The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.
The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.
Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.
In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”
It is always such a highlight of our trip to hear from Justice Barak and this was no exception–student Lucas Baker reflected on the meeting:
It was an incredible opportunity to meet with retired Chief Justice of the Israeli Supreme Court, Justice Aharon Barak. Rarely do law students have the chance to learn from a true giant in the law. Justice Barak lectured our group about the general contours of Israel’s Judiciary and non-constitutional system, before we took a deeper dive into a number of other topics.
The Chief Justice fielded questions regarding differing judicial philosophies between the United States and Israel. With incredible insight, Justice Barak discussed how the public confirmation proceedings in the United States lead to manufactured and politicized “judicial philosophies.” In Israel, on the other hand, the confirmation process is not public and therefore not politicized, which allows for consensus in rules of interpretation. In Israel there are no “activist” nor “originalist” judges. Rather, judges have a much more uniform approach to the law. After witnessing the recent circus of a confirmation process here in the United States, it was fascinating to hear that there is little political split among judges, and no divergence in methods of interpretation in Israel.
As we said our goodbyes to Yad Vashem, we headed towards the beautiful Israeli Supreme Court to hear from former Chief Justice Asher Dan Grunis. Justice Grunis spoke to the students about the differences between the U.S. Supreme Court and the Israeli Supreme Court. The comparison in the annual caseload (about 70 cases in the U.S. versus 15,000 cases in Israel!) really stood out for the students. The court have 15 justices that generally sit in panels of three to hear the cases.
After driving up north, we ended the day with a speech from Adam Waddell from Eco-Peace. Eco peace is an NGO that works to facilitate peace talks and promote sustainable development between the Jordanian, Palestinian, and Israeli governments. Aurusa Kabani shared her thoughts about this NGO.
The day after our interesting trip to Palestine we visited Yad Vashem, Israel’s holocaust memorial. Many of the students on the trip had learned about the Holocaust in school and visited the Holocaust museum in D.C., but nothing could really prepare them for this experience. In advance, I had each student research someone on the Avenue of the Righteous to understand choices made during World War II. Jordan Janikowski thought:
One beautiful memorial that served as a beacon of hope was the Avenue of the Righteous, a garden of trees dedicated to individuals and families who risked their lives in order to help save others during the holocaust. This serves as a reminder that we all need to take responsibility in standing up for others although it is still incomprehensible how such an inhumane tragedy could have occurred, there are many parallels to today’s society. It is important that we continue to educate ourselves about the past to ensure that these kinds of atrocities never happen again.
One of the many breathtaking moments in the museum at the end in the Hall of Names. Kelly Krause noted:
As you stand on a platform, pictures of 600 Jewish victims are above you and below the platform is a well. Around you there are binders that contain approximately 2.2 million pages of testimony about the more than 6 million Jews who perished in the Holocaust. Sadly the room is not full, recognizing that some of the names of those who perished have not been discovered..In this room I felt the impact and scale of the Holocaust far more than any museum, film, or book has made me feel before. Exiting this room, you once again walk into light, but this time it’s the light from the view of the State of Israel. This view of the Jewish state looks different than the one when you entered the museum, in more ways than one.
Before we left Yad Vashem we heard from Professor Amos Hausner, son of Gideon Hausner, the lawyer who prosecuted Adolf Eichmann. Professor Hausner spoke to the students about the trial, and international criminal justice reform. Steve Deguire reflected on one particular remark:
His father felt the prosecution and execution of Eichmann had not been successful because he saw no indications of a deterrence effect from the trial in preventing genocides…This statement remains true to this day with modern day genocides, (i.e. Myanmar, South Sudan, and Central Africa); the handful of prosecutions to actually occur will not be sufficient to deter genocide. The example provided by the Eichmann trial will remain a standard for the international criminal justice system when dealing with genocide.
“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)
As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant. The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.
Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population
The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants. Continue reading “Racial Discrimination in Wisconsin Jury Pool Practices”
Recently, I authored a post on this same blog discussing the first of two frequent observations I’ve made since joining the Milwaukee County District Attorney’s Office as a prosecutor and rookie lawyer in February of last year. There, I expressed my belief that we must do more to educate the nonlegal public about what it is we do as lawyers. Here, however, I wish to share what is perhaps as much a personal conclusion as it is an observation—appellate work is where it’s at.
