Why Judges Aren’t Legislators

Posted on Categories Judges & Judicial Process, Speakers at MarquetteLeave a comment» on Why Judges Aren’t Legislators

I have not yet had a chance to blog on Judge Sarah Evans Barker’s intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not “make sense” or is “unworkable.” I don’t say that it can never be done (as Justice Scalia has said, “I, too, am a sinner”), but it is a principle with no readily defined stopping point.

So what, you may ask, does this have to do with Attorney General Van Hollen’s Advisory Memorandum stating that there is a constitutional right to openly carry firearms?  Well, there is a history.  In 1998, the voters amended the Wisconsin Constitution to create an very broad right to “keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”  This is, to put it mildly, in tension with Wisconsin’s extraordinarily broad prohibition of concealed carry.  There are virtually no exceptions, and there is no provision for the issuance of permits.

When first faced with this conflict, the Wisconsin Supreme Court observed that it was “anomalous.” One might have expected that the anomaly would have been eliminated by declaring the statute to be unconstitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.

Rather, it decided to proceed on a case-by-case basis, deciding when the need for security was compelling enough to result in constitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high-crime area, but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.

In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options. Continue reading “Why Judges Aren’t Legislators”

Beach Reading?

Posted on Categories Judges & Judicial Process, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on Beach Reading?

Apparently the news editors at the Los Angeles Times read the Marquette Law Review. That’s at least one possible conclusion one could draw from the juxtaposition of two recently published items.

Dean Kearney is in a unique place to analyze the relationship between the Ninth Circuit and the U.S. Supreme Court, having clerked for judges on both courts. Introducing Ninth Circuit Judge Diarmuid O’Scannlain’s Hallows Lecture one year ago, Dean Kearney noted,

Over the past couple of decades, Judge O’Scannlain has emerged as a leader on the Ninth Circuit. This includes the court’s most important work, its cases, where Judge O’Scannlain plays an unusually important role not only in his own docket but also in the court’s en-banc process. An O’Scannlain dissent from denial of en-banc rehearing frequently gets some attention across the country — in Washington, D.C.

Lo and behold, this past Sunday the Los Angeles Times carried a story highlighting how conservatives on the Ninth Circuit use dissents from denial of en-banc rehearing to send “a signal flare to the U.S. Supreme Court.” Carol Williams’ report gives particular attention to Judge O’Scannlain: Continue reading “Beach Reading?”

Judge Barker on “Imaginative Judging”

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Judge Sarah Evans Barker delivered a terrific Hallows Lecture at the Law School yesterday on “imaginative judging.”  She was engaging obliquely with, and putting a fresh spin on, the otherwise increasingly tiresome debates over “judicial activism.”  While the activism debate generally focuses on the law-declaring role of appellate judges, Judge Barker focused on the case management role of trial-court judges.  Although case management may seem far-removed from law-declaring, Judge Barker observed that judges operating in either mode may sometimes face situations in which following the conventional rules of formal legal analysis produces absurd results.  Where such situations are encountered in the trial court, Judge Barker endorsed the use of imaginative problem-solving.  As an example, she cited her own work in bringing together public officials in Indianapolis to address chronic constitutional violations in the local jail.  Had she played a more conventional, passive role as the judge in pending constitutional litigation, the result (in her view) would have been a largely ineffectual remedy.  By imagining a different sort of role for herself, and engaging the key players outside of the formal legal process, a much better result was achieved.  Continue reading “Judge Barker on “Imaginative Judging””

International Media & Conflict Resolution Conference Update: Media Files Now Available

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Our media files from the Conference, including pictures and webcasts of the presentations, are now available. Click here for access to the pictures, videotapes, and podcasts.  The written products of the Conference are expected to appear in the fall issue of the Marquette Law Review.  (My earlier post on Conference highlights is here.)

Felony Convictions and the Right to Vote

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On April 23, Marc Mauer, Executive Director of the Sentencing Project, will be on campus to speak on “Losing the Vote: Felony Disenfranchisement and American Democracy.”  Mauer has been a national leader in drawing public attention to the ever-expanding body of “collateral consequences” suffered by convicted felons, including loss of the right of vote.  I look forward to hearing Mauer’s talk, which is part of the McGee Lecture series sponsored by Marquette’e Department of Social and Cultural Sciences.  The talk will begin at 7:00 in Room 001 of Cudahy Hall.

