Iranian Police Raid and Close Offices of Human Rights Centre Led by Shirin Ebadi

Posted on Categories Human Rights, Speakers at Marquette1 Comment on Iranian Police Raid and Close Offices of Human Rights Centre Led by Shirin Ebadi

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).

Do You Need CLE?

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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.

A Judicial Visit to the Classroom

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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.

Marquette Law School at 100: Reconsidering the Law School’s Early Decades

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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.

There is little recognition of Schoetz’s accomplishments in the Law School today, and those who know about him primarily know that he was killed in a tragic street car accident on the way to the University Commencement ceremony in 1927. In fact, it was Shoetz who converted the Marquette Law School from what was essentially a traditional night law school with a day division into a modern law school. It was Schoetz who established the case method as the primary means of instruction at the Law School; it was under Schoetz’s direction that the Marquette Law Review was created; it was Schoetz who successfully defended Marquette against an effort to expel it from the Association of American Law Schools and who in fact restored Marquette to good standing in that organization; it was Schoetz who secured ABA accreditation for the Law School after it was initially denied that status; it was Schoetz who first installed a prerequisite of college attendance at the Law School; and it was Schoetz who pulled the plug on the Law School’s evening division in 1924.

Moreover, Marquette was much less “Catholic” in its early history than is commonly assumed. While there was always a Jesuit presence in the Law School in the form of the rector, a priest appointed by the president to be part of the Law School administration, none of the original faculty members of the Law School were Roman Catholics. (All were Protestants of one stripe or another.) Although Max Schoetz was Catholic, during his deanship he went out of his way to emphasize that while Marquette University was a Catholic university, the Law School was a non-denominational institution. Schoetz, for example, refused to cancel classes on the Catholic Holy Days of Obligation even though classes were cancelled on those days by other branches of the University, and he saw that these views were published in the pages of the Marquette Law Review. There is evidence that the Law School did become more Catholic in the 1930’s, particularly after the installation of Francis Xavier Swietlik as dean in 1932. Swietlik’s entire education had been provided by the Jesuits — he was a graduate of both Marquette’s college and law school — and he appears to have been somewhat less “ecumenical” than his predecessors Schoetz and Clayton Williams (Schoetz’s former law partner, who was a Quaker). However, under Swietlik, students were still admitted without regard to religion.

Finally, it is often said that Marquette provided an opportunity to attend law school for Jews, Catholics, and African-Americans who otherwise would not have been able to attend. This, it turns out, is only partly true. Milwaukee was an extraordinarily diverse city in the early twentieth century, and its foreign-born population as a percentage of the whole exceeded that of New York City. From the very beginning the Milwaukee Law School accepted anyone who applied for admission, regardless of race, gender, religion, or ethnicity (or prior education, for that matter). However, the same was true for the University of Wisconsin and most of the law schools in Chicago. Although the University of Wisconsin student body was overwhelmingly native born and members of its faculty occasionally made “anti-immigrant” remarks, there is no evidence that any student was ever denied admission to the University of Wisconsin Law School on the basis of race, religion, gender, or ethnicity. The problem for most ethnic Milwaukeeans was the cost of relocating to Madison, not the institution’s discriminatory admissions policies. The Milwaukee Law School, and later the Marquette Law School, provided an opportunity for those living in Milwaukee to study law school in a relatively inexpensive context.

Moreover, the reforms instituted by Dean Schoetz in the late 1910’s and early 1920’s that made the Law School into a mainstream academic law school actually had the effect of reducing access to law school for Milwaukeeans of limited means and in that sense made the Law School less egalitarian. While everyone had been welcome at the Milwaukee Law School as late as 1907, by the early 1920’s, the Marquette Law School was open only to those who had sufficient resources not just to have graduated from high school, but also to have attended first one year, and then two years, of college. This was true even though this pre-law school education was not a prerequisite for admission to the bar in Wisconsin. In contrast, most of the city law schools in Chicago (particularly Chicago-Kent and John Marshall) retained their open admission policies well into the 1920’s.

Podcasts of all the symposium sessions are available here.

Finding a New Canon of Statutory Interpretation in an Old Case

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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.

Facebook and Work Do Not Mix, Part Deux

Posted on Categories Labor & Employment Law, Speakers at Marquette1 Comment on Facebook and Work Do Not Mix, Part Deux

Facebook 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”

Panel Discussion on the Fairness Doctrine, But Will It Matter?

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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?”

Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans

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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”

Tussle of the Titans: Secunda v. Carpenter

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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”

What Do Reasonable Jurors Get to Decide After Scott v. Harris?

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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?”

Imagining the Reasonable Jury

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme Court1 Comment on Imagining the Reasonable Jury

As has already been noted here, Dan Kahan dropped by the law school earlier this week and gave three fascinating presentations to the law school community. One, which Michael commented on earlier, was on his paper (co-authored with David Hoffman and Donald Braman) criticizing the Supreme Court’s decision in Scott v. Harris, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.”

In brief, Kahan and his co-authors argue that the Supreme Court went awry in Scott by refusing to credit the views of “an identifiable subcommunity” as being within the realm of those held by “reasonable jurors.” This refusal to credit such beliefs with reasonableness, they argue, is potentially destructive of the legitimacy of the justice system.

It’s a fascinating argument, backed by a novel empirical approach to assessing the views of “reasonable jurors” in a use of force case like Scott. But I’m left with a question about the theory, and a question about Scott: Today, I want to focus on the theory: How are judges to tell when the views of “an identifiable subcommunity” are at issue, making summary judgement less appropriate? Monday, I’ll focus on Scott: I’m not certain that the Scott holding is as Kahan et al. describe it, which way may mute their concern. Continue reading “Imagining the Reasonable Jury”

The Hierarchical-Communitarian Worldview

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One thing that most fascinated me about Dan Kahan’s findings (as reported in his Boden Lecture here on Monday) was the lack of people appearing in the quadrant (on his “group-grid” framework) that would be characterized as hierarchical and communitarian (the flip of that, also apparently lacking, would be individualistic egalitarians–more on that later). The gap is striking since hierarchical communitarians are heavily represented in history among philosophers and theologians. Plato and Aristotle would both be hierarchical communitarians, as would Aquinas (pictured above) and other of the Church fathers. Further afield, in China we’d find Confucius and his dialectics and in India, Manu and the dharma shastra.

In many ways, hierarchical communitarianism would appear to be the most realistic of the four possible configurations of beliefs. On the one hand, it recognizes that natural talents are unevenly distributed. Some people are more creative than others, some more intelligent, some have higher emotional quotients and a greater capacity to work with others, etc. Some among us need more guidance from outside, some are wiser. It also, again more realistically, recognizes our interdependence. On the normative side, hierarchical communitarians would celebrate that diversity and appreciate how it contributes to a rich, well-functioning and interesting community and would therefore encourage an awareness among others of the virtues of community and diversity. Continue reading “The Hierarchical-Communitarian Worldview”