Justice Scalia at Marquette Law School

Posted on Categories Education & Law, Judges & Judicial Process, Legal Education, Marquette Law School, Public, Seventh Circuit, U.S. Supreme CourtLeave a comment» on Justice Scalia at Marquette Law School
Judge Diane Sykes introduces Justice Antonin Scalia at the dedication of Eckstein Hall
Judge Sykes introduces Justice Scalia

It seems to be common ground that it will be hard to imagine the United States Supreme Court without the late Justice Antonin Scalia. He was a force also in legal education more directly. That is, he was a teacher, and he taught his theories of constitutional and statutory interpretation with intellect and energy, even outside of his writings in the U.S. Reports.


Justice Scalia visited us at Marquette University Law School on two occasions. The first was in 2001 to deliver our annual Hallows Lecture, where some 500 people were with him in the Weasler Auditorium, while a group of the same size watched a video feed in the Monaghan Ballroom of the Alumni Memorial Union. For me, the more memorable moment in that visit came when the Justice first arrived to campus, where an overflowing group of law students awaited him in Room 307 of Sensenbrenner Hall. The dean at the time, Howard B. Eisenberg, told the students that I would introduce him, because “Without Professor Kearney, there would be no Justice Scalia here.” Even before I could say anything, Justice Scalia brought the house down with this interjection: “I thought that, without Justice Scalia, there would be no Professor Kearney here.”

Justice Scalia returned to deliver the keynote address at the dedication of Eckstein Hall on September 8, 2010. He relaxed his strictures on recording, and the entire ceremony can be seen here, with an account of it appearing in the Marquette Law Review. I especially recall this comment of Judge Diane S. Sykes, L’84, in introducing the Justice:

“So we are fortunate, indeed, that this history-making justice has joined us here today as we make a little history of our own. When Dean Kearney unveiled the plans for this beautiful building two years ago, he famously declared that Eckstein Hall will be ‘noble, bold, harmonious, dramatic, confident, slightly willful, and, in a word, great.’ It certainly is. And with the possible exception of harmonious—Justice Scalia has been known to say that one of his charms is that he likes to tell people what they don’t want to hear—the dean’s description of this distinguished and splendid building might likewise be applied to our distinguished and splendid visitor. So, ladies and gentlemen, please join me in welcoming the noble, bold, dramatic, confident, slightly willful, and, and in a word, great Justice Antonin Scalia.”

There are things to learn from the remarks of Justice Scalia and the other speakers that day, including then-Chief Justice Shirley S. Abrahamson, whether in the recording or the law review account linked above. My own recollection of Justice Scalia has appeared in the Milwaukee Journal Sentinel and can be found here.

Remembering Professor James Ghiardi

Posted on Categories Marquette Law School, Marquette Law School History, Public4 Comments on Remembering Professor James Ghiardi
Law professor James Ghiardi stands at a podium and lectures to a class, circa 1985.
Law professor James Ghiardi stands at a podium and lectures to a class, circa 1985.

James D. Ghiardi, professor emeritus, passed away yesterday, at the age of 97. Jim was a Marquette lawyer, from our Class of 1942, and after service in World War II served as a member of our faculty, active or retired, for almost 70 years. From his first-year Torts course to his (somewhat) gentler approach with upper-level students, as I understand it, Professor Ghiardi was the legendary member of the Marquette Law School faculty for more than a generation. Professor Ghiardi enjoyed immense respect and esteem from Marquette lawyers—his former students.

Jim had retired by the time I arrived in 1997, but he remained a presence at the Law School until as recently as a few months ago. He was unfailingly gracious and supportive to me even before I became dean—indeed, from my earliest days on the faculty. I have been fortunate to count him among my colleagues and friends. At the same time, it seems appropriate to let speak here one of my predecessors as dean—indeed, one of Professor Ghiardi’s former students. Robert F. Boden wrote the following of Professor Ghiardi in 1971:

I first knew him when I was one of 160 terrified freshmen students entering Law School in the fall of 1949. As a student I came to respect him as a fine teacher. As a fellow member of the bar, a fellow Marquette alumnus, faculty colleague, and finally as his Dean, I have come to respect him as a gentleman and a scholar. Few are more zealous in their loyalty to the University and to the profession. Few also have the industry and capacity for work that manifests itself every day in Professor Ghiardi’s vigorous and devoted attention to the responsibilities which he has assumed in the Law School and in the many other related activities which he has undertaken.

In a quarter century of teaching of tort and insurance law, Professor Ghiardi has come to be recognized nationally as one of the academic leaders in this area of the law. Since 1962 he has served as Research Director of the Defense Research Institute, the national research and educational arm of the defense bar. He is often called upon to address legal organizations throughout the country in the field of his expertise, and his long record of publication in the leading bar journals of the country is a further manifestation of his accomplishments in legal scholarship.

Dean Boden made these remarks in the context of dedicating, on behalf of the student editors, a volume of the Marquette Law Review to Professor Ghiardi. The dedication, which also notes Professor Ghiardi’s unusual service as the president of the Wisconsin bar, may be read here.

It concludes by expressing “certain[ty] in the fact that [Professor Ghiardi] will continue for many more years to reflect the highest ideals of his University and his profession.” Dean Boden was right to be so certain in his remarks nearly forty-five years ago. The loss of Jim Ghiardi now diminishes us, but his work and life magnified us—and as a legacy will continue to do so. Requiescat in pace.

Visitation will be held on Sunday, January 24th at Feerick Funeral Home, from 2:00 to 4:00 PM. A visitation will also be held starting at 9:30 AM on Monday, January 25th, followed by the celebration of the Mass of Christian Burial at the Church of the Gesu, 1145 W. Wisconsin Ave. at 10:30 AM. Committal Services and Military Honors will take place at Holy Cross Cemetery, 7301 W. Nash, after the Mass. A lunch will follow at 1:30 PM at the Italian Community Center, 631 E. Chicago Ave.

 Memorials in Jim’s name may be made to the Marquette University Law School, (James D. Ghiardi and Phyllis A. Ghiardi Scholarship Fund), or to the Milwaukee Catholic Home (Employee Fund).


An Expanded Water Law and Policy Initiative

Posted on Categories Environmental Law, Marquette Law School, Public, Water Law1 Comment on An Expanded Water Law and Policy Initiative

We frequently say that Marquette Law School hopes to be a place of which the community remarks,“That’s where you take the hard problems, the ones that affect us all.” As we observe the course of events in California and other parts of the world, it seems difficult to imagine a problem more intractable or more universal—a problem harder—than ensuring the availability of fresh water for domestic, medical, agricultural, and industrial uses. Indeed, Pope Francis recently cautioned in an encyclical that water, which is “indispensable for human life,” is “a fundamental right,” and he called for all interested parties to engage in “an open and respectful dialogue” about relevant policies and laws. Closer to home, with Associate Dean Matt Parlow’s leadership, the Law School has been actively engaged in the Milwaukee regional water initiative since its creation last decade; more recently, the Law School has sought to respond to President Michael R. Lovell’s call for greater engagement by Marquette University with matters involving water.

In these circumstances, it is a great pleasure to announce an expanded Water Law and Policy Initiative which will seek to help establish the Law School and, more broadly, Marquette University as a center for study, exploration, discussion, and education concerning water issues. Using an interdisciplinary and collaborative approach, the initiative will seek, among other things, to assess the legal and regulatory aspects of water policy, to pursue opportunities for information exchange and collaboration within and outside the University, and to provide the means for those involved in Milwaukee’s water initiative to become better informed on legal and policy aspects of critical water-related issues.image001

I am also pleased to announce the appointment of David Strifling as the Initiative’s inaugural director. Dave is a Marquette lawyer (L’04) and Marquette engineer (L’00) with a Harvard master’s. He has served as an adjunct professor here for several years, practiced at Quarles & Brady, and previously taught at Temple University’s Beasley School of Law in Philadelphia. He has extensive practical experience in both environmental law and environmental engineering and holds active licenses in both disciplines, making him almost uniquely qualified to move this project forward in an interdisciplinary way; further background about Dave is available here. We are able to pursue this initiative because of support from the University’s Strategic Innovation Fund and from the Law School’s Annual Fund. Welcome, Dave.

