How Did This Milwaukee House Change Property Law?

Come to the Boden Lecture and find out. Indeed, I encourage the Law School and the broader legal community to turn out in force for the lecture this coming Thursday, Sept. 23, at 4:30 p.m. in the Appellate Courtroom of Eckstein Hall. It will be delivered by Thomas W. Merrill, an especially distinguished legal academic (he is the Charles Evans Hughes Professor at Columbia Law School) and an outstanding lawyer (he has argued more than a dozen cases in the U.S. Supreme Court). The nature of Prof. Merrill’s topic should make the talk of interest to the broader community as well: it will provide a take on how Milwaukee’s industrial past has affected American property law. In particular, Prof. Merrill will discuss his original historical research concerning a well-known case from the late nineteenth century, which appears in first-year property textbooks: Melms v. Pabst Brewing Co. The Wisconsin Supreme Court’s decision in Melms concerned the fate of part of the Philip Best Brewery site on the near-south side of Milwaukee (to which Captain Frederick Pabst had succeeded): parts of the plant still remain just west of 6th Street, along Virginia, barely more than a mile from the Law School, in what eventually became the Pfister & Vogel property. So there is a substantial local-history angle to the lecture as well. Let’s make the first Boden Lecture in Eckstein Hall a resounding success by supporting it; I know that Prof. Merrill will do his part by delivering an outstanding lecture. You can register here.

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Housing Discrimination in New Berlin?

The current controversy regarding “affordable housing” in New Berlin illustrates the weakness of federal law regarding housing discrimination based on socioeconomic class.

By way of backdrop, New Berlin is a suburb southwest of Milwaukee on the eastern edge of Waukesha County.  When a developer came forward with plans for low-cost rental housing in New Berlin, some members of the City’s largely white, bourgeois population expressed opposition.  New Berlin’s Plan Commission then hastily nixed the affordable housing idea.  This led in turn to an investigation by the United States Department of Justice’s Civil Rights Division. 

I anticipate the investigation will not lead to legal action.  No information has emerged suggesting New Berlin’s actions were explicitly aimed at racial or ethnic minorities, and this is significant when federal law is applied.  The federal Fair Housing Act, for example, was enacted with race and ethnicity rather than socioeconomic class in mind.  In addition, while race is surely a viable basis for an equal protection argument under the Fourteenth Amendment, socioeconomic classifications are not “suspect” and therefore can be justified with a conventional claim of rationality.

Has New Berlin engaged in housing discrimination by excluding affordable housing and the poor and working-class people who might rent such housing?  It appears that the dominant ideology as re-packaged by the federal law offers little help when facing exclusionary practices geared to socioeconomic status.  Under the law, the United States has no class.

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Study Reveals Illegal Racial Discrimination in Jury Selection

Last month, the Equal Justice Initiative (EJI) released a study, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which revealed a prevalence of racial bias in jury selection in the South.  The report stands as the most comprehensive study of racial discrimination in jury selection since 1986, when the US Supreme Court sought to limit the practice in the landmark case Batson v. Kentucky.

Racial discrimination in jury selection first became illegal when Congress passed the Civil Rights Act of 1875.  Despite federal legislation, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.

Evidence suggests the phenomenon persists through the use of peremptory challenges.  A peremptory challenge essentially provides attorneys the ability to exclude a certain number of potential jurors without explanation of their removal.

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