Civil War Sesquicentennial, Part One

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This year marks the 150th anniversary of the beginning of the American Civil War or, as my friends in the South prefer to call it, the “War of Northern Aggression.” By whatever name, it was the bloodiest war in American history. There were more than 620,000 casualties (in a country with a total population of only 32 million) — more than all the wars we have been immersed in through present conflicts in Iraq and Afghanistan combined.

Recently I had the opportunity to tour the battlefields of Antietam in Sharpsburg, Maryland, and Gettysburg, nestled in the rolling hills and farmland of Pennsylvania. Walking the wide expanse of fields, climbing the hills, and traversing the countryside was a moving and inspiring experience I am honored to share with you.

Years of debate, rancor, and strong feelings, including fist fights and worse, among members of Congress, culminated in the election of Abraham Lincoln, the prairie lawyer from Illinois, to the Presidency of the United States in 1860. Lincoln’s platform did not mandate the abolition of slavery, but rather pledged to prevent it from being extended into new states and territories in the United States. Nevertheless, zealots on both sides of the issue pressed their positions and unrest continued to fester after Lincoln was sworn in.

Continue reading “Civil War Sesquicentennial, Part One”

What Must a Defendant Do in Order to Go It Alone?

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on What Must a Defendant Do in Order to Go It Alone?

While awaiting trial on criminal charges in federal court, Michael Campbell wrote the following in a letter to the judge:

Your honor I am asking that John Taylor [Campbell’s court-appointed lawyer] be removed from my case. I am requesting that you appoint another lawyer to complete the process. If not I would like to proceed pro se.

As my Criminal Procedure students have heard me discuss at length, defendants do indeed have a Sixth Amendment right to represent themselves.  Yet, Campbell’s request was not satisfied: Taylor continued to serve as his lawyer through the time of his trial and conviction.  Campbell then raised the issue on appeal, but the Seventh Circuit nonetheless affirmed his conviction earlier this week (United States v. Campbell (No. 10-3002)).  The court held, in effect, that Campbell should have renewed his request to go it alone, rather than sitting quietly throughout the trial as his lawyer continued to represent him.

Continue reading “What Must a Defendant Do in Order to Go It Alone?”

Mandatory Foreclosure Mediation: A Good Idea?

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The Florida Supreme Court has ordered a review of its 18-month-old mandatory foreclosure mediation program.  Should a similar process come to Wisconsin?

In July 2011, Wisconsin had the 10th highest foreclosure rate in the United States, only four spots behind the State of Florida.  Several initiatives in Wisconsin have attempted to inject mediation into the foreclosure process, with varying amounts of success.  Purely voluntary processes are flailing – with lenders refusing across the board to even attend the voluntary mediations.  More suggestive processes are seeing varying amounts of success. Continue reading “Mandatory Foreclosure Mediation: A Good Idea?”

Getting What You Pay For In Legal Education

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[Editor’s Note: This month, we asked a few veteran faculty members to share their reflections on what has changed the most in legal education since they became law professors.  This is the sixth and final entry in the series.]

Legal education is no longer lean. When I was hired as Marquette Law School’s third administrator in 1975, the Law School had about a dozen full-time faculty members and three professional law librarians. These days, the Law School has a dozen administrators, forty or so full-time faculty, and more than a dozen professional librarians. The Law School facility is more than three times larger than when I started at the Law School. That enrollment is up some, from about 450 full-time students to about 600 full-time students and another 150 part-time students, accounts for only a fraction of the growth.

The principal change I’ve seen in my 35+ years at the Law School (I was an adolescent when first employed by Marquette) is this amazing growth in the resources and cost of legal education. Students are paying unprecedented amounts for a law school education and receiving access to unprecedented resources in return.