Parlow and Pilon Rumble in Room 325

Posted on Categories Race & Law, Speakers at Marquette3 Comments on Parlow and Pilon Rumble in Room 325

Yeah, that doesn’t quite recall the Ali-Foreman fight, but there was still a pretty good conversation between Dr. Roger Pilon and our own Professor Matt Parlow yesterday. Dr. Pilon argued that public sector affirmative action encroached upon libertarian principles (he does not believe that such efforts should be prohibited in the private sector) and the idea of equal protection. Professor Parlow argued for  such efforts, emphasizing the need, not only for diversity but, as the Supreme Court has not allowed, to ameliorate the impact of past discrimination. Thanks are in order to the Federalist Society and American Constitution Society for sponsoring the event.

Imaginative Justice in the Trial Court: Judge Sarah Evans Barker to Deliver Hallows Lecture Next Week

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Next Tuesday, April 14, will be the occasion for the Law School’s Hallows Lecture. This annual event, named in memory of the late Wisconsin Supreme Court Chief Justice (and Marquette Professor) E. Harold Hallows, brings to the school a distinguished jurist who in a variety of ways has occasion to converse with and teach students, faculty, and others. Past Hallows Lecturers have included Justice Antonin Scalia of the U.S. Supreme Court and Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court. More recently, over the last three years, the Hallows Lecture has served as the occasion for a significant address by a judge serving on a federal court of appeals (as can be seen in the 2006 speech by Judge Diane S. Sykes, L’84, of the Seventh Circuit, the 2007 speech by Judge Carolyn Dineen King of the Fifth Circuit, and the 2008 speech by Judge Diarmuid F. O’Scannlain of the Ninth Circuit).

I am very pleased that this year, for the first time, the Hallows Lecture will be delivered by a distinguished sitting trial judge: viz., the Honorable Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana. Judge Barker, who has served on the federal bench since 1984 and is president of the Federal Judges Association (a voluntary organization of Article III judges), is a national figure among trial judges and the federal judiciary more broadly. For the Hallows Lecture, she has selected as her title “Beyond Decisional Templates: The Role of Imaginative Justice in the Trial Court,” and takes as her point of departure Judge Richard A. Posner’s recent book, How Judges Think (Harvard, 2008).

The following is from the Law School’s description of the lecture: “Accepting Judge Posner’s premise that under certain circumstances judges must perform as legislators, Judge Sarah Evans Barker will attempt to expand his focus on appellate decision-making to include a discussion of when and how this approach is and can and should be properly applied in the trial court and of the role of imagination when adjudicating in the ‘open area.'”

The lecture will take place in Room 307 at 4:30 p.m. on Tuesday, April 14. The event is open to all, but registration is required.

Community Justice Conference Follow-Up

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As discussed in an earlier post, the Law School recently hosted a very successful conference on community justice in Wisconsin.  More than 200 government officials, lawyers, and citizens came together to discuss how the criminal justice system can be improved at the local level through enhanced interagency collaboration and grass-roots citizen engagement.  The Conference website has now been updated to include audio and video of the Conference, reports, and links to blogs and commentary to keep the conversation moving forward.  Still to come on the website are workgroup reports and conference evaluation results.  Thanks to Assistant Dean Dan Idzikowski for his leadership of this important Law School initiative.

International Media & Conflict Resolution Conference

Posted on Categories Human Rights, International Law & Diplomacy, Media & Journalism, Speakers at Marquette1 Comment on International Media & Conflict Resolution Conference

Last weekend, we hosted a truly special gathering of scholars and practitioners in the areas of media, journalism, international relations, communications, psychology, law, and dispute resolution. I will be blogging a few more times about the conference, abstracts, and upcoming issue of the Marquette Law Review on the symposium, but wanted, for now, to post a couple responses to the conference that I received from attendees.

One of our alums who attended, Evelyn Ang, sent me this clip in light of what we had talked about regarding the impact of changing media. Truly an amazing video! Another alum, Amy Koltz, noted, “I found the speakers engaging and the presentations thought-provoking — I’m amazed at the group of presenters you were able to pull together and bring to Marquette.”  She also provided a link to this article from Haaretz on media coverage of Israel and noted that it could have been a presentation in the conference. Our own program manager and conference planner, Natalie Fleury, heard this story on NPR Monday morning about Al Qaida’s training manual on the Internet, directly linking to Gabriel Weimann’s talk on Saturday.

And, from 2L part-time law student (and full-time veterinarian) Marty Greer, came this summary of the conference for those who missed it: Continue reading “International Media & Conflict Resolution Conference”

International Media and Conflict Resolution Conference

Posted on Categories Human Rights, International Law & Diplomacy, Media & Journalism, Speakers at MarquetteLeave a comment» on International Media and Conflict Resolution Conference

I am in the midst of final planning for our conference this weekend on the media and conflict resolution. Blog readers (and others) are all invited! The International Media and Conflict Resolution Conference will bring together experts from diverse fields to discuss the influence of different forms of media in the development, escalation, and de-escalation of conflict. An international cadre of journalists, legal academics, psychologists, communication professors, and conflict resolution professionals who live and work in the U.S., Europe, Asia, Africa, and the Middle East will gather at the Law School for sessions analyzing the dynamics of media and conflict resolution in the following topic areas: (1) Separation/Independence; (2) Terrorism; and (3) Elections and Conflict.  Continue reading “International Media and Conflict Resolution Conference”

Justice Involves Communities

Posted on Categories Criminal Law & Process, Speakers at Marquette, Wisconsin Criminal Law & ProcessLeave a comment» on Justice Involves Communities

This past week, the 2009 Marquette Law School Public Service Conference focused on the efforts of communities across the nation to rethink criminal justice policy with a greater emphasis on community involvement in both planning and implementation.  Over the past two decades, Wisconsin has more than quintupled its public expenditures for corrections. At the same time, local communities have struggled with increasing jail populations and declining resources for treatment and reentry services.  At the core of this challenge is the desire to keep communities safe while providing more effective alternatives to long term incarceration.

These challenges are not unique to Wisconsin.  As keynote speaker Jeremy Travis pointed out,

As our nation has reacted to rising crime rates over the years, the response of many elected officials has been to turn to the funnel [arrest, prosecution and incarceration,] as a crime control strategy. . . . We have invested enormous sums of money in these crime control strategies, with profound consequences. . . . Most strikingly, the national rate of incarceration has more than quadrupled over the past generation so that America now has the highest rate of incarceration in the world.

This approach has been accompanied by a drop in the crime rate.  It also has had other sociological consequences which are not as easily quantifiable.  Continue reading “Justice Involves Communities”

McCormick on the Persistence of Ex Parte Young

Posted on Categories Federal Law & Legal System, Federalism, Speakers at MarquetteLeave a comment» on McCormick on the Persistence of Ex Parte Young

The faculty at Marquette Law School welcomed Professor Marcia McCormick of the Samford University’s Cumberland School of Law to a faculty workshop this past Tuesday.  Professor McCormick, who focuses on the law of federal courts and employment discrimination, among other areas, discussed her new paper on the persistence of the case of Ex Parte Young in the face of the Federalism Revolution of the last two decades or so.

In her presentation, Professor McCormcick described the large number of U.S. Supreme Court decisions in the last twenty-five years that have touched on the relationship between the federal government and the states. In this time, the Court seems to have substantially limited the power of the federal government and expanded that of the states, as many Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest.

She also maintained that despite what were seen by many to be revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress’ power under the Spending Clause to require states to engage in or refrain from engaging in certain conduct; and the federal courts’ power under Ex Parte Young to hear suits by private parties to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for quite a bit of federal power, she argued, and it is the extent of that power which makes the continued survival of the doctrines so surprising.

Professor McCormick then explored the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggested some reasons the Court has not removed that power.  In this vein, she argued that it was likely that the Court sees this limited federal power as a necessary check on the states to ensure the supremacy of federal law, to maximize the efficient use of both federal and state power, and to maximize accountability and the rule of law for both the states and federal government.

A lively question and answer session followed Professor McCormick’s talk.   I have it on good authority that Professor McCormick’s favorite culinary adventure involved Kopp’s Custard in Greenfield.