Tom Shriner’s recent remembrance of Judge Dale Ihlenfeldt said to law students and new lawyers that “you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.” This last (neatly phrased) is the case, in my estimation, both of judges whom one knows and of others whom one has never met. One should collect judges, as Tom and I say to the students in our courses.
Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.
Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.
The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.) Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.
The appellants’ arguments have a familiar ring to them. Continue reading “Cockfighting, Congress, and Interstate Commerce”
Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s post, and it seems worthwhile to repeat those same points on the Marquette Law School Faculty Blog.
First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime. Continue reading “Prosecutorial Discretion in the John Doe Investigation”
Gov. Scott Walker’s job performance is drawing strong disapproval—in the city of Milwaukee. Gov. Scott Walker’s job performance is drawing strong approval—in the rest of the Milwaukee media market.
A big thumbs up for Walker across most of the state of Wisconsin. A big thumbs down in Madison.
The two half-states of Wisconsin—one with clear Democratic majorities, one with clear Republican majorities—can be seen in the results of the Marquette Law School Poll released this week. Political contests in either of the half-states alone would be bring few surprises and little drama because they would be one-sided. But combine the two halves into the one Wisconsin we actually have, and you get a polarized, evenly split state that has become a center of passionate partisanship, attracting high levels of national attention.
You can see the two half-Wisconsins in the demographic breakdowns of many of the questions in the new Law School poll. (The results are all on the Law School Poll’s webpage. To go to them, click on “Results & Data” and then on the line referring to “crosstabs.”) Continue reading “The Two Political Half-States of Wisconsin”
The first results from the Marquette Law School Poll, the largest political polling project in Wisconsin history, were released Wednesday morning, providing a fresh and provocative view of public opinion across the state.
The full poll results can be found here.
At noon today (Jan. 25), Charles Franklin, visiting professor of law and public policy and director of the poll, will discuss the poll results with Mike Gousha, distinguished fellow in law and public policy, in Eckstein Hall. The session is free and open to the public. Video of the session will be posted on the Web page for the poll shortly after the session ends.
A brief look at the results: With the spotlight on the almost-certain recall election for governor, more people said at this point that they would vote for Gov. Scott Walker, the Republican who has been in office for a year, than for any of four possible Democratic challengers. The margins in favor of Walker ranged from five to ten percentage points.
Asked if they approved or disapproved of the way Walker is handling his job as governor, 51% said they approved and 46% said they disapproved.
The poll results also included information on how Wisconsinites rate candidates for the U.S. Senate seat that is open this year, what they think of some of the proposals that have stirred controversy in the state in the last year, and the standing of President Barack Obama and some of the Republican candidates for president.
The Law School polling project will continue throughout 2012, with fresh rounds of polling generally monthly. All poll results, along with analysis of what the poll shows, links to media coverage of the poll, and announcement of upcoming events, will be posted on the Web page for the poll.
Tonight, when President Barack Obama delivers his third State of the Union address, he is widely expected to channel the progressive rhetoric of Theodore Roosevelt. It was Roosevelt’s “New Nationalism” speech in 1910 (quoted in my previous post here) that called for the federal government to play an active role in regulating the economy. When he speaks to the nation tonight, President Obama is likely to push back against the demand to shrink the federal government – a common refrain among the current crop of Republican presidential candidates — by pointing to Theodore Roosevelt’s call for an active federal government.
It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln. Continue reading “The Roots of Progressivism Lie in . . . the Republican Party?”
It’s common to assume American popular culture leads only to mindless escape, but in a recent speech to Communist Party officials President Hu Juntao of China warned that American popular culture might have a much more dangerous effect. He noted that Transformers 3 was a top-grossing film in China and also that the songs of Lady Gaga were as popular as those of any Chinese singer. Hu suggested the United States and other nations are westernizing and dividing China as he spoke and pop cultural works were weapons in this onslaught. Hu urged the Chinese to understand the seriousness of the struggle for Chinese cultural integrity and to always “sound the alarms and remain vigilant.”
Perhaps Hu is exaggerating the dangers, especially with regard to the fundamental aspects of Chinese culture. It’s hard to imagine Transformers 3 doing much damage to Confucian ethics or the Chinese sense of community and solidarity. However, Hu is correct when he suggests popular culture can and routinely does promote certain values and modes of behavior. It is highly normative. Popular culture – films, television shows, cheap literature – have the potential to function ideologically, and consumers of popular culture in China as well as in the United States are encouraged to “get on board” with the social world popular culture imagines and promotes.
One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here). The case concerns Fourth Amendment protections from GPS tracking of automobiles. The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the defendant’s car without a warrant and tracking his movements 24 hours a day for four weeks. For the D.C. Circuit, it was crucial that the tracking was so extensive, which creates the possibility of a very fact-bound affirmance. Alternatively, the Court might try to draw some type of bright-line rule that would be of greater assistance to lower courts in deciding future cases, either favorably to GPS tracking or otherwise.
As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb. Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach. The abstract appears after the jump.
Kevin Kennedy refers to himself as “just a paper-shuffling bureaucrat. – I haven’t moved to rock star status.”
But sometimes, timing is everything. So that’s why there were a gaggle of television cameras, a cluster of reporters, and about 200 others in the room when Kennedy joined Mike Gousha for an “On the Issues” session at Eckstein Hall on Thursday.
Kennedy is director and general counsel of the Wisconsin Governmental Accountability Board. Now in possession of petitions with about 1.9 million signatures calling for recall elections for governor, lieutenant governor, and for four state Senate seats currently held by Republicans, the board is at center stage for one of America’s hottest political scenes. What the GAB decides in handling the petitions and setting the course for the elections that are almost sure to result will have a major bearing on Wisconsin’s future and become a vivid part of Wisconsin’s history.
“It’s an honor to be part this process,” Kennedy told Gousha, the Law School’s distinguished fellow in law and public policy. ”And it’s definitely energizing. You can’t help but get juiced when you’re working on something this challenging.” Continue reading “A “Paper-Shuffling Bureaucrat” at Center Stage in Wisconsin Politics”
The Supreme Court ruled earlier this week that habeas petitioner Cory Maples may not have to bear the consequences of a truly egregious dereliction of duty by his pro bono lawyers. The lower federal courts had refused to consider Maples’ petition on the merits because he had missed a filing deadline in state court. Normally, criminal defendants are stuck with the mistakes of their lawyers, but in this case — “a veritable perfect storm of misfortune,” as Justice Alito called it — the defendant will have another opportunity to litigate his claims. (The full opinion in Maples v. Thomas is here.)
Here’s what happened. Maples was convicted of murder and sentenced to death by an Alabama state court. His direct appeals were unsuccessful. He then launched a collateral attack in state trial court. The Supreme Court recounted what happened next: Continue reading “Cory Maples May Avoid Procedural Default, But Will Anyone Else Ride His Coattails?”
Amid the amazing tumult on the Wisconsin political scene, with partisanship and passion running so high, how can you get straight information about what voters are thinking?
One good answer: You can run a large-scale polling project, adhering to the highest standards of professionalism and non-partisanship. You can poll repeatedly throughout the year, so that you can follow trends. You can make all the results available promptly to anybody. You can go to lengths to give others a chance to see what you’ve found out.
That is what the Marquette Law School Poll is going to do. It will be the most extensive polling project in Wisconsin history, and we are fully committed to making it an independent effort that will have no agenda except to find out as much as we can about public opinion in Wisconsin and share it with all.
In fact, consider this your invitation to tune into the poll’s results. We are launching the first round of polling on Thursday, Jan. 19, and will release the results next Wednesday, Jan. 25. Continue reading “Providing Straight Information on Public Opinion in a Historic Political Time”