Some of the most important new resources and costs are those mentioned by my colleagues in this blog series.   Continue reading “Getting What You Pay For In Legal Education”

The Unfortunately Forgotten Vernon X. Miller

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Who was the first Marquette University law professor to have clerked for a justice on the United States Supreme Court?  (Hint: the answer is not current dean Joseph Kearney.)  Who was the first, and only, Marquette law professor ever elected president of the Association of American Law Schools?  Who was the only Marquette Law Professor to have studied at Yale Law School during the heyday of legal realism and to be described by legendary Yale law professor Myres McDougal as a “confirmed American legal realist”?  (Hint:  Not David Papke.)  Who was the second Marquette law professor to become dean of the law school at Catholic University in Washington, D.C.?  (Hint:  John McDill Fox was the first.)  And finally, who was the first Marquette law professor to have been widely recognized as a leading national figure in the field of torts? (Hint:  Jim Ghiardi was the second.)

The answer to all of these questions is, of course, Vernon X. Miller. Continue reading “The Unfortunately Forgotten Vernon X. Miller”

Lawyer Jokes

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First, pop culture lawyers were heroes. Then, pop culture lawyers were devils. These two extremes capture most of what the world sees of lawyers—they are either pursuers or destroyers of justice based on the angle of perception or bias. However both of these extremes leave out a major aspect of every real American lawyer: their humanity.

Let’s face it; most real lawyers are not as serious or somber as they have been portrayed for years across pop cultural mediums. Real lawyers like every other human being have their moments of weakness and self doubt, of romantic uplift and heartache, and of senseless comedic revelry. The development of the jester lawyer began with shows at the turn of the millennium such as “Ally McBeal” and “Boston Legal.” Both television shows featured large metropolitan law firms with a slew of jester lawyers for a cast. The humor however was based not in their humanity, but their quirks. The shows were just extended lawyer jokes featuring lawyers who were old and senile, neurotic and paranoid, or just plain weird, with catty women and dogs of men. In this era of television, while lawyers were beginning to demonstrate some depth through the moral issues they faced both in and outside their cases, and through their personal and romantic lives, the laughter was still aimed at the lawyer.

Two more recent lawyer comedy shows have hit the airwaves in the last few years and both, I would argue, feature jester lawyers as main characters who you laugh with more so than you laugh at. These two shows, “Drop Dead Diva” and “Franklin & Bash” feature young attorneys who often tap into their humanity to find creative and persuasive ways of winning their cases. These young attorneys both recognize and understand the things they are doing are both outlandish and likely unprofessional—but they invite the audience to laugh with them as they continue to seek justice in an often confusing legal system. Continue reading “Lawyer Jokes”

Technology Has Enhanced Legal Education Significantly, But Its Essential Components Remain the Same

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[Editor’s Note: This month, we asked a few veteran faculty members to share their reflections on what has changed the most in legal education since they became law professors.  This is the fifth in the series.]

As I finish my twenty-second year as a law professor, I marvel at how technological advances and the proliferation of specialty courses have changed (and, in most instances, improved) legal education since I began my academic career in 1990.  Yet I am mindful that the essential components of a high-quality legal education remain unchanged (e.g., an interactive and engaging academic environment that stimulates critical thinking, reasoned legal analysis, creative problem solving, an understanding of legal doctrine and policy, and the development of effective verbal and written communication skills).

There were no laptops in the classroom when I begin teaching twenty-two years ago, and handwritten exam answers were the norm. Now it’s rare to see any student without his or her PC during class.   Continue reading “Technology Has Enhanced Legal Education Significantly, But Its Essential Components Remain the Same”

Evolution and the Constitution

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Recent news reports make much of the fact that, with one exception, none of the current Republican candidates for President has been willing to embrace the theory of evolution as the commonly accepted explanation of how the multiple forms of life currently existing on our planet came to be.  Instead, several of the Republican hopefuls have argued pointedly that creationism (the belief that all life was created by God in its current form) is an equally legitimate scientific theory on a par with evolution.  For example, Texas Governor Rick Perry has declared that evolution is “just one theory” among several that might explain the current state of biodiversity on the earth. Former Utah Governor Jon Huntsman is the only Republican candidate willing to take a strong position supporting the theory of evolution as a scientifically proven fact.

