Ambivalent Angst Over College Football’s De Jure Inequality

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Like many, I am profoundly excited for tomorrow—the first Saturday of college football season. I’m excited to watch my favorite team and daydream about the possibility of a BCS bowl game, to trash-talk with other fans, to order stadium food when I make it out to games, and to order pizza when I watch from home. I’m excited to be entertained by the playful senility of Lee Corso as he picks winners and dons mascot headgear. I’m excited to hear the percussion sections of the marching bands. With a hand at my heart and dewy eyes, I echo the sentiment that this is America’s great blood sport, our answer to the Roman gladiators, glorious in a primal and tribal way. Continue reading “Ambivalent Angst Over College Football’s De Jure Inequality”

Four Easy Pieces: Organization

Posted on Categories Legal Practice, Legal Writing, PublicLeave a comment» on Four Easy Pieces: Organization

It’s the beginning of another academic year, and therefore it’s a good time to discuss the mechanics of writing and research. These are topics I cover briefly with students who take seminar classes from me, but I thought they might be useful to a broader audience. In a series of a few posts, I’m going to cover three topics about writing — organization, paragraphs, and persuasion — and one about research: hitting the books.

  1. Organization

Lawyers, judges, clients — pretty much everyone who is not reading while sitting on a beach — are busy people. They have limited time. Very limited time. It’s crucial that you give them some sort of sense immediately (1) why you are writing to them, and (2) what your message is. This applies to memos, letters, briefs, complaints, law review articles, essay exams, letters to the editor, even (or most especially) emails. Business documents often do this with an “executive summary,” but most of the executive summaries I see are mealy-mouthed mush. Be clear and concise; time is most definitely not on your side. You do not want your reader to get to the second paragraph and be wondering, “Who is this idiot and what is he/she prattling on about?”

This means that you must get to the point immediately. A MEMO/BRIEF/EXAM IS NOT A MYSTERY NOVEL. Continue reading “Four Easy Pieces: Organization”

Happy Third Blogday!

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Three years ago today, we launched the Marquette Law School Faculty Blog.  With 1,648 posts, 2,560 comments, and 379,000 site visits, we are still going strong.

Although blog posts tend to be ephemeral by their nature, some have a more timeless quality.  In case you missed them the first time around, here are a handful of posts from our first couple of months that are still well worth reading today:

David Papke on the classic 1L film The Paper Chase;

Bruce Boyden on work-life balance and legal practice;

Judi McMullen on fear of sex offenders;

Lisa Mazzie on laptops in the classroom; and

Jessica Slavin on the law professor who influenced her the most.

A Plea for E.N.E.

Posted on Categories Mediation, PublicLeave a comment» on A Plea for E.N.E.

One of the oldest maxims in writing is to never apologize for your work.  With that said, I do need to couch this article.  I stand by my premise 100%.  However, there are always exceptions to a rule.  One of my biggest influences in mediation is a former judge, and former Wisconsin Supreme Court Justice.  I am not saying that a judge cannot mediate, but that you need to go in with your eyes open.

Too often when litigators are choosing a mediator (or even worse when a sitting judge is ordering mediation at a scheduling conference) the conversation goes something like, “So, should we use Judge X or Judge Y?”  What does being a former judge necessarily have to do with being a mediator, let alone a good mediator?

As the late great comedian Mitch Hedberg said,

When you’re in Hollywood and you’re a comedian, everybody wants you to do things besides comedy. They say, “OK, you’re a stand-up comedian — can you act? Can you write? Write us a script?” . . .  It’s as though if I were a cook and I worked [] to become a good cook, they said, “All right, you’re a cook — can you farm?”

I am certainly not the first to recognize this disturbing trend.  Continue reading “A Plea for E.N.E.”

George Orwell on Writing Well

Posted on Categories Legal Writing, Public2 Comments on George Orwell on Writing Well

George Orwell’s Nineteen Eighty-Four and Animal Farm are familiar reading for many of us. A few years ago a student suggested I also read his essays, and in particular, “Politics and the English Language.” George Orwell, A Collection of Essays 156-71 (10th ed. 1981).

In this essay, Orwell claims that the English language is in decline, and that the decline has “political and economic causes.” (156) Orwell asserts, however, that the “bad habits” in written English can be avoided. (157) He reasons that in getting rid of these habits, “one can think more clearly, and to think clearly is a necessary first step toward political regeneration: so that the fight against bad English is not frivolous and is not the exclusive concern of professional writers.” (157)

Continue reading “George Orwell on Writing Well”

Notice to Employees of Rights Under the National Labor Relations Act

Posted on Categories Labor & Employment Law, Public1 Comment on Notice to Employees of Rights Under the National Labor Relations Act

On August 30, 2011 the National Labor Relations Board (“NLRB” or “Board”) published a final rule in the Federal Register entitled “Notification of Employee Rights under the National Labor Relations Act” (“Act”).” See 75 Fed. Reg. 80411 (Aug. 30, 2011). Effective November 14, 2011 private sector employers subject to the jurisdiction of the Act are required to post a notice of employee rights (“Notice”) informing employees of their rights under the Act. The rule had been pending since December 2010 and was issued by a 3 to 1 vote with Board Member Brian Hayes dissenting. See 75 Fed. Reg. 80411, § IV.