Of Trump Cards and Lawyering

Posted on Categories Criminal Law & Process, Legal Practice, Legal Profession, Pro Bono, Public, Seventh CircuitLeave a comment» on Of Trump Cards and Lawyering

King of SpadesSome of the best and the worst of the legal profession can be seen through Socha v. Boughton, No. 12-1598, decided by the Seventh Circuit this past week. The substance of the case involved the court’s applying — for the first time — the doctrine of equitable tolling to excuse a late filing by a state prisoner in a habeas case. This required a conclusion that the district court had abused its discretion in concluding otherwise, including the catchy characterization that “[t]he mistake made by the district court and the state was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt” (slip op. at 19).

Yet it is the lawyering that I want especially to note. Continue reading “Of Trump Cards and Lawyering”

An Expanded Role for Jay Ranney as Schoone Visiting Fellow

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ranney-TNAs set forth in this release, the Law School has appointed Joseph A. Ranney as its Adrian P. Schoone Visiting Fellow in Wisconsin Law. Ranney will use his fellowship to write a book that examines the role states have played in the evolution of American law, with a focus on the contributions made by Wisconsin. Ranney is (and will continue to be) a partner at DeWitt, Ross & Stevens, S.C., in Madison and a longtime member of Marquette University Law School’s part-time faculty. His previous books include Trusting Nothing to Providence: A History of Wisconsin’s Legal System (1998), considered the leading legal history of the state, and In the Wake of Slavery (2006), examining the path of the law and its effects in the Reconstruction-era South. He is also well known to the Wisconsin bar for his frequent contributions to Wisconsin Lawyer, the official magazine of the State Bar of Wisconsin, and he has made a number of contributions to the Marquette Law Review. The fellowship is made possible by the Law School’s Adrian P. Schoone Fund for the Study of Wisconsin Law and Legal Institutions, announced last year, and its fruits no doubt will include contributions by Jay Ranney to this faculty blog during the course of his fellowship. It is a pleasure to welcome him to his new role.


Diederich College Appointment of John Pauly as Colnik Chair

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John PaulyJohn Pauly came to Marquette University in 2006 to lead the Diederich College of Communication, and we were deans for two years together — or at least next door to one another, as he was in Johnston Hall and I immediately east in the “old building,” as we in the Law School now call Sensenbrenner Hall. Then Dean Pauly became Provost Pauly in 2008, and so for five years I reported to him, although that phrasing does not convey all the support that Provost Pauly gave to the Law School and to me as dean. Throughout these years and his administrative positions, I admired the way John remained engaged in his discipline — journalism — in a way also integrated with the larger work of the Marquette University faculty. I remain particularly drawn to his substantial essay, “Is Journalism Interested in Resolution, or Only in Conflict?,” published in the Marquette Law Review in 2009 as part of a dispute resolution symposium at the Law School (introduced here by conference organizer, Prof. Andrea K. Schneider). There are other examples of his contributions, including a post last month on our blog concerning the study of political polarization conducted by Craig Gilbert, Washington Bureau Chief of the Milwaukee Journal Sentinel and the Law School’s Lubar Fellow for Public Policy Research last year.

In any event, for all these reasons (and for any additional engagement with the Law School that it might occasion), I am delighted that my colleague Lori Bergen, dean of the Diederich College of Communication, has appointed John Pauly as the college’s Gretchen and Cyril Colnik Chair in Communication. In making the announcement, Dean Bergen noted that Prof. Pauly’s research and teaching “in the history and sociology of the mass media, cultural approaches to communication, media ethics and criticism, communication theory and the theory and practice of literary journalism have brought him international distinction as a scholar.” This appointment as Colnik Chair is a signal and well-deserved honor for a much-respected colleague and reflects not just terrific judgment concerning John Pauly’s past contributions to Marquette University and the community of scholars but also a prediction of more such. Kudos and congratulations to all involved.

