New Report Shows Big Increase in Arrests for Simple Possession Since 1980

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Last week, the Bureau of Justice Statistics released an interesting new report, Arrest in the United States, 1980-2009.  I was particularly interested in the data on arrests for simple drug possession or use, which accounted for about ten percent of all arrests in 2009.  This seems a little high (so to speak), especially in comparison to where we were three decades ago with drug arrests.  Between 1980 and 2009, the number of possession/use arrests more than doubled from 200 per 100,000 people to about 450 per 100,000.  The 2009 number actually represents a downturn from a thirty-year high in 2006 (more than 500 per 100,000).

The arrest rates for simple possession and trafficking have not moved in sync, suggesting shifting patterns of enforcement in the War on Drugs.

Continue reading “New Report Shows Big Increase in Arrests for Simple Possession Since 1980”

An Update on Federal Judicial Vacancies

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The maintenance of an effective appointment process for federal judges is important because adequate staffing is critical to the function of the judiciary. Appointment delays and prolonged vacancies create a shortage of judges. A shortage of judges in turn contributes to case backlogs that make it extremely difficult for courts to administer justice in a timely manner. By many accounts, however, the appointment system does not work well. Because of the power of federal judges to decide important constitutional questions in particular, presidents and congressional leaders spar over the “qualifications” of judicial nominees, with the Senate frequently refusing to confirm even remarkably well-qualified candidates entirely because of perceived ideological differences.

The present is a particularly important time for filling judicial vacancies because the 2012 presidential election is only about a year away, and the appointment process slows down considerably during election season. So, how are the President and the Senate doing? Continue reading “An Update on Federal Judicial Vacancies”

Seventh Circuit Clarifies Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Seventh CircuitLeave a comment» on Seventh Circuit Clarifies Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach

Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.   Continue reading “Seventh Circuit Clarifies Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach”

The Rise of Interdisciplinary Legal Education

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[Editor’s Note: This month, we asked a few veteran faculty members to share their reflections on what has changed the most in legal education since they became law professors.  This is the fourth in the series.]

Since 1995, when I first joined Marquette’s law faculty, one of the most obvious changes I have witnessed has been an increase in the interdisciplinary nature of legal scholarship and, not uncoincidentally I believe, the number of interdisciplinary (“law and”) courses that law schools, including Marquette, offer their students.  Certainly these trends were on the rise before 1995, but their present pervasiveness across law school faculties and curricula seems to me to mark a cumulatively significant change.

This development likely has multiple causes.  The influx into law faculties of those holding doctoral degrees in other fields, noted recently by Professor Hylton, is certainly one, although the ready susceptibility of law or legal topics to analysis by these other disciplines suggests that other factors are at work.  One haunting explanation, of course, is that law is perhaps not a genuinely autonomous discipline after all, but rather little more than the procedure-laden application of independent fields of knowledge to the prevention and resolution of conflict.

Whatever its causes, this development likely has also generated multiple consequences, some of which might be seen as benefits, others as costs.  Continue reading “The Rise of Interdisciplinary Legal Education”

Legal Writing Presentations at Central States

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This past weekend our legal writing faculty attended the 7th Biennial Central States Legal Writing Conference in Chicago. The theme of this year’s conference was “Practice-Ready”: Preparing Students and Assessing Progress. In keeping with this practice-oriented theme, our legal writing faculty presented on three topics: using live critique feedback on student drafts, crafting persuasive word choice through attention to text, subtext, and context, and developing an argument for a new rule of law in an appellate brief.

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Why Is This Guy Being Prosecuted? Seventh Circuit Orders New Trial for Forklift Operator Swept Up in Drug Sting

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on Why Is This Guy Being Prosecuted? Seventh Circuit Orders New Trial for Forklift Operator Swept Up in Drug Sting

As part of a drug sting, an undercover federal agent drove a truckload of marijuana to an industrial park in McHenry, Illinois, on March 18, 2008. The agent had arranged to deliver the drugs to Irineo Gonzalez, a target of the sting. Although Gonzalez showed up to meet the agents, there were some difficulties with getting him to accept and unload the shipment. After a time, the owner of one of the businesses at the industrial park, Cardenas, decided to check out what was going on. He apparently had no connection to Gonzalez or the government, and simply assumed that the truck was carrying legitimate goods. In order to assist with the unloading, he summoned three of his employees, including Leobardo Lara. After the truck was opened, however, it immediately became apparent to everyone what the contents were. Cardenas ordered the truck off the premises, but the federal agent — seeing the opportunity for a successful sting slipping away — refused to go. Cardenas then left the scene to call the landlord. The agent tried without success for several minutes to convince the three employees to unload the truck. Gonzalez also tried, offering to pay them with marijuana. Still, they refused. Finally, the agent called the landlord, who (unbeknownst to Cardenas or his employees) was being paid by the government for the right to use his industrial park as the site of the sting. The landlord reassured the employees that it was fine for them to unload the drugs and that he would “take responsibility” for whatever happened. Only then did the employees help with the unloading, receiving no payment for their work. Lara, who contributed his forklift to the unloading operation, was then arrested and eventually convicted of possession with intent to distribute — even though the government conceded he had no connection to the drug shipment before his employer summoned him to unload the truck.

I’m hard pressed to see a good justification for this prosecution.

Continue reading “Why Is This Guy Being Prosecuted? Seventh Circuit Orders New Trial for Forklift Operator Swept Up in Drug Sting”

Diversity in Legal Education

Posted on Categories Legal Education, Marquette Law School History, Public2 Comments on Diversity in Legal Education

[Editor’s Note: This month, we asked a few veteran faculty members to share their reflections on what has changed the most in legal education since they became law professors. The first two posts in the series are here (Kossow) and here (Bradford).]

In the early 1970’s, the American Bar Association and the American Association of Law Schools were prodding law schools to diversify their faculties and their student bodies. Indeed, many schools did not provide equal opportunities to diverse groups in either admissions or in employment. The consequences of such discrimination were harmful to legal education and to the profession. The demands of the ABA and AALS created a sense of urgency and law schools quickly responded. Initially, the response focused on the need to provide access to women and to racial minorities. This focus was not surprising given the strength of the civil rights movement in the 1960’s and the momentum of the women’s movement in the early 1970’s.

Prior to 1970, Marquette University Law School adhered to the traditional pattern of the academic community. Diversity, in any meaningful sense, simply did not exist in the student body or on the faculty. But the administration and the faculty were not indifferent to the urgent need for change. I was offered a teaching position at the Law School in the fall of 1974 and was the first woman appointed to a full-time tenure-track faculty position.   Continue reading “Diversity in Legal Education”

Bipartisanship? Cooperation? Will These Ideas Fly?

Posted on Categories Election Law, Marquette Law School, Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Court System, Wisconsin Law & Legal System, Wisconsin Supreme Court2 Comments on Bipartisanship? Cooperation? Will These Ideas Fly?

Republican State Sen. Dale Schultz of Richland Center and Democratic State Sen. Timothy Cullen of Janesville did two things a few months ago that were quite remarkable in the light of the super-charged, partisan atmosphere in Madison (and elsewhere) this year.

For one, they had lunch together. And for another, they decided to spend a day in each other’s districts, trying to get a better grasp of the perspective of people who lived different lifestyles and had different views from the people in their own districts. Schultz represents a strongly rural state Senate district, while Cullen’s district, which includes Beloit, is more oriented toward cities and factories.

Schultz and Cullen agreed on quite a few things: The legislative process in Madison had become too divisive. Good policy requires the support of at least half the people of the state and not just people on one side. Both parties were guilty of pushing through momentous decisions without significant support from the other party – in the case of the Republicans in Wisconsin, it was the collective bargaining bill that triggered an uproar in Madison earlier this year, in the case of the Democrats in Washington, it was the health care bill passed in 2010.

The two decided they should work together on an idea that could change things. They settled on trying to reform the way state Supreme Court justices are selected so that process is less partisan and less subject to influence from special interests.

And they decided to go on the road around Wisconsin with what they labeled their common ground tour. Continue reading “Bipartisanship? Cooperation? Will These Ideas Fly?”

Father Pilarz: Promoting Marquette’s Responsibility for Milwaukee’s Well-Being

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In a down-to-earth and sometimes self-deprecating way, Marquette University’s new president, the Rev. Scott Pilarz, S.J., offered a vision Monday of a university that simultaneously strengthens the quality of its academic programs and its research while becoming more involved with addressing Milwaukee’s needs.