In the last six or so months, I’ve been tasked on several occasions to represent the State before the Wisconsin Court of Appeals. These experiences have been enjoyable for several reasons—not the least of which is that I do enjoy writing about the law.
More generally, I have come to prefer legal argument over arguing facts. For these reasons, I expect that my career in the law will naturally gravitate toward appellate work. This is not to say I that I don’t enjoy trying cases to juries, but rather it is acknowledgment of one introspective observation.
As I’ve arrived at this conclusion, I’ve also realized that I’m most interested in getting the law right—regardless of whether doing so helps or hurts any particular position I’ve taken in a case. That said, what I find most appealing about appellate work is that I’ve come to believe that appellate courts generally prioritize getting it right above all else. Continue reading “Appellate Work: Getting the Law Right”
In the 1950s the active bench of the Second Circuit experienced nearly a complete turnover, one that changed how the judges approach copyright law.
There’s an old joke about scientific progress: that science advances one funeral at a time. The same might be said about judicial philosophies. Some judges might be persuaded to change their views over time, but it is just as likely, if not more, that change occurs through a changing of the guard. So it was with the Second Circuit in the 1960s. The Second Circuit had had a remarkably stable bench during the 1940s, when Learned Hand was the chief judge. Four of them, Hand, Hand’s cousin Augustus, Harrie Chase, and Thomas Swan served together in active or senior status for twenty-five years, from 1929 to 1954. The remaining two, Charles Clark and Jerome Frank, were with them from 1940 on.
But within six years in the 1950s, the active bench of the Second Circuit experienced nearly a complete turnover, except for Clark. The new judges, who included Henry Friendly, J. Edward Lumbard, Irving Kaufman, and Thurgood Marshall, obviously had different educational and professional experiences from those of the judges they replaced. What truly distinguished the new group, however, is that they had a very different approach to judicial decisionmaking, and in particular the proper role of discretion. No longer were the Second Circuit judges comfortable with leaving important substantive decisions on the merits of a claim to case-by-case equitable balancing. In the 1960s, the Second Circuit began crafting multi-part tests to replace the vague standards that had come before, to force lower courts and later panels to elaborate the reasons for their decisions. Whether they consciously subscribed to it or not, the new judges were heavily influenced by Legal Process ideology. Continue reading “The Legal Process Sea-Change”
This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Randy Jones.
In Wisconsin, the weather may serve as an indicator of spring. I say “may” because the weather often teases us. Most people would say indicators of spring are pollen or budding of trees, bushes, and flowers. For some, it’s the lake trout (Steelhead) swimming up the rivers to spawn. But a sure indicator is political advertising, even for positions that should not be political. I began to wonder why I am seeing so many advertisements. It seemed to me that everywhere I looked, even scrolling down Facebook, I was being shown an advertisement (subconsciously) telling me to vote for Judge Rebecca Dallet for Supreme Court.
Learned Hand wasn’t as skeptical of a court’s ability to decide issues of fair use and substantial similarity as he is often portrayed.
Possibly no judge had a greater influence on copyright law in the twentieth century than Learned Hand. Nichols v. Universal Pictures and Peter Pan Fabrics are foundational cases in most textbooks; Sheldon v. MGM and Fred Fisher v. Dillingham used to be. And although he did not write the opinion, Hand was on the panel that decided Arnstein v. Porter.
Part of the reason for Hand’s enduring popularity is that he was a brilliant writer, and his aphorisms about copyright law continue to appeal to a skeptical age. In Nichols, he famously declared with respect to the distinction between uncopyrightable idea and copyrightable expression, “Nobody has ever been able to fix that boundary, and nobody ever can.” In Shipman v. RKO Pictures: “The test is necessarily vague and nothing more definite can be said about it.” In Dellar v. Samuel Goldwyn, Inc., decided per curiam but attributed to Hand: “[T]he issue of fair use … is the most troublesome in the whole law of copyright.” In Peter Pan Fabrics v. Martin Weiner Corp.: “The test for infringement of a copyright is of necessity vague…. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible.”
