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.

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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:

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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?”

Marquette Internship Program

Posted on Categories Marquette Law School, PublicLeave a comment» on Marquette Internship Program

“One must walk before one can run.” This statement is true in almost every facet of life. Do you remember playing football for the first time? It was truly a test of athleticism and courage as well as skill. However, a quarterback does not usually start out by throwing touchdowns. Even the great Brett Favre most likely started at square one. A player usually starts “walking” by playing peewee football. When one starts learning something new, no person typically masters the skill immediately. One needs to practice, practice, practice.

This is the same with the law. Law school classes teach you substantive law. However, you do not necessarily learn all you need to know to practice in the real world. This is where the importance of an internship comes in. I believe that a law school internship is vital to a law school education. I am currently interning with the Wisconsin Supreme Court. My internship is an extremely valuable experience because it is exposing me to the inner workings of our state’s highest court and, at the same time, forcing me to further develop my research and writing skills. An internship can give context to what is learned in law school, teach one valuable legal skills, and also help students’ resumes stand apart.

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New Issue of Marquette Law Review

Posted on Categories Legal Scholarship, Marquette Law School, Public1 Comment on New Issue of Marquette Law Review

Congratulations to the editors of the Marquette Law Review for the publication of Vol. 94, No. 4.  Here are the contents:


Thomas W. Merrill ………………………………………………………………………… 1055


Richard A. Posner …………………………………………………………………………. 1095


Christopher Drahozal & Peter Rutledge ………………………………….. 1103


Michael P. Waxman ………………………………………………………………………. 1173


Aaron Y. Tang ………………………………………………………………………………. 1195


Jonathan Simon …………………………………………………………………………….. 1241


Elizabeth A. Odian ……………………………………………………………………….. 1313


Cain W. Oulahan …………………………………………………………………………… 1351


Diane S. Sykes ………………………………………………………………………………. 1381

Typography for Lawyers

Posted on Categories Legal Education, Legal Practice, Legal Writing, Public2 Comments on Typography for Lawyers

“The four most important typographic choices you make in any document are point size, line spacing, line length, and font, because those choices determine how the body text looks.” Matthew Butterick, Typography for Lawyers: Essential Tools for Polished and Persuasive Documents, “Summary of Key Rules” (2010).

Does that sentence make any sense to you? If so, find Butterick’s book: you will love it.

If not, run out and get Butterick’s book: you need it.

After running a website on typography for lawyers,, Matthew Butterick last year published a book on the subject. The book seems designed to do for typography what Bryan Garner’s work has done on matters of style and usage—to convince more lawyers that this “small stuff” matters in their writing, in their approach to the practice.

Indeed, Butterick’s belief that “typography” should become part of the vocabulary and professional awareness of lawyers forms the “core principles” of his book:

  1. Good typography is part of good lawyering.
  2. Typography in legal documents should be held to the same standards as any professionally published material. Why? Because legal documents are professionally published material. (Corollary: much of what lawyers consider “proper” legal typography is an accumulation of bad habits and urban legends. These myths will be set aside in favor of professional typographic habits.)
  3. Any lawyer can master the essentials of good typography.

Continue reading “Typography for Lawyers”

The Original Intent of the Recall Power

Posted on Categories Constitutional Interpretation, Election Law, Legal History, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System1 Comment on The Original Intent of the Recall Power

Some opponents of the effort to recall Governor Scott Walker have claimed that the recall provisions of the Wisconsin State Constitution are intended solely to permit the recall of elected officials when they have engaged in criminal or grossly unethical conduct. The latest example of this claim can be seen in the column by Jonathan Rupperecht that appeared in the November 3rd edition of the Milwaukee Journal Sentinel. In it, Mr. Rupperecht says, “Recalls are designed as special interventions when elected officials become guilty of serious malfeasance in office or when they engage in illegal actions or indulge in offensively immoral behavior.”

This statement is objectively false. The recall provisions contained in the Wisconsin State Constitution were never intended to be limited in such a fashion. The original design of the right of recall is, in fact, intended to permit voters to recall elected officials for virtually any reason so long as the procedural mechanisms of the State Constitution are followed.

For present purposes, I take no position on whether a recall of Governor Walker based upon his actions since taking office is a good idea. However, Governor Walker’s supporters contend that the original “design” of the recall provisions is limited to circumstances where there is evidence of criminal conduct or a serious ethical violation. In making such claims, Walker’s supporters are attempting to cast doubt on the underlying legitimacy of the proposed recall drive, rather than arguing that the recall is unwise. Assuming that a recall petition against Governor Walker is filed on November 15, it is therefore worthwhile to ask whether the use of the recall power in this instance would be consistent with the original design of Article XIII of the Wisconsin Constitution. The answer to that question is “yes.” Continue reading “The Original Intent of the Recall Power”