Battle over Venue Defines First Phase of Litigation on Wisconsin Redistricting 

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

In the litigation over Wisconsin legislative and congressional redistricting, both sides say they’re not on a venue-shopping spree.

But however it’s characterized, virtually all of the legal action to date has been directed toward deciding which court will hear the case—and perhaps ultimately draw the maps for Wisconsin’s Assembly, state Senate and U.S. House districts—and when.

Officially, the job of redrawing those lines after each decennial census belongs to the Legislature, subject to veto by the governor. But both sides—and even a federal judge—have cast doubt on the chances that Republican legislative leaders and Democratic Gov. Tony Evers will agree on maps. Both sides argue that their preferred courts must be ready to step in swiftly if the legislative process breaks down. Continue reading “Battle over Venue Defines First Phase of Litigation on Wisconsin Redistricting “

Gerrymandering, geography, and competitiveness

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

Many discussions of “gerrymandering” are hampered by an often unacknowledged tension between competing goals. Gerrymandering is classically defined as weirdly-drawn districts manipulated from some ideal (or “natural”) form so as to benefit a particular party or politician. In practice, people see evidence of gerrymandering when one party consistently wins a share of legislative districts in excess of its proportion of the overall vote.

Proponents of “fair maps” may be motivated by concern over a partisan imbalance, but they typically define “fairness” with regard to the first definition of gerrymandering. A fair map is one drawn without regard to political advantage. Instead, districts should follow the boundaries of existing communities where possible.

There’s the rub. Imagine if Wisconsin’s Constitution called for our decennial redistricting to be carried out by an alien species of mapmaking specialists who are unaware of the existence of Democrats or Republicans but are nonetheless imbued with a passion for compactness, contiguity, and the preservation of municipal boundaries. These extraterrestrial cartographers could provide us with thousands of maps to choose from, but probably every last one of them would still give Republicans a legislative majority when the statewide vote was a tie. The reason, as we shall see, is where partisans live and how they cluster together. Continue reading “Gerrymandering, geography, and competitiveness”

Welcome to Our October Guest Blogger!

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After a bit of a hiatus, our guest bloggers are returning! This month we are excited to welcome 3L Vanessa Flores to blog with us as our Student Contributor. Vanessa is originally from Ecuador but called Chicago home before coming to Marquette. She is interested in civil litigation and will be doing that after graduation. When not studying law, Vanessa enjoys spending time with her cats, Simba and Bolt, and exploring Wisconsin with her boyfriend and his dogs. Welcome Vanessa!

Wisconsin’s Local Governments Face a Time Crunch in Redrawing Boundaries

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This is the first in a series of posts this fall concerning redistricting in Wisconsin—a focus of the Law School’s Lubar Center for Public Policy Research and Civic Education. 

In a race against time to draw new district lines for local governments, three of Wisconsin’s four largest counties are off to a slower-than-recommended start—a delay that could throw the state’s three biggest cities behind schedule as well.

Perhaps not coincidentally, those three counties—Milwaukee, Dane, and Brown—are the same ones that have created independent advisory bodies to devise their supervisory district maps. That means they faced the added challenge of inventing a new redistricting process when their timeline was more compressed than ever before.

By contrast, the Waukesha County Board used its traditional process, working through a board committee, and approved a preliminary supervisory district map on September 14, one day ahead of the target date recommended by the Wisconsin Counties Association.

All of the state’s counties and municipalities, along with the Racine Unified School District (RUSD), are under pressure to finish redistricting before December 1, when candidates can begin circulating nomination papers to run in the spring 2022 elections. If any of them miss that deadline, the legal consequences are uncertain. Continue reading “Wisconsin’s Local Governments Face a Time Crunch in Redrawing Boundaries”

Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates

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Political redistricting in Wisconsin is important to shaping long-term policies. The process for deciding political boundaries at all levels is controversial and hot. The courts, more so than legislative chambers, are likely to be the central arenas for deciding a number of the important outcomes in the now-unfolding decennial cycle.

Put those three statements together and you see why Marquette Law School’s Lubar Center for Public Policy Research and Civic Education is giving redistricting special attention, with the goal of providing evenhanded background and insight.

A blog post that will follow this is the first in a series of Lubar Center posts on the Marquette Law School Faculty Blog that will focus on aspects of the current work on redistricting.

Reporting and writing the posts is Larry Sandler, a freelance journalist with more than 38 years of experience covering government and business in southeastern Wisconsin for the Milwaukee Journal Sentinel and other publications. Continue reading “Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates”

A Tenancy in Common Tragedy

Posted on Categories Property Law, Public, Real Estate Law2 Comments on A Tenancy in Common Tragedy

pic of Surfside, Florida condo building, showing collapseThere is lots of blame to go around for the horrifying collapse of the Champlain Towers condominiums complex in Surfside, Florida, in June 2021:

(1) Engineers’ reports on structural flaws in Champlain Towers could have been more forceful and explicit,

(2) Members of the Champlain Towers condo board could have been more attentive and willing to act regarding the dangerous conditions, and

(3) State and local governments could have made inspections earlier and warned that the residents of Champlain Towers of their vulnerability.

