A Non-terminal Man

Posted on Categories Health Care, Public, Wisconsin Law & Legal System1 Comment on A Non-terminal Man

I was asked to talk about the law’s view of the case of Dan Crews, age 27, who wants to die as soon as possible. You may have read about him last fall in the Journal-Sentinel, and in spring in the Chicago Tribune as the story unfolded. You might hear about him on the WISN 10 o’clock news on Sunday, November 6.

Dan has had quadriplegia since a traffic accident when he was three years old, and uses a ventilator because his chest muscles don’t allow him to breathe on his own. He’s mentally sharp, and verbal since the ventilator is attached through a trachea tube. He has earned an AA degree.

He wants to switch off the respirator so he will stop breathing. Specifically, he wants help from Froedtert Hospital, where he has received his care over the years, to switch off the respirator.

My totally unscientific poll revealed that the well-settled law in this area is about as well-known as speed limits. Dan has a right to refuse medical treatment, and no one thinks the use of a respirator is anything other than medical treatment. Continue reading “A Non-terminal Man”

On Dazzling Topic Sentences

Posted on Categories Legal Writing, PublicLeave a comment» on On Dazzling Topic Sentences

[Editor’s Note:  This month faculty members share their favorite brief writing or oral argument tip.  This is the second entry in the series.]  In the theme of the Faculty Blog’s topic of the month, the best brief-writing tip I have received is to spend a lot of time crafting excellent topic sentences.

We all know that topic sentences are extremely important. Together, they comprise a brief’s skeleton, without which the lawyer’s argument cannot take shape. They reflect the brief’s essential points, and clarify the relationships between its paragraphs. A reader should be able to understand the basic contours of the brief’s argument by reading nothing more than the topic sentence of each paragraph.

There are a couple of easy ways to improve the quality of topic sentences. First, make sure that all of your most important arguments make their way into one of them. Doing so improves clarity by enhancing the visibility of the key arguments. Second, reading only the topic sentences, ask whether they logically fit together, and make changes to the extent that they do not. This technique helps to ensure that the brief is well-organized and flows smoothly. Finally, as with all aspects of legal writing, prioritize simplicity. Focus on clarity and directness so that the topic sentences can effectively communicate your most important points.

New Issue of Marquette Lawyer Focuses on Sports Law Program and Milwaukee Getting “Smart on Crime”

Posted on Categories Marquette Law School, PublicLeave a comment» on New Issue of Marquette Lawyer Focuses on Sports Law Program and Milwaukee Getting “Smart on Crime”

The Fall 2011 issue of the Marquette Lawyer arrived this week.  The articles can be downloaded here.  Highlights include articles on:

The issue also includes an introduction by Marquette’s new President, Scott R. Pilarz, S.J.

Abby Ramirez: Believing in What’s Possible for Milwaukee Schools

Posted on Categories Education & Law, Marquette Law School, Milwaukee, Milwaukee Public Schools, Public, Speakers at MarquetteLeave a comment» on Abby Ramirez: Believing in What’s Possible for Milwaukee Schools

Abby Ramirez wants other people to come to – and act on — the same beliefs she has: That a large majority of low-income children can become high-performing students and that the number of schools where such success is widespread can be increased sharply in Milwaukee.

In an “On the Issues” session with Mike Gousha at Eckstein Hall on Tuesday, Ramirez described the work of Schools That Can Milwaukee, a year-old organization that has the goal of increasing the number of students in high-performing schools to 20,000 (more than twice the current total) by 2020. Ramirez is executive director of the organization.

“If you haven’t seen a high-performing school, go visit one because it will change your belief in what’s possible,” she told about 150 people at the session hosted by Gousha, the Law School’s distinguished fellow in law and public policy. She said you can tell in such a visit that the program is different – more energetic, more focused, more committed to meeting ambitious goals – than in schools where there is an underlying belief that the students aren’t going to do well because of factors such as poverty.  

