Why Milwaukee’s Parking Enforcement System Might Be Unconstitutional

When it comes to parking enforcement, the City of Milwaukee has a problem. Local media have concluded from interviews and public records that the City issues parking tickets without paying close attention to whether they are warranted. In 2011 alone, the City reportedly canceled over 38,000 parking tickets, often because they were plainly unjustified. Nearly 8,000 tickets, for example, were issued for “expired” parking meters that in fact had not expired. Given personal experience, I have little doubt that these figures are accurate.

The extremely high number of unwarranted tickets is not an accident. Instead, it appears to be the result of a policy to issue tickets indiscriminately for the singular purpose of revenue enhancement. The City’s manager for parking enforcement practically admits as much; he recently told a local news station that the policy “is to issue the citation and straighten it out later.” Media coverage suggests that the City implements this policy through an informal quota system: Several employees of the Department of Public Works have revealed that supervisors expect enforcement personnel to issue certain numbers of tickets per shift for specified areas, and that supervisors punish those who fail to meet quotas by handing out undesirable shift hours. In other words, enforcement personnel are under the gun; unless they want to work at 3:00 in the morning, they have to issue bushels of tickets. Because this system appears to give credit even for unjustified citations, there is little incentive for personnel to make sure that they issue citations only when deserved. So the high error rate is no surprise. The effect is to impose upon thousands of law-abiding residents the burden of either paying a fine or establishing the absence of a violation. For many, the hassle is worse than the dollar value of the fine.

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Thinking Like a Lawyer Redux

This week, Marquette University Law School welcomed its Class of 2015.  The start of an academic always has an energy to it unlike other times during the year.  Excited and nervous 1Ls begin their journey to their J.D.s, steeped those first couple weeks in what seems like a foreign culture with a foreign language. While they’re not exactly sure what they’re going to learn in those 1L classes, new students do understand, within days of being in Eckstein Hall, that what they will learn is how to “think like a lawyer.”  Whatever that means.  With that, I am reposting something I wrote several years ago that remains important:  “Thinking like a lawyer” is a legal skill, not a life skill.

At the start of each academic year, I cannot help but to think of Professor Kingsfield, the notorious contracts professor in The Paper Chase. The various classroom scenes where Professor Kingsfield grills student after student on classic contracts cases like Hawkins v. McGee have for years served as a sort of example of the “typical” 1L experience with the dreaded Socratic method.

While Professor Kingsfield surely sits at one end of the spectrum for professorial style, the Socratic method he uses endures. It is, as one text notes, law school’s “signature pedagogy.” It’s the way the law school professors across the country have been teaching law students about legal analysis for more than a century.

And students learn. They begin their first year of law school with, to paraphrase Professor Kingsfield, “a head full of mush.” Even by the end of that first semester, though, most 1Ls have developed an ability to turn that mush into cogent analysis, to make fine-line distinctions, to look for weaknesses in another’s argument, and to argue both sides of any issue; in other words, they learn to “think like a lawyer.” This “thinking like a lawyer” is undoubtedly a necessary professional skill; however, mastering the process can come at a personal cost.

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Peters v. West: Three Strikes

In my previous post, I dissected the problematic recent Seventh Circuit copyright decision in Peters v. West. I won’t recap that long post here, except to say that the Seventh Circuit appears to have collapsed the traditional two-part inquiry for infringement in the prima facie case for copyright infringement to one part, with proof of access as a weird (and optional?) hanger-on. As the Peters court summarizes the test that will govern going forward: “[P]roving” — and, I guess, pleading — “the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original . . . , and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.”

There are at least three bad consequences to this: it gives jury determinations to the judge; it makes the already controversial “sliding scale” doctrine incoherent; and it sounds the death-knell for substantive limits on liability for copying outside of fair use.

First, the two different sub-elements of the infringement half of the prima facie case have been understood at least since 1945, and even in the Ninth Circuit’s jumbled version of the test, to allow a division of labor between judge and jury in a copyright infringement case. Actual copying, including (if necessary) a showing of “probative similarity,” is a merely forensic task, one that stands at the gate of the field where the ultimate liability determination will be fought out. The issue is to determine whether there’s been any copying at all as a factual matter. It is to copyright law as “causation” is to negligence law. I may have been speeding, but if I didn’t actually hit your car, the case is over. As a forensic rather than policy determination, courts have long allowed the component works to be examined in microscopic detail for evidence of actual copying, including hearing from expert witnesses. After receiving this evidence, the judge can determine that there’s no genuine issue of material fact as to actual copying and grant summary judgement for the defendant — or nowadays, I suppose, can determine on a motion to dismiss that the complaint does not adequately plead a plausible case of actual copying.

The other “substantial similarity” test is supposed to be much different than that, one that the jury is especially adept at determining, at least in a music case like this one.

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