Thank You to Michael O’Hear

Posted on Categories Marquette Law School, Public4 Comments on Thank You to Michael O’Hear

michaelohearFive years ago Marquette Law School launched this faculty blog. It was then, and has been since, a group project, with posts coming from faculty members, primarily, but others as well, including alumni and students, and comments from just about anyone willing to include his or her name. Yet one person has had more to do with the blog, from its suggestion to its success, than any other: Michael M. O’Hear, professor of law and associate dean for research. Professor O’Hear himself has put up almost 500 posts, variously touching upon Seventh Circuit decisions, Wisconsin law and policy in the area of sentencing, the work of faculty colleagues, and many other topics. His work also has involved leadership beyond such example — to the point that a contributor to the Volokh Conspiracy, one of the most popular law blogs, remarked in 2011 that the Marquette blog is the most frequently updated of any law school faculty blog. It is thus with both gratitude and a bit of anxiety that I relate that Professor O’Hear has handed the reins to another colleague (Professor Bruce E. Boyden). After a half-decade of service as lead editor, Professor O’Hear leaves this blog in good shape, and he is especially eager to turn more of his undivided attention to a book project. To be sure, Professor O’Hear will continue to contribute to the blog, but I wish not merely to note the handoff but also to thank him for his prodigious work on this project for as long as — indeed, even longer than — we have published this blog.

Expanding the Public Policy Initiative

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Marquette University Law SchoolThis is a notable week in the Law School’s public policy initiative. First, it marks the beginning of Charles Franklin’s work as professor of law and public policy—an appointment announced this past May by Rev. Scott R. Pilarz, S.J., president of the University. Professor Franklin, formerly professor of political science at the University of Wisconsin–Madison, will continue to direct the Marquette Law School Poll and, more broadly, will work with Mike Gousha, Alan Borsuk, and faculty at the Law School and beyond in the continuing development of the Law School’s public policy research and outreach. Second, Craig Gilbert joins us in a sense. Mr. Gilbert, the head of the Milwaukee Journal Sentinel’s Washington bureau and the author of The Wisconsin Voter blog at the newspaper, will hold a six-month fellowship established by the Law School through its Sheldon B. Lubar Fund for Public Policy Research. This is along the lines of work last academic year by the newspaper’s Rick Romell, which resulted in an extensive multipart series in the newspaper reporting on the economic future of this region. Mr. Gilbert is especially well-regarded in both journalism and the academy (you can get a sense of that here). His project during his time as a Lubar Fellow will focus on aspects of political polarization in the region, an activity that (to bring me back to where I began) no doubt will occasion his collaboration with Charles Franklin and Mike Gousha, among others at Marquette. On behalf of all who comprise the Marquette Law School community, it is a privilege for me welcome to both Charles and Craig as they expand the contributions we make to the community even beyond our core mission of legal education.

The Interstate Commerce Act: A Final Convocation

Posted on Categories Business Regulation, Legal History, Public1 Comment on The Interstate Commerce Act: A Final Convocation

Earlier this year I observed the 125th anniversary of the Interstate Commerce Act, among the most important statutes that Congress has ever enacted. I allowed that a future issue of the Marquette Law Review would publish essays by a number of leading scholars concerning the Act and its legacy. With the summer issue of the Marquette Law Review now out, that future is now.

The remembrance is titled “125 Years Since the Interstate Commerce Act: A Symposium in the Form of a Final Convocation.” As I explain in my Foreword (“The Last Assembly of Interstate Commerce Act Lawyers”), the essays, collectively available at the link at the beginning of this paragraph, are by an impressive collection of scholars:

Most of these essays are short, and each is an engaging assessment of an act whose legacy can be felt today, not only in the general fact of the administrative state whose creation began with the Interstate Commerce Act but also in specific debates (as Prof. Speta demonstrates) about regulation today. We invite you to read the essays.

Milwaukee’s Future in the Chicago Megacity

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Marquette University Law School and the Milwaukee Journal Sentinel will host a conference next week. The conference title—“Milwaukee’s Future in the Chicago Megacity”—reflects that Chicago is one of the world’s emerging “megacities”; for example, it is ranked No. 6 in Foreign Policy magazine’s Global Cities Index (behind only New York, London, Tokyo, Paris, and Hong Kong). An expansive new report by the international Organization for Economic Co-operation and Development argues that closer ties between the Milwaukee region and Chicagoland are of singular importance. At our conference, various panels, involving business leaders, elected officials, and public policy analysts, will assess that argument, with a general eye to these central questions: how closely should the Milwaukee region connect its future to Chicago, and how might that be accomplished through public policy and business might?

Continue reading “Milwaukee’s Future in the Chicago Megacity”

Judge Sutton’s Hallows Lecture

Posted on Categories Constitutional Law, First Amendment, Marquette Law School, Public, U.S. Supreme Court1 Comment on Judge Sutton’s Hallows Lecture

Hallows LectureMarquette University Law School is fortunate to welcome this week the Hon. Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit. Judge Sutton will deliver our annual Hallows Lecture on Tuesday, February 28, at 4:30 p.m. in the Appellate Courtroom of Eckstein Hall. His lecture, titled “Barnette, the Roosevelt Appointees, and the Progressive Embrace of Judicial Review,” focuses on Board of Education v. Barnette, the U.S. Supreme Court’s 1943 decision holding that the First Amendment protected students unwilling on religious grounds to salute the American flag. The 6-3 decision overturned Minersville School District v. Gobitis, a 7-2 decision only three years earlier. Appointees of Franklin D. Roosevelt were central in this drama: Robert H. Jackson wrote for the Court in Barnette, over the dissent of Felix Frankfurter, who had authored Gobitis but found himself abandoned by William O. Douglas and Hugo L. Black. Judge Sutton will discuss how this reversal of course happened so quickly and why it marked a turning point away from the progressive opposition to many forms of judicial review. The lecture is free and open to the public (registration is required) and will bear 1.0 CLE. The Hallows Lecture—perpetuating the memory of the late E. Harold Hallows, Chief Justice of the Wisconsin Supreme Court and longtime Professor of Law at Marquette University—is one of the Law School’s flagship events, precisely because we have been the beneficiary of contributions from such distinguished jurists as Judge Sutton.

Happy Birthday, ICA?

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ICC BuildingTime was, a “multiple-of-25” anniversary of the Interstate Commerce Act would have been an event. Law review symposia and even a speech by U.S. Supreme Court Justice Felix Frankfurter variously marked the 50th, 75th, and 100th anniversaries of the passage, on February 4, 1887, of “An Act to Regulate Commerce,” as the Interstate Commerce Act was denominated. Such celebrations (as these events substantially were) and studies seemed entirely appropriate, not simply on account of the Act’s introduction of federal entry-and-exit and rate regulation into the world of interstate railroads, but also for its status as the harbinger of the administrative state.

How times have changed. Insofar as I have been able to tell, this past Saturday—February 4, 2012—seems to have come and gone without any public notice of its being the 125th anniversary of the Interstate Commerce Act. That, too, is logical enough: after all, the Interstate Commerce Commission (ICC) created by the Act was abolished by Congress in 1995, and the landmark building along Constitution Avenue (pictured here) has been rededicated to other purposes of the federal government. At the same time, the Act lingers: there is no sign of the coming abolition of most of the ICC’s various descendants (grandchildren, I suppose they must be, if the ICC is the “granddaddy of them all,” as we are sometimes told), such as the Federal Communications Commission and the Federal Energy Regulatory Commission. And no one would suggest that the now larger administrative state is in danger of passing away anytime soon.

In all events, whether for its lasting effects or for itself in its time, the Interstate Commerce Act is worth remembering. So we will fill the void, as it seems. I will be joined by six distinguished scholars of regulated-industries law in writing short remembrances of the Interstate Commerce Act:

  • Richard D. Cudahy, Senior Judge, United States Court of Appeals for the Seventh Circuit
  • Paul Stephen Dempsey, Tomlinson Chair in Global Governance in Air and Space Law, McGill University
  • James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus and Professor of History Emeritus, Vanderbilt University
  • Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia University
  • Randall C. Picker, Paul H. and Theo Leffmann Professor of Commercial Law, University of Chicago
  • James B. Speta, Professor of Law, Northwestern University

Prof. Speta and I will edit these essays for a future issue of the Marquette Law Review; we may find a spot for them on this blog during the next several months.