A Second Look at the Sharia Law Amendment

Posted on Categories Constitutional Interpretation, International Law & Diplomacy, Public1 Comment on A Second Look at the Sharia Law Amendment

Last week, the Tenth Circuit issued a decision on Oklahoma’s “Sharia Law Amendment.” A quick summary for those who haven’t followed: In 2010, Oklahoma voters approved a ballot initiative that amended their state’s constitution to prohibit Oklahoma courts from “considering or using” either “international law” or “Sharia Law” in making judicial decisions. A district court issued a preliminary injunction that at least temporarily prohibited the law from taking effect on the ground that its language regarding Sharia Law violates the Establishment Clause. The Tenth Circuit decision held that the district court did not abuse its discretion in issuing the injunction.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds. Continue reading “A Second Look at the Sharia Law Amendment”

Baseball’s New Plan for Daily Interleague Play Is Not without Precedent

Posted on Categories Public, Sports & Law1 Comment on Baseball’s New Plan for Daily Interleague Play Is Not without Precedent

Major League Baseball is changing again. For more than nine decades, from 1901 to 1994, it was a cardinal rule of baseball that teams in the American and National League met in exhibition games, the All-Star Game, and the World Series, but never in games that counted during the regular season. Since 1994, we have had annual interleague play, but it has always been constricted to two discreet periods in the early and mid-summer.

Now, it has been announced that in 2013 the Houston Astros will move to the American League, and Major League Baseball will realign into two 15-team leagues, each composed of three divisions of five teams each. For the first time in the 136-year history of Organized Baseball, there will be an odd number of teams in both major leagues, necessitating interleague play throughout the season.

This, it turns out, is not the first time that major league owners have discussed such an arrangement.

In November, 1960, having announced the transfer of the “old” Washington Senators to Minneapolis-St. Paul and the award of a new expansion franchise for the Nation’s capital (the “new” Washington Senators), American League president Joe Cronin suggested that the National League immediately add one team in either New York or Houston, and that the two leagues play an interlocking 166 game schedule in 1961.

The circumstances leading up to this proposal were an outgrowth of the rather hasty decision made by the two Major Leagues in the late summer of 1960 to increase the number of teams in the National and American Leagues for the first time since 1900.

The decision to expand was prompted by the threat posed by a planned “third” major league, the Continental League. The Continental League, headed by legendary baseball executive Branch Rickey, had planned to begin play in 1961, but it was dissuaded from entering the field by the promise of the two existing leagues to add four more teams in the near future and another four by the end of the decade of the 1960’s.

The National League was the first to announce its plans to expand, reporting on October 17, 1960, only four days after the most famous World Series game in history, the Pittsburgh Pirates dramatic, bottom of the 9th 10-9 victory over the New York Yankees, that it would add teams in New York City and Houston for the 1962 season.

The above-mentioned “nine team league” proposal turns out to have been a product of the ineptness of the American League’s belated effort to match the expansion plans of the National League. On October 27, ten days after the National League’s expansion announcement, the American League hastily announced that it was adding teams in Minneapolis and Los Angeles, which would begin play in 1961. (The current Senators, as mentioned above, would move to the Twin Cities and a new team would be based in Washington.)

The decision to place a team in the Twin Cities was not controversial at all, but there were a number of problems with the second new team going to Los Angeles. Some owners believed that the “agreement” that had led to the disbandment of the Continental League had included a promise to award expansion franchises to teams from the Continental League, or at least to its cities. (The National League had done this, admitting to membership the ownership groups of the New York and Houston teams from the CL.) Minneapolis was a Continental League city, but the new team went not to the CL owners but to the current owners of the AL’s Washington Senators. Los Angeles, in contrast, had not even been a Continental League city. (The five remaining CL cities were Dallas-Ft. Worth, Atlanta, Toronto, Buffalo, and Denver.)

Moreover, under the Major League agreement entered into by the National and American Leagues, no major league team could be moved into the territory of an existing team without the unanimous agreement of all the owners in both leagues, a rule that in effect gave existing owners an absolute veto over the relocation of any team to their territory.

This meant that the American League could place an expansion team into Los Angeles without gaining the consent of Dodgers owner Walter O’Malley. While the Yankees had agreed not to object to the placement of a new National League team in New York as part of the settlement with the Continental League, the issue of moving a new team to Los Angeles had never been on the table.

