Yesterday, our colleague Professor Olga Semukhina of the Marquette Department of Social and Cultural Sciences gave a presentation entitled Criminal Procedure in Modern Russia: The Path of Reforms as part of our faculty workshop series. She outlined the structure of the Russian Criminal Procedure Code (adopted in 2002), explained how the criminal process works, and offered her sense of the system’s shortcomings. Not surprisingly, the system looks very different from that in the United States. The Russian system has Continental roots, and consistent with that is considerably less adversarial than our own. Indeed, defense lawyers play an almost entirely reactive role. The defense has no ability to gather evidence, and until trial (which is the only adversarial component of the system) is limited to lodging objections to the work of the criminal investigator (a lawyer who is in theory an independent investigator, but whose physical location amongst the police and prosecutors tends to generate an affinity for the state). Plea bargaining is non-existent. Every case goes to trial, and 99 percent of those result in convictions.
For me, the presentation underscored the value of the comparative perspective. It is easy to conflate familiarity with necessity, and exposure to the workings of another system has the tendency to dislodge some of our assumptions about the way the world works. Another example: in Russia, a crime victim’s claim for restitution is part of the same case as the criminal prosecution, and the victim has a right to appeal the verdict in the criminal portion of the appeal. It’s an intriguing process to someone, like me, who is interested in the boundaries between the civil and criminal processes.
Mike Gousha began his spring-semester series of conversations “On the Issues” by hosting Milwaukee Police Chief Ed Flynn, who had come to the Law School last January within weeks of starting as chief and thus has a year under his belt (in addition to his substantial experience elsewhere). Anyone who has never heard Flynn speak is missing a treat: he is smart, extraordinarily well-spoken, and witty. A podcast of the interview, which includes as usual with Gousha questions from the audience, is available here and is well worth a listen.
Perhaps the most striking part, for me, was Flynn’s description (at about the 30-minute mark) of how bad police drag good police down:
And I’m not minimizing or mitigating when I say, “Show me a hospital-ful of doctors, and I’ll show the white-coat wall of silence. Show me a roomful of attorneys, and I will show you the pinstripe wall of silence. Show me a roomful of police officers, and if we’re not thoughtful about it, we will have the blue wall of silence.”
Because the devil’s bargain becomes this—and trust me, this is the truth—the overwhelming majority of your police officers come into the job with notions of moral clarity, and they want to protect the good guys from the bad guys. They function in a world that is far more ambiguous than they thought. And they have to make the kinds of decisions which the order book doesn’t cover and the general orders don’t cover, but they live in a rule-based environment. They know they’re expected to do something, and they do things—and most of the time they’re within a margin of error of right. Sometimes they’re wrong—their colleagues know it. Sadly, over the course of the years, if you’re not careful, if you don’t have adult discussions about it, the devil’s bargain is this: The good cop who screws up makes the devil’s bargain with the cop who’s a thief or a brute, where neither one of them says anything. And that’s where you don’t want to get.
Flynn then proceeds to describe how in his estimation anyone who wishes to change this police subculture has to look upon the general police culture with a basic degree of empathy. Other aspects of the interview included Gousha’s asking Flynn to compare Milwaukee’s drop in violent crime over the past year with Chicago’s rise in the same.
To the list of adjectives that I earlier used in describing Flynn, I should add another. He seems loyal as well: he never misses the opportunity, even while appearing at this Jesuit institution, to credit the Christian Brothers, whose institutions he attended for both high school and college.
Dr. Shirin Ebadi, Nobel Peace Prize winner in 2003, is scheduled to be the keynote speaker for Mission Week here in February. The story of her life is an inspiring one. She was the first woman to serve as a judge in Iran, but was removed from her post after the Iranian revolution in 1979, because she is a woman and the revolutionaries thought women should not be judges. In 1992, she was able to obtain a license to practice law, and she has fought for freedom of expression, the rights of women and children, and other human rights.
The offices of her Human Rights Defender Center in Tehran were raided and closed by Iranian police today, on order of the judiciary:
In a statement, the judiciary said it had ordered the closure of the Human Rights Defenders Centre in Tehran because it did not have the required legal permits, the Mehr news agency reported.
It had also been “promoting illegal activities such as issuing statements on different occasions, sending letters to domestic and foreign organisations, holding press conferences, meetings and conferences” which created an atmosphere “of media publicity against the establishment in recent years”, the statement added.
An AP article reports that the center was banned last year but had continued to operate. In that article, Ebadi states in that article that her group was planning on Sunday to honor Taqi Rahwani, who was imprisoned for 17 years after the Iranian revolution, and to celebrate the 60th anniversary of Human Rights Day (which passed on December 10th).
