The ABA’s Pro Bono Publico Award to the Law School

ABA Pro Bono Publico Award Yesterday evening I had the privilege of accepting, on behalf of Marquette University Law School, the American Bar Association’s 2026 Pro Bono Publico Award. The award, as announced this past summer, honors the work of the Marquette Volunteer Legal Clinics (MVLCs). Hon. Bryant Yang, a judge in Los Angeles, presented the award.

A delegation of some twenty-one of us—including students, alumni and other volunteers and benefactors, staff, and faculty—went to Chicago for the occasion. In light of the award’s being a recognition of widespread work in our legal community, I post here my remarks in accepting the award on behalf of all who have been involved in the MVLCs during the past twenty-five years.

Thank you, Judge Yang. This is a great honor for our community. I want to thank the American Bar Association and, in particular, the Standing Committee on Pro Bono and Public Service for this recognition of Marquette University Law School. It enhances the honor for us to be recognized alongside Bill Boies, Jonathan Britt, Becky Kondkar, and Toni King: The work of all of you is so impressive.

As dean of Marquette Law School, I am here in a representative or official capacity. The story of the Marquette Volunteer Legal Clinics can be told in perhaps just one sentence: The MVLCs consist of people who saw a need; decided to do something about it; and have remained resolved, always, to do yet more.

To elaborate briefly: Just about twenty-five years ago, Marquette law students began planning (plotting?) to work with volunteer lawyers so as to create a small legal-services operation for people who might otherwise have nowhere to turn for help. One of those attorneys (Julie Darnieder, a Marquette lawyer) is here with us tonight to celebrate. In its first year, that clinic assisted 106 clients. In 2025, the Marquette Volunteer Legal Clinics served more than 6,000 clients.

The clients are the ratio entis for the MVLCs, but on this occasion, involving a great bar association, you will permit me to focus on those involved in providing the service. This means, foremost, the hundreds of lawyers who have given their time and expertise to the MVLCs, year after year. It means, foremost, the law students who sit next to these lawyers and across from the clients, actively participating in the counseling and advising—and not there for any academic credit or to fill some requirement. It means, foremost, our community partners who have welcomed us into legal services organizations, government offices, private social-service agencies, neighborhood spaces, the courthouse—just about all manner of places where people may go for help. And if those places aren’t attractive or accessible enough, we’ll come to them in our Mobile Legal Clinic (the brainchild more than a decade ago of other Marquette lawyers also here this evening, Frank Daily and Julie Ebert). And among “those involved in providing the service” are, foremost, my colleagues at the Law School, in our Office of Public Service, led by Angela Schultz, our long-time assistant dean for public service, and including, in a variety of critical roles, Katie Mertz, Maggie Klatt, Mindy Schroeder, and, most recently, Joshua Hernandez. So this award belongs to so many people whom I am privileged to represent.

Now some might think it strange that I would describe multiple things as “foremost.” How can that be? They might be inclined to think that this reflects casuistry or sophistry—maybe even Jesuitical reasoning. In fact, I learned the rhetorical device from my predecessor as dean of Marquette Law School. Howard Eisenberg may have associated the approach with Talmudic reasoning—the proposition that multiple things could all be “foremost.”

There is a specific point in my remembrance of Dean Eisenberg. In our society, with its many people in need, there should be no religious, partisan, or ideological divisions on the importance of pro bono work. Some may come to the work substantially out of their Catholic faith; others such as Howard may tend to regard such work as a mitzvah; and still others may simply understand that this work is of the sort expected of all lawyers and reflects the best traditions of the legal profession.

When Howard died in Milwaukee in 2002, I eulogized him as Jewish, more liberal, and, rather importantly to him, a Chicago Cubs fan, whereas I, his friend and successor, am Catholic, more conservative, and, quite importantly to me, a Chicago White Sox fan. (We are all prisoners of our past.) Yet more bound us together than separated us.

Today, all of us should have as entire common ground two things: First is the value and continuing imperative of pro bono work. The second is not much, if at all, less important: With apologies (of an insincere sort) to Judge Yang, the Los Angeles Dodgers must lose, and the Milwaukee Brewers must advance to the World Series. Thank you to the ABA, and Go Brewers!

Dean Joseph Kearney giving a speech.

Pro Bono Group

Continue ReadingThe ABA’s Pro Bono Publico Award to the Law School

Judge Sykes in the Curriculum—Advanced Civil Procedure

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 last 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 Dean Joseph D. KearneyIn Advanced Civil Procedure, an upper-level elective offered each spring, we have occasion to read all or parts of five opinions by the Hon. Diane Sykes. One we consider for its role in establishing the law, whereas the others we take up more for their exemplifying it. The distinction is familiar in the law: Some cases break ground or set precedent, while others are less well-known but useful for their representativeness of a doctrine or concept. Both sorts can be valuable in teaching and learning. In the Advanced Civil Procedure instances, perhaps it is not surprising that it is one of Justice Sykes’s decisions (i.e., from her time on the Wisconsin Supreme Court) that falls into the precedent-setting category.