Almost immediately, plans for the new Los Angeles team started to go awry, as O’Malley made it quite clear that he was not at all enthusiastic at the idea of a second Major League team in Los Angeles. An ownership group led by Hall-of-Fame outfielder Hank Greenberg was the early front-runner to receive the new Los Angeles franchise, but on November 17, the same day that the new Washington team was awarded to World War II hero Elwood Quesada, the Greenburg group dropped out of the running.

Although Chicago insurance man Charlie Finley immediately placed a bid for the new Los Angeles team, the AL owners began to have second thoughts about the wisdom of going into LA in 1961. Five days later, on November 22, league president Joe Cronin announced a new AL proposal for two 9-team leagues featuring interleague play. As part of the proposal, it would delay the creation of its Los Angeles team until 1962, so there would be only a single team in the City of Angels in 1961. Cronin asked that the National League respond by December 5 (the date of the next National League owners’ meeting).

Although it was not initially announced as part of the proposal, it was subsequently reported that the expectation was that the 9th team in the National League would be Houston, and that the establishment of the second New York team would be held off until 1962 (as originally scheduled). If implemented in this manner, the plan would leave both Los Angeles and New York as single-team cities in 1961.

There were also conflicting reports as to who had come up with the 9-team plan. In some accounts, it was New York Yankees owner Dan Topping, while in others the idea was said to have originated with Los Angeles Dodgers owner Walter O’Malley. Both men would obviously have benefitted from the delayed entry of a new team into their market, plus O’Malley in particular did not want new competition until the completion of his new stadium at Chavez Ravine, which was scheduled to open in 1962.

Although baseball fans are often thought to be instinctively conservative, the initial public reaction to the 9-team league with interleague play proposal was generally favorable. A front page story in the November 30, 1960, Sporting News (the so-called Bible of baseball which was published a week before its cover date) described the receptive response in a story with the headline, “Fans Want Something New, Get It in 9-Club Majors, Inter-Loop Play.”

However, National League opposition to the 9-team plan surfaced almost immediately. By 1960, it was clear that the National League was the more popular league of the two, and many NL owners saw nothing to be gained by having to share the home gate with teams from the other league. Moreover, neither the Houston nor the New York owners were very enthusiastic about the idea of fielding a team by April of 1961.

By November 24, the New York Times and a raft of United States and Canadian newspapers were reporting that both the 9-team league plan and the idea of an American League team in Los Angeles seemed doomed and that the new tenth team in the American League would be Toronto, where the existing AAA team was supposedly to be elevated to major league status. In describing Cronin’s plan only two days after it was announced, a Milwaukee Journal headline somewhat prosaically observed, “Latest Plan Headed for the Scrap Heap.” Commissioner Ford Frick also announced that adoption of the plan seemed unlikely, but he nevertheless scheduled a special meeting for Wednesday, December 2, to discuss the possibility.

By November 26, Toronto owner Jack Kent Cooke had backed out of his interest in an expansion team, and there were rumors that the American League was about to announce that its expansion plans would be delayed until 1962. What was less visible was a debate going on among American league team owners. In an era when the two major leagues had much greater autonomy than they do today, one group of AL owners sought to work out an accommodation with O’Malley over Los Angeles while the other group advocated placing a team in Los Angeles whether or not National League approval was forthcoming.

There were also numerous calls from throughout the baseball world for Commissioner Ford Frick to use his powers to repeal the rule that effectively gave individual owners a veto power over the location of expansion teams.

As expected, on December 5, the National League rejected the proposal for two 9-team leagues playing an interlocking schedule. The official reason given was the inability of the Houston team to be ready for the 1961 season. However, to the surprise of many, Walter O’Malley and his fellow National League owners also announced that they were dropping their objection to the creation of a second Los Angeles team and that the American League was welcome to expand into the city for the 1961 season.

The following day, the American League announced that a new Los Angeles franchise, to be called the Angels, had been awarded to an ownership group headed by Gene Autry, the noted cowboy actor and singer who had become an entertainment mogul in the 1950’s.

The American League had established itself in the nation’s third largest city, but the story quickly surfaced that O’Malley’s permission did not come without a price. To get the Dodgers to drop their objections, Autry, who was already on friendly terms with O’Malley, agreed to pay a $350,000 indemnity to the Dodgers; agreed to telecast no more than 11 of his team’s 81 road games during the 1961 season; agreed to play the team’s 1961 home games in Los Angeles’ tiny Wrigley Field rather than the spacious LA Coliseum; and agreed to become the tenants of the Dodgers for at least three years once the Dodger-owned ballpark opened in 1962.

The 1961 season, which featured the famous assault on Babe Ruth’s single season home run record by Roget Maris and Mickey Mantle, was played with ten teams in the American League and eight in the National. In 1962, the Mets and Colt .45s (later Astros) joined the National League as scheduled. Both leagues played as 10-team leagues until 1969 when both expanded to 12 teams.

Although the idea of an odd number of teams in each league would not resurface until 2012, the concept of interleague play continued to be a regular topic of discussion in baseball circles, as it had been throughout the 20th century. Although actual regular season interleague play did not begin until 1994, such proposals were a regular feature of baseball deliberations.

In fact, the American League had proposed a limited number of interleague games in 1959, only to have it voted down by the National League. Even after the expansion of 1961 and 1962, the issue continued to be debated, and in early 1963, a Sporting News poll of its readers reported that almost 70% liked the idea. Ordinarily, proposals for interleague play came from the league with the weaker attendance—before 1960, the National and after that the American—only to be rejected by the better drawing league.

Of course, the days of no interleague play are long gone, and beginning in 2013, interleague play will be a daily feature of Major League baseball.


An Interview with Professor Gordon Hylton

Posted on Categories Marquette Law School, PublicLeave a comment» on An Interview with Professor Gordon Hylton

[Editor’s Note: This blog is the first in a series of interviews with faculty and staff at the Law School.] 

Professor Gordon Hylton is a graduate of Oberlin College, where he majored in History and English Literature. He holds a J.D. and M.A. in History from the University of Virginia and a Ph.D. in the History of American Civilization from Harvard University. Following law school, he clerked for Justice Albertis S. Harrison and Chief Justice Lawrence I’Anson of the Virginia Supreme Court and worked for the Massachusetts Commission Against Discrimination. He joined the Marquette faculty in 1995, after teaching at IIT Chicago Kent College of Law and Washington University. He has also taught as a visiting professor at Washington and Lee University and the University of Virginia and served as a Fulbright Lecturer in Law in Ukraine. His current research interests are in the history of the legal profession, constitutional history, and the legal history of American sports.

Question: What motivated you to pursue a law degree and ultimately teach law?

When I was a senior in college, my plan was to go to graduate school in history. However, the job market for historians was supposedly terrible, and I was intrigued by the idea of being a lawyer, even though there had never been a lawyer in my family. I ended up splitting the difference by enrolling in a joint law and history program at the University of Virginia, in my home state.

After three years at UVA, I had completed my law degree and the coursework for a master’s degree in history. At that point, I accepted a clerkship with the Virginia Supreme Court, and while clerking, I finished my master’s thesis. During that year, I decided that I wanted to be a history professor rather than a lawyer, so I enrolled in the History of American Civilization program at Harvard to work on a Ph.D. Although I planned to concentrate on American legal history as my major field, I felt I was leaving law for a career as a history professor.

However, while in graduate school, I decided that what I really wanted to do was to teach in a law school. I took a course called “Preparing for Law Teaching” at Harvard Law School, and after teaching for a year as an Instructor in the Harvard History Department, I entered law teaching at Chicago-Kent.

Continue reading “An Interview with Professor Gordon Hylton”

Tebowing and the Constitution

Posted on Categories First Amendment, Public, Religion & Law, Sports & Law, U.S. Supreme CourtLeave a comment» on Tebowing and the Constitution

Much has been made of Broncos quarterback Tim Tebow’s outward expressions of his Christian faith, especially his practice of kneeling in moments of prayer—“Tebowing” as it is now called—after touchdowns, some of them admittedly a bit miraculous.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? Continue reading “Tebowing and the Constitution”

Amid Differences, a Call to Work Together to Improve Mental Health Treatment

Posted on Categories Civil Rights, Health Care, Public, Speakers at Marquette1 Comment on Amid Differences, a Call to Work Together to Improve Mental Health Treatment

It wasn’t part of her prepared remarks, but Prof. Lucinda Roy of Virginia Tech University may have offered an especially important point as she began her keynote address at a conference Wednesday at Eckstein Hall on mental illness commitment laws and other issues related to mental illness.

It had been an intense, and at times tense, morning before a full house of more than 200 in the Appellate Courtroom. Meg Kissinger, a reporter for the Milwaukee Journal Sentinel, described “Imminent Danger,” the large project she authored which ran in the newspaper in recent weeks. It described how a revolution in American mental commitment laws, which began with a federal court ruling in a case involving a West Allis woman in 1972, had led to far more people with mental illnesses living outside of mental institutions. Some of them refuse treatment and a few have committed violent acts.

Kissinger and the newspaper had been strongly criticized by some members of the audience who thought the series was sensationalistic and left people with a harmful and wrong image of those with mental illnesses as dangerous. One speaker, Tom Zander, a psychologist, lawyer, and long-time prominent advocate for alternatives to mental commitment, had sharply attacked the series as based on what he regarded as false premises, including the notion that the West Allis case had led to specific horrible crimes. (Zander is an adjunct professor at Marquette University Law School.)

Throughout the morning, which included presentations by experts and by family members of people who had long-term mental illnesses, the difficulties of dealing with mental illness, the failings of the current system for helping people, and the high emotions that the subject raises were clear. Continue reading “Amid Differences, a Call to Work Together to Improve Mental Health Treatment”

Why the Law Degree Is Called a J.D. and Not an LL.B.

Posted on Categories Legal History, Legal Practice, Marquette Law School History, Public5 Comments on Why the Law Degree Is Called a J.D. and Not an LL.B.

Professor Greipp’s fascinating post on Lois Kuenzli Collins, an early female graduate of Marquette Law School, made reference to Ms. Collins’ law degree being upgraded to a J.D. in the late 1960s. That was actually a fairly common occurrence at that time, as thousands of American lawyers in the 1960s found themselves the possessors of a newly styled doctoral law degree. Between 1964 and 1969, at the encouraging of the American Bar Association, most American law schools (including Marquette) upgraded their basic law degree from the traditional “LL.B.” to “J.D.,” to reflect the by then almost universal postgraduate status of the degree. For good measure, most also made the change retroactive, subject to the graduate returning his or her old degree for a new one.

An American Bar Association committee had recommended that the law degree be called the juris doctor as early as 1906, and a small number of law schools, most notably the University of Chicago, had long called the basic law degree the J.D. However, until the late 1960s the vast majority of schools used the designation of LL.B. or B.L. which suggested that the law degree was an undergraduate degree (as it still is in most places in the world).

What is much less well known is that in an earlier era, some law schools simultaneously offered both the LL.B. and J.D. degrees. While the original law degree awarded by Marquette was the LL.B., between 1926 and 1943, Marquette offered its students the option of earning either an LL.B. degree or a J.D. degree. This innovation apparently originated with Dean Max Schoetz, but was continued after his untimely death in 1927.

Both of the two law degrees were normally earned in three years. However, to earn the J.D., a student had to (1) have already earned an undergraduate degree in a field other than law–admission to Marquette required only two years of college between 1926 and 1934 and only three after that year—(2) compile an average grade of 88 (out of 100) in all law courses (compared to 77 for LL.B. candidates); and (3) prepare an acceptable thesis on a law-related topic in his (or her) third year. (The student was also required to assign the copyright in the thesis to the law school dean.)

There was no formal advantage to the J.D. degree, at least in regard to bar admission. One did not need to have a law degree of any sort to take the Wisconsin bar examination until 1940—three years of study in or outside of a law school was all that was required. Moreover, after 1933, either degree qualified its holder for automatic admission to the Wisconsin bar under the diploma privilege, which was extended to Marquette that year. The University of Wisconsin, which had had the diploma privilege since 1870, had never awarded a J.D. degree, so there was no basis on which to distinguish between the two degrees. There was also no evidence that law firms placed any special premium on hiring graduates with the J.D. degree.

Given this lack of immediate advantage, few Marquette students appear to have even attempted the J.D. degree. In any given year, only a handful of students met the full set of qualifications, and less than 40 such degrees were awarded in the decade and a half that the option existed. The last of the original J.D.’s at Marquette were awarded in 1939, although the option remained on the books until 1943 (or perhaps a year or two longer as records for the law school for 1944 and 1945 are almost non-existent).

Our colleague Jim Ghiardi, who attended Marquette Law School from 1939 to 1942, recalls that the J.D. degree fell out of favor as students began to realize that the extra work necessary to earn the degree provided them with no real additional benefit, particularly during a Great Depression with a world war looming on the horizon.

Lois Kuenzli Collins was enrolled at the law school when the J.D. option was created, and like most of her classmates she did not qualify for the “higher” degree. However, her recollection of the distinction between the two degrees probably explains her excitement forty years later when her degree was “upgraded” from an LL.B. to a J.D.

As it turns out, there was nothing unique about Marquette’s awarding both J.D. and LL.B. degrees in the 1920s and 1930s. The practice was particularly widespread, it appears, in the Midwest.

As late as 1961, there were still 15 ABA-accredited law schools in the United States which awarded both LL.B. and J.D. degrees. The fifteen included George Washington University, Chicago-Kent, DePaul, John Marshall, Loyola of Chicago, Northwestern, Indiana, Drake, Iowa, Washburn, Michigan, Detroit College of Law, Wayne State, Ohio State, and Willamette. At least by a broad definition, all of the 15 were located in the Midwest except for George Washington (D.C.) and Willamette (Ore.).

In all of the listed schools except Northwestern and Iowa, the largest number of graduates received the LL.B. degree. (At Northwestern and Iowa, the J.D. degree was the more commonly awarded.) The practice was not exactly dying out either, as the following year both the University of North Dakota and the University of Oregon joined the list of schools awarding both degrees. Duke adopted the J.D./LL.B. distinction after 1961, and the two options were listed in the Duke Law School catalog as late as 2007, although the school apparently had not awarded an LL.B. degree since the 1960s.

As the number of law students who entered law schools with college degrees increased in the 1950s and 1960s, a number of institutions apparently used the J.D./LL.B. distinction to encourage would-be law students to complete their undergraduate degrees before beginning their legal studies. (If they failed to do so, they got the bachelor’s degree, not the doctorate.)

Presumably, the practice of awarding two different degrees was originally related to the argument that it did not make sense to award a second bachelor’s degree to someone who already had one. (A previous undergraduate degree appears to have always been a prerequisite for the pre-1960s J.D.) Unfortunately, there does not appear to be an easily accessible source that identifies when individual schools began to award the two law degrees. The practice started at Marquette in 1926 and at Chicago-Kent in 1933, but it could well predate the 1920s at other schools.

The concentration of the “two types of law degree” schools in the Midwest (and particularly in Chicago) seems likely related to the presence of the highly prestigious University of Chicago which from its founding always required its students to have college degrees, and, beginning in 1902, it always awarded it graduates the J.D. degree.

In contrast, Harvard Law School, which was the first law school to insist on a prior undergraduate degree as a prerequisite for admission, considered the possibility of awarding some sort of doctorate in law in the early 1900s but decided to stay with the LL.B. Harvard also invested heavily in the early 20th century in graduate law programs that resulted in the award of LL.M. and S.J.D. degrees. Given that this graduate degree terminology did not really fit if the first law degree was called a doctorate, Harvard retained the undergraduate designation for its law degree. Given its great prestige, whatever was done at Harvard Law School was likely to imitated at law schools across the country.

It is not clear why a few schools like Marquette and the University of Washington once awarded both LL.B. and J.D. degrees but decided to stop doing so long before the 1960s. Washington eliminated the J.D. degree in 1938 and, as mentioned above, Marquette followed in the mid-1940s. The Marquette experience suggests that the decision may have been related to a lack of student interest in the more demanding degree, as well as to a general revamping of the law school that occurred immediately after World War II under the leadership of Dean Francis Swietlik.

There were a few other variations on the J.D. degree as well. At Georgetown in the 1930s, one could earn a J.D. degree, but only after earning an LL.B. degree, which made it more in the nature of an LL.M. or an S.J.D. degree. Another variation occurred at William & Mary where, for much of the 20th century, graduates received a B.C.L. degree rather than either the LL.B. or the J.D.

By the end of the 1960s, the variations in terminology had been eliminated and the letters “JD” are now synonymous with the words “law degree”. However, we live in a time when many of the assumptions of contemporary legal education are being reexamined, and the legitimacy of much of what has been long taken for granted is being reconsidered.

Perhaps one result of the current anxiety will be a movement away from the one-size-fits-all J.D. degree of the late 1960s to something more akin to the multiple-degree model embraced by Marquette in the 1920s and 1930s.


The Conservative Turn in Copyright Politics

Posted on Categories Intellectual Property Law, PublicLeave a comment» on The Conservative Turn in Copyright Politics

David Brooks had an interesting column earlier this week in which he asked, “Why aren’t there more liberals in America?” According to Gallup Poll numbers, about 41% of Americans self-identify as conservative, versus 36% moderate and 21% liberal. This strikes Brooks as a bit of a puzzle, since the financial crisis and the economic downturn would seem to support liberal beliefs in some ways. Brooks’s answer: “Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government. A few decades ago they did, but now they don’t. Roughly 10 percent of Americans trust government to do the right thing most of the time, according to an October New York Times, CBS News poll.”

Brooks goes on to speculate about the basis for that distrust: “Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.”

This all sounds very familiar. It’s essentially the basis of the current critique of copyright law: that Congress has become beholden to a few stakeholders, and as a result modern copyright law has become unmoored from any legitimate purpose and now simply apportions rents to favored dinosaur industries.

But even that description of the situation is not dark enough. Continue reading “The Conservative Turn in Copyright Politics”

The GAB’s Duty of “Careful Examination”: Why Judge Davis Got It Right

Posted on Categories Election Law, Public, Wisconsin Law & Legal System11 Comments on The GAB’s Duty of “Careful Examination”: Why Judge Davis Got It Right

I have written a few things on my personal blog about the GAB’s authority and duty to conduct a more thorough review of recall petitions than it apparently intends to conduct. Last Thursday, Judge Mac Davis ordered a more extensive review. Ed Fallone thinks that the judge got it wrong. I disagree. Here’s why.

Ed argues that “there are no explicit provisions in the statutes that direct the GAB to look for and eliminate duplicate, fictitious or unrecognizable signatures. Just a direction not to count signatures that are insufficient under Section 9.10(2)(e).”

I see two problems with this statement. First, the GAB’s obligation upon the filing of a petition is not limited to the elimination of signatures for the reasons set forth in § 9.10(2)(e). To the contrary, the obligation imposed on GAB is to “determine by careful examination whether the petition on its face is sufficient.” Wis. Stat. § 9.10(3)(b). Whatever that duty is, it is nowhere limited by § 9.10(2)(e). Second, as we will see, even if it is so limited, § 9.10(2)(e) does not relieve GAB of the obligation to do what Judge Davis ordered it to do.

So what does this duty of “careful examination” entail?

Continue reading “The GAB’s Duty of “Careful Examination”: Why Judge Davis Got It Right”

A Tale of Three States, Part 6: Happy Days

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on A Tale of Three States, Part 6: Happy Days

In the previous post in this series, I took the imprisonment data from Indiana, Minnesota, and Wisconsin back to 1991.  I’ve been interested, though, in pinpointing when exactly the Minnesota-Wisconsin imprisonment disparity arose, which requires going back further — much further, to the 1950′s.  Here are the numbers:

WI Imprisonment Rate (per 1000,000) Percent Change MN Imprisonment Rate (per 1000,000) Percent Change IN Imprisonment Rate (per 1000,000) Percent Change
1950 58.7 n/a 63.0 n/a 120.4 n/a
1955 61.6 4.9% 61.6 -2.2% 103.1 -14.4%
1960 69.5 12.8% 60.3 -2.1% 116.4 12.9%
1965 68.3 -1.7% 49.1 -18.6% 91.1 -21.7%
1970 67.3 -1.5% 41.7 -15.1% 79.6 -12.6%
1975 65.0 -3.4% 42.0 0.7% 73.0 -8.3%
1980 85.0 30.8% 49.3 17.4% 114.0 56.2%
1985 113.6 33.6% 55.9 13.4% 182.3 60.0%
1990 152.6 34.3% 71.9 28.6% 229.7 26.0%
1995 218.6 43.3% 105.1 46.2% 277.7 20.9%
2000 386.9 77.0% 126.8 20.6% 331.0 19.2%
2005 392.9 1.6% 173.1 36.5% 399.5 (est) 20.7%
2010 387.2 -1.5% 177.8 2.7% 459.9 15.1%