“Expectations are huge” as a factor in putting a school on the path to high levels of success, she said. She also said the leadership of the school is a crucial factor.

Continue reading “Abby Ramirez: Believing in What’s Possible for Milwaukee Schools”

Severability and the Erie Doctrine

Posted on Categories Federalism, Public, U.S. Supreme CourtLeave a comment» on Severability and the Erie Doctrine

“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. And the doctrine is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional component is severable.

But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application. Continue reading “Severability and the Erie Doctrine”

Falling Leaves and Rising Stress Levels?

Posted on Categories Legal Education, Public3 Comments on Falling Leaves and Rising Stress Levels?

The leaves are changing, the nights are cool, and there’s a nip in the air in the early mornings.  That means it’s October, which means for most law students that school has been in session for nearly two months (for most students).  It’s around this time that the 1Ls perhaps notice an increase in workload.  Now there’s not just reading and briefing for class – which may be clipping along more quickly now – but probably assignments due in their writing classes.  All along, in the background, 1Ls are hearing people talk about “getting those outlines started.”  Second years have hustled through the on-campus interview process, which seems more selective than ever, and some are working their way through call-backs.  Others are frustrated that they aren’t getting any call-backs.  And likely most 3Ls are themselves working on getting jobs, knowing with that as each day passes, they are one step closer to graduation and one step closer to having to pay back those loans.

Perhaps here is where the stress starts to kick in.

Not all stress is bad; stress often gives us the kick in the pants we need to get things done, and we can return to “normal.” But for law students, the stress can seem to be ongoing, weighing them down for weeks or maybe months.  Is there any way for law students to avoid this stress? Continue reading “Falling Leaves and Rising Stress Levels?”

Do We Need an Anti-Siphoning Act in the United States?

Posted on Categories Media & Journalism, Public, Sports & Law3 Comments on Do We Need an Anti-Siphoning Act in the United States?

The remarkable Milwaukee Brewers have now reached the second round of the Major League Baseball play-offs, but many Brewers fans have yet to have the opportunity to stay at home and watch the team play post-season games on television. The reason, of course, is that this year all first round play-off games as well as the second round of National League play-offs are shown only on cable television. Those who don’t subscribe to cable are shut out of watching the Brewers on television, unless they can make their way to Long Wong’s Sports Bar on Blue Mound Avenue, or some other similar establishment.

This was, of course, not always the case. Until 1996, all Major League Baseball post-season play-off games were on free television. That year, ESPN won the right to broadcast any first round play-off games not aired by NBC or FOX, then Major League Baseball’s primary broadcast partners. Since that time, the number of play-off games on pay television has been steadily creeping upward.

In Australia and in many European countries, the local equivalent of Major League Baseball’s playoff games would be required by law to be broadcast on free television. Called anti-siphoning statutes, these laws dictate that certain sporting events must be made available for broadcast on free, open-air stations, if they are broadcast at all.

Continue reading “Do We Need an Anti-Siphoning Act in the United States?”

The Extrajudicial Killing of Anwar al-Awlaki

Posted on Categories Constitutional Interpretation, Human Rights, International Law & Diplomacy, President & Executive Branch, Public1 Comment on The Extrajudicial Killing of Anwar al-Awlaki

On Friday, September 30, 2011, Anwar al-Awlaki (Aulaqi), a U.S. citizen and well-known al-Qaeda figure, was targeted and killed during a U.S. drone strike in Yemen. Samir Khan, also a U.S. citizen, was killed in the same attack. Khan was the editor of Inspire, an English-Language al-Qaeda magazine that, among other things, publishes how-to articles designed to help terrorists build bombs for jihadist attacks against Americans.  Awlaki was perhaps best known in the U.S. for planning the failed underwear bombing of a commercial airliner over Detroit in 2009 (the alleged bomber’s criminal jury trial is currently underway), and for helping plan the 2009 massacre at Fort Hood.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment. Continue reading “The Extrajudicial Killing of Anwar al-Awlaki”

Al Davis, R.I.P.

Posted on Categories Public, Sports & Law1 Comment on Al Davis, R.I.P.

The late Al Davis, the mercurial owner and general manager of the Oakland Raiders football team, arguably had a greater impact on American sports law than any member of his generation.

Davis reached the pinnacle of American sport even though he possessed neither great athletic ability nor access to financial resources. Born in Brocton, Massachusetts, Davis spent his childhood and adolescence in Brooklyn, and his voice never lost its New York edges. After finishing Erasmus High School in Brooklyn shortly after the end of the Second World War, Davis entered Syracuse University hoping to play either football or baseball. His lack of success on the playing fields prompted him to transfer to Wittenberg University in Springfield, Ohio, but after a year there, he transferred back to Syracuse where he played on the junior varsity football team and sought unsuccessfully to land some sort of coaching or managerial position with the varsity.

After graduating from Syracuse with a degree in English in 1950, Davis relied on New York connections to land a job as an assistant football coach at Adelphi University on Long Island, and for the rest of the 1950’s, he travelled from one assistant coaching job to another, putting in time at Adelphi, the U.S. Army base at Ft. Belvoir, the Citadel, and at the University of Southern California where he helped coach the offensive line. Continue reading “Al Davis, R.I.P.”

Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law

Posted on Categories Civil Rights, Constitutional Interpretation, Election Law, Public, U.S. Supreme Court10 Comments on Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law

In August 2011, The League of Women Voters of Wisconsin publicly announced its intention to file a lawsuit challenging the constitutionality of the new Wisconsin Voter ID law. While no complaint has been filed as of date, and it is undoubtedly foolish predict the likelihood of success of any lawsuit without first reading the complaint, one would expect the promised lawsuit to face a hostile reception in the courts. This statement does not mean that the Wisconsin Voter ID law reflects good public policy. Many people believe that it does not. Nor does the above statement mean that the existing judicial precedent focusing on state voter ID laws does a particularly credible job at analyzing the constitutional issues raised by this type of legislation. Many will argue that the existing precedent is flawed. However, the current legal landscape is what it is, and the fact remains that any future legal challenge by the League of Women Voters seems unlikely to succeed.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot. Continue reading “Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law”

R.I.P. Derrick Bell, Pioneer of Critical Race Theory

Posted on Categories Civil Rights, Education & Law, Legal Scholarship, Public, Race & Law2 Comments on R.I.P. Derrick Bell, Pioneer of Critical Race Theory


On Wednesday of this week, the world lost several visionaries. Rev. Fred Shuttlesworth, a prominent civil rights activist, and Steve Jobs, co-founder of Apple, Inc. both died.  But there was a third visionary whose light went out on Wednesday:  Derrick Bell.

Bell was a visiting professor of law at New York University School of Law when he died. He is considered a pioneer of critical race theory, which theory examines issues of race, racism, and power in law and legal institutions.  But while he had spent most of his life as an academic, his roots – and his defining experiences – were in civil rights. Continue reading “R.I.P. Derrick Bell, Pioneer of Critical Race Theory”

Weisberg on Mass Incarceration and Purposes of Punishment

Posted on Categories Criminal Law & Process, Public, Speakers at MarquetteLeave a comment» on Weisberg on Mass Incarceration and Purposes of Punishment

Bob Weisberg’s just-delivered Barrock Lecture, “Reality-Challenged Theories of Punishment,” can be viewed here. After reviewing the extraordinary data on the mass incarceration phenomenon in America, Bob considers the implications for each of the traditional purposes of punishment (retribution, incapacitation, general deterrence, specific deterrence, and rehabilitation). I think he is spot-on that the theorists advocating for each of these different approaches have not adequately come to grips with the realities of mass incarceration. Punishment theorists frequently bemoan their marginalization in the policymaking realm. Perhaps they could make their work seem more relevant outside the academy if they took better account of the scale of contemporary incarceration and its particular impact on certain social groups.