Add to the list of causes for the disaster the tenancy in common (TIC) and the modern-day attitudes about ownership of property that the TIC brings to the surface.

Many will recall from first-year Property that a TIC is a shared tenancy in which each owner has a separately transferable share of the property but may not claim ownership of a specific part of the property.  All of the tenants in common are able to use the whole property.  TICs emerged in early-modern England and were much treasured by the gentry as a way to consolidate family interests.  Family bloodlines, after all, were often indistinguishable from family property lines.

A variety of the TIC has lived on into the contemporary United States and is common in what seems sometimes like our ubiquitous condominium complexes. Continue reading “A Tenancy in Common Tragedy”

What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law

Posted on Categories Environmental Law, Legal History, Public, Water Law1 Comment on What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law

 

As summer began, one of my colleagues introduced readers of this blog to Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). The book explores how Chicago, a city known for commerce, came to have such a splendid public waterfront—its most treasured asset. Tom and I worked on the book for more than 20 years, but apparently we had more that we wanted to say. So, over the past couple of months, we gratefully accepted invitations from three national law blogs to present some reflections based on Lakefront. These posts, though drawing on, are not excerpts from the book, and each of the three series has a strong thematic element or substantive focus.

1. Volokh Conspiracy—The Public Trust Doctrine. Our first series of guest posts, appearing at The Volokh Conspiracy this past June, focused on the public trust doctrine, both in its original American conception (on the Chicago lakefront) and in its development (also there) over more than a century. We explained also that the preservation of Grant Park as an open space, in downtown Chicago, had nothing to do with the public trust doctrine, but stemmed from the public dedication doctrine. Having previously collected these posts, I include the link to that collection and thus to that series, for the sake of completeness here.

2. The Faculty Lounge—Standing to Enforce Public Rights. Our second series last month (July) at The Faculty Lounge concerned standing to enforce public rights. We began by explaining that standing in the law is nearly always discussed in terms of the Supreme Court’s doctrine governing who may sue in federal court consistently with Article III of the Constitution—and that this is unfortunate. For a wider array of standing rules comes into the picture when one considers common-law doctrines governing who may sue to enforce public rights—making Lakefront, which unpacks a century and a half of controversies over various such rights, a valuable resource.

Here is a sort of table of contents for the future reader:

We concluded by urging something of an intermediate rule, given the concerns that we identified in the cases of the most restrictive standing rule (viz., underenforcement of public rights) and the least restrictive standing rule (overenforcement).

3. PrawfsBlawg—Possession vs. Ownership in Property. The third series appeared earlier this month at PrawfsBlawg. Its focus was the role of possession in property. We framed the central question thus: “In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?”

Here is the table of contents, if you will, to this third five-part series:

With respect to the substance of this series, suffice it to say here that, at least on the Chicago lakefront, courts have been reluctant to interfere with possession—and further, in its absence, often have been reluctant to uphold seemingly strong legal claims of property rights. There is, necessarily, much history along the way, including versions of the stories of Cap’n Streeter and of how Jean Baptiste DuSable Lake Shore Drive (as Lake Shore Drive was renamed this summer) came to be—and why it stops where it does.

* * * *

To be sure, my summer was largely spent in administrative work, but I continue very much to believe in the usefulness of blog posts to foster intelligent discussion and engender learning about the law, as I suggested in one additional post that I smuggled into The Faculty Lounge. I hope for a great academic year to come on this blog.

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

Posted on Categories Criminal Law & Process, Marquette Lawyer Magazine, Milwaukee, Public, Race & LawLeave a comment» on Problem-Solving Courts Can Produce Better Outcomes for Participants, But Do White Defendants Benefit More Than Black?

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?”

School districts that use pandemic funds wisely may see payoff

Posted on Categories Education & Law, Milwaukee, Public, Speakers at MarquetteLeave a comment» on School districts that use pandemic funds wisely may see payoff

This appeared as a column in the Milwaukee Journal Sentinel on July 25, 2021.

It’s the opportunity of a lifetime. It won’t really accomplish anything.

Both opinions are widely held as schools across the country plan for what to do with a huge wave of federal funding intended to boost both students and schools as a result of the pandemic.

“This is an opportunity to make a difference in the lives of children,” Keith Posley, superintendent of Milwaukee Public Schools, said during a Marquette Law School program posted online July 21 on how the money will be used. Posley added, “Our children deserve these funds and even more to make sure they are able to truly get the quality education that they deserve and live that American dream.”