Speaking during an “On the Issues” session with Mike Gousha, distinguished fellow in law and public policy, in the Law School’s Eckstein Hall, Pilarz described Marquette as one of the nation’s great universities. He said great universities successfully walk a tightrope in which student education and research are complementary, not competitive, interests.

Asked by Gousha what other universities he felt Marquette was competing with, he said, “I think we’re competing with Marquette to be the best Marquette we can be.” He said university leaders shouldn’t  spend a lot of time looking over their shoulders.  “We’re a major national university,” Pilarz said. The focus should simply be, “How do we improve Marquette?”

Pilarz took office as president on Aug. 1. Ceremonies to inaugurate him officially are scheduled for Thursday and Friday. Continue reading “Father Pilarz: Promoting Marquette’s Responsibility for Milwaukee’s Well-Being”

Farewell, Attorney Nathan A. Fishbach

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Nathan FishbachThe Milwaukee legal community lost one of its most distinguished members yesterday with the untimely passing of Nathan A. Fishbach.  Nathan served in the United States Attorney’s Office for thirteen years, rising to the positions of Deputy U.S. Attorney and Interim U.S. Attorney.  He then moved to private practice in 1993, spending the balance of his career as a highly respected civil and white-collar litigator with Whyte Hirschboeck Dudek.  Nathan specialized in complex white-collar cases with overlapping civil, criminal, and regulatory dimensions.  Over the years, I had several conversations with Nathan about his practice, and I always left deeply impressed by his combination of heart-felt empathy for his clients and hard-nosed savvy about litigation tactics.

Nathan will be missed not only by his clients and coworkers, but also by the wider Milwaukee legal community, where he was known as a great leader and builder.  He was, for instance, the founding president of the Eastern District of Wisconsin Bar Association.  Nathan loved to bring people together, and I think he was quite proud of all the things he did that helped to make the Milwaukee legal community more genuinely a “community.”  It is hard to imagine any more deserving winner of the Judge Myron L. Gordon Lifetime Achievement Award, which was bestowed on him by the EDWBA earlier this year.

Although Nathan was a graduate of Villanova Law School, we have long since claimed him as an honorary Marquette Lawyer.   Continue reading “Farewell, Attorney Nathan A. Fishbach”

Palestine’s U.N. Membership: Why Does It Matter?

Posted on Categories International Law & Diplomacy, PublicLeave a comment» on Palestine’s U.N. Membership: Why Does It Matter?

Palestinian officials have announced that they will seek a Security Council vote to approve Palestine as a full member of the United Nations next Friday. Israel has strongly opposed the move, and the United States has announced that, if necessary, it will use its veto powers to preclude approval. Why does the membership vote matter?

Because full-member status would establish broad, formal international recognition of Palestinian statehood. For Palestine, statehood would bring a number of benefits, including diplomatic immunity for many of its officials, the ability to join treaties and vote in the U.N. General Assembly, and standing to litigate with other states—including Israel—before the International Court of Justice. Even more significantly, statehood would establish Palestine’s sovereign equality with Israel and rights to self-determination and territorial integrity. Continue reading “Palestine’s U.N. Membership: Why Does It Matter?”

What Has Become of All the Native American Law Students?

Posted on Categories Legal Education, Public, Race & Law7 Comments on What Has Become of All the Native American Law Students?

Between 1990 and 2000, slightly more than 2,600 self-identified Native Americans graduated from ABA-accredited law schools. As a consequence, one might have expected the number of Native-American lawyers in the United States would have increased by about 2000 or so by the end of that decade. (The increase would be less than 2,600, since some of the Native Americans practicing in 1990 would have died or left the profession.) Shockingly, according to the United States Census, the actual increase in the number of Indian and Native-Alaskan lawyers in the United States was only 228, from 1502 to 1730.

So what happened to most of the Native-American law school graduates in the 1990’s? Did they fail the bar examination? Did they decide not to practice law? Did they leave the country? Or, were they not really Native Americans after all?

The answer appears to be the latter. A large number of law students in the 1990’s, who were not actually Native American, reported themselves as Indians or Eskimos on their law school applications and in the materials they filed with the Law School Admission Council (LSAC).

Was this simply a case of students willing to lie about their identity in hopes of receiving special treatment by law school admissions committees, or is there another explanation?

