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.

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Happy Birthday, ICA?

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.

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Collecting Judges, Past and Present

Tom Shriner’s recent remembrance of Judge Dale Ihlenfeldt said to law students and new lawyers that “you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.” This last (neatly phrased) is the case, in my estimation, both of judges whom one knows and of others whom one has never met. One should collect judges, as Tom and I say to the students in our courses.

Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

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