But you need look no farther than the state Capitol in Madison to find opposite views. In late May, Assembly Speaker Robin Vos told the Milwaukee Journal Sentinel, “The amount of federal money that is going to school districts is overwhelming. It’s really kind of obscene in many ways.” The new state budget kept a tight limit on school spending across Wisconsin largely because of Republican opinions of the federal aid. Continue reading “School districts that use pandemic funds wisely may see payoff”

Jury Duty in de Tocqueville’s Time and in the Present

Posted on Categories Judges & Judicial Process, Legal History, Public2 Comments on Jury Duty in de Tocqueville’s Time and in the Present

Alexis de Tocqueville was a French aristocrat sent by his country to inspect American penitentiaries during the 1830s.  He dutifully delivered his report, but he also found himself interested in more than penitentiaries.  In Democracy in America (1835), he provided a wide-ranging and to this day highly regarded account of life in the youthful, rambunctious American Republic.  Somewhat surprisingly, de Tocqueville discussed at length the role and function of jury duty.

photo of jury summons

Although de Tocqueville recognized the jury as a “juridical institution,” that is, a body that renders verdicts, he was more interested in the jury as a “political institution.”  He argued that the jury “puts the real control of affairs into the hands of the ruled, or some of them, rather than into those of the rulers.”  The jury was a vehicle through which the citizenry could exercise its sovereignty.

What’s more, jury duty struck de Tocqueville as a “free school.”  “Juries, especially civil juries,” he thought, “instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.”  As a form of “popular education,” jury duty offers practical lessons in the law and teaches jurors their rights under the law.

Overall, de Tocqueville was pleased Americans took eagerly to jury duty and felt robust, active juries were extremely important in the success of the nation.  Jury duty, he said, “makes men pay attention to things other than their own affairs” and thereby “combat that individual selfishness which is like rust in society.”

How disappointed de Tocqueville would be learn how people perceive jury duty in the present.  While people who actually serve on juries tend to say their experiences were positive ones, a huge percentage of Americans dread receiving a summons for jury duty and do their best to avoid serving.  Websites such as “How to Get Out of Jury Duty” and “10 Ways to Avoid Jury Duty” are popular. Continue reading “Jury Duty in de Tocqueville’s Time and in the Present”

The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

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About four years ago I wrote a blog post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose then was to point out an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward The Wisconsin Capitol in Madison, Wis.courts, the legislature, and the governor.” Last week the Wisconsin Supreme Court finally took the field to address that trend, issuing two opinions in companion cases that effectively loosened one of the key new legislative constraints on agency authority. As a result, the pendulum has swung back toward increased agency discretion and clout. The opinions are also important because they continue a recent revival of the Wisconsin public trust doctrine, reversing a slide that I identified in a 2016 blog post.

The court granted review in the two cases  (both captioned Clean Wisconsin v. Wisconsin Department of Natural Resources (2021 WI 71 and 2021 WI 72)) to address one of the issues I focused on in the 2017 post: the scope of Wis. Stat. § 227.10(2m). That statute provides that no agency may implement any “standard,” “requirement,” or permit condition unless the condition has been “explicitly required or explicitly permitted’ by statute or by rule.  The resulting opinions, joined by an unusual mix of justices in a four-vote majority, limit the statute’s influence and slow down the “quiet revolution.”

Continue reading “The Wisconsin Supreme Court Slows Down The “Quiet Revolution””

Collecting Posts on the Public Trust Doctrine in Its American Birthplace

Posted on Categories Environmental Law, Legal History, Public, Water Law2 Comments on Collecting Posts on the Public Trust Doctrine in Its American Birthplace

Thank you to my colleague, Professor David A. Strifling, director of Marquette Law School’s Water Law and Policy Initiative, for his generous post a few weeks ago concerning Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). The book ranges over almost two centuries and the different stories that led to the Chicago lakefront’s varied but largely integrated and altogether splendid whole. Given these temporal and geographic variations, “the core insight that shapes Kearney and Merrill’s Lakefront”—that “[t]he making of Chicago’s extraordinary landscape along Lake Michigan required law, lots and lots of law” (Professor Hendrik Hartog of Princeton University)—made intuitive sense to us from the beginning. Or at least it did to my coauthor, a noted scholar of property law.

Major areas along the Chicago lakefront (map by Chicago CartoGraphics): Figure 0.2 from Lakefront: Public Trust and Private Rights in Chicago (Cornell, 2021)

Yet as our book’s title suggests, however much other law has been involved, the public trust doctrine has been at the forefront of lakefront controversies, at least since the Supreme Court of the United States used the Lake Front Case (more formally known as Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892)) to announce the American experiment with the doctrine. So Professor Merrill and I took a guest-blogging opportunity at the Volokh Conspiracy this past week to focus on the public trust doctrine. Here are links to our series of posts:

You can find us a month or so from now guest-blogging at The Faculty Lounge, where we expect to consider the rules that govern—or might govern—who has standing to raise the different sorts of legal claims whose disposition has helped shape the Chicago lakefront. Each of these rules is in some way problematic, and differences among them have had notable effects on what a resident or tourist today finds on the lakefront—and what he or she does not. “[L]ots and lots of law,” it has been said.