New Marquette Lawyer Magazine Spotlights the Work of Public Defenders and Provides Other Glimpses into the Law

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2022 Marquette Lawyer CoverIt is nearly 60 years since the Supreme Court of the United States unanimously held, in Gideon v. Wainwright (1963), that individuals facing criminal charges are constitutionally entitled to representation by lawyers. And it has been just over 20 years since the death of Marquette Law School Dean Howard B. Eisenberg, who, early in his career, was a central figure in Wisconsin’s effort to comply with Gideon—in designing the state’s system for providing publicly funded representation for defendants unable to afford an attorney.

The cover package of the Fall 2022 issue of Marquette Lawyer magazine examines how Wisconsin’s system works today.

This means, in particular, an article profiling the work lives of five current Wisconsin public defenders. The piece includes the context of their work in a system that serves tens of thousands of defendants annually even while it is under constant stress—a system where needs outstrip available staff and resources. Continue reading “New Marquette Lawyer Magazine Spotlights the Work of Public Defenders and Provides Other Glimpses into the Law”

Can Common Carrier Principles Control Dominance by Twitter and Google?

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Prof. Jim Speta
Prof. Jim Speta

The Robert F. Boden Lecture is an annual highlight at Marquette University Law School, public health permitting. After a COVID-19 hiatus in 2020 and 2021—true community events require being in person—the Boden Lecture resumed yesterday. It did so most impressively, with Jim Speta, the Elizabeth Froehling Horner Professor at Northwestern University’s Pritzker School of Law, as Marquette Law School’s distinguished visitor.

For his lecture, Professor Speta took up “The Past’s Lessons for Today: Can Common Carrier Principles Make for a Better Internet?” The topic is especially timely in light of the Fifth Circuit’s decision last Friday upholding a Texas state law regulating internet platforms. Here is a taste of it:

In this lecture, I will address both the dominance of the internet platforms and the calls to regulate them as common carriers. To begin to define our terms, this reference to the platforms means the dominance by Google and Facebook, by Amazon and Apple (and to a lesser extent by Twitter and Microsoft), of the ways we receive information, exchange it, even understand it. The main concern is that these platforms are biased, that they discriminate, that they foreclose speech. That is why, today, platform critics—including governments—are reaching for the traditional law of railroads and of telephone companies: the law of common carriage. That once-dominant law forbade discrimination. In addition to the Texas and Florida statutes . . . , one Supreme Court Justice has written in favor of platform-focused common carrier regulation, as have numerous federal and state lawmakers, some academics, and numerous commentators. Bills have been offered or are pending in Congress and in many states, including Wisconsin.

I think the proposals for common carrier regulation of platforms are very right—and very wrong. I think they are right to worry about the dominance of internet platforms, and they are right that common carrier law, even though it smells musty and over the past few decades has largely been discarded in the United States, can be part of the solution. I think they are very wrong to target common carrier solutions at the platforms’ core operations themselves—to change the ways in which users are permitted access, content is moderated, and search results are provided. Such platform regulation does not fit the common carrier model. Platforms are not merely conduits of user behavior, although they are partly that. Platforms also seek to create a particular kind of speech experience that holds the attention of their users. If we are required to have an analogy to an old form of media, platforms are more like newspapers and broadcasters than telephone companies, though I think the best single analogy is to bookstores. Newspapers, broadcasters, and bookstores curate the content they offer their customers, and common carrier rules have never applied to them. Even more concerning, laws directly controlling platforms simply give the government unprecedented power over the content experiences these private companies seek to create. I think it almost certainly violates the First Amendment and that the Fifth Circuit’s decision to the contrary is quite wrong.

Instead, here’s what we can do: we can and should at least try to address concerns about the currently dominant platforms by using law to make it easier to have more platforms. This is, truly, the essential argument that I will make: Common carrier solutions should be targeted at the infrastructure that enables platforms to be built and to reach consumers. When we think about platforms, we usually think about the ways that users interact directly with Google or Twitter or the other services. But, in fact, myriad companies provide infrastructure and services that both enable user access and platform operation—companies that transmit data, such as the cable companies and other internet services providers that carry data, companies that host websites and platforms, and services such as website defense or payment processing that support both new and established platforms. In the past, these providers have denied services to some new platforms that sought to establish alternative services. Applying a lighter-touch (and differently placed) version of common carrier regulation to the internet’s support providers, I will seek to convince you, can increase the possibility of alternative platforms. This is our best hope to enrich our speech choices and ecosystem without government censorship.

One may read the entire lecture here, even in advance of its publication next year in the Marquette Law Review and Marquette Lawyer.

I am well familiar with the common carrier regime that Professor Speta invokes, as he explains, for inspiration (see, for example, here and here for some of my own relevant past). This Boden Lecture strikes me as a deeply important and unusually judicious contribution to the current debate, well, raging, it is not too much to say, about appropriate public policy in this internet age.

That Professor Speta deftly interweaves references to past Boden lecturers, such as Columbia’s Professor Thomas W. Merrill (2010) and UCLA’s Professor Eugene Volokh (2006), is a fine local touch. Yet his lecture merits engagement nationally.

New Marquette Lawyer Focuses on Efforts to Repair and Respond to Harm

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Summer 2022 Marquette Lawyer - Janine Geske, Louis Andrew, L’66, and his wife, Suzanne Bouquet AndrewIn important but differing ways, the four major stories in the summer 2022 edition of Marquette Lawyer magazine all focus on what can be done to improve things when harm occurs.

The cover story—featuring the biggest news this past year for Marquette University Law School itself—spotlights a $5 million gift from Marquette alumni, Louie Andrew (L’66) and his wife, Suzanne Bouquet Andrew (Sp’66). The gift has established an endowment enabling the university to create the Andrew Center for Restorative Justice at the Law School. The Andrews have been longtime generous supporters of the Law School, both generally since the tenure of the late Dean Howard B. Eisenberg and, particularly, of the work of Distinguished Professor of Law Janine P. Geske, L’75, an internationally known advocate of restorative justice.

Restorative justice work, broadly speaking, involves bringing together people who have been affected by harmful situations and, through discussions, often in moderated circle groups, seeking ways to reduce the harm. Geske, a former state supreme court justice and trial judge, first took part in restorative justice sessions at the Wisconsin correctional facility in Green Bay. The Andrews became supporters of Geske’s work through the Law School to bring restorative justice principles to bear on a range of major social issues and to hold a series of conferences at the Law School, beginning in 2004.

In recent years, the Law School’s Restorative Justice Initiative, as it was called beginning in 2004, reached a crossroads, on account of factors including the impact of the pandemic and Geske’s retirement. When Geske, the Andrews, and others then determined to renew the work in an enduring way, the Andrews stepped up with their historic donation this past December and Geske agreed to return to the Law School to get the permanent effort launched.

In the new magazine, an article, headlined “Starfish Enterprise,” describes the past path of restorative justice at the Law School—and its anticipated future through the new Andrew Center for Restorative Justice. Click here to read the piece. A companion article, “A Quiet Approach, Resounding Accomplishments,” profiles the Andrews and may be read by clicking here.

The next entry takes up the law’s more traditional (civil) approach to harm. In a new book rich in detail and perspective, Joseph A. Ranney, Marquette Law School’s Adrian P. Schoone Fellow in Legal History, examines legal approaches to civil wrongs and their aftermath—the harms that lead people to turn to courts. That is to say, Ranney writes about the law of torts. The magazine offers excerpts from his new book, The Burdens of All: A Social History of American Tort Law (Carolina Academic Press 2021), and from related pieces by Ranney.

From the early days of railroads to the rise of automobiles and the expansion of product liability law, Ranney describes trends and ideas that have shaped tort law. The magazine piece concludes with observations by Alexander B. Lemann, assistant professor of law at Marquette University, on Ranney’s book. Both Ranney’s collection, “Exploring the Fault Lines,” and Lemann’s comment, “Tort Law’s Past—and Future,” may be read by clicking here.

The third entry in this series takes up a particular, even unique, aspect of the past academic year’s pro bono work—which is, more generally, an important part of life for many Marquette Law School students. During the holiday break this past December and January, 49 law students, nearly 10 percent of the Law School’s enrollment, volunteered to spend time at the U.S. Army base, Fort McCoy, in rural west central Wisconsin. Thousands of people who had been evacuated from Afghanistan during the collapse of the government there in August 2021 had been temporarily settled at Fort McCoy, hoping for, awaiting, new homes in the United States.

The law students did not receive pay or academic credit for their work. But they found satisfaction in the assistance they were able to give the Afghans in getting started on the process of getting permission to stay in the United States permanently. An article in the magazine describes the students’ work and includes comments from five of them on this special way of helping others deal with the harm that had overturned their prior lives. The article, “Helped Today; Gone Forward Tomorrow,” may be read by clicking here.

Finally, dealing with environmental issues and the future of water—indeed, the rise of the administrative state more generally—can also be looked at as a way of responding to harm and potential harm in our society. Since 2014, the Law School’s Water Law and Policy Initiative, part of the broader emphasis on water issues at Marquette University, has addressed important water issues. Led by Professor David Strifling, the initiative has contributed to understanding of subjects ranging from high-tech ways of managing water use to the virtues of using kitchen garbage disposals. The work of the initiative is described in ”Even the Kitchen Sink,” which may be read by clicking here.

To be sure, there is more to the magazine. This includes an encomium of William C. Welburn, upon his retirement as Marquette University’s vice president for inclusive excellence this past academic year, and Dean Joseph D. Kearney’s reflections on the Andrew Center for Restorative Justice and some of the relationships that have moved Marquette Law School forward during the past 130 years. His column, “Let Us Tell You a Story—or Many Connecting Ones,” may be read by clicking here. And, scarcely least, the Class Notes pages succinctly describe recent accomplishments of more than 90 Marquette lawyers and may be read by clicking here.

The full magazine may be viewed by clicking here.

New Marquette Lawyer Magazine Highlights the “Winning Record” of the Sports Law Program and Features Various Faculty

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Marquette Lawyer Magazine Cover Fall 2021Past, present, and future. Look to all three in judging the success of any higher education program. Consider the Fall 2021 issue of Marquette Lawyer magazine as a way of putting the Marquette Law School’s sports law program up to judgment in just those ways—and we’re not shy about saying the verdict is strongly favorable. Marquette has been breaking ground in sports law for decades, it continues to be a leader, and the future of our students is promising.

The new magazine, titled “The Sports Law Issue,” looks to the past with a profile of Ray Cannon, from the Law School class of 1913, who became a pioneer of sports law in the United States. The fascinating story is written by Cannon’s grandson Thomas G. Cannon, a former professor at Marquette Law School. It describes Ray Cannon’s legal work on behalf of famed athletes such as Jack Dempsey, the world heavyweight champion boxer; “Shoeless Joe” Jackson, a baseball star who was accused (wrongly, it would seem) of accepting money to throw the 1919 World Series; and Red Grange, whom some consider the greatest college football player of all time. Ray Cannon was also involved in early efforts to form an association of baseball players to help them deal with team owners. The story may be read by clicking here.

The magazine looks to the present with profiles of 14 Marquette lawyers who participated in the sports law program while in law school. They have gone on to successful careers, variously in sports and in broader fields of law. Included are some of the Marquette lawyers working for major sports franchises, teaching college courses, handling the legal needs of college sports programs, working in the business world, representing private clients, leading private businesses, and developing nonprofit organizations.

And the magazine looks to the future with profiles of six students now in the sports law program and on track for legal careers.

“A Winning Record,” the story profiling the alumni and the current students, may be read by clicking here. Continue reading “New Marquette Lawyer Magazine Highlights the “Winning Record” of the Sports Law Program and Features Various Faculty”

Problem-Solving Courts Can Produce Better Outcomes for Participants, But Do White Defendants Benefit More Than Black?

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The emergence of drug-treatment courts and other specialized “problem-solving courts” (PSCs) has been among the most important developments in American criminal justice over the past three decades. Founded in 1989, Miami’s drug-treatment court is often credited as the nation’s first PSC. The court was developed out of a sense of frustration that conventional criminal-justice responses to drug crime failed to address underlying addiction problems, resulting in a seemingly never-ending cycle of arrest, incarceration, return to use, and rearrest for many individuals. Treatment might be offered, or even required, within the conventional system, but the results were often disappointing. However, the drug-treatment court aimed to provide treatment within a different framework. The judge kept close tabs on the defendant’s progress, working with a team of court personnel and treatment providers to ensure adequate support for the defendant’s rehabilitation and appropriate accountability for backsliding.

The drug-treatment court concept spread rapidly. Hundreds of such courts were created by the late 1990’s, and thousands exist today. Moreover, the drug-treatment court model—specialized caseload handled by an interdisciplinary team, provision of social services to address underlying causes of criminal behavior, close judicial supervision, and use of carrots and sticks to keep defendants progressing through treatment—has been adapted to handle a wide range of other offender groups. The PSCs now in operation in many jurisdictions include mental health courts, homelessness courts, DUI courts, prisoner reentry courts, and veterans courts.

Continue reading “Problem-Solving Courts Can Produce Better Outcomes for Participants, But Do White Defendants Benefit More Than Black?”

New Approaches to Judging and a Primer on Redistricting Featured in New Marquette Lawyer

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Summer Cover - Drawing of a CourthouseSpotlighting aspects of the life of Marquette Law School is an important goal of any issue of Marquette Lawyer magazine. Yet a successful issue does more than that. It also provides in-depth reporting and thinking about major issues that shape the law and affect lives.

Measured against such important goals, the Summer 2021 issue of Marquette Lawyer is a strong success. It offers a set of stories focusing on judges, several of them alumni of the Law School, who are taking “problem-solving” approaches to their work. This moves them beyond the conventional ways of presiding over courtrooms and cases. Instead, they lead teams trying to help people achieve stable living. There is not universal agreement even among judges as to its desirability, but the cover stories identify and explore an important trend. The magazine also includes an extensive primer on political redistricting issues that are hot subjects currently. Another article examines the surge in investors from beyond Wisconsin who are buying homes in Milwaukee. And, certainly, the magazine reports on aspects of life at the Law School, including the success of students’ pro bono work during the pandemic, an unusual honor extended to two emeritae professors, career milestones of some Marquette lawyers, and a conversation on corporate law between a Marquette faculty expert and a notable Delaware judge.

Here is a guide to the content, including links that will take you to the full articles.

Can Judges Become Helpers? The role of courts is being given new dimensions by dozens of judges across Wisconsin whose work includes presiding in treatment courts that aim to reduce recidivism by helping people put issues such as addiction behind them. “We are creating a new wave of judges,” says Chief Judge Mary Triggiano of the Milwaukee County Circuit Court. “We’ve made some profound changes in the way we judge.” In five pieces, this package describes how treatment courts work and profiles some of the judges who are involved. To read the stories, click here.

Big Need, Big Change, Big Help. Marquette Law School puts a priority on encouraging and helping students to take part in pro bono efforts. But during the COVID-19 pandemic, how were students (and volunteer lawyers) to continue in the clinics and the direct help at the center of their efforts? By switching to virtual work, of course, including launching a help line that has received thousands of calls. Read the story by clicking here.

Still Winning in the Court of Public Opinion. The Marquette Law School Poll’s second annual nationwide survey of public opinion about the U.S. Supreme Court found that majorities are satisfied with the work of the Court. People give the Court higher marks than the presidency or Congress, and believe that it bases its decisions on the law more than politics. Might an interest in keeping that standing among public opinion affect how the Court decides upcoming cases? Read the story, reporting on both public opinion and that of experts, by clicking here.

Between the Lines: The Politics, Law, and History of Political Redistricting. As the battles in Wisconsin heat up over political redistricting following the 2020 census, the Law School’s Lubar Center for Public Policy Research and Civic Education provides a primer that describes how political boundaries are determined and the history that has brought up the current system. While state legislative districts draw the most contentious advocacy, this package of stories also describes congressional and local redistricting practices, and gives perspective on what is and is not at stake currently. To read the stories, click here.

Who Owns the House Next Door? While relatively small efforts to help low-income people buy homes in Milwaukee have had successes, the big action in purchases of inexpensive homes involves investors from beyond Wisconsin who see low home prices and substantial rental income as attractive investment opportunities. This very recent and accelerating development has substantial social implications. Read the story by clicking here.

Of LLCs, ESGs, Diversity, and Virtual Annual Meetings. Delaware Vice Chancellor J. Travis Laster talks with Nadelle Grossman, professor of law and associate dean for academic affairs, about developments in corporate law. In early 2020, Laster was Marquette Law School’s annual Hallows Judicial Fellow. Read excerpts of their conversation by clicking here.

In the Law School News section, we recognize the winners of four alumni awards: Deborah McKeithan-Gebhardt, L’87, alumna of the year; James T. Murray, Jr., L’74, for lifetime achievement; Sarah Padove, L’12, the Charles W. Mentkowski Sports Law Alumna of the Year; and Raphael R. Ramos, L’08, who received the Howard B. Eisenberg Service Award.

The Law School News section also includes a story on the unveiling of portraits in Eckstein Hall of two emeritae professors, Carolyn M. Edwards and Phoebe Weaver Williams; a report on a community conversation on policing and accountability; a set of quotations from speakers to give a flavor of recent virtual Law School programs; and a description of a new book exploring the famous Chicago lakefront’s legal history, including the American public trust doctrine, which has its origins there.

The Law School News pages may be read by clicking here.

The Class Notes section, with updates on several dozen Marquette lawyers, includes an appreciation of R. L. McNeely, L’94, who grew up in Flint, Mich., and became a professor at the University of Wisconsin-Milwaukee, community leader, and lawyer. Class Notes may be read by clicking here.

A message from Dean Joseph D. Kearney, introducing the magazine and reflecting in particular on the cover stories, may be read by clicking here.

The full issue of the magazine may be read by clicking here.

New Marquette Lawyer Magazine Goes Deep in Looking at Crime and Society

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Slogans are appropriate, even useful, for rallies or marches. In-depth thought is what should be expected from law schools. The Fall 2020 issue of Marquette Lawyer magazine offers a weighty serving of the latter, while examining implications of the former.

With the overall title of “The Crime and Society Issue,” the new magazine’s cover package features three pieces focusing on assessing and potentially improving the criminal justice system, from the time of an arrest through the charging and court processes, and ways of sanctioning people who commit crimes. Each piece features expertise and insight presented at Eckstein Hall events by scholars from coast to coast.

The lead story starts with some of the controversial ideas heard during 2020, such as “defund the police,” and explores ways the justice system could be improved when it comes to the overall safety and stability of urban communities. “The Case for Careful but Big Change” focuses in large part on the ideas of Paul Butler, the Albert Brick Professor in Law at Georgetown University, particularly as he presented them in Marquette Law School’s annual Boden Lecture and in an “On the Issues with Mike Gousha” program (last academic year, before the COVID-19 pandemic halted in-person programs at Eckstein Hall). Continue reading “New Marquette Lawyer Magazine Goes Deep in Looking at Crime and Society”

The Washington, D.C., Issue of the Marquette Lawyer Magazine 

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2020 Summer Cover

Amid all the global disruptions that started in March, Marquette Law School moved forward effectively in teaching students to be lawyers and in offering, as best we could, the public engagement we are known for. One important aspect of the latter is the release of the new issue of the Marquette Lawyer magazine, produced with a few internal procedural adjustments, but no change in schedule or in our commitment to provide high-quality reading to Marquette lawyers, all lawyers in Wisconsin, and many interested others.

Washington, D.C., is the focus of the new issue. The Washington that’s in Continue reading “The Washington, D.C., Issue of the Marquette Lawyer Magazine “

Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)

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Judge John W. Reynolds sitting in a chairA previous blog post discussed a pair of stories in the Summer 2019 Marquette Lawyer magazine and concluded by quoting one of them: specifically, an observation by Professor David Strauss of the University of Chicago, based on the Boden Lecture at Marquette Law School by Duke’s Professor Ernest Young, that “in the end, there is only so much the law can do to save a society from its own moral failings.” This post takes up a second pair of stories in the magazine, from which one might draw the same conclusion.

While it remains a fact about the large majority of schools in the Milwaukee area now, segregation of Milwaukee school students by race was the subject of great energy—attention, advocacy, and controversy—in the 1960s and 1970s. Two pieces in this summer’s Marquette Lawyer focus on the Milwaukee education scene of that earlier era.

In one, Alan Borsuk, the Law School’s senior fellow in law and public policy, writes about the decision issued in January 1976, by U.S. District Judge John W. Reynolds, which ordered that the Milwaukee Public Schools be desegregated. “A Simple Order, a Complex Legacy” touches upon the legal history of school desegregation cases, Reynolds’ 1976 ruling itself, and the legacy of that Milwaukee ruling. To borrow a phrase from Professor Young’s Boden Lecture, there is scarcely “an optimistic, onward-and-upward feel” to the account. Continue reading “Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)”

New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

Posted on Categories Civil Rights, Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, Marquette Lawyer Magazine, Popular Culture & Law, Race & Law, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

This cover of the summer issue of the Marquette Lawyer. 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.”

A future post will discuss another pair of articles in the magazine that would support the same reaction. Click here to read both Young’s lecture and Strauss’s comment.

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