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Why Following the Rules Should Get You Out of Prison Early

By: Michael M. O'HearDecember 9, 2011Criminal Law & Process, Legal Scholarship, PublicLeave a comment»

I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.” Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison. It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated. No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates. Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation. Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light. In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime. If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

Cross posted at Life Sentences.

New Article by Prof. Calboli Explores Tension Between Free Trade and Trademark Rights

By: Michael M. O'HearDecember 8, 2011Intellectual Property Law, International Law & Diplomacy, Legal Scholarship, PublicLeave a comment»

Irene Calboli grapples with a longstanding controversy over the “first sale rule” in trademark law in her new article, “Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law,” 51 Santa Clara L. Rev. 1241 (2011). As she explains,

Trademark law grants trademark owners the right to prevent third parties from using identical or similar signs to identify confusingly similar products in the market. Nevertheless, once a trademark owner has introduced into the market a product, or a batch of products, these rights are considered exhausted with respect to those products, and the trademark owner can no longer rely on trademark rights to control the products‘ future circulation. . . . [F]ierce disputes have characterized the application of this principle in the context of international trade with respect to the parallel imports of gray market goods—i.e., genuine (originally manufactured) products, which are imported into a country from unauthorized third party importers after their first authorized sale by trademark owners in another part of the world.

In the article, Irene considers how the “first sale” issue has been addressed in North American and European trade law. The abstract to her paper appears after the jump.

Continue reading “New Article by Prof. Calboli Explores Tension Between Free Trade and Trademark Rights”

A Tale of Three States, Part One

By: Michael M. O'HearDecember 8, 2011Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment»

In this post from a few months ago, I offered a preliminary assessment of the wide disparity in incarceration rates between Wisconsin and Minnesota. I had just enough data then to raise some interesting questions. Now, with the capable help of a research assistant, Garrett Soberalski, I’ve assembled a much more extensive body of data, which I expect to analyze in a series of posts. Among other things, I thought it would be helpful to add a third state to the mix, so Indiana will also be included in the comparison. Another medium-sized midwestern state, Indiana has incarceration numbers that are even higher than Wisconsin’s.

In this initial post, though, I will focus just on the basics of the Wisconsin-Minnesota comparison.

So, here’s the essential story (as detailed in the chart that appears after the jump): Wisconsin incarcerates many more people than Minnesota, while Minnesota puts many more individuals on probation. The two states have about equal levels of crime, and Minnesota actually has a larger percentage of its population under supervision (that is, either incarcerated or on probation or parole release). However, because incarceration is so much more expensive than community supervision, Minnesota’s corrections budget is much smaller than Wisconsin’s (about $99 per resident, versus Wisconsin’s $234 per resident). Given the similarity of the two states’ crime rates, it appears that Minnesota’s probation-based strategy is delivering more bang for the buck than Wisconsin’s.

Continue reading “A Tale of Three States, Part One”

Why the Permit Policies in the U.S. Capitol Are Irrelevant

By: Edward A. FalloneDecember 8, 2011December 5, 2014Civil Rights, Constitutional Interpretation, First Amendment, Public, Western District of Wisconsin, Wisconsin Law & Legal System1 Comment

Confusion continues over the new Department of Administration rules announced December 1 which require advance permits for many demonstrations held within the Wisconsin State Capitol. Among the more controversial aspects of the policy are its applicability to small groups of protestors and the discretion granted to the State Capitol police to require permit seekers to pay security costs in advance. I have already written about the manner in which this policy goes too far, and how it impermissibly infringes upon the First Amendment rights of protestors.

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban? The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is. Continue reading “Why the Permit Policies in the U.S. Capitol Are Irrelevant”

American Restrictive Covenants and Israeli Community Exclusions

By: David R. PapkeDecember 7, 2011Legal History, Public, Race & Law, Religion & LawLeave a comment»

Controversies in the United States during the 1940s and 1950s regarding restrictive covenants related to race foreshadow current controversies in Israel regarding community exclusions of Arab citizens. Both controversies illustrate how difficult it is to maintain equality in a pluralistic society and underscore the importance of freedom to choose one’s housing in that effort.

In the United States, zoning according to race had been found unconstitutional in the early twentieth century, but segregationists turned instead to private restrictive covenants to keep African Americans and members of other minority groups out of white towns and neighborhoods. Fortunately, the United States Supreme Court ruled in Shelley v. Kraemer (1948) that a court enforcing such a restrictive covenant was denying equal protection of the laws and therefore acting unconstitutionally. Would-be segregationists then attempted to sue private parties for breaching the covenants when they sold or rented properties to African Americans, but the United States Supreme Court said that any court entertaining these suits was also acting unconstitutionally.

In Israel, starting in the 1970s, Jewish nationalists began settling in the sprawling exurbs of northern Israel, where membership committees often decide who can buy local homes. When Jewish-only communities emerged in the Negev and in Gallilee, Arab citizens sued, arguing they were being excluded. The Israeli Supreme Court barred the exclusion, asserting that “equality is one of the foundational principles of the State of Israel.” However, just this year the Knesset in effect overruled the judiciary by enacting a law that allows local membership communities to reject potential residents who did not fit the “social-cultural fabric.”

Both extended controversies suggest that equality is impossible if citizens of different races and religions are not free to live where they want. One’s home and one’s ability to choose it are a base for one’s sense of equality, not in the Blackstonian sense of each man’s home is his castle but rather as a starting point for civic self-actualization. How can one understand oneself as equal without the same freedom as others to decide where to live?

Learned Hand on the Politics of Judicial Appointments

By: Ryan ScovilleDecember 7, 2011December 7, 2011Federal Law & Legal System, Judges & Judicial Process, Legal History, Public2 Comments

In debates over potential reforms to the judicial appointments process, there seems to be a pervasive sense that the problem of politicization is a relatively new one. In terms of the frequency with which the Senate rejects even highly qualified nominees and the extent to which overt partisanship has crept into the evaluation of candidates for lower courts, that sense seems pretty accurate. More than either of his two most recent predecessors, President Obama has had a difficult time securing Senate approval of his picks for the judiciary, as I previously discussed here.

I think it’s helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther’s biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank’s death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical. Continue reading “Learned Hand on the Politics of Judicial Appointments”

Exams Tomorrow? Study Tip: Relax

By: Lisa A. MazzieDecember 5, 2011Legal Education, Marquette Law School, Public1 Comment

[Editor’s Note: This month, faculty members are posting on their exam taking tips. This is the fourth post in the series.]

As law students know, tomorrow begins exam week. We have endeavored to present some exam taking tips from some of the faculty who will be administering those exams. (Those tips can be found here, here, and here.) I’d like to add one more to the list. Relax.

It may seem odd to say “relax,” but I think “relax” is an important exam taking tip that is often overlooked. Continue reading “Exams Tomorrow? Study Tip: Relax”

Police Stops Go Up, Citizen Complaints Go Down — What Gives?

By: Michael M. O'HearDecember 5, 2011Criminal Law & Process, Milwaukee, Public2 Comments

The Milwaukee Police Department has just released some new data on traffic and subject stops. There is a fascinating story here on policing strategy. Since 2007, Milwaukee has experiened a dramatic increase in the number of stops: both traffic and subject stops are up close to 250%. This has been part of a deliberate strategy to increase the number of police-citizen contacts, especially in high-crime neighborhoods. (The MPD has also been very active over the past four years in promoting uncoerced police-citizen contacts, too.) The objectives are to gather intelligence, disrupt criminal activity, and enhance community perceptions of safety in public spaces.

As hoped, crime has indeed gone down considerably since 2007: violent crime is down 24%, and property crime is down 21%. Whether and to what extent the increased-stops strategy has caused the crime drop is uncertain — the MPD has also made some other significant changes in the past four years, and, in any event, crime has been dropping nationwide — but the causal claim strikes me as at least facially plausible. Providing some additional support is a month-by-month breakdown of auto theft and robbery data: in general, in months when stops have lagged, auto thefts and robberies have gone up; in months when stops have increased, auto thefts and robberies have dropped.

But safety has a cost.

Continue reading “Police Stops Go Up, Citizen Complaints Go Down — What Gives?”

Greetings From Your December Alumni Blogger!

By: Devan BruaDecember 5, 2011Legal Education, Legal Practice, Legal Writing, Marquette Law School, PublicLeave a comment»

As I’m sure many of you have read, there have been numerous articles lately discussing how in the current economic climate some clients are refusing to pay for work done by first year associates. These articles often go on to criticize law schools in general for inundating students with legal theory only, and not preparing graduates for the actual practice of law. One recent article can be found here. Other notable articles, like this one discuss whether investment in a legal education is worth the cost, and suggest that a technical education might be a better bet financially.

A true discussion on the merits of these articles could easily lead to hours of debate. In fact, given the current job market, employment statistics, and the cost of a legal education, it might be easy to agree with these authors. But I think there are benefits to legal education that can’t be measured in dollars and cents, and for me these articles are discouraging and devalue a hard earned legal education.

Thus, as alumni blogger of the month, and an employed professional, I want to use my first blog post to remind myself and others of the many ways my education at MULS prepared me for work in the professional world. So, below is my personal list for your consideration, feel free to add to it in the comment section. Continue reading “Greetings From Your December Alumni Blogger!”

Professor Mitten’s Exam Taking Essentials for Essay Questions

By: Matthew J. MittenDecember 5, 2011Legal Education, Marquette Law School, PublicLeave a comment»

[Editor’s Note: This month, faculty members are posting on their exam taking tips. This is the third post in the series.]

Law school essay exams are a completely different kind of essay exam than what students might be used to. Here, Professor Mitten shares his essentials for taking law school essay exams.

1. Carefully read question at least twice and sort out what happened. It may be helpful to draw a chronological diagram of the parties’ conduct.

2. Determine the question(s) that you are being asked to consider. For example, it may be broad (e.g., discuss the parties’ respective claims) or very specific (e.g., consider A’s claims against B). Some professors (like me) will give you credit only for answering the question asked.

3. Identify each plaintiff’s claims and address each claim separately. For example, in torts, tell the professor who (plaintiff) is suing whom (defendant) for what (tort)? Continue reading “Professor Mitten’s Exam Taking Essentials for Essay Questions”

What Price Protest?

By: Edward A. FalloneDecember 3, 2011December 6, 2011Civil Rights, Constitutional Interpretation, First Amendment, Poverty & Law, Public, U.S. Supreme Court4 Comments

On December 1, the Wisconsin Department of Administration released new rules governing access to state facilities, including the State Capitol, for protests, rallies, demonstrations and any other “gathering of four or more people for the purpose of actively promoting any cause.” You may read the entire policy here.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.” Continue reading “What Price Protest?”

The Need to Understand Course Material

By: Carolyn EdwardsDecember 3, 2011Legal Education, Marquette Law School, PublicLeave a comment»

[Editor’s Note: This month, faculty members are posting on their exam taking tips. This is the second post in the series.]

Law students dread the exam process. This feeling is no surprise given the fact that in many courses examination grades become final grades. Unfortunately, agreement on a simple technique that maximizes effective learning does not exist. But there is some agreement on pitfalls that every student should avoid during times of study and review. One pitfall is failing to process and understand course material. It is so easy to simply turn the pages of a textbook or stare at a course outline that appears on a computer screen and then conclude: “I understand this topic. It’s clear as can be and I don’t need to review it again.” Continue reading “The Need to Understand Course Material”