The numbers tell a remarkable story.  Here are some of the parts of that story that stand out for me:   Continue reading “A Tale of Three States, Part 6: Happy Days”

New Ventures and Old

Posted on Categories Election Law, Marquette Law School, PublicLeave a comment» on New Ventures and Old

As some members of the Law School know, last winter I received a grant from the Bradley Foundation to form a nonprofit law center that has come to be known as the Wisconsin Institute for Law & Liberty. WILL engages in public education and litigation in the public interest with respect to issues of constitutional government, individual liberty, and the preservation of a robust civil society. We currently have a staff of four, including Tom Kamenick (L’09), and look forward to expanding as we complete our first year of operation this July. You can read more about us here.

I am excited by WILL but also happy to be able to return to the Law School on the adjunct faculty and teach Election Law this spring. When I proposed the class and first taught it a few years ago, I thought it would be something that could be offered every two years for the politicos in the student body. I had no idea that it would be delivered during a time when Wisconsin had become a virtual election law laboratory. But that’s where we are and that’s where I’d like to go in my next blog post.

The Errors & Excitement of Being an Entrepreneur

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I chose Marquette because of its strong dispute resolution program. That training helped me to develop an ability to analyze not only legal issues, but also delve into the unspoken motivations that bring clients through the door. Managing conflict is a fundamental for lawyers. And it also works for landlords.

When I took a non-profit job in Troy, New York, I thought my career path would lead toward expanding and professionalizing the dispute resolution field. I did not expect to be knocking on doors to collect rent.

Legal training anticipates unexpected twists and turns, opening doors to new careers and opportunities. In addition to my day-to-day job, I also decided to become a landlord. Troy has beautiful Victorian brownstones and two universities with plenty of potential tenants. Purchasing rentals was obvious.

Continue reading “The Errors & Excitement of Being an Entrepreneur”

A Lesson Learned from a Great Bankruptcy Judge

Posted on Categories Eastern District of Wisconsin, Marquette Law School, Public1 Comment on A Lesson Learned from a Great Bankruptcy Judge

Judge Dale Ihlenfeldt Judge Dale Ihlenfeldt died right after Christmas. He was 92 years old and hadn’t sat on the bankruptcy court bench in Milwaukee for many years, though he remained active until fairly recently, including by teaching an annual CLE program in Madison in which I also participate. Teaching CLE required him to keep up on developments in bankruptcy law, and that suited him just fine, because he loved the law. He also liked lawyers, and his warm, engaging personality was always welcome whenever he could join us.

I learned a lot from Judge Ihlenfeldt over the years, but one of the most valuable lessons he taught me came very early in my legal career, and I see this story as making an important point for law students and new lawyers. The practice of law requires constant learning; you’ve barely begun to know what you need to know when you leave law school. And you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.

Back in the mid ’70s, as an associate at Foley & Lardner, I first appeared in bankruptcy court for banks and other creditors, often seeking to recover collateral or to oppose the discharge of a debt. I had appeared before Judge Ihlenfeldt a few times, and on this particular occasion he had ruled against me. I don’t remember the details, but the decision may well have involved the judge’s exercising some discretion, and he exercised it against my client. The case was over, and (as often happened in his court) the lawyers had lingered in chambers to talk. He could tell that I was upset at losing (not then having much experience at it—a condition that time has healed), and he turned to me, in his gentle way, and said, “Oh, Tom, you have to understand that we’re the bankruptcy court. Bankruptcy law is intended to benefit debtors, and you shouldn’t expect to win all the time when you represent creditors.”

This comment struck me at the time and many times since as one of the best lessons that a judge could teach a young lawyer. And it has implications beyond bankruptcy law. Good judges like Judge Ihlenfeldt call them as they see them and follow the law as they understand it. But a lawyer should never lose sight of the fact that much of the law (understood as being what judges do) is not black and white, but gray, and a judge’s instincts in the gray area—whether to afford a debtor relief, to let a plaintiff try to prove her case, or to cut a lawyer some slack—are every bit as much a part of the law as the stuff in the books. I’m glad that I learned that lesson early from a great judge.