Of course you do. And I can help you. This Friday at the Marquette University Alumni Memorial Union, the Wisconsin chapter of the St. Thomas More Lawyers’ Society will be holding a seminar on Contemporary and Practical Issues of Church and State. The seminar begins at 8:45 and will be preceded by First Friday Mass. My talk is entitled Of Speeches and Sermons: Worship in Limited Purpose Public Forums and is a reprise of a talk I gave earlier this year both here and at the Annual Meeting of the Federalist Society’s faculty division. It is based on an article that will come out after the first of the year in the Mississippi Law Journal. Even Professor Papke liked it! (Although he was most definitely not at the Federalist Society meeting!)
Details are here.
Thanks to the Hon. Diane S. Sykes (Marquette University Law School, ’84) for speaking to my Wisconsin Supreme Court class this afternoon. Judge Sykes now serves on the Seventh Circuit Court of Appeals, but spent five terms on the Wisconsin Supreme Court and shared something of her experience on the court and about the nature of a collegial court with students.
One of the things that I hoped was clear to the students is the notion that even these experienced and gifted lawyers on a court of last resort struggle with the law. Minds change and dissents become majority opinions. While differences in philosophy are real (Judge Sykes does not shy from referring to “conservative” and “liberal” jurists while warning that these labels are not comprehensive and their use is complicated), judges grapple with hard cases and their differences are not simply consequentialist. She talked briefly about a decision — which she knew we had discussed in class — about whether a condition of probation might be that the defendant (who had been convicted of wilful failure to support his nine children) refrain from having further children until he could support those he already had (a state of affairs that was extremely unlikely). While the potential consequences are unpalatable, then Justice Sykes (joined in dissent by two “liberal” justices, Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley) concluded that the law prohibited such a condition. Even if we disagree with that view, the recognition that hard cases can make bad law should be married to the idea that they should not.
The Marquette University Law School came into being in 1908 when Marquette University acquired the propriety Milwaukee Law School and a recently established competitor known somewhat grandiosely as the Milwaukee University Law School. (Milwaukee University consisted only of its law school, and the school had only ten students.) These acquisitions were part of a larger project which converted Marquette from a tiny undergraduate college to a full-fledged university.
To mark the 100th anniversary of these events, the Marquette University Law School has sponsored a series of symposia this fall focusing on various aspects of the history of the Law School. The first two sessions, focusing on the Milwaukee Law School and the first quarter century of the Marquette University Law School featured the research of historians Tom Jablonsky, Joseph Ranney, and Gordon Hylton. The third, fourth, and fifth sessions featured former students from different eras of the Law School who eventually entered law teaching as a career. (These included Jim Ghiardi ’42; Frank DeGuire ’60, Jack Kircher ’63, Michael Zimmer ’67, Chuck Clausen ’70, Christine Wiseman ’72, Janine Geske ’75, Tom Hammer ’75, and Phoebe Williams ’81.) The final session, scheduled for November 18, will feature the perspectives of three faculty members who did not attend the Law School but who have been members of the faculty since the 1980’s: Judi McMullen, Dan Blinka, and Peter Rofes.
The symposium has revealed that the Marquette Law School has a rich, complicated history that is largely unknown to most of its current faculty and students. (In this regard, one suspects that Marquette is typical of most American law schools.) Moreover, the symposium has revealed that many of the frequently repeated statements about the history of the Law School — particularly in regard to its formative era — are not quite accurate.
For example, the symposium has revealed that the most important figure in the history of the Law School is almost certainly former Dean Max Schoetz (pictured above), who was dean of the Law School from 1916 to 1927.
Continue reading “Marquette Law School at 100: Reconsidering the Law School’s Early Decades”
Yesterday, Professor Anita Krishnakumar gave an intriguing presentation on her latest paper entitled “The Hidden Legacy of Holy Trinity Church: The National Narrative Canon.” A copy of her paper can be found here. In her paper, Professor Krishnakumar explores the controversial, but not often discussed, portion of the famous Holy Trinity Church decision. The well-known, and still somewhat controversial, portion of the decision finds the Court relying on the “spirit” of the statute instead of its plain language — with support from legislative history. The more controversial section of the opinion argues that even setting aside traditional methods of statutory interpretation, the statute — which was essentially an anti-immigrant labor statute — could not be enforced against the employer church because the United States of America “is a Christian nation.” Professor Krishnakumar argues that this methodology constitutes an interpretive canon for statutory interpretation: the national narrative canon. She also points to other Supreme Court opinions that use a similar methodology where the Court not only uses traditional interpretive canons, but also this national narrative canon — relying on history and public norms — in deciding the cases.
