To Our Peers, Professors, And Administrators:
Marquette University Law School Student Bar Association writes to you today to address the tragedy that we as a community and a country have faced in the last three weeks. Not one of a pandemic, but rather the state-sanctioned murders of Black Americans. Namely, Ahmaud Arbery, Nina Pop, Breonna Taylor, George Floyd, and countless others. Their deaths are not novel, and we would be remiss to categorize them as such. Their deaths are the tragic manifestation of a long-standing system of racial oppression that continues to unjustly claim the lives of Black Americans.
We want to be loud and exceptionally clear: SBA believes Black Lives Matter. We are an anti-racist organization, and we condemn every form of racism. We stand in solidarity with the members of the Black Law Student Association, the Black community of Marquette University, and the Black community around the world. Continue reading “SBA Statement in Support of BLM and Against Racial Injustice”
When lawyers think about working with clients who have addictions, we often imagine clients who are young or middle-aged and facing legal consequences such as criminal charges for drug possession or for driving under the influence of alcohol or another drug. But not every person struggling with addictions is young, in trouble with law enforcement, or even using substances in a visible way that signals addiction to family members or professionals.
More than 2.5 million adults over age 55 struggle with addictions every year in the United States. Continue reading “What Does Addiction Look Like?”
Arizona Appellate Court Revives Plaintiff’s Claim that Vehicle that Struck Her was Defective By Virtue of Not Including Autonomous Safety Feature
In recent years, highly autonomous vehicles have acquired a reputation as a technology that is perpetually just a few years away. Meanwhile, their enormous promise continues to tantalize. AVs have the potential to transform American life in a variety of ways, reducing costs both large and small. From virtually eliminating the roughly 40,000 deaths and hundreds of thousands of injuries we suffer in car accidents every year to making it possible to commute to work while sleeping, AVs are seen as enormously promising.
Against this backdrop, many torts scholars have expressed concern that imposing liability on AV manufacturers threatens to slow or even deter AV development. When AVs take the wheel, will the companies that make them also take on liability for whatever crashes they can’t avoid? AV development also raises the possibility—much less commonly noticed—of new liability for manufacturers of conventional vehicles. If AVs are significantly safer, will courts and juries come to see conventional vehicles as defective? According to a recent Arizona appellate court opinion, the answer is… maybe so.
Continue reading “As We Approach our Autonomous Future, Will Products Liability Law Hold Us Back or Shove Us Forward?”
As new Milwaukee County Executive David Crowley was being interviewed for an online “On the Issues with Mike Gousha” program this week, viewers could see a message board behind Crowley with the phrase, “It’s a good day to have a good day.”
When Gousha, Marquette Law School’s distinguished fellow in law and public policy, asked Crowley about it, Crowley said it was a motto in his family and he described himself as an optimist – in fact, he said, some say he is “recklessly optimistic.”
He maintained that tone, even as he discussed the enormous problems he faces in the job he won in the April 7 election. Milwaukee County government continues to struggle with large financial stresses and increasing demands for services. Add on the crises that Crowley faced the day he took office – responding to the COVID-19 pandemic and the sharp economic slump that resulted – and the urgent issues that arouse in late May in the aftermath of the death of George Floyd at the hands of police in Minneapolis, and it would be easy to guess Crowley’s optimism had declined.
Crowley told Gousha that the crises have “exacerbated what we knew we needed in Milwaukee” and have made progress more difficult. “But we’ll be able to move this community even further” as the issues are addressed, he said. Continue reading “New County Executive Remains Confident in Good Days Ahead for Milwaukee”
An important shift in Wisconsin water policy has taken place in recent weeks, one that will likely have quantitative effects on Wisconsin water quality. It relates to the relative influence of the public trust doctrine in the state. On several occasions, I have written in this space about the doctrine’s apparently declining influence in Wisconsin. The public trust doctrine is generally taken to mean that a state must act as “trustee” of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries—its people.
