New Marquette Lawyer Sheds Light on Issues Shaping Today’s World

Marquette Lawyer Cover Summer 2025Marquette Lawyer is not a news magazine, strictly speaking. In fact, there is hardly anything left of news magazines in the United States. But that hardly means there isn’t a lot to learn about what is in the news. And the Summer 2025 issue of Marquette Lawyer certainly provides news in the sense of insights on several major current matters.

Start with Canada. No, we’re not interested in the controversies over making Canada part of the United States or trade policies between the two nations. But we are interested in understanding our neighbor to the north better, especially when it comes to its legal system, which is surely an appropriate focus for those involved in legal education and the law more generally.

That’s what brought the Hon. Suzanne Côté, a justice of the Supreme Court of Canada, to Marquette Law School to present the annual Hallows Lecture last academic year. “Roots of the Living Tree,” an edited version of her lecture, is the cover story of the magazine and offers insights into the premises and practices of Canadian constitutional law. The text may be read by clicking here.

While the Canadian legal system makes infrequent news in the United States, the rapidly developing world of artificial intelligence is in the news often. How to control problems connected to AI, such as false content known as “hallucinations” and copyright infringement, is a timely and important topic.

That brought Reuven Avi-Yonah, the Irwin I. Cohn Professor of Law and director of the International Tax LLM Program at the University of Michigan, here for the annual Robert F. Boden Lecture this past September. Avi-Yonah, one of the world’s most widely respected scholars on tax law, delivered a lecture, “Can Tax Policy Help Us Control Artificial Intelligence?” That became a major piece in this  issue, which may be read by clicking here.

The way Wisconsin handles decisions about setting boundaries for legislative districts has attracted national attention recently. The ups and downs of redistricting decisions have been both influential in shaping power in Wisconsin politics and difficult to follow. John D. Johnson, a researcher with Marquette Law School’s Lubar Center for Public Policy Research and Civic Education, is an expert on redistricting and what it has meant to Wisconsin politics. “The Boundaries of Law and Politics” is his richly detailed article describing the history of the subject. As redistricting continues to be in the news, Johnson’s guide to the subject provides valuable background. It may be read by clicking here.

Another issue that underlies much of the news in today’s world: the quality of judging and judges, from local courts to the highest courts in the land. “In Search of Humbler—and Wiser—Judgments” offers thoughts from Chad M. Oldfather, professor of law at Marquette University. Oldfather’s new book, Judges, Judging, and Judgment: Character, Wisdom, and Humility in a Polarized World, was published by Cambridge University Press. Oldfather also talks about good judgment in legal practice beyond the courtroom in this question-and-answer dialogue. It can be read by clicking here.

Marquette University’s new president, Kimo Ah Yun, has been in the news a lot. In a Lubar Center “Get to Know” program on January 17, 2025, Ah Yun told moderator Derek Mosley, director of the Lubar Center, and an audience of about 200 his powerful personal story, as well as some aspects of his vision for Marquette. The story of his “underdog” rise may be read by clicking here.

Over the years, ways to improve the outcomes of people being released from incarceration has been the subject of several programs at Marquette Law School. In December 2013, for example, Craig Steven Wilder, a professor of American history at the Massachusetts Institute of Technology, was interviewed by Mike Gousha, distinguished fellow in law and public policy, about Wilder’s book on how race and slavery issues were handled by some prominent universities.

In the audience was R. L. McNeely, L’94, a retired professor at the University of Wisconsin–Milwaukee. At a lunch afterwards for a small group, the conversation turned to Wilder’s involvement in a program aimed at helping educate incarcerated people.

McNeely followed up by starting to work on creating such a program in Wisconsin, involving Marquette and ultimately several other universities. It took years for the idea to become reality, and McNeely, who died in 2020, did not live long enough to see that happen. “From Conversation to Dream to Idea to Reality” describes the origins of the idea and the determination of McNeely and several others, including faculty in Marquette University’s Klingler College of Arts and Sciences, to launch what is now known as the McNeely Prison Education Consortium. The article may be read by clicking here.

“Good Neighbors”—that’s the headline on an article about changes in the immediate vicinity of Eckstein Hall, the Law School’s home. The changes include a new pastor at the Church of the Gesu, Rev. Michael Simone, S.J., and a largescale renovation of sections of the church building; the $42 million renovation and expansion of Straz Hall, making it the new home of the College of Nursing under the continued leadership of Dean Jill Guttormson; and the vision of a new director, John McKinnon, at the Haggerty Museum of Art. The Law School community welcomes all three good neighbors. The article may be read by clicking here.

