entries concerning the Hon. Diane S. Sykes, L’84, including a set of one-page essays by seven different faculty on how their Marquette Law School courses draw on her writings as a judge of the U.S. Court of Appeals for the Seventh Circuit since 2004 or as a justice of the Wisconsin Supreme Court between 1999 and 2004. This is the third of the seven essays. The illustration of the faculty member, taken from the magazine and appearing here with the blog post, is by John Jay Cabuay.

Headshot art of Professor Chad M. OldfatherA little more than a decade ago, I switched from teaching Criminal Law with a traditional casebook, featuring opinions from across the United States, to doing so using almost entirely Wisconsin materials. One of the benefits of the change is that it allows students to start to familiarize themselves with the criminal code many of them will spend their lives working with. They begin to learn how to work with the statutes, including how to interpret their occasionally unclear provisions. So the 2004 case of State ex rel. Kalal v. Circuit Court for Dane County—more often referred to simply as Kalal—would have appeared in the materials I prepared no matter what the statute it interpreted: For more than two decades, it has served as the authoritative source on statutory interpretive methodology in Wisconsin. And it would have appeared early in the semester, among the other foundational concepts.

But, as it happens, the substance of Kalal involves questions that are appropriate to a criminal law class also in a general sense—in fact, foundational, beginning-of-the-semester concepts. The case concerns an effort to invoke Wis. Stat. § 968.02, which creates a mechanism to bypass a district attorney’s exercise of prosecutorial discretion in cases where “a district attorney refuses or is unavailable to issue a complaint.” In the case, the Dane County district attorney had not pursued a former employee’s claim that her employer stole money meant for her 401(k) retirement account. The district attorney’s office had not expressly said that it was not going to proceed.

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Professor Atiba Ellis to Join Marquette Law in Fall 2018

Prof Atiba Ellis Many in our community will recall Professor Atiba Ellis, who served as Boden Visiting Professor at the Law School during the fall 2017 semester.  He will return to the Law School for the fall 2018 semester—this time as professor of law and a member of the permanent faculty.  We are delighted that he will be joining us.

During his semester as the Boden visitor, Professor Ellis taught a course entitled Contemporary Issues in Civil Rights.  He also participated broadly and enthusiastically in the Law School community, including by delivering a faculty workshop, serving as a featured guest for one of Mike Gousha’s “On the Issues” sessions, and being consistently present in the common areas of Eckstein Hall for engagement with students and colleagues.

Professor Ellis joins Marquette Law School from the law school at West Virginia University, where he has been a member of the faculty since 2009.  In 2017, in addition to his semester at the Law School, he served as a Visiting Scholar at Duke University Law School.  Professor Ellis has taught courses in the areas of Election Law, Civil Rights Law, Race and the Law, Property, and Trusts and Estates.  His research and scholarship has focused on voting rights law and theory, critical legal theory, and legal history.  He is a well-established and highly regarded scholar whose work relates directly to matters of great present concern within Milwaukee and Wisconsin more generally.

Please join me in welcoming Professor Ellis (back) to Marquette University Law School.

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Law and the Horse

Horse and RiderIf you’ve spent much time around me, you know that I’ve got horse-crazy daughters.  My oldest is fourteen, and she’s just starting her tenth year of riding.  Her sisters joined in the fun a couple years after she started.  That has meant all sorts of things for our family, one of which is that I’ve spent an awful lot of time watching riding lessons.

It’s no surprise that spending that much time watching my daughters being taught a set of skills has led me to reflect on my own teaching.  There are, I’ve concluded, lots of connections, and so in this post I’m going to try to persuade you of two things:  The first is that learning to be a lawyer is in meaningful respects similar to learning a skill like how to ride a horse.  (Or, for that matter, figure skating.)  Both processes involve not merely the acquisition of information, but also a somewhat ineffable sense for how to engage in an activity.  The second is that those similarities can help provide some interesting perspectives on what we do in law schools.

I am breaking no new ground in making the first point.  Karl Llewellyn, for example, wrote of the value to lawyers and judges of “situation sense” and “horse sense” and of understanding that – and even more, understanding how – legal rules will often tell a tale that is incomplete or even wrong when applied to certain fact patterns.  This is a view of law as a craft.  Doing it well requires cultivating an often inarticulable sense of what sorts of responses are appropriate to which situations.  We might call it judgment.  Some of this is doctrinal knowledge, the content of the “law.”  But, Llewellyn admonished new law students, as memorialized in The Bramble Bush, “it does not make so very much difference whether you remember the specific rules.  Good, if you do.  But even if you do not, there remains a deposit, formless, curious—but one which informs your hunches in the future.”  Few of us remember much in the way of doctrinal specifics from our first semester in law school, but none of us could claim that we didn’t learn much.

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