Operationalizing those general terms has been difficult and has proceeded in fits and starts. For present purposes I will focus on the 2011 Wisconsin Supreme Court decision in Lake Beulah Management District v. Wisconsin Department of Natural Resources, (WNDR) concluding that the public trust doctrine gave WDNR “the authority and a general duty to consider whether a proposed high capacity well may harm [other] waters of the state” via water level drawdown and other potential impacts. In Wisconsin, high capacity wells (HCW) are statutorily defined as wells with the capacity to pump over 100,000 gallons of water per day. The court further held that when considering HCW applications WDNR had the authority to “deny a permit application or include conditions in a well permit” to prevent the harm to other nearby waters.
Around the same time, a new statute arguably undercut that same authority. While the case was before the court the Legislature enacted 2011 Wisconsin Act 21, creating Wisconsin Statute § 227.10(2m). The statute provides that “[n]o agency may implement or enforce any standard, requirement, or threshold, including a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule . . . .” For several years, uncertainty persisted over the tension between the Supreme Court opinion and the statute because the WDNR’s public trust authority is not “explicitly” stated in the statutes or in WDNR’s administrative rules.
Continue reading “AG Kaul, WDNR Reverse Slide of Wisconsin’s Public Trust Doctrine”
In a Facebook post last Saturday, after reading “What protesters say is fueling their anger,” I wondered what I could do to help eliminate racism, which is causing so much harm to our collective humanity. I wasn’t sure what to do first.
As a law professor and member of the Sports Lawyers Association (including 2 years as its president and 18 years on its board of directors) for 30+ years, I’ve had the good fortune of getting to know and work with many persons of color as students and professional colleagues. I’ve become friends with many of them. During the past couple days, I learned that I didn’t know some of them very well.
On Sunday, I read a Facebook post by a former student stating: “Black people need your empathy. Put yourself in my shoes. I jog nearly everyday in the suburbs of North Dallas, but I run with my dog because I know that I somehow appear ‘less intimidating’ to the general public as a black man running with our family pet. . . . I have three kids – two of which are boys. I fear the day that I am forced to have the conversation with them that many Americans see them as a threat simply because of the melanin in their skin. . . . [O]ver the summer before I went to college, I had a police officer pull a gun on me in the 90s when he pulled me over simply because he said I didn’t ‘belong in this neighborhood’ where I actually grew up. He said ‘give me a reason’ to pull the trigger. I was merely a teenager with a gun pointed at the left side of my head during a traffic stop. I recall that day like it was yesterday.”
I responded: “Very sorry you personally experienced such horrifying racism (like so many others). It’s appalling, and NO human being should be subjected to and have to live in fear of it happening again! I hear you and strongly agree that racism must be publicly condemned, most especially by whites.”
He replied: “Thank you. I appreciate your awareness of the situation. . . . Have an intentional conversation with your own friends and family, on my behalf.”
Continue reading “Once We Know, We’ll Know What To Do”
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 “
Can you offer a note of optimism when it comes to the COVID-19 pandemic?
Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy, asked Jeanette Kowalik, the health commissioner of the City of Milwaukee, that question at the end of an online “On the Issues with Mike Gousha” interview on Wednesday, May 20.
Kowalik tried, but it was a challenge to put a cheerful face on the impact the virus is having on Milwaukee and most of the world.
“Definitely what’s happening right now is like Haley’s comet,“ she said. It was hard to anticipate “something at this level” as a health crisis, she said, saying the United States as a whole was experiencing “these astronomical numbers” of confirmed cases and deaths.
The only option now is to continue social and physical distancing and use personal protective equipment such as face masks, Kowalik said, while awaiting development and widespread use of a vaccine to deal with the virus. Continue reading “Trying to Strike Some Optimistic Notes Amid the COVID-19 Crisis”
[The following is a guest post from Molly Madonia, Law ’16, a prior guest alumni contributor to the Blog.]
