Federal Law & Legal System – Page 159 – Marquette University Law School Faculty Blog

Eastern District of Wisconsin Bar Association Presents Awards to Michael O’Hear and Tom Shriner

Post author:Jessica E. Slavin
Post published:May 17, 2009
Post category:Criminal Law & Process Eastern District of Wisconsin Federal Civil Litigation Federal Criminal Law & Process Federal Law & Legal System Marquette Law School Milwaukee

Warm congratulations to our colleague, Professor Michael M. O’Hear, who recently received the Judge Robert W. Warren Public Service Award, at a ceremony during the Eastern District of Wisconsin Bar Association’s annual meeting. It was a pleasure for a number of us to attend and see Michael receive well-deserved recognition for his service. As Nathan Fishbach, of Whyte Hirschboeck Dudek, noted in making the presentation, Michael is “a distinguished academician whose mission is to analyze and explain the dynamics of the sentencing process.” Indeed, Michael has become a national leader in the study and discussions concerning sentencing, and he has been active in this community as well.

At the same ceremony, the Eastern District presented its Judge Myron L. Gordon Lifetime Achievement Award to Foley & Lardner’s Thomas L. Shriner, Jr., an Indiana University law graduate and well-known Milwaukee litigator (and adjunct professor of law here at Marquette). The citation accompanying the award, written by Bill Mulligan, L’60, and Dean Joseph D. Kearney, concluded with the observation that Tom is “respected and admired for his prodigious knowledge of the law, great wit, smile, and willingness to help others.” Congratulations as well to Tom.

The full citations can be found here concerning Michael and here concerning Tom.

Empathy and Catholic Legal Theory

Post author:Richard M. Esenberg
Post published:May 15, 2009
Post category:Constitutional Interpretation First Amendment Judges & Judicial Process Religion & Law U.S. Supreme Court

Over at Mirror of Justice, Rob Vischer of St. Thomas wonders about the role of empathy in Catholic legal theory. After referring to Orin Kerr’s summation of different responses to legal ambiguity, Rob asks:

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits? How about Meyer and Pierce? Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else? And what about abortion? There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they? Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.”

Seventh Circuit Criminal Case of the Week: Doing the Interrogation Two-Step

Post author:Michael M. O'Hear
Post published:May 10, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

As all law students (and viewers of crime dramas) know, an incriminating statement generally cannot be used against a defendant if the defendant was not given the basic Miranda warnings before the statement was elicited by police. But what if the defendant gives a second, warned statement after a first, unwarned statement? In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court seemed to give a green light to the use of such statements. More recently, though, the Court ruled that a second statement was not admissible in Missouri v. Seibert, 542 U.S. 600 (2004), in which police officers deliberately employed a two-step interrogation technique in order to minimize the effectiveness of the Miranda warnings.

The trouble is that no single opinion drew a majority in Seibert. A plurality opinion adopted a multifactor test for two-step interrogations, in which the reviewing court would determine whether a “reasonable person in the suspect’s shoes” would have understood that it was possible to refuse further questioning after the Miranda warnings were given. Meanwhile, Justice Kennedy, providing the crucial fifth vote for the Court’s holding, wrote separately and advocated a different test that focused on whether the police were deliberately circumventing Miranda. The Seibert split has caused continuing confusion in the lower courts. (As Jon Deitrich observed in a post earlier today, Justice Scalia recently saved the Supreme Court from a similarly divided result in Arizona v. Gant.)

The Seventh Circuit had an opportunity to choose between the plurality and Kennedy approaches in its opinion last week in United States v. Heron (No. 07-3726).