Part of the problem is that many Americans think of Native American as an ethnic category, rather than a citizenship status. Furthermore, it is apparently understood to be an ethnic classification that still follows the “one drop rule,” so that any person with a Native-American ancestor is a Native American. While certain types of racial ancestry carried with them negative stigmas and were usually denied, if possible, most white Americans seem happy to boast about their Indian ancestry, especially if the ancestor was a grandparent, or some more distant ancestor.

As a legal matter, these assumptions are completely without foundation. In Morton v. Mancari, 417 U.S. 535 (1974), the United States Supreme Court confirmed that Native-American status was not a purely racial matter, but was derived from membership in a tribe recognized by the federal government. Moreover, at least since the Indian Reorganization Act of 1934, 48 Stat. 984 (now 25 U.S.C. §§ 461-79 (1983)), authority to determine tribal membership was vested exclusively in the federally-recognized tribes themselves.

In other words, the only people who are Native American are those whose status is recognized by their tribe. All members of recognized tribes have Tribal Identification Numbers (which are similar to Social Security Numbers and are sometimes referred to as registration numbers).

Native American status is, therefore, a concrete matter of tribal citizenship and not an amorphous racial classification. Consequently, a law student without a Tribal Identification Number is technically not a Native American, no matter what her or his ancestry may be.

The law school totals reported by the American Bar Association are based on self-reported ethnicity claims filed at the time of application to law school. The Census totals, in contrast, are based on a more rigorous definition of Native American.

Whether or not this same pattern was duplicated in the first decade of the 21st century is not yet clear, as the United States Census Bureau has not yet released its figures for the number of Native-American lawyers in 2010 (or, for that matter, for any racial, ethnic, or citizenship group). However, signs point to the continuation of the same phenomenon.

According to American Bar Association statistics, obtained from the Law School Admission Council and the law schools, there were 3332 Native-American third-year law students enrolled in ABA-accredited law schools between the 2000-01 and 2009-10 academic years. While a few of these students may have failed to graduate or failed to pass the bar examination, their numbers suggest that the number of Native-American lawyers in the United States should have at least doubled during the past decade, and there is little reason at this time to believe that actually happened.

Native-American lawyer groups have been aware of this discrepancy for some time, and they have expressed anger at what they believe has been the unwarranted assertion of Native-American status by law school applicants who have no basis for such a claim, and at what they see as an unjustified willingness of law schools to accept such claims at face value. Even today, only a handful of law schools—Harvard is one—ask students that claim Native-American status to name the tribe with which they claim affiliation.

(For reporting purposes the American Bar Association counts “Native Americans” as part of the category of “minority law students,” and for the past three or four decades all law schools have been under pressure to admit more minority students. To achieve a more diverse student body, most law schools will accept minority students with lower college grades or LSAT scores than normally expected of admitted students. Consequently, applicants who can claim to be a minority student have a strategic advantage when it comes to law school admissions.)

Concern that numbers inflated by the presence of pseudo-Native Americans were masking the fact that very few real Native Americans were attending law school in the United States, the leading Indian bar association finally decided to take action. On April 8, 2008, the National Native American Bar Association (NNABA) adopted a resolution denouncing the fraudulent self-identification of law school applicants as Native Americans.

The NNABA also expressed the belief that many of those who claimed to be Native Americans not only lacked a formal tribal affiliation but lacked any Native-American heritage whatsoever. As a solution, it called upon the LSAC to require law school applicants claiming Native-American status to list their tribal affiliation and Tribal Identification Number when they register with the LSAC as part of the application process.

After publicizing its claims in a number of different venues, in late 2010 and early 2011, the NNABA appealed directly to the American Bar Association’s House of Delegates and Committee on Legal Education and Admission to the Bar (of which the writer is a member) to endorse its proposals.

The efforts were successful, and on Monday, August 8, 2011, the ABA’s House of Delegates approved a resolution urging the Law School Admissions Council and ABA-approved law schools to require additional information from people who indicate on their registration for the Law School Admission Test and law school applications that they are Native American; specifically, they are to supply information about their tribal citizenship, tribal affiliation or their enrollment number. Applicants who don’t belong to a tribe recognized by the government but who wish to claim Native American status would have to provide a detailed “heritage statement.”

The ABA resolution has no binding effect, so it is still an open question as to how the LSAC and the law schools will respond to what NNABA president-elect Mary Smith refers to as “an issue of ethics and professional responsibility.”