What do the great Beyoncé Knowles and force majeure clauses have in common? They both demand that we put some respect on their check.
Force majeure clauses in transactional agreements have often been used arbitrarily, perhaps as a legalese-y afterthought, as an easy exit from the contract, or even added merely to shift the signature blocks onto the proceeding page. However, in the time of an international pandemic, unpredictable supply chain, and abundant contractual frustration of purpose, force majeure clauses are finally getting their time to shine. Now, these often-tertiary little provisions are single-handedly keeping businesses afloat, keeping creditors at bay, and punching well-above their weight class across all types of contracts. Continue reading “Force Majeure – The Little Clause That Could”
According to basic economic theory, regulated entities will comply with the environmental laws when the expected benefits of doing so (most prominently, avoiding penalties) outweigh the expected costs of compliance. Theoretically, economists say, there is an optimum level of enforcement where expected sanctions equal expected harm, taking into account the probability that violations will be detected.
Yet the actual level of enforcement of the environmental laws is never optimal, even at the best of times. Enforcement agencies such as the United States Environmental Protection Agency (EPA) and its state counterparts like the Wisconsin Department of Natural Resources (DNR) have imperfect information about ongoing violations. They are not omniscient. And even if they had perfect information, there are often many more potential enforcement targets than can be pursued with limited agency resources. Enforcement, of course, is part of a broad mix of agency responsibilities that also includes rulemaking, standard setting, monitoring, and many other activities. Finally, political leaders may appoint agency heads who drive the pursuit of more or less than the optimal enforcement level.
Enter the pandemic. It adds a new layer of complexity, to understate the matter, in that enforcement agencies must take several new and highly important factors into account, such as the safety of agency personnel and the economic damage some regulated entities are experiencing. Staff who might normally be inspecting permitted facilities or investigating reported violations may be sick, quarantined, or at the very least, working from home. These factors have led some agencies to relax enforcement activities, as discussed in more detail below. Even if they are presumed to be well-meaning, such policies may worsen the situation in communities already disadvantaged by pollution levels that seriously impact public health. In turn, this may expose those communities to additional risks during or following the pandemic. Continue reading “Enforcing Environmental Laws During The Pandemic”
“Could we try and mediate over the phone?” I was a bit surprised by the response from the attorney when I called to let him know that the Small Claims Mediation Clinic’s courthouse mediation options had been curtailed by the Coronavirus. The Clinic, which was started by former Wisconsin Supreme Court Justice and retired MULS Professor Janine Geske, has been in operation since 1998. A typical Clinic day revolves around same day referrals for mediation cases from Court Commissioners in Room 400 of the Milwaukee County Courthouse. Cases are mediated then and there. In addition to the typical same-day referrals, this semester the Clinic received a number of referrals from judges dealing with civil cases. This particular case, a dispute between relatives, seemed tailor-made for mediation. I hesitated for just a second before saying yes, we would try mediating the case by phone. Continue reading “Student Lessons on Distance Mediation”
A couple weeks ago, I posted about creating book spine poetry to celebrate National Poetry Month. I asked for your creations and some of you got busy and created poetry. Here are the book spine poems of faculty, staff, and alumni.
Paul Anderson, Director of the Sports Law Program and the National Sports Law Institute, insists all of the books he used to create his poem are his, except one. Do you know which one?
Student Services Librarian & Adjunct Professor of Law Deborah Darin submitted this poem:
Molly Madonia (L’16), associate counsel at Milwaukee World Festival, Inc. (producers of Summerfest) called this poem “Feminism”:
Corinthia Van Orsdol (L’07), who works with Marquette University Advancement, submitted this poem:
An avid reader Christine Wilczynski-Vogel, Associate Dean for External Relations, Events, and Facilities, submitted this poem:
Just because National Poetry Month is ending, doesn’t mean you need to stop creating. After all, we’re still stuck inside, staring at all those books. . . .