Let’s start there. Yahnke v. Carson (2000) came toward the end of Justice Sykes’s first year of her half-decade tenure on the state Supreme Court. In a matter of summary judgment process (and substance) and with Justice Sykes writing for a majority, the court adopted what it termed “the so-called ‘sham affidavit’ rule.” The legal precept announced by the court may be less provocative than that phrasing, but it is still significant: “we hold that for purposes of evaluating motions for summary judgment pursuant to Wis. Stat. § 802.08, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of material fact for trial, unless the contradiction is adequately explained.” Just about every federal court of appeals had previously come out the same way interpreting the materially identical federal law (Fed. R. Civ. P. 56) on which Wisconsin modeled § 802.08. Yet the interpretation barely made it into Wisconsin law, as Yahnke was decided by a four-to-three vote, with Justice William Bablitch dissenting for himself, Chief Justice Shirley Abrahamson, and Justice Ann Walsh Bradley. In class, we find the Yahnke case valuable both for its specific rule and as an example of Wisconsin’s embrace of a number of summary judgment concepts found in the federal system.

The Seventh Circuit cases in Advanced Civil Procedure relevant here are less prominent but interesting all the same. Two of them are personal-jurisdiction cases. Northern Grain Marketing, LLC v. Greving (2014) involved a successful objection by a Wisconsin farmer to being sued in federal court in Illinois on a contract dispute with the plaintiff, Northern Grain. Greving lived very close to Illinois (just over the border, in Walworth County, Wis.) and had some connections with the state—but not the “minimum contacts with Illinois that would permit the district court, consistent with the due process clause of the Fourteenth Amendment, to exercise personal jurisdiction over him.” As Judge Sykes explained, “although it may seem convenient as a practical matter for Greving to defend this suit in Rockford, the Constitution doesn’t permit the Illinois courts—and, thus, [under Fed. R. Civ. P. 4(k)(1)(A)] federal district courts in Illinois—to exercise jurisdiction over him.” Judge Sykes’s opinion for the Seventh Circuit in Felland v. Clifton (2012) contributes to the law of personal jurisdiction in a different way: It has occasion to discuss how a court’s federal “minimum contacts” due process analysis can contribute to its consideration whether the requirements of a Wisconsin longarm statute (there, § 801.05(3)) are satisfied.

Finally (though early in the course), to demonstrate to the students an important way that the federal court system can connect with state supreme courts, we include brief excerpts from three Seventh Circuit opinions where a close question of state law was presented. In two of these cases, the federal court of appeals certified a question of state law to a state supreme court. Judge Sykes wrote these two opinions, seeking answers from the Illinois Supreme Court and the Minnesota Supreme Court. In the third instance, a diversity case where the Seventh Circuit had to sort out state law in a classic “Erie guess” or prediction situation (in fact, Wisconsin law), it didn’t even discuss the possibility of certifying to the Wisconsin Supreme Court. For the contrast of interest here, Judge Sykes was not part of the panel in this third case. Had she been, I imagine, the court might well have proceeded differently, certifying the question. Judge Sykes might have been more apt to recall Justice Sykes, we may say.

Continue ReadingJudge Sykes in the Curriculum—Advanced Civil Procedure

Prof. Merrill’s Hallows Lecture on How Implicit Legal Ideas Have Deformed the Constitution

Thomas W. Merrill amd Joe Kearney at a podium.
Dean Kearney (left) welcomes a question for Prof. Merrill after the Hallows Lecture.

The Law School had the privilege earlier this week to present our annual Hallows Lecture. The occasion remembers E. Harold Hallows, a Milwaukee lawyer who taught part-time at Marquette Law School during 1930–1958 and then served on the Wisconsin Supreme Court from 1958 until his death in 1974, the last six years as chief justice. For the lecture, we welcomed Thomas W. Merrill, the Charles Evans Hughes Professor of Law at Columbia University, one of the nation’s most widely respected legal scholars.

Prof. Merrill’s Hallows Lecture, delivered on March 2 in the Lubar Center before 200 people (we counted), was rather a tour de force. Here were the title and advance description:

“Unstated”: How Three Implicit Legal Ideas Have Sidelined Congress and Empowered the President and the Courts

Why has Congress, the constitutional keystone of the federal government, become so ineffective, relative to the president and the federal judiciary? While many explanations have been offered, one important but unappreciated reason is legal ideas—not just widely discussed concepts such as the unitary executive and originalist interpretation of the Constitution but also, and perhaps even more importantly, unstated ideas that have taken hold without much explicit discussion or acknowledgment. This lecture will identify and discuss three largely unquestioned ideas that have combined to deform our constitutional regime. Their result has been that the president wields immense power in the guise of issuing orders and binding regulations and the courts exercise great power in the guise of interpreting the Constitution and laws, while Congress stands largely out of the picture. While there is no magic incantation for restoring a proper constitutional balance, an important first step is to recognize the role that unstated ideas have played in the transformation, so that they can be unmasked and debated in the open.

Even in advance of its publication this coming fall in the Marquette Law Review and Marquette Lawyer, Professor Merrill serialized the lecture this week for a national audience on the Volokh Conspiracy blog. Following an introductory post by Professor Eugene Volokh, the blog featured the following posts the past four days, March 2–5:

  1. How Unstated Legal Ideas Have Deformed the Constitution
  2. The “Unitary Executive” Theory’s Contribution to the Deformation of the Constitution
  3. The Role of Delegation Theories in Deforming the Constitution
  4. How the Supreme Court’s Conception of Its Role Contributes to the Deformation of the Constitution

The text of the entire lecture as prepared for presentation can be read here, and a video of the lecture is available to view here.

Continue ReadingProf. Merrill’s Hallows Lecture on How Implicit Legal Ideas Have Deformed the Constitution