A.B.A. Rejections of Obama Judicial Nominees

Posted on Categories Federal Law & Legal System, Judges & Judicial Process, PublicLeave a comment» on A.B.A. Rejections of Obama Judicial Nominees

Speaking through its judicial vetting committee, the A.B.A. has rejected fourteen of President Obama’s potential nominees for the federal bench. The overall rejection rate was 7.5 percent, a rate three and a half times that for the eight-year administrations of both President George W. Bush and President Bill Clinton.

Why has the A.B.A. been less enthusiastic about the Obama judicial nominees? One simple theory is that the organization is more conservative than many think. It used to be assumed the A.B.A. had a liberal bias, but the rejected nominees are Obama-style liberals.

Another theory involves the experiences and career paths of the nominees. Most were government lawyers and academics, but the A.B.A. apparently wants significant trial experience. The A.B.A., like the general public, may think that “true” lawyers are litigators.

The most troubling theory for the high rejection rate is that the A.B.A. continues to imagine a white, male federal judiciary. Eight of the fourteen rejections are African American or Hispanic, and nine are women.

President Obama could still seek Senate confirmation for his nominees, but regardless of what he decides on that score, the rejections provide new perspectives on the A.B.A. The emerging image is hardly attractive.


New Affirmative Action Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Federal Civil Litigation, Higher Education, Public, Race & Law, U.S. Supreme Court2 Comments on New Affirmative Action Cases

[Editor’s Note: This month, faculty members are posting on upcoming judicial decisions of particular interest. This is the second post in the series.]

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies. Continue reading “New Affirmative Action Cases”

Two Flaws in the SOPA

Posted on Categories Intellectual Property Law, PublicLeave a comment» on Two Flaws in the SOPA

This is the second post in a series looking at the Stop Online Piracy Act, a House bill that’s been getting a lot of attention lately. In Part I of this series I looked at Section 102 and concluded that it was largely unobjectionable. Section 102 essentially provides the DOJ with supplemental provisional remedies it can use against sites that are violating U.S. criminal laws but are beyond the effective reach of U.S. courts. There may still be valid concerns with Section 102, and I plan to address a couple in a later post, but it doesn’t seem to pose any special danger to the Internet or existing copyright law.

Then there’s Section 103. The idea behind Section 103 appears to be to provide copyright owners in a civil case with similar provisional remedies as in Section 102, following some sort of notice-and-takedown scheme reminiscent of Section 512 of the DMCA. And if all Section 103 targeted was foreign “rogue sites” as well, then there would be much less cause for concern. But Section 103 appears to go well beyond that. In contrast to Section 102, there’s nothing in the definition of the sites targeted under Section 103 — sites “dedicated to theft of U.S. property” — that limits those sites to sites outside the jurisdiction of United States courts. In fact, Section 103 seems weirdly out of place next to the more limited Section 102, and is out of sync with how defenders of the bill are describing it, which is as a narrow provision designed to combat foreign “rogue sites.” Section 103 is weird in a number of ways that suggest that it is the result of a sort of pastiche compromise between a narrow provision targeting rogue sites in civil suits and an all-out amendment of Section 512 of the Copyright Act. There’s two aspects of Section 103 in particular that I find little short of bizarre: (1) it sets up a notice-and-takedown regime that, as far as I can determine, is completely voluntary, but it uses the word “shall” in describing what recipients must do; and (2) it refers to “a cause of action under this section” without ever describing what that cause of action is. Continue reading “Two Flaws in the SOPA”

Trying to Get Away From Lawyers? Wisconsin May Not Be Such a Bad Place to Be

Posted on Categories Legal Education, Legal History, Legal Practice, Public, Wisconsin Law & Legal SystemLeave a comment» on Trying to Get Away From Lawyers? Wisconsin May Not Be Such a Bad Place to Be

The United States Bureau of Labor Statistics calculates what it calls the “location quotient” for individual occupations.  This statistic is computed on a state-by-state basis and reflects the percentage of a jurisdiction’s population employed in a particular job or profession.

The “location quotient” looks at the place in which the job is performed and not the jurisdiction in which the job holder is domiciled.  Hence, a lawyer who lived in Maryland, but practiced in the District of Columbia would be counted as a D.C. lawyer.

With a current “location quotient” of 0.65, Wisconsin is tied with Alabama for 40th place among the 51 states and the District of Columbia.  The only states in which lawyers are less “common” are North Dakota (0.40); South Dakota (0.43); Iowa (0.47); Indiana (0.54); Nebraska (0.58); Tennessee (0.59); North Carolina (0.59); Wyoming (0.59); and Mississippi (0.61).

The per capita number of lawyers in Wisconsin is significantly lower than that for its neighboring states of Michigan (0.77) and Minnesota (0.88), and it pales in comparison to Illinois (1.18).

Lawyers are, not surprisingly, most common in the District of Columbia which has a location quotient of 10.05.  Next on the list are New York (1.77); Delaware (1.49); Florida (1.32); Massachusetts (1.21); New Jersey (1.20); and Illinois (1.18).

As I pointed out a number of years ago in an article published in the Wisconsin Law Review entitled “The Wisconsin Lawyer in the Gilded Age,” there is nothing new about this phenomenon.  Wisconsin had fewer lawyers, per capita than most American states in the 19th century and the pattern has persisted into the 21st century.  One might be tempted to think that the diploma privilege had something to do with it, but the number of lawyers per capita is lower in Iowa than it is in Wisconsin, even though Iowa did away with the diploma privilege in 1884. (Iowa had followed Wisconsin’s lead and had adopted the diploma privilege for the state university law school in 1873.)

The full set of data compiled by the Bureau of Labor Statistics can be found by clicking here.

Beware Black Friday

Posted on Categories Negotiation, Public6 Comments on Beware Black Friday

In honor of the upcoming shop-a-thon known as Black Friday, I am linking to last week’s article in Newsweek about how we need to shop.  The science behind this impulse is the same that we deal with in negotiation in terms of how clients view risk, loss, and gratification.  In full disclosure, here’s a picture of  my most recent inability to delay gratification.

As the authors write,

Indeed, the choice to spend rather than save reflects a very human—and, some would say, American—quirk: a preference for immediate gratification over future gains. In other words, we get far more joy from buying a new pair of shoes today, or a Caribbean vacation, or an iPhone 4S, than from imagining a comfortable life tomorrow. Throw in an instant-access culture—in which we can get answers on the Internet within seconds, have a coffeepot delivered to our door overnight, and watch movies on demand—and we’re not exactly training the next generation to delay gratification.

Continue reading “Beware Black Friday”

U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why

Posted on Categories Criminal Law & Process, PublicLeave a comment» on U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why

The Bureau of Justice Statistics released a new report yesterday showing that the number of adults under community supervision declined by 1.3 percent in 2010.  Entitled Probation and Parole in the United States, 2010, the report summarizes the most recent national data on community supervision.  The decline in 2010 built on a smaller drop in 2009, and may point toward a long-term retreat from the massive increase in the American supervised population that occurred in the 1980′s and 1990′s.

Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults.  This compares to a supervised population of less than 1.4 million in 1980.

The supervised population includes both probationers and those released from prison to community supervision.  (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”)  The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010.  Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.

Why are fewer Americans on probation?  The report provides no definitive answers, but some clues are apparent.

Continue reading “U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why”

Answers to Some Common Questions About American Indians

Posted on Categories Federal Indian Law, Federal Law & Legal System, Public, Wisconsin Law & Legal System1 Comment on Answers to Some Common Questions About American Indians

This blog is written largely for the benefit of non-Indians, readers who have no affiliation with one of the hundreds of federally recognized tribes, eleven of which are found in Wisconsin.  I teach a course on federal Indian law at Marquette’s law school, and the questions that follow are just a few of the ones that I often encounter personally or hear in public discussions. Continue reading “Answers to Some Common Questions About American Indians”

Stirring the Education Policy Pot

Posted on Categories Education & Law, Marquette Law School, Milwaukee, Milwaukee Public Schools, Public, Speakers at Marquette3 Comments on Stirring the Education Policy Pot

Can you change the world with a conference? Patch things up with a few panel discussions? The answer, of course, is rarely yes. So I don’t make any huge claims about what was accomplished at the conference, “Fresh Paths: Ideas for Navigating Wisconsin’s New Education Landscape,” on Nov. 17 in Eckstein Hall. (I say that as a person who worked on organizing it.)

But stirring the pot can move the cooking process forward. Spreading important and provocative thoughts can get people thinking along lines they might not have considered previously. Bringing a wide range of committed people together can lead to conversations – informal, as well as formal – that start something rolling.

I hope, and I’m even a bit optimistic, that we served some of those purposes at the conference, sponsored by Marquette Law School and the Marquette College of Education and attended by almost 200 people. The audience included key education policy figures across the spectrum, from union leaders to an advisor to Gov. Scott Walker.

I thought of the conference as a musical piece in four movements: What can be learned from what has been done in developing a new school system in New Orleans in the aftermath of Hurricane Katrina in 2005; getting a handle on the rapidly developing movement nationwide to overhaul teacher evaluations as a key to improving teacher effectiveness; a look at community efforts to improve educational outcomes overall in Milwaukee; and general assessments of what is needed in educational thinking to move Wisconsin forward. That meant we had three keynote speakers, all of them figures of national standing who were fresh faces to Wisconsin’s educational debate, and more than a dozen panelists, including important  figures in state and local education policy.

Feel free to sample the nearly five hours of video that we have posted online from the conference. And let me share with you a few moments that stick out for me:

Continue reading “Stirring the Education Policy Pot”

Seventh Circuit Overturns Sentence for Lack of Explanation

Posted on Categories Criminal Law & Process, Federal Sentencing, Public, Seventh CircuitLeave a comment» on Seventh Circuit Overturns Sentence for Lack of Explanation

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990′s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a sentence below what is recommend by the sentencing guidelines.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.   Continue reading “Seventh Circuit Overturns Sentence for Lack of Explanation”

Tackling the Unauthorized Practice of Law in Wisconsin Today

Posted on Categories Immigration Law, Legal Ethics, Legal Practice, Pro Bono, Public, Wisconsin Law & Legal System2 Comments on Tackling the Unauthorized Practice of Law in Wisconsin Today

Professor Michael McChrystal once pointed out that in the State of Wisconsin, the penalty for working as a beautician without a license is not much different from the penalty for practicing law without a license. Continue reading “Tackling the Unauthorized Practice of Law in Wisconsin Today”

What’s Up With SOPA?

Posted on Categories Intellectual Property Law, Public2 Comments on What’s Up With SOPA?

The tech blogosphere is abuzz with discussion of yesterday’s House Judiciary Committee hearing on SOPA, the Stop Online Piracy Act, H.R. 3261. (Mainstream news sites seem not to have noticed; the New York Times website front page mentioned the impending sale of Yahoo, but not SOPA.) A good deal of that discussion refers to SOPA in apocalyptic terms: the bill would allegedly “break the Internet,” or “end the Internet as we know it,” or drive YouTube and Facebook out of business if enacted. Even non-lawyer relatives are asking me about it.

Does the bill really do all that? No. Copyright-related debates have been going on long enough, and at such a fever pitch, that such predictions are pretty much the price of admission now to rally the troops. There’s a pretty good inductive argument that predictions of the imminent death of the Internet or of the content industry are actually a reliable indicator that neither the Internet nor the content industry will die. But that doesn’t mean SOPA’s a good idea. So step one is figuring out what it does.

I’ve sat down and read the bill and there’s some aspects to it I think are misunderstood — perhaps by almost everyone. One of its provisions is much more narrowly targeted, and I think reasonable, than is generally being described. I’m going to break this discussion up into a few posts, and I’ll tackle that one first. A second provision is … deeply odd, in ways I haven’t seen mentioned, and I have serious reservations about it, but it is probably not the Vishnu-like destroyer of worlds it is being portrayed as. Finally, I’ll wrap up with some thoughts on what drives copyright rhetoric and politics generally. Continue reading “What’s Up With SOPA?”