In addition to listing several examples of unlawful behavior under the Act and providing instructions to employees on how to contact the NLRB with questions or possible violations of the Act, the Notice also affirmatively states that employees have the right to

• Organize a union to negotiate with their employer concerning their wages, hours and other terms and conditions of employment.

• Form join or assist a union; bargain collectively through representatives of employees’ own choosing for a contract with their employer setting their wages, benefits, hours, and other working conditions.

• Discuss their wages and benefits and other terms and conditions of employment or union organizing with their co-workers or a union.

• Take action with one or more co-workers to improve their working conditions by, among other means, raising work-related complaints directly with their employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Employers are required to post the Notice in conspicuous places where the Notice is readily seen by employees, including all places where notices to employees concerning rules or policies are customarily posted. In addition to the physical posting, the rule requires employers to post the notice electronically if personnel rules and policies are customarily posted in that manner.

Continue reading “Notice to Employees of Rights Under the National Labor Relations Act”

Learning to Learn the Law: Becoming Legal Readers

Posted on Categories Legal Education, Public1 Comment on Learning to Learn the Law: Becoming Legal Readers

Ah, the start of another academic year.  Each fall brings a new group of incoming law students, eager to embark on the adventure called law school.  But what is it we actually do here in law school?

Professors Tracey E. George and Suzanna Sherry from Vanderbilt Law School have said that law school has three purposes:  1) to teach basic legal doctrine; 2) to help students learn how to use that doctrine; and 3) to teach students how to teach themselves the law.  Continue reading “Learning to Learn the Law: Becoming Legal Readers”

DOJ Changes Its Mind, Seventh Circuit Does Not

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Seventh CircuitLeave a comment» on DOJ Changes Its Mind, Seventh Circuit Does Not

As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses.  In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system.  Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.

The Seventh Circuit’s position followed that of the Department of Justice.  However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity.  Additionally, three other circuits have since rejected the Seventh Circuit’s position.  In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc.  Last week, however, the court announced that the initial ruling would stand.

Continue reading “DOJ Changes Its Mind, Seventh Circuit Does Not”

Singing a September School-Start Song

Posted on Categories Education & Law, Milwaukee Public Schools, Public, Wisconsin Law & Legal System4 Comments on Singing a September School-Start Song

Thursday will be the first day of the new school year for the vast majority of public school students in Wisconsin. Why? Because that’s the law. No, not that school start on a Thursday, but that it not start earlier than September 1. And why is that? Because tourism industry leaders lobbied so hard for it.

In fact, when the law went through the legislature in the late 1990s, it was handled in the tourism committees of the Assembly and Senate, and not in the education committees, even though the subject was school calendars. I’ve always thought that said something about priorities in Wisconsin.

School opening dates in many districts had moved up over the years into late August. This was a problem, in the eyes of those in the tourism business. They said they wanted kids and parents to have the maximum opportunity to take vacations that build healthy family bonds and life-long memories. (As the song from Man of La Mancha put it, I’m only thinking of him.)  Let’s assume they also wanted to maximize their summer season and hold on to their high school student employees longer.

So, since 2000, state law 118.045 has specified “no public school may commence the school term until September 1.”   Athletic contests are exempted, as are in-service days for staff (which is why most teachers went back to work Tuesday or so).  Schools on so-called year-round calendars (which mean they take  shorter summer breaks but have the same total of school days) are exempt. And other schools that convince the state Department of Public Instruction there are “extraordinary reasons” may be granted exceptions. In Milwaukee, that includes several schools that have International Baccalaureate programs that call for starting in August. Private schools and higher-education institutions are not included in the law.

Continue reading “Singing a September School-Start Song”

Divorce Is for the Masses

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Americans continue to divorce at a high rate, but divorce rates have gotten smaller in recent years.  This is especially true for the professional/managerial class.  According to a study by the National Marriage Project at the University of Virginia, only 11% of college-educated Americans are now divorcing within the first 10 years of marriage, compared with almost 37% for the rest of the population.  It appears that college–educated Americans, who in general are more politically and socially liberal, are developing a greater commitment to getting and staying married.

This trend has economic ramifications and, in particular, contributes to growing disparities in wealth distribution.  In this day and age, both husband and wife are likely to work for pay outside the home, and two-income households are usually better off than single-income households.  It’s further proof, I guess, of the way the private family sphere is always intertwined within the public market sphere.

For more discussion of the topic, see Pamela Paul, “How Divorce Lost Its Cachet,” New York Times, 17 June ’11, Styles 1:


Seventh Circuit Rejects Retroactivity for Padilla

Posted on Categories Circuit Splits, Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on Seventh Circuit Rejects Retroactivity for Padilla

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that a lawyer provides ineffective assistance of counsel by failing to inform a client of the deportation risks that result from a guilty plea.  However, the Court did not clearly indicate whether its holding must be applied retroactively to cases on collateral review, leaving the lower courts to sort out the mess.  A handful of district courts have already split on this issue.  Now, with the Seventh Circuit’s ruling last week in Chaidez v. United States (No. 10-3623), the circuits are also split.  A divided panel in Chaidez rejected both retroactivity and the Third Circuit’s reasoning to the contrary in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).

As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

Continue reading “Seventh Circuit Rejects Retroactivity for Padilla”