New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests

Now available online, the recently published student comments in the Marquette Law Review cover a wide range of topics.  They include Nathan Petrashek’s comment on the impact of online social networking on Fourth Amendment privacy.  Since social networking sites like Facebook and MySpace attract both criminals (e.g., sexual predators, identity thieves) and the police who investigate them, the question whether users have a reasonable expectation of privacy in their voluntary disclosures under the well-established Katz test is poised to become a significant issue in the near future.  Petrashek relies on Fourth Amendment doctrine, as well as the First Amendment right of association and good public policy, to argue that user content should be shielded from police scrutiny in the absence of a warrant.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

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A New Approach to Interpreting the Wisconsin Constitution?

In the most recent edition of the Yale Law Journal, Professor Abbe Gluck observes a phenomenon unique to state supreme courts: precedents that bind courts’ interpretive methods. At the U.S. Supreme Court, justices constantly argue about the proper method for interpