Fleeting Indecencies and Enduring Constitutional Doctrine

Posted on Categories Constitutional Interpretation, First Amendment, PublicLeave a comment» on Fleeting Indecencies and Enduring Constitutional Doctrine

[Editor’s Note: This month, faculty members will discuss upcoming judicial decisions of particular interest. This is the first post in the series.]

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII. Continue reading “Fleeting Indecencies and Enduring Constitutional Doctrine”

Senator Feingold on Civility

Posted on Categories Marquette Law School, Negotiation, Political Processes & Rhetoric, Public, Speakers at Marquette3 Comments on Senator Feingold on Civility

Last week in honor of ABA Mediation Week, the DR Society here hosted former Senator Russell Feingold for a talk on Civility in Public Discourse. We had a wonderful off-the-record hour (so I can’t tell you all the good stories!–here is me cracking up at one) but what I can say is heartening in terms of supporting our students. Feingold noted that the most persuasive negotiators in the Senate were those who were passionate and had conviction and would also know when to work out a deal. You could trust that they would keep their word. When I asked him about the “argument culture” that seems to pervade Washington, Senator Feingold urged our students to fight against this mentality–stay civil, be humble, keep your word. In reflecting about his long-term interactions with Senator McCain on the campaign finance reform bill, Senator Feingold pointed out that these cross-cutting relationships are crucial–after all, you don’t need to make a deal with those who already agree with you. Over his 18 years in the Senate, he noted how the atmosphere had changed where a senator was part of a joint enterprise with an honored history and esprit de corps–these days politicians get elected by running against the idea that you need to work together. In focusing on Wisconsin–which has been an incredible battleground in the last year over labor rights, the Supreme Court, and other issues–I will note at least two state senators that seem to be taking a page from Senators Feingold and McCain. Dubbed the Common Ground tour, these two senators are touring their respective districts stumping for common issues.  (For more on the Common Ground tour and to hear directly from these state senators, you can click here to watch our own Mike Gousha interviewing them as part of Marquette’s “On the Issues” series.)

Cross posted at Indisputably.

Pro Bono: A Lot to Celebrate

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Last week, as part of the American Bar Association’s coordinated effort to showcase the great difference pro bono makes, we hosted our third annual Pro Bono Celebration.  This gave us opportunity to highlight some of our community partners.  We celebrated with balloons and cake in the conference center and heard from Beth Cordes Thompson, Director of Wisconsin English Language Partners of Wisconsin and a recent beneficiary of the Marquette Legal Initiative for Nonprofit Corporations’ services;  Gerri Sheets-Howard, Director of the House of Peace where the Marquette Volunteer Legal Clinic (MVLC) is in its tenth year of operation; Jim Duff, Director of Milwaukee County Veterans’ Service Office where the MVLC has hosted a clinic since 2009; Dr. Luis “Tony” Baez, Director of the Council for Spanish Speakers where the MVLC has operated a clinic since 2008; and John Barrett, Milwaukee County Clerk of Courts, where our clinic has run since 2009. These speakers are pictured from left to right in the photo accompanying this post. I heard from multiple attendees that they were refueled after hearing about the reach of the legal services our law students and a dedicated cadre of volunteer attorneys provide. Continue reading “Pro Bono: A Lot to Celebrate”

Orcas and the Thirteenth Amendment

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This last week, a lawsuit was filed in the U.S. District Court for the Southern District of California alleging that SeaWorld’s captivity and exploitation of five wild-captured orcas, or so-called killer whales, amounts to slavery and involuntary servitude in violation of the 13th Amendment to the U.S. Constitution.  The nominal plaintiffs are the orcas themselves—Tilikum, Katina, Corky, Kasatka, and Ulises—although the suit is technically being brought by PETA and several individuals.  The complaint seeks “an injunction freeing [the orcas] from Defendants’ bondage and placing them in a habitat suited to their individual needs and best interests.” Continue reading “Orcas and the Thirteenth Amendment”

Maybe the Brewers Should Hire a Lawyer as Their Next Manager

Posted on Categories Public, Sports & Law1 Comment on Maybe the Brewers Should Hire a Lawyer as Their Next Manager

The announcement that St. Louis Cardinal manager Tony LaRussa is retiring after his team’s victory in the 2011 World Series provides us with an opportunity to remind the non-lawyer world of the extraordinary success of lawyers who have served as managers in Major League baseball.

LaRussa, who earned his law degree from Florida State in 1978, is one of only seven law school graduates and/or lawyers to manage in the major leagues.  The other six were John Montgomery Ward, Hughie Jennings, Branch Rickey, Miller Huggins, Muddy Ruel, and Jack Hendricks.  In addition, all seven played in the major leagues as players, though with varying degrees of success.

As a group, the seven were quite successful.  LaRussa, who managed in the majors from 1979 to 2011, managed the second largest number of games in baseball history (second to Connie Mack who owned the team that he managed) and recorded the third greatest number of victories (behind Mack and non-lawyer John McGraw).  Altogether, LaRussa’s teams won 14 division championships, six league titles (three in the National League and three in the American), and three World Series titles.  Continue reading “Maybe the Brewers Should Hire a Lawyer as Their Next Manager”

Marquette Law School Poll

Posted on Categories Election Law, Marquette Law School, PublicLeave a comment» on Marquette Law School Poll

