Stare Decisis and Fractured Majorities

The Wisconsin Capitol in Madison, Wis.[The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]

On June 25th the Wisconsin Supreme Court handed down its decision in Koschkee v. Evers, 2019 WI 76, which is in many ways a rerun of questions raised in Coyne v. Walker,  2016 WI 38.  Coyne was, to put it mildly, a jurisprudential mess: “Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case” (Koschkee, ¶ 5), plus a principal dissent representing the views of three justices, and a secondary dissent representing the views of only two justices.

Chief Justice Roggensack’s Koschkee majority (which commanded four votes on everything except ¶ 17) briefly discussed the stare decisis weight of Coyne in an early footnote, stating, “When we are asked to overturn one of our prior decisions, lead opinions that have no common legal rationale with their concurrences are troublesome.” (¶ 8, n.5.)  They are troublesome, the Court continues, because it is hard to run their rationale through the traditional stare decisis analysis when there is no definitive rationale to analyze.

Justice Bradley’s dissent, by contrast, says the majority “throws the doctrine of stare decisis out the window.” (¶ 62.) To the Court’s argument from the lack of a common rationale in Coyne, she replies, “[T]he split nature of the Coyne opinion is of no import. The mandate of Coyne was clear despite the fractured nature of the opinions. Although the four justices in the majority subscribed to differing rationales, they agreed on the essential conclusion….” (¶ 73.)

In my view, the Chief Justice has the better of the argument. 

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MULS Legal Education: Following Footsteps and Forging Your Own Path

Sensenbrenner Hall

zilber forum
From Sensenbrenner Hall (left) to the Zilber Forum at Eckstein Hall.

When I was asked if I would—together with my daughter Micaela—write a blog for the Marquette University Law School Faculty Blog, I wanted to make sure it was known I haven’t practiced law full-time in fifteen years.  So, fair warning, this is not going to be a technical legal discussion.

Let’s start with a short background: I graduated from MULS in 1989.  In fact, I just celebrated my thirty-year reunion (quick shout out to my classmates:  You guys rock!  We had the highest turnout of any reunion class!).  It was wonderful catching up with old friends, some I have kept in touch with; regrettably, some I have not.

As I stood in the Zilber Forum (as I have done several times previously, more on that later), I reflected on my law school experience at Sensenbrenner Hall, and, despite feeling envious of the students who are privileged to study law in such a marvelous facility, was transported in back thirty years to the year I graduated from MULS.  I remember the hope, the promise, coupled with the uncertainty and anxiety I was feeling at the time. Not to mention the excitement of my impending marriage one month later to my beautiful wife of thirty years, Ellen, whom I met while we were both studying at Marquette (she was earning her Masters in Analytical Chemistry at the time).

Flash forward thirty years and imagine my pride when Micaela announced to us that she would be attending MULS. In fact, Micaela is officially a 3L and is on track to graduate in May 2020. While it may not be shocking for a child to follow in a parent’s footsteps, it didn’t look like that would be happening with Micaela.

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

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