Richard M. Esenberg – Page 17 – Marquette University Law School Faculty Blog

More on Citizens United

Post author:Richard M. Esenberg
Post published:February 1, 2010
Post category:Constitutional Interpretation First Amendment Judges & Judicial Process

I have a column on Citizens United in the Crossroads section in yesterday’s Milwaukee Journal Sentinel.

Taking the other side, Noah Domnitz wants to argue the the decision was “judicial activism” because it overruled existing precedent and restricted the application of long standing laws prohibiting the spending of corporate treasury money on elections. (I say “restricted” because, after Citizens United, corporations still can’t use treasury funds for contributions or coordinated expenditures.)

I disagree. Mr. Domnitz does not define “judicial activism” but seems to equate it with departure from precedent and overturning laws.

This oversimplifies the concept.

Civil Procedure Fun for the Weekend

Post author:Richard M. Esenberg
Post published:January 23, 2010
Post category:Civil Procedure

I like to begin the first day of Civil Procedure with a review of a civil action and I like to start each class with a brief recap of the last one. This year – for my review of my review – I found a musical recap – apparently made by students at that law school just to the west of us. There are some substantive problems. For example, there is no consideration of subject matter jurisdiction (“he’s from Chicago/we have diversity”) and a direct or third party claim against the law school would not be an “interpleader” – but, hey, its Madison. What can we expect when the issue isn’t Foucaultian perspectives on the gender violence implicit in the Rule Against Perpetuities? (Just kidding!) The group also apparently did not regard the ability to carry a tune to be necessary to star in a music video, but that’s kind of charming. In any event, I thought it was cute. My students seem to enjoy it – at least a little. The question for all you: Can our Dean sing better than their Dean?

Has The Supreme Court Declared Victory for the Moles?

Post author:Richard M. Esenberg
Post published:January 21, 2010
Post category:Constitutional Interpretation First Amendment

In a recent piece in the Harvard Journal of Law & Public Policy, I say – as has at least one other commentator – that campaign finance reform is like a never ending game of Whack-A-Mole. Hit one and another one pops up. Stop money here and it flows over there.

On the day that the United States Supreme Court decided District of Columbia v. Heller, I wrote on my personal blog that Heller was not the most important decision of the day. I thought that honor belonged to FEC v. Davis, a decision that struck down the “millionaire’s amendment” in the “McCain-Feingold” Bipartisan Campaign Finance Reform Act, a provision that raised contribution limits for candidates facing wealthy self-financed opponents. Davis made it clear that a majority of the Court rejected “equalization” as a rationale for the regulation of election related speech. It was my view that this would lead to the invalidation of the provision of “rescue funds” (additional money provided in response to higher levels of spending by privately financed candidates or independent groups) in public financing schemes, a position which I developed more fully in the Harvard JLPP piece.

That shoe has not yet dropped, but a size 14 flowing from the same doctrinal position did drop this morning in Citizens United v. FEC.