Marquette University Law School will undertake a substantial statewide polling initiative during 2012. This will be the most comprehensive polling enterprise in Wisconsin’s history, following public opinion through a number of polls over the year. The goal of the Marquette Law School Poll is to provide a balanced and detailed understanding of how voters on all sides view and respond to the issues of the 2012 campaigns. The initiative will build upon the work at Marquette Law School of Mike Gousha, distinguished fellow in law and public policy since 2008, and Alan Borsuk, senior fellow in law and public policy since 2009. Leading the effort will be Charles Franklin, a University of Wisconsin–Madison professor of political science, who will be with us throughout 2012 as a visiting professor of law and public policy. Franklin is a national expert on statistical methods, political polling, elections, and public opinion. With the national attention that Wisconsin will receive in 2012 and Marquette Law School’s growing reputation as a premier neutral site for debate and civil discourse on matters affecting the region and points beyond—and with Franklin, Gousha, and Borsuk, together with interested faculty at the Law School and the larger university—there can be little doubt that the time, place, and people are right for the Marquette Law School Poll. The announcement and the underlying reasoning are expanded upon in this press release and in this detailed project description.

The Libya Intervention: Legality and Lessons (Part II)

Posted on Categories International Law & Diplomacy, Public1 Comment on The Libya Intervention: Legality and Lessons (Part II)

In my previous post, I discussed the legal merits and some of the practical consequences of NATO’s intervention in Libya. The legal analysis in that post focused exclusively on international law. The intervention, however, also raised important questions under U.S. domestic law, the most prominent of which concerned the applicability of the War Powers Resolution. In this post, I’ll discuss some of the main arguments regarding the Resolution’s applicability, and one of the practical consequences of the Obama Administration’s approach to the issue. Continue reading “The Libya Intervention: Legality and Lessons (Part II)”

The Law of Halloween

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Today is the day of tricks or treats, of lit jack-o-lanterns, and of dressing in costumes silly or scary or downright outlandish.  But Halloween gives rise to more than ghouls and goblins; it also produces facts for interesting case law.  How about the neighbor whose lawn decorations included a sign saying “Insane Asylum” with an arrow pointing toward the plaintiff’s house, along with a homemade tombstone that allegedly referenced the plaintiff and read:

At 48 She had

No mate No date

It’s no debate

She looks 88

She met her fate

in a crate

Now We Celebrate


Click here for an article in the New York State Bar Association Journal by Attorney Daniel B. Moar, collecting what he calls “Case Law from the Crypt:  The Law of Halloween,” including the above case as well as a case where the court held as a matter of law that a house was haunted.

Trick or treat!

Learning to Make a Brief March

Posted on Categories Legal Writing, PublicLeave a comment» on Learning to Make a Brief March

[Editor’s Note:  This month faculty members share their favorite brief writing or oral argument tip.  This is the third entry in the series.] 

Maybe it’s like your first kiss, or maybe I’m unusual this way, but I think I will always remember my first brief.  I was a new associate working with two partners on the defense of a federal securities lawsuit.  The litigation was just a minor skirmish in a larger war: the plaintiff was attempting a hostile takeover of our client, and the litigation was intended to bring some more pressure to bear on our recalcitrant board of directors. Could we do anything to relieve that pressure?

The senior partner asked me to research an obscure provision of securities law that he felt might provide a basis for a motion to dismiss under Rule 12(b)(6).  I prepared a memo that carefully assessed the strengths and weaknesses of his theory, ultimately concluding that it was viable.  “Great memo,” he responded, “now rewrite your analysis as a brief in support of a motion to dismiss.”

Continue reading “Learning to Make a Brief March”

Climbing Mountains and Creating Diamonds

Posted on Categories Legal Education, Public3 Comments on Climbing Mountains and Creating Diamonds

We have all heard them. In the frazzled squeals of over-caffeinated classmates, in the somber tones of shell-shocked 2Ls, and occasionally, through the uncontrollable tears of a humbled perfectionist (hopefully not): Law school exam horror stories. These frightening tales echo throughout Eckstein Hall: “One exam counts for your entire grade!” “My Civil Procedure exam took over three hours!” “Twenty minutes into the Torts Final the kid next to me just threw down his pen and walked out!” Now I am not here to scare you, but I am also not going to lie to you, law school exams are not fun. Rather, I am here to give you advice based on how I survived my first semester of law school exams. Continue reading “Climbing Mountains and Creating Diamonds”

The Bride of Dracula: A Halloween Story

Posted on Categories Political Processes & Rhetoric, PublicLeave a comment» on The Bride of Dracula: A Halloween Story

It is Halloween, and time for my annual attempt at political satire.  Previous attempts at spooky political humor can be found here and here.  Public response to these efforts has been overwhelming, but I am going to keep doing it anyway.

Scene: A decrepit stone mansion in suburban Minnesota. A great entry hall is lit with the flames of a dozen torches. Ragged tapestries line the walls. In the corner, a grand staircase and an iron banister, covered in cobwebs, lead to the second level. The front door creaks eerily as two shadowy figures enter the room.

Van Helsing: Quiet, Mr. Harker, don’t let her hear you.

Harker: Do you think the Countess is sleeping?

Van Helsing: No. She only sleeps during the daylight.

The stillness is interrupted by a female voice coming from the top of the stairs.

The Countess: You know me all too well, Dr. Van Helsing. Did you stop by for a cup of tea? I wasn’t expecting visitors.

She steps out of the shadows and into the flickering firelight. She is wearing a diaphanous floor length gown, colored eggshell blue. Her long brown hair extends to her shoulders, where it curves back upwards in a flip. But the most striking aspect of her appearance is her stare, with two intense brown eyes that seem to pierce into her visitors’ very souls. Continue reading “The Bride of Dracula: A Halloween Story”