To modern ears, these sound like (and are often quoted as) criticisms of copyright law. A vague, ineffable test is an unworkable test, one that offers no guidance to lower courts or juries and is therefore hardly better than no test at all. But to read Hand in this way to read him anachronistically. Continue reading “Learned Hand: You’re Reading Him Wrong”
My trip to Rome in spring 2016 triggered a return visit this past November, when I again taught a segment of a certificate program addressing the Catholic sex abuse scandal.
The Pontifical Gregorian University’s Center for Child Protection offers the four-month graduate certificate program to religious sisters, brothers and priests from around the world who are assigned to head up Protection for Children offices. The program goals: to teach how to deal with past abuse and prevent further incidents.
I spent a full day with 19 students representing four continents. While there were some language barriers to overcome, the group was able to comprehend the power of Restorative Justice (“RJ) presented in different contexts — particularly its value regarding sexual abuse within the Church.
I explained how in past clergy abuse cases, it is not often possible to bring victims and offenders face-to-face in dialogue because many offenders are in denial, deceased or too old, with limited memory. We, therefore, explored the hope that RJ offers in addressing “secondary victimization” by members of the Church’s hierarchy.
Regardless of one’s language, Restorative Justice (“RJ”) translates as hope. That was evident from my experience in Germany last October at a conference hosted by the University of Göttingen, which was titled “Victim Orientation in the Criminal Justice System: Practitioners’ Perspectives.”
I was invited to be one of the keynote presenters at the two-day conference. My presentation to the attendees — most of whom were criminal justice professionals including probation and parole agents — addressed how the United States actively uses RJ processes within the criminal justice system. Oh, and my presentation was the only one in English, with real-time translation provided in German through the marvels of headset technology.
I have become used to speaking internationally, so the language difference is not a daunting barrier for me, especially given the immediacy of RJ as an understandable concept and successful tool. I described the process and impact of victim/offender dialogue sessions in cases of violent crime and the value of restorative circles, particularly for schools and community organizations. Although Europe does not have much experience in using circles, I could tell that the conference attendees were eager to hear more about that process and about victim/offender dialogues in the context of juvenile RJ. As usual, most of my explanations were told through the stories of actual cases. I know that by describing the poignant experiences of real victims and offenders, the audience will better understand the transformational experience of an RJ process.
Prof. David Strifling rightly draws our attention to what he terms “the quiet revolution” taking place in Wisconsin administrative law. As deputy legal counsel for the governor several years ago, I was privileged to be a foot soldier in that revolution, which sought to reinvigorate core constitutional principles around the separation of powers, government transparency, and executive responsibility. Thus far, the revolution has primarily been fought in the legislature (primarily through 2011 Act 21 and 2017 Act 57) and the executive branch (especially the Governor’s Executive Order 50 and the Attorney General’s opinion 01-16).
The Wisconsin Supreme Court will soon have its opportunity to join and accelerate the revolution when it hears and decides Tetra Tech v. DOR (Court of Appeals decision) and LIRC v. DWD (Court of Appeals decision) (scheduled for argument Friday, December 1). These cases both present core questions of agency deference, institutional competence, and judicial power – in short, the opportunity for the Court to supplant its current doctrine with a new approach. As evidence of the sea change that these cases could mark, consider that the Wisconsin Institute for Law & Liberty, Wisconsin Manufacturers & Commerce (leading 10 other business groups), and the Wisconsin Utilities Association all have filed amicus briefs in Tetra Tech making thoughtful arguments as to the value and validity of agency deference.
I have recently posted to SSRN a paper that delves into the past and future of deference in Wisconsin’s jurisprudence. Originally intended to complete my trilogy of Marquette Law Review articles on interpretation of the Wisconsin Constitution and Wisconsin statutes, the timeliness of these cases has instead prompted a shorter essay which tackles the important questions raised in Tetra Tech with an eye toward the fundamental principles which should guide the Court’s decision. Ultimately I conclude that the current scheme conflicts with constitutional first principles, the statutes, and common sense. I believe the Court should deep-six its doctrine and start anew with the standards set forth in Wisconsin’s administrative procedures act (Ch. 227). Please read the essay to see why. And we’ll all be watching closely as these cases move forward. Just because the revolution won’t be televised (I’ve never seen an episode of Law & Order or Suits concerning administrative law) doesn’t mean it won’t have significant implications for law in our state.
Daniel Suhr is a 2008 graduate of the Marquette University Law School.