In early 2025, John T. Chisholm stepped down after 18 years as Milwaukee County district attorney and more than three decades of service in the office and is now a senior lecturer at the Law School. In an essay, “A New Venue for Kindling the Fire for Lawyers to Serve Others,” Chisholm offers his perspective on his new role. It can be read by clicking here.

John Novotny recently retired after almost 20 years working on behalf of the Law School and longer service yet to Marquette University. In remarks at Novotny’s retirement reception, Law School Dean Joseph D. Kearney praised Novotny for more than his success in raising funds. Novotny embodies the vision of Jesuit education, Kearney said. The text of his remarks may be read by clicking here.

In his column, titled “Speaking Just for Myself,” Dean Kearney reflects on his approach to aspects of his office. His column may be read by clicking here.

Finally: the Class Notes describe recent accomplishments of more than 40 Marquette lawyers, including Byron B. Conway, L’02, who was recently sworn in as a federal judge serving the Green Bay Division of the U.S. District Court for the Eastern District of Wisconsin. The notes may be read by clicking here, and the back cover (here), through two examples, spotlights the impressive record of Marquette law students serving in pro bono and public service roles.

The full magazine may be read by clicking here for the PDF or here for the “interactive” version.

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Judge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Honorable Michael Y. ScudderThe Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.

The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.

This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.

Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.

The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.

The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.

Here’s a flavor:

. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.

If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.

Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.

Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.

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Remembering Justice David T. Prosser, Jr.

David T. Prosser, Jr., a prominent figure in Wisconsin for the last forty-five years, held many significant positions during his distinguished career of public service: Wisconsin Supreme Court Justice, Speaker of the Wisconsin Assembly, Commissioner of the Wisconsin Tax Appeals Commission, and Outagamie County District Attorney, among others. But after he passed away this month at the age of 81, those who gathered to celebrate his life remembered him not only as a hard worker and skilled jurist but also—and perhaps more importantly—as a trusted mentor, loyal friend, and devoted family member.

In my personal experience, Justice Prosser certainly deserved those accolades. I served as his law clerk during the Wisconsin Supreme Court’s 2004-2005 term. That year we worked elbow to elbow, and I observed firsthand his skill as a writer, his work ethic, and his wry wit. Upon arriving at the state capitol in early August 2004, fresh out of Marquette Law School, I was as nervous as could be. Justice Prosser immediately put me at ease, and although I made many mistakes, he never lost patience with me. That year on the Court was perhaps the greatest experience of my professional career and I often reflect on those times. I certainly would not be where I am today without him.

As with many of those whose lives he touched, Justice Prosser always had my best interests in mind. He kept in touch with me and followed my career even long after I worked for him. A few years after my clerkship had ended, I needed a letter of recommendation in a short time frame during a busy period at the court. He agreed to write on my behalf. After apologizing for the quick turnaround, I asked when he might be able to get it in the mail—to which he answered, “we’ll see.” The next evening, there was a knock at my door. There on my doorstep was Justice Prosser, with the letter in hand. He had not only written it in less than a day, but also driven two hours each way to ensure it arrived on time. I invited him in, but he declined, saying, “I’m sure you have better things to do than have dinner with me.” His humility was one of his defining features. My experience was not unique. Those gathered at his funeral told many stories of a similar nature, explaining how Justice Prosser dropped everything to help a friend or family member in need.

Justice Prosser was a great friend of Marquette Law School, often appearing at events, lectures, dinners, and the like. Many of his clerks were Marquette lawyers, and they went on to successful careers as judges and lawyers in a variety of practice settings. He was featured in the Summer 2017 edition of Marquette Lawyer magazine, highlighting how he enjoyed hiring law clerks from Marquette and how much they helped him.

The previous year, in an interview with the Wisconsin State Bar on the occasion of his retirement from the Wisconsin Supreme Court in 2016, Justice Prosser said he wanted to be remembered as an important decision-maker, an independent thinker, and a storyteller. He was certainly all those things, but also much more to those of us who had the good fortune to know him. As we continue our journeys without him, we honor the person he was and the life he led. Rest in peace, Justice Prosser. You will be missed.

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