Professor Krishnakumar warns that this newly-identified, but long extant, national narrative canon poses a threat to the perceived legitimacy of courts’ statutory interpretation because it often runs contrary to the text of the statute, produces bad policy, and can create an unfair exception for a particular entity. While the national narrative canon has been used selectively, it will be interesting to see if the Supreme Court — and indeed other courts — moves more towards this public norms approach to statutory interpretation. In this age of New Textualism, it strikes me as likely that — as seen with the cases Professor Krishnakumar analyzes — to the degree its used, the Court will couple the national narrative canon with another more traditional approach to statutory interpretation in reaching its decision. In this regard, the Court will continue to make the national narrative canon less effective in terms of precedential value, seemingly serving more as dicta. However, its potential effect should not be understated, as these portions of the Court’s opinion can still have powerful effects in the political realm in ways which may run contrary to our society’s commitment to pluralism and diversity.
We were just discussing this issue on on the Marquette Faculty Law Blog last week and I gave my two cents in the comments section to that post.
Now, another example from the real world of how Facebook and work are interacting more and more (via Sky News):
Virgin Atlantic has fired 13 cabin crew after they posted comments on Facebook, calling passengers “chavs” and suggesting the planes were full of cockroaches.The airline said the employees’ behaviour was “totally inappropriate” and “brought the company into disrepute”.
It launched disciplinary action last week amid a row over a group created on Facebook, which has now been removed, about planes flying from Gatwick.
Claims that the airline’s jet engines were replaced four times in one year were made on the group’s discussion board.
Continue reading “Facebook and Work Do Not Mix, Part Deux”
I had the pleasure of moderating a panel discussion on the potential for and desireability of a return of the Fairness Doctrine sponsored by the Marquette University Law School student chapter of the Federalist Society. The panelists were Chicago radio talk show host Guy Benson and local talk show host Charlie Sykes in “opposition” and Marquette Communications Professor Eric Ugland and local talker Joel McNally, who were in “favor” or, at least, not resolutely opposed.
The Fairness Doctrine was a set of FCC policies that required broadcast stations to address matters of public interest (an aspect that was not enforced) and that required some measure of even-handedness in addressing such issues. Those of us who are a little older will recall news broadcasts in which, usually at the tail end, someone was presented to give “equal time” in opposition to an earlier editorial view expressed by the station. This was, as middle-aged fans of Saturday Night Live will recall, the premise for Gilda Radner’s hard-of-hearing Emily Latilla, who was brought on to offer “responsible opposing view points.” (“What’s all this fuss I hear about an eagle rights amendment?”)
The Supreme Court upheld the doctrine over a constitutional challenge in the late ’60s, but it was abandoned during the latter years of the Reagan administration. Continue reading “Panel Discussion on the Fairness Doctrine, But Will It Matter?”
At yesterday’s faculty workshop, Professor John Lovett of Loyola-New Orleans gave an eye-opening presentation on his latest scholarship, entitled “The Winding Road to Recovery: Observations on Property Relations Three Years After Hurricane Katrina.” Professor Lovett detailed the devastation to single-family and multi-family housing in New Orleans. He then explained how different governmental programs — responsible for billions of dollars earmarked for rebuilding and repopulation efforts — have failed or had limited success. Continue reading “Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans”
There was a great debate this noon between our own Professor Paul Secunda and Dale Carpenter of Minnesota. The question before the house was the meaning of Lawrence v. Texas, a 2003 Supreme Court decision which struck down a state law prohibiting homosexual sodomy. Both Professors Secunda and Carpenter agree that the majority decision, written by Anthony Kennedy, was rather opaque (I regard this as kind), leaving us uncertain as to just what type of right it recognized and how similar claims might be assessed in the future.
In Professor Carpenter’s view, Lawrence should be read to recognize a fundamental right to sexual autonomy. State interference with this right should presumably be subject to strict scrutiny. Professor Secunda argues that Lawrence cannot be read in this way, but, instead, ought to be understood as a move away from strictly tiered scrutiny toward a balancing approach applying rational basis scrutiny with, I suppose, more or less “bite” depending upon the nature of the liberty interest infringed. It is my impression that the nature of this more “carniverous” form of review (I can’t help myself) would depend on some notion of what forms of human autonomy are most compelling and a regard for the need to protect discrete and insular minorities, a view that, for me, recalls John Hart Ely’s masterwork Democracy and Distrust.
Both Professors Secunda and Carpenter argued forcefully for their positions. Continue reading “Tussle of the Titans: Secunda v. Carpenter”
This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.
On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.
Continue reading “What Do Reasonable Jurors Get to Decide After Scott v. Harris?”