Richard M. Esenberg – Page 22 – Marquette University Law School Faculty Blog

Conference on the Wisconsin Supreme Court: Review and Preview

Post author:Richard M. Esenberg
Post published:October 31, 2009
Post category:Speakers at Marquette Wisconsin Supreme Court

At the beginning of this semester, I proposed that the law school host a conference on the Wisconsin Supreme Court. Dean Kearney lent his support and we were fortunate enough to obtain the co-sponsorship of the Appellate Practice section of the State Bar of Wisconsin.

So yesterday we hosted a sold out gathering of over 100 lawyers for “Conference on the Wisconsin Supreme Court: Review and Preview.” Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L’84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.

This discussion was followed with breakout panels discussing business and criminal law cases, respectively.

The Problems with Disclosure

Post author:Richard M. Esenberg
Post published:October 23, 2009
Post category:Uncategorized

We had a wonderful edition of “On the Issues” with Mike Gousha last week with my former partner, Mike Grebe, now CEO of the Bradley Foundation. Mike is a great guy who has had a wonderful career. Bradley is a generous supporter of the law school and has been a tremendous force for good in the community and nationally. (By way of full disclosure, Bradley funds the Wisconsin Policy Research Institute and I have a relationship with them.)

I could go on about Mike, but I’d rather disagree with him. In response to a question of the audience, he criticized the McCain-Feingold Act and other efforts to wring money out of politics.

I agree with that.

But Mike went on to say that he believes that the answer to concerns about undue influence is mandatory disclosure. We should all know who has given what to whom.

I used to believe that.

Now I’m not so sure.

When the Answer is No: Constitutional Protection for Faith Healing?

Post author:Richard M. Esenberg
Post published:October 14, 2009
Post category:Constitutional Interpretation Criminal Law & Process Religion & Law

The tragic case of Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection of religious freedom?

The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently.