Welcome to the Summer Youth Institute

Posted on Categories Eastern District of Wisconsin, Legal Education, Legal Profession, Marquette Law School, PublicLeave a comment» on Welcome to the Summer Youth Institute

Welcome to the students participating in the Summer Youth Institute at Marquette Law School. The Summer Youth Institute is a free program for Milwaukee students entering eighth through tenth grade, and the program is in its second year. Students learn about the American legal system, participate in a moot court, and meet judges, attorneys, and law students, as well as other people involved in the legal system. This year the students are touring the federal and state courthouses, Rockwell Automation, and Gonzalez Saggio & Harlan. Students also are paired with a mentor from the Eastern District of Wisconsin Bar Association and are eligible to participate next summer in a law-related internship. The Summer Youth Institute is hosted by Marquette Law School and the Eastern District of Wisconsin Bar Association, in collaboration with Just the Beginning Foundation, Kids, Courts, & Citizenship, and the Association of Corporate Counsel Wisconsin Chapter.

This morning after a warm welcome from Dean Joseph Kearney and Judge Nancy Joseph at breakfast, the students learned how to introduce themselves and shake hands. Students learn important concepts about the law at the SYI, but they also gain confidence in presenting an oral argument. They form bonds with their mentors, who teach them about legal work, but also take them to baseball games and teach them intangible skills they will need to succeed in their work and life. And, finally, they get to know their peers, who, like themselves, are the future of the legal profession and our society.

The Subway Scandal of 2013 Heads to Wisconsin

Posted on Categories Eastern District of Wisconsin, Public3 Comments on The Subway Scandal of 2013 Heads to Wisconsin

subwayI’ve learned a lot of things in the last 6 months, and one of those things is that people get really angry when they find out that their Subway “footlong” sandwich is actually only 11 inches. What began as a customer complaint on Facebook has morphed into a high-publicity lawsuit that will play out in our own backyard: the Eastern District of Wisconsin.

Earlier this year, an Australian man posted a picture of his sub alongside a ruler on Subway’s Facebook page, accompanied by the message “subway plz respond.” The picture set off a firestorm on Facebook as customers around the world began complaining and posting their own pictures of Subway sandwiches that failed to live up to expectations. Shortly thereafter, the New York Post conducted its own investigation and found that 4 out of 7 “footlongs” purchased in Manhattan measured only 11 or 11.5 inches. Continue reading “The Subway Scandal of 2013 Heads to Wisconsin”

Collecting Judges, Past and Present

Posted on Categories Eastern District of Wisconsin, Judges & Judicial Process, Public, Seventh Circuit1 Comment on 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.

Continue reading “Collecting Judges, Past and Present”

A Lesson Learned from a Great Bankruptcy Judge

Posted on Categories Eastern District of Wisconsin, Marquette Law School, Public1 Comment on A Lesson Learned from a Great Bankruptcy Judge

Judge Dale Ihlenfeldt Judge Dale Ihlenfeldt died right after Christmas. He was 92 years old and hadn’t sat on the bankruptcy court bench in Milwaukee for many years, though he remained active until fairly recently, including by teaching an annual CLE program in Madison in which I also participate. Teaching CLE required him to keep up on developments in bankruptcy law, and that suited him just fine, because he loved the law. He also liked lawyers, and his warm, engaging personality was always welcome whenever he could join us.

I learned a lot from Judge Ihlenfeldt over the years, but one of the most valuable lessons he taught me came very early in my legal career, and I see this story as making an important point for law students and new lawyers. The practice of law requires constant learning; you’ve barely begun to know what you need to know when you leave law school. And 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.

Back in the mid ’70s, as an associate at Foley & Lardner, I first appeared in bankruptcy court for banks and other creditors, often seeking to recover collateral or to oppose the discharge of a debt. I had appeared before Judge Ihlenfeldt a few times, and on this particular occasion he had ruled against me. I don’t remember the details, but the decision may well have involved the judge’s exercising some discretion, and he exercised it against my client. The case was over, and (as often happened in his court) the lawyers had lingered in chambers to talk. He could tell that I was upset at losing (not then having much experience at it—a condition that time has healed), and he turned to me, in his gentle way, and said, “Oh, Tom, you have to understand that we’re the bankruptcy court. Bankruptcy law is intended to benefit debtors, and you shouldn’t expect to win all the time when you represent creditors.”

This comment struck me at the time and many times since as one of the best lessons that a judge could teach a young lawyer. And it has implications beyond bankruptcy law. Good judges like Judge Ihlenfeldt call them as they see them and follow the law as they understand it. But a lawyer should never lose sight of the fact that much of the law (understood as being what judges do) is not black and white, but gray, and a judge’s instincts in the gray area—whether to afford a debtor relief, to let a plaintiff try to prove her case, or to cut a lawyer some slack—are every bit as much a part of the law as the stuff in the books. I’m glad that I learned that lesson early from a great judge.

Budget Cuts Haven’t Meant Prosecution Cuts Here, Santelle Says

Posted on Categories Criminal Law & Process, Eastern District of Wisconsin, Federal Criminal Law & Process, Marquette Law School, Milwaukee, Public, Speakers at MarquetteLeave a comment» on Budget Cuts Haven’t Meant Prosecution Cuts Here, Santelle Says

In case any criminals reading this are hoping to avoid prosecution because budget cuts are reducing the reach of federal prosecutors, their hopes are ill-founded – at least for now, according to James Santelle, the U.S. Attorney for the eastern district of Wisconsin.  

But down the road and even now in places other than eastern Wisconsin? Cutbacks in federal spending could and sometimes are translating into decisions not to prosecute cases, Santelle said. 

Speaking Tuesday at an “On the Issues” session at Eckstein Hall, Santelle told Mike Gousha, the Law School’s distinguished fellow in law and public policy, that the staff he oversees in offices in Milwaukee and Green Bay, has been reduced from about 80 several years ago to about 70 now. More cuts may lie ahead, he said.

But so far, the reduction has been accomplished without affecting decisions on who to prosecute, Santelle said. That hasn’t been true in offices of US Attorneys in some places around the country, where decisions on matters such as “smaller” drug cases or white collar financial crimes are being shaped by whether the office has adequate resources. He said a $1 million bank fraud in some instances may be below the threshold a prosecutor has set for bringing a case to court, given practical limits on how much can get done. Continue reading “Budget Cuts Haven’t Meant Prosecution Cuts Here, Santelle Says”

Department of Justice Files Fair Housing Act Suit Against City of New Berlin

Posted on Categories Eastern District of Wisconsin, Human Rights, Milwaukee, Poverty & Law, Race & Law2 Comments on Department of Justice Files Fair Housing Act Suit Against City of New Berlin

On Thursday, the United States Department of Justice (DOJ) filed a complaint against the City of New Berlin. The complaint arises out of a series of events that led to the City’s denial of a “workforce” housing development proposal made by MSP Real Estate, Inc. (MSP).  The DOJ alleges that the City of New Berlin ultimately denied the proposal on the basis of racial discrimination, in violation of Section VIII of the Fair Housing Act.

According to the complaint (which can be viewed here), on March 10, 2010, MSP submitted a development application to construct 180 units of affordable housing in what is known as New Berlin’s “City Center.”  The proposal stated that the development would include 100 elderly units and 80 workforce housing units.  The development was intended to be financed in part by the Low-Income Housing Tax Credit program, a program that allows a developer to sell tax credits to investors in exchange for the promise that the developer will rent the apartments for below-market rates to tenants who qualify.  For this specific development, MSP was going to rent to individuals who made 40 to 60 percent of the median household income in New Berlin.  In New Berlin, the median income as of 2000 was approximately $70,000, which means the proposed development would rent to individuals who made $28,000 to $42,000 a year.

Continue reading “Department of Justice Files Fair Housing Act Suit Against City of New Berlin”

Springtime for Daubert: Insights From the EDWBA Panel

Posted on Categories Civil Procedure, Eastern District of Wisconsin, Evidence, Federal Civil Litigation, Wisconsin Civil LitigationLeave a comment» on Springtime for Daubert: Insights From the EDWBA Panel

In late January the “tort reform” package imposed the staid Daubert rules on the Wisconsin Rules of Evidence. Now it’s spring, although the weather feels a lot like January, and we must get serious about what to do with this gift that the judiciary did not want. The new rules require that expert testimony be based on demonstrably reliable methods and principles. To be determined is whether Wisconsin will be a “strict” or a “lax” Daubert jurisdiction — whatever that is. It is worth noting that the first wave of Wisconsin Daubert cases, which will likely set the mold for what follows, are also those that least interested the tort reformers, namely, criminal cases and “chapter 980” sexually violent offender cases.

Right now, however, we are in a state of nature, legally speaking. Case law under the relevancy test, the current standard, is of little avail. And while the new rules are copied from the federal rules, state courts are not bound by federal precedent (yes, that includes Daubert itself!). Last week alone I spoke at two conferences, one a large, attentive gathering of state judges in Elkhart Lake and the other an even larger, equally engaged joint convocation of state prosecutors, public defenders, and private defense counsel here at Eckstein Hall. There is a clamor for answers and a discernable unease about what to do. Continue reading “Springtime for Daubert: Insights From the EDWBA Panel”

Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

Posted on Categories Criminal Law & Process, Eastern District of Wisconsin, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Race & Law1 Comment on Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and nine have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking.  Continue reading “Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography”

How Toxic is Thomas?

Posted on Categories Constitutional Interpretation, Eastern District of Wisconsin, Wisconsin Civil Litigation, Wisconsin Supreme CourtLeave a comment» on How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version. Continue reading “How Toxic is Thomas?”

What’s Good for the Goose . . .

Posted on Categories Eastern District of Wisconsin, Federal Civil Litigation, Judges & Judicial Process, Seventh Circuit, Wisconsin Criminal Law & Process, Wisconsin Supreme Court5 Comments on What’s Good for the Goose . . .

Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case.  Continue reading “What’s Good for the Goose . . .”

A Broadening of Diversity Jurisdiction

Posted on Categories Civil Procedure, Eastern District of Wisconsin, Federal Civil Litigation, Legal Education, U.S. Supreme Court3 Comments on A Broadening of Diversity Jurisdiction

Students of civil procedure—which should mean just about everybody interested in using the formal processes of the law to vindicate rights—will be interested in a decision today by the United States Supreme Court. The opinion concerned the provision in the statutory grant of diversity jurisdiction that deems a corporation “to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. §1332(c)(1) (emphasis added). There has been a longstanding imprecision—a lack of unanimity—within the lower federal courts as to whether a corporation’s “principal place of business” is its “nerve center,” “locus of operations,” “center of corporate activities,” “muscle center” (none of these latter four terms being statutory), or some otherwise determined place. In Hertz Corp. v. Friend, the Court resolved the matter. Continue reading “A Broadening of Diversity Jurisdiction”

Myron Gordon, R.I.P.

Posted on Categories Eastern District of Wisconsin, Milwaukee1 Comment on Myron Gordon, R.I.P.

I only really knew Myron Gordon as a judge on senior status and tried only one case before him. It was a challenge by the NAACP to the method of electing judges in Milwaukee County. The plaintiffs alleged that county-wide elections of judges denied black voters the opportunity to elect candidates of their own choice and sought election of judges on the basis of sub-county districts. We represented the Wisconsin Judges Association, which had intervened as a defendant. The judges did not want to be elected from smaller districts in which voters might not appreciate the array of considerations facing a judge. I remember, in particular, the testimony of one of our client’s members who said that he did not wish to depend only on his neighbors in a North Shore suburb for reelection. He felt that it would make it very difficult for him to give a defendant from the inner city the benefit of the doubt.

At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed, but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I’d like to think that events — subsequent successes by black candidates on a county wide basis — have validated his judgment, but I may not be the best one to make that judgment.

Judge Gordon wasn’t — on the bench — a warm person. Continue reading “Myron Gordon, R.I.P.”