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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How Should the Supreme Court Handle Warrantless GPS Tracking?

One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here).  The case concerns Fourth Amendment protections from GPS tracking of automobiles.   The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the defendant’s car without a warrant and tracking his movements 24 hours a day for four weeks.  For the D.C. Circuit, it was crucial that the tracking was so extensive, which creates the possibility of a very fact-bound affirmance.  Alternatively, the Court might try to draw some type of bright-line rule that would be of greater assistance to lower courts in deciding future cases, either favorably to GPS tracking or otherwise.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

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Cory Maples May Avoid Procedural Default, But Will Anyone Else Ride His Coattails?

The Supreme Court ruled earlier this week that habeas petitioner Cory Maples may not have to bear the consequences of a truly egregious dereliction of duty by his pro bono lawyers.  The lower federal courts had refused to consider Maples’ petition on the merits because he had missed a filing deadline in state court.  Normally, criminal defendants are stuck with the mistakes of their lawyers, but in this case — “a veritable perfect storm of misfortune,” as Justice Alito called it — the defendant will have another opportunity to litigate his claims.  (The full opinion in Maples v. Thomas is here.)

Here’s what happened.  Maples was convicted of murder and sentenced to death by an Alabama state court.  His direct appeals were unsuccessful.  He then launched a collateral attack in state trial court.  The Supreme Court recounted what happened next: 

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