According to a December, 2010 Gallup Poll, a combined 54% of Americans believe that human beings evolved from less advanced life forms, either under God’s guidance or without any participation from God.  Meanwhile, 40% of Americans believe that God created human beings in their present form.  The survey results also indicate that the relative percentage of Americans who believe in some form of evolution (as opposed to creationism) rises as education levels rise.

Why then, do the Republican presidential hopefuls almost uniformly reject a scientific theory that is accepted by the majority of Americans? Continue reading “Evolution and the Constitution”

“Reality-Challenged Theories of Punishment”: Weisberg Lecture on Oct. 6

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I’m looking forward to Robert Weisberg’s talk here next week. He is delivering this year’s George and Margaret Barrock Lecture on Criminal Law. I think we can expect a pungent critique of retributive theories of punishment. Here is the description:

The theme of “American exceptionalism” has found perverse corroboration in the size of the prison population, according to Weisberg. At the same time, discourse about the “purposes of punishment” is thriving, with a recent revival of highly abstract theorizing about the nature and legitimacy of retribution, he says. In this lecture, Weisberg will describe the disconnection and recommend ways of overcoming it, stressing that the abstract theorizing must be more sensitive to what punishment means and what effects it has in modern America.

The lecture will be at 12:15 on October 6. For more information and to register, see the lecture website.

Doing Better Than “Nailing and Jailing” in the Fight Against Violence

Posted on Categories Criminal Law & Process, Marquette Law School, Milwaukee, Popular Culture & Law, Poverty & Law, Public, Speakers at MarquetteLeave a comment» on Doing Better Than “Nailing and Jailing” in the Fight Against Violence

As Milwaukee County Children’s Court Judge Joe Donald put it, “We do a very good job of trailing, nailing, and jailing.” But can Milwaukee do more when it comes to dealing with crime so that it can be prevented and the lives of those on the path to committing crimes turn out better?

The good news, participants in an “On the Issues” discussion Monday at Eckstein Hall generally agreed, is that the large majority of young people in the community are not involved in crime, that there are existing constructive programs involving thousands of youths , and those who went on highly-publicized sprees in the Riverwest neighborhood on July 3 and in and around the State Fair grounds on Aug. 4 are not typical.

The bad news is that it doesn’t take very many crimes to cause great harm, not only to the victims but to neighborhoods and the city as a whole, panel members agreed. Furthermore, criminals are getting younger and more violent, and the poverty which is so often the environment for criminals is getting broader and deeper in the city.  

The panel discussion, hosted by Mike Gousha, the Law School’s distinguished fellow in law and public policy, before an audience of about 200, followed the showing Sunday night at the Milwaukee Film Festival of a documentary, “The Interrupters,” about efforts to reduce youth violence in Chicago. Continue reading “Doing Better Than “Nailing and Jailing” in the Fight Against Violence”

Generalist Versus Specialist Judges

Posted on Categories Judges & Judicial Process, Legal Scholarship, Public1 Comment on Generalist Versus Specialist Judges

The Federal Circuit and a few other counterexamples notwithstanding, American courts are not substantively specialized.  By and large, the American judge is thus a generalist.  For better or worse, our judiciary seems to be holding out against the  pressures toward specialization that have so marked the contemporary legal and medical professions. 

Is this a good thing?  In the law review literature, there are plenty of calls for the creation of this or that new specialized court.  Certainly, specialization leads to quicker and more efficient decisionmaking.  But should we expect the specialized judge also to render decisions that are substantively better?

This is the question that lies at the heart of Chad Oldfather’s new article, “Judging, Expertise, and the Rule of Law.”  Continue reading “Generalist Versus Specialist Judges”