With candor and humor, environmental regulators give commitments to tackle challenges

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In 15 years of public policy programs hosted by Marquette Law School, there may never have been as succinct, candid, and humorous answer to a question as one provided by Preston Cole, secretary of the Wisconsin Department of Natural Resources, during a program on June 15, 2022, in the Lubar Center of Eckstein Hall.

The session, “A Federal-State Conversation on Environmental Issues,” featured Cole and Debra Shore, administrator of Region 5 of the Environmental Protection Agency, which covers much of the Midwest, including Wisconsin. David Strifling, director of the Law School’s Water Law and Policy Initiative, was the moderator. The session was held before an in-person audience and livestreamed.

Strifling asked Cole what was one thing Wisconsin needed from the EPA. “Money, money, money, money!” Cole sang in response. “Money!” he added, for emphasis.

EPA funding translates into buying power to deal with major environmental issues such as the impact of large-scale agricultural operations, invasive species, and chemical contamination of water, Cole said.

Shore and Cole said their agencies have renewed and increased commitments to dealing with a host of issues including pollution from chemicals known as PFAS and global warming. Continue reading “With candor and humor, environmental regulators give commitments to tackle challenges”

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.

State Gun Laws And Public Opinion

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Summary

Let’s begin with some general context: Nationwide, 66% of those with an opinion favor a Supreme Court ruling that the Second Amendment includes a right to possess a gun outside the home. When it is presented as a matter of state policy choice (law), 62% favor allowing concealed carry of handguns with a permit or license required. So public opinion substantially favors allowing “licensed concealed carry” of handguns.

In contrast, there is substantial majority opposition to laws allowing concealed carry without a licensing requirement. Concealed carry without a license requirement is supported nationwide by 19% and opposed by 81%.

In fact, even in the 25 states with “permitless concealed carry” laws, a minority of 28% of adults favor such laws, while 72% are opposed to them, based on a May 2022 Marquette Law School Poll national survey conducted last month (before the school shooting in Uvalde, Texas). And state surveys, by other polling entities, in Texas and Tennessee (states with permitless concealed carry laws) found 34% and 39% favored these laws, respectively, with 59% opposed in both states.

State gun laws

In the following analysis, state gun laws are grouped into four categories.

  • Twenty-five states have adopted laws allowing “permitless” concealed carry, requiring no license or permit to have a concealed weapon. (This includes states that have adopted such a law that will go into effect by Jan. 1, 2023.)
  • Ten states have “shall issue” laws, which give no discretion over issuing a license or permit to an applicant meeting the criteria specified by law.
  • Seven states have “shall issue” laws, which allow some discretion over issuing a license or permit if the applicant is judged to raise some public safety concerns.
  • Eight states and the District of Columbia have “may issue” laws, which give authorities greater latitude in determining when to issue a license or permit.

Continue reading “State Gun Laws And Public Opinion”

As Our Climate Changes, What Can Be Done about Flood Risk?

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Flooding is the most common and most costly natural disaster in the United States, and the toll it takes is only expected to grow over the coming years. Rising sea levels, more powerful hurricanes, and more intense rainfall—all worsening thanks to climate change—will displace people from their homes and put increasing strain on the systems we use to address these A flooded streetrisks. One of the most important such systems is the National Flood Insurance Program (“NFIP”), which has been in debt to the U.S. Treasury since 2005 and is perpetually derided as “broken.” It seems obvious that a big part of the solution to the problems ailing the NFIP (and to our problem of flood risk more generally) is to move people away from flood-prone areas, and yet the policy reforms intended to address these issues have prove extremely difficult for Congress to enact. In a new paper recently published in the Colorado Law Review, I offer some theories as to why.

A key obstacle to seemingly enlightened policy reform, I argue, is our country’s deep-seated hostility to paternalistic interventions. Drawing on the philosophical literature on paternalism, I note the key features that make such laws objectionable to many people: they seek to override individuals’ judgments about what is best for them. Even when such decisions appear to be flawed (like the choice to live in a flood-prone area, for example), they often depend on value judgments, and it is therefore hard to say that a different choice would be objectively rational. It is impossible, for instance, to weigh the emotional value of a home or neighborhood against the expected future costs of flooding in a way that produces an objectively optimal course of action, in the same way there is no objectively correct way to eat, given the emotional and cultural significance of food. Continue reading “As Our Climate Changes, What Can Be Done about Flood Risk?”

In Remembrance of One Public Defender—and in Praise of All Such

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Howard EisenbergHoward B. Eisenberg’s yahrzeit, as some might say, is late this week: June 4 will mark 20 years since his death. We remember him at Marquette University Law School as our dean, a position in which he served with great effect and distinction but for too brief a time (1995 until his death in 2002). On occasional past anniversaries of his death, various of us have recalled one aspect or another of his deanship (a post last year contains various links).

Yet it is another part of Howard’s remarkable professional life to which I find myself often returning these days. For almost six years—from December 1972 to September 1978—Howard served as the State Public Defender, by appointment of the Wisconsin Supreme Court. Without doubt, this was his great formative work after law school, and much that he did subsequently can be traced to those six years (we reprinted Howard’s full resume in the special memorial issue of the Marquette Law Review published upon his death, beginning at p. 208 in the journal’s numbering).

Without doubting the difficulties of a deanship (in Howard’s case, first with the University of Arkansas at Little Rock and then at Marquette), Howard’s work as the State Public Defender was an extraordinary challenge. He was thrust into it barely a year out of law school and only months after finishing a clerkship with Justice Horace Wilkie of the Wisconsin Supreme Court. (What remarkable work Howard must have done as a law clerk to engender that sort of confidence from the court.) Howard met the challenge, at least insofar as anyone could have, as attested in the 2002 memorial issue by three of his former colleagues in the public defender’s office. Their essays capture an impressive amount of his work and even personality, as I am reminded by his occasional wry self-introduction in those years (recalled on p. 248): “I’m Howard Eisenberg, State Public Defender, which the Supreme Court thinks is Latin for ‘Judgment Affirmed.’”

I have never been a public defender, of course, although a long-running pro bono case that over the past decade Anne Berleman Kearney and I have handled, as appointed by the public defender’s office, has given me a small bit of relatively firsthand insight into the joys and (mostly) sorrows experienced by public defenders, at least in appellate matters (Howard’s métier). So I am reminded of him in that professional sphere as well.

In all events, this year, even as I recall Howard Eisenberg, I hope, looking forward, that we, as a legal profession and certainly as a law school, can celebrate the work of these extraordinary men and women: our public defenders. We are fortunate in Wisconsin to have the leadership of Kelli Thompson, L’96, as the State Public Defender, and her colleagues include Tom Reed, longtime adjunct professor here. To preview an upcoming issue of the Marquette Lawyer magazine (the one coming out not in a couple of days but in late 2022), I imagine that we will have more to say there. For what it is worth here, I wish to say that the work of all of these individuals has my great admiration.

Celebrating the Class of 2022—Old Traditions and New Elements

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Hon. Elizabeth B. Prelogar
       Hon. Elizabeth B. Prelogar

It was my privilege to be in the splendid courtroom of the Wisconsin Supreme Court yesterday (Monday, May 23) to move the admission of Marquette law graduates to the bar. They graduated this past weekend, so such admission was their privilege, by virtue of receiving our diploma, meeting the court’s curricular requirements, and satisfying its character and fitness standards. In looking for a prior such motion that I had made, I came upon the one from 2015, where I noted that it was the twelfth consecutive May that I had appeared before the court for this purpose. I seemed to expect to do this annually until I should no longer be dean. In fact, the “streak” soon ended, in 2016, when an injury prevented my appearance before the Court—and then of course, a few years later, there would be the pandemic. Even then, the Court, on paper in 2020 and in the Wisconsin Assembly chamber in 2021, went to great lengths to ensure the prompt admission of our graduates via the diploma privilege.

The 2022 end-of-year proceedings seemed more like old times, though with some new elements. We convened for our Hooding Ceremony this past Saturday evening in the elegant, historic Milwaukee Theatre, as for many years. Yet this year, it was also our Commencement Ceremony, as Marquette University President Michael R. Lovell had delegated to me the authority, on behalf of the Board of Trustees, to confer the J.D. degree on each of our graduating students. Hannah Chin, a graduate selected by her classmates, addressed the ca. 1,300 people in attendance, reminding us of all that our 2022 graduates have earned and gained throughout the past three difficult years. The commencement address was delivered by the federal government’s top lawyer before the U.S. Supreme Court: the Hon. Elizabeth B. Prelogar, solicitor general of the United States. Solicitor General Prelogar, in her first trip ever to Wisconsin, gave a substantial amount of wise counsel. Yet my own wisdom, in inviting her, you will permit me to say, seemed entirely confirmed by her unexpected but most welcome rousing endorsement of the “Oxford comma”—and her exhorting, if not quite enjoining, the graduates always to use it. Of course, Solicitor General Prelogar highlighted not just punctuation but also such (other) foundational topics as the need to put oneself in uncomfortable circumstances in order to grow professionally, the importance of being kind to those above and below oneself in any group, and the value of always carrying a notepad (see what I did there, including that last comma?). There was much to be learned from the evening’s guest addresses.

The completion of the program entitling one to a Marquette law degree is a substantial accomplishment, I always tell our graduates. This is so “in any era,” I said in my remarks this year. It did not seem necessary for me to engage in any larger discussion of the pandemic. Yet, truly, I extend particular kudos to the newest group of Marquette lawyers, and I express much gratitude to all involved in their education, graduation, and admission to the bar.

Congratulations to the Jenkins Honors Moot Court Competition Finalists

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Congratulations to the winners of the 2022 Jenkins Honors Moot Court Competition, Matt Kass and JP Curran. Congratulations also go to finalists Fefe Jaber and Nicole Jennings. Travis Goeden and Ruth Nord-Pekar won the Franz C. Eschweiler Prize for Best Brief. Matt Kass won the Ramon A. Klitzke Prize for Best Oralist.

The competitors argued before a large audience in the Lubar Center. Presiding over the final round were Hon. Michael Brennan, Hon. Thomas Hruz, and Hon. Mary Triggiano.

Continue reading “Congratulations to the Jenkins Honors Moot Court Competition Finalists”

Jenkins Competitors Advance to Finals

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Congratulations to the two teams that are advancing to the final round of the Jenkins Honors Moot Court Competition on April 5:

Team 1: Nicole Jennings & Fefe Jaber
Team 4: JP Curran & Matt Kass

All of the teams are to be congratulated for their hard work, competitive spirit, and zeal. We sincerely thank all the judges who graciously and enthusiastically took time from their weekend to judge the rounds. We are grateful.

Jenkins Competitors Advance to Semifinal Rounds

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This weekend our Jenkins Honors Moot Court competitors are continuing their arguments on the way to the final round. This morning, the teams competed in the quarterfinal round. The following teams have advanced to the semifinal rounds:

Team 1: Nicole Jennings & Fefe Jaber
Team 4: JP Curran & Matt Kass
Team 7: Jessica Zimpfer & Emily Ward
Team 9: Meg Wallace & Robyn Shepard

Congratulations, teams!

Jenkins Competitors Advance to Quarterfinals

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This weekend the Law School hosted our Jenkins Honors Moot Court Competition in person for the first time since 2019. Congratulations to the students advancing to the quarterfinal round:

Team 1: Nicole Jennings & Fefe Jaber
Team 2: Bailey Groh Rasmussen & Aimeé Treviño
Team 4: JP Curran & Matt Kass
Team 6: Jake Apostolu & Hunter Cone
Team 7: Jessica Zimpfer & Emily Ward
Team 9: Meg Wallace & Robyn Shepard
Team 10: Samantha Jozwiak & Kyle Kasper
Team 13: Travis Goeden & Ruth Nord-Pekar

Continue reading “Jenkins Competitors Advance to Quarterfinals”

GOP Appeal in Wisconsin Redistricting Case Could Have Far-reaching Impact—If U.S. Supreme Court Takes It Up  

Posted on Categories Election Law, Lubar Center, Public1 Comment on GOP Appeal in Wisconsin Redistricting Case Could Have Far-reaching Impact—If U.S. Supreme Court Takes It Up  

This blog post continues the focus of the Law School’s Lubar Center on redistricting

A Republican appeal of the Wisconsin Supreme Court’s legislative redistricting decision earlier this month could have national significance for the federal Voting Rights Act, according to a Marquette University law professor. To that extent, at least, others agree.

If the U.S. Supreme Court rules in favor of GOP state lawmakers, the federal justices could allow so-called “race-neutral” redistricting nationwide, says Marquette Professor Atiba Ellis, who has written about the landmark 1965 civil rights law. Combined with previous high court decisions reducing the strength of other parts of the Voting Rights Act, such a ruling would amount to “erasing the efforts of Reconstruction” and going back to a time before the 15th Amendment to the U.S. Constitution extended voting rights to people of color, Ellis fears.

“That’s my worst-case scenario,” he says.

Not all agree, of course, and much is uncertain or debatable, even the timing: The U.S. Supreme Court might hold off on a decision until after the fall elections, allowing a map drawn by Democratic Gov. Tony Evers and approved by the state supreme court to be used for those contests, says Robert Yablon, associate professor of law at the University of Wisconsin.

Or the justices might refuse to take up the appeal at all, says Mel Barnes, an attorney at Law Forward, the legal organization that is representing three voting rights groups in the case. Continue reading “GOP Appeal in Wisconsin Redistricting Case Could Have Far-reaching Impact—If U.S. Supreme Court Takes It Up  “

Au Revoir To Kill a Mockingbird

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A photo of the cover of "To Kill a Mockingbird"My oldest daughter teaches bilingual English in a City of Milwaukee high school, and I greatly enjoy our conversations regarding the literary works she assigns.  However, I was surprised when she told me recently that she and her fellow teachers no longer felt comfortable assigning Harper Lee’s Pulitzer Prize-winning To Kill a Mockingbird.

Published in 1960, Lee’s novel has for over sixty years garnered great admiration and respect as an American literary work.  Many have considered the novel’s Atticus Finch to be an inspiring lawyer hero and taken the novel’s law-related narrative to be one of courageous resistance to racial injustice.  As recently as ten years ago, virtually every American high schooler was expected to have read To Kill a Mockingbird Bird.

Why has the novel fallen so precipitously?  I can think of at least three developments that have hurt its standing: Continue reading “Au Revoir To Kill a Mockingbird

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