Restorative Justice Conference: Keeping the Victims Foremost

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The eight-year-old who wasn’t there: That was one of the most important people involved in last week’s impressive two-day conference at Eckstein Hall on dealing with clergy sex abuse scandals.

The Archbishop of Dublin, Ireland, the Most Reverend Diarmuid Martin, brought the eight-year-old into the conference.

Of course, no children were literally present. But Archbishop Martin, who has attracted substantial international attention for his strong stands in the aftermath of large-scale scandals in Dublin, recounted how he had a bit of time before a program at a school he was visiting. The principal asked if there was anything he wanted to see. He said he wanted to visit a class of eight-year-olds.

The reason, he said, was that he wanted to look at their faces and underscore in his own mind their images. When people deal with issues related to the scandals, they tend to see the victims as the adults they are when what happened to them comes to light, the archbishop said. He said, “It is important to see the face of eight-year-old.”

When dealing with the issue of sex abuse, it is the images of the victims, both as children and adults, that should come to mind first, not the images of clergy members or the situation of the church overall, Martin said.

That was one of the key messages of the conference, “Harm, Hope, and Healing: International Dialogue on the Clergy Sex Scandal.” The sessions, the Law School’s annual Restorative Justice Initiative conference for this year, brought together experts from around the world and attracted wide attention, particularly in the Catholic press.

Continue reading “Restorative Justice Conference: Keeping the Victims Foremost”

Another Law Gone Wrong

Posted on Categories Constitutional Interpretation, Public2 Comments on Another Law Gone Wrong

I’m not sure if this meets the precise definition of a “law gone wrong,” but in my home state of Virginia it is illegal “to hunt or kill any wild bird or wild animal, including any nuisance species, with a gun, firearm or other weapon on Sunday, which is hereby declared a rest day for all species of wild bird and wild animal life.”

Although I was born into a family of church-going hunters, I was always more sympathetic to the church part than to the hunting part.  Consequently, I have no problem whatsoever with Sunday, or any other day for that matter, being declared a day of rest for wild animals (or at least a day on which they cannot be killed).

What I find peculiar (and wrong) is the statute’s one exception:  day of rest notwithstanding, raccoons can be hunted and killed in Virginia on Sundays, so long as the hunting is done between midnight and 2:00 a.m.  (I am not making this up.  If you doubt this, check out Va. Code § 29.1-521(A)(1).)

Because of their semi-domesticated qualities, especially when young, raccoons have always been my favorite wild animals.  But even without this affection, I would like to think that I would find it unfair, and  maybe even unconstitutional in some sublime sense, that one species of woodland animal would be deprived of 1/12 of its statutory day of rest.

Can such a classification purport to have a rational basis?  After Romer v. Evans and United States v. Virginia, I think not.


Nathan Fishbach Honored—and the Law School, Too

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Nathan Fishbach Nathan Fishbach, shareholder at Whyte Hirschboeck Dudek, received the Eastern District of Wisconsin Bar Association’s Judge Myron L. Gordon Lifetime Achievement Award today. That itself might be worth recording in these annals (cf. Prof. Jessica Slavin’s blog post from two years ago concerning awards by the EDWBA to Michael O’Hear and Tom Shriner). For Nathan has been a member of our Advisory Board and otherwise a great friend of the Law School.

But permit me to note that the Law School was allowed to share in the honor in an important (and lasting) sense. For Nathan’s firm, Whyte Hirschboeck Dudek, announced today that it will use the occasion of Nathan’s award to honor him by creating the Nathan Fishbach Student Development Fund at Marquette Law School. My role in this is small (being on the receiving end of a gift or saying “thank you, yes” is easy), but I wish to elaborate on this matter a bit.

Nathan is a highly skilled attorney, with extensive litigation experience on behalf of—and thus demands on his time from—the federal government, commercial interests, and private individuals. Yet even in the press of business, he has struck me with his interest and investment in the future of the profession. An important example of this was his work a decade ago in the founding of the Eastern District of the Wisconsin Bar Association.

Along these same lines, his interest in Marquette Law School has been especially outstanding. A graduate of Villanova Law School, Nathan has been a great champion of our students, speaking to classes, mentoring them individually, and taking the interest—and time—to work with them on their career development.

The Fishbach Fund, created at the Law School by Whyte Hirschboeck Dudek, will support our bringing in speakers, from Wisconsin and across the country (indeed, the world), whose experiences and counsel will help future law students gain a greater sense of the profession into which they are entering. It will also provide for programs, workshops, or other opportunities designed to promote a greater integration between Marquette law students and the profession. That we have been historically good at such integration means that this sort of gift should help us reach for greatness.

Thank you to Nathan for being an engaged exemplar over the years, and to the attorneys of Whyte Hirschboeck Dudek for their selecting Marquette Law School as the place to perpetuate Nathan’s honor.

Israel Reflections: Dinner with the Baraks

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As followers of the blog know, one of the high points of our trip to Israel was dinner with Justice Aharon Barak and his wife Judge Elika Barak.  We were also joined by their daughter, Tamar, who is a mediator.  Interestingly from the dispute resolution perspective, Justice Barak was the judge who brought mediation to Israel through the Supreme Court, permitting cases to be referred to mediation.  In this post, student Olga Kordonskaya reflects on the evening:

The Baraks were open and willing to discuss various topics, including dispute resolution and their professions. Justice Barak spoke about criticisms made of him and discussed them in various contexts to help us understand what role he saw for himself in the judiciary. Justice Barak, who brought mediation to Israel, shared his opinions on mediation and its role in Israel and as a vehicle of dispute resolution. Judge Barak, with a different perspective as a labor judge, discussed the role of mediation in the labor courts, as well as her experience as a judge there and the challenges that the labor courts face.

Continue reading “Israel Reflections: Dinner with the Baraks”

Jenkins Competitors Advance to Finals

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Congratulations to the students who advanced to the Final Round of the Jenkins Honors Moot Court Competition:

Susan Barranco and Kyle Mayo

Matthew Hall and Nicholas Zepnick

All the teams did a spectacular job in the Semifinal Round tonight.  The Final Round will be held this Wednesday, April 6 at 6:00 p.m. in the Appellate Courtroom at the Law School.  A reception will follow.  Please rsvp online on the Law School’s website.

Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

Posted on Categories Civil Rights, Criminal Law & Process, Public, U.S. Supreme Court1 Comment on Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

In Supreme Court cases, the majority and dissent sometimes talk right past one another, framing the question for decision so differently that they almost seem to be writing about different cases.  See, e.g., the dueling opinions earlier this week in Connick v. Thompson (No. 09-571).  Thompson was convicted of attempted armed robbery and murder, and then sentenced to death.  A month before his execution, a bloodstained swatch of cloth came to light that proved Thompson was not the perpetrator in the robbery prosecution.  The murder charge was eventually retried, and Thompson was acquitted.  In all, he served 18 years in prison based on his wrongful convictions.  Moreover, it turns out that an assistant district attorney who was part of the team that prosecuted Thompson deliberately withheld the swatch.  The District Attorney’s office now concedes that Thompson’s constitutional rights were violated under Brady v. Maryland.  The question now is whether the DA’s office should be civilly liable to Thompson for this violation.

Prior cases interpreting 42 U.S.C. § 1983 (the federal civil rights law Thompson invoked in his lawsuit) reject vicarious liability for the government when a government employee violates consitutional rights; in order to recover, as matters unfolded, Thompson was obliged to show that the District Attorney had been deliberately indifferent to a need to train his subordinates regarding their Brady responsibilities.  Prior cases also establish that a “failure to train” claim must ordinarily be based on multiple violations of constitutional rights; a single violation, such as that suffered by Thompson, would require extraordinary circumstances to justify relief.

So much everyone agreed on.  Continue reading “Connick v. Thompson: Both Answers Are Right — What Was the Question Again?”

Chisholm: Revise Truth-in-Sentencing, Support “Smart” Use of Alternatives to Hold Down Costs and Fight Crime

Posted on Categories Criminal Law & Process, Public, Speakers at Marquette, Uncategorized, Wisconsin Criminal Law & ProcessLeave a comment» on Chisholm: Revise Truth-in-Sentencing, Support “Smart” Use of Alternatives to Hold Down Costs and Fight Crime

Crime can continue to go down in Milwaukee and spending on criminal justice can be controlled successfully, but only if steps are taken to give local judges, prosecutors, police and others involved in criminal justice tools, incentives and support in doing so, Milwaukee County District Attorney John Chisholm said in a speech Friday at Marquette University Law School.

In what he described as a major policy statement, Chisholm called for modifying the state’s truth-in-sentencing law and maintaining support of programs that assess the risks and needs of people charged with crimes so that fewer end up in prison and more end up on paths that lead  away from re-offending.

“Both sides of the political spectrum must acknowledge that talking tough on crime has reached its limits,” Chisholm said. “Being smart on crime is the solution.”

(The text of Chisholm’s comments can be read here and a video of his speech and a question and answer session following it can be viewed here.)

Chisholm said such “smarter” efforts are paying off in Milwaukee, but are in danger of being undermined by major cuts in federal anti-crime programs and in state aid to criminal justice  work. Continue reading “Chisholm: Revise Truth-in-Sentencing, Support “Smart” Use of Alternatives to Hold Down Costs and Fight Crime”

Simon to Speak on Punishment for Murder

Posted on Categories Criminal Law & Process, Public, Speakers at MarquetteLeave a comment» on Simon to Speak on Punishment for Murder

I’m looking forward to the upcoming George and Margaret Barrock Lecture on Criminal Law.  Berkeley Professor Jonathan Simon will be visiting us on January 24 at 12:30 to speak on punishment for murder.  Here is the teaser:

Although the death penalty may be dying out in the United States, the end stage of capital punishment leaves us grasping more than ever for principles that could govern the power to punish those who are convicted of society’s most feared and loathed category of crime. This need is particularly acute in the United States, where the rise of general incapacitation as the dominant purpose of punishment has produced sentences that are far in excess of international and historic American standards. Professor Simon will suggest that these sentences help to anchor an overall structure of imprisonment that appears unjust and unsustainable, argue for a new version of selective incapacitation limited by dignity as the central purpose of imprisonment, and propose a restructuring of the law of murder to effectuate those goals.

More information about Simon’s lecture, including details about how to RSVP, is hereContinue reading “Simon to Speak on Punishment for Murder”

The IRS’s Hollow Victory in Crane v. Commissioner, 331 U.S. 1 (1947)

Posted on Categories Business Regulation, Public, U.S. Supreme CourtLeave a comment» on The IRS’s Hollow Victory in Crane v. Commissioner, 331 U.S. 1 (1947)

[Editors’ note: This is the fourth in our series, What Is the Most Important U.S. Supreme Court Case in Your Area of the Law? The first three installments are here, here, and here.]

There are many important Supreme Court tax cases.  However, few are identifiable just by reference to a footnote number.  Tax scholars and academics will easily recognize the Supreme Court’s decision in Crane v. Commissioner simply by reference to footnote 37.  In my opinion, Crane is the most important case in tax history, and footnote 37 is the most famous footnote.

The issues presented in Crane arose when the taxpayer inherited an apartment building from her husband.  Continue reading “The IRS’s Hollow Victory in Crane v. Commissioner, 331 U.S. 1 (1947)”

Seventh Circuit Narrows Reach of Armed Career Criminal Act

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on Seventh Circuit Narrows Reach of Armed Career Criminal Act

On Friday, in United States v. Smith, the Seventh Circuit held that a conviction in Indiana for criminal recklessness could not be used as a predicate offense for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act.  Ordinarily, felons found in possession of a firearm face a maximum sentence of ten years.  However, the ACCA raises the minimum to fifteen years for felons who have at least three prior convictions for “a violent felony or a serious drug offense.”  The Seventh Circuit’s decision to vacate Smith’s ACCA sentence last week illustrates the importance of Begay v. United States, in which the Supreme Court held that DUI does not count as a “violent felony” for ACCA purposes.  Prior to April, when Begay was decided, Seventh Circuit precedent indicated that a felony conviction for criminal recklessness counted; now, in light of Begay, the Seventh Circuit has adopted a new approach. Continue reading “Seventh Circuit Narrows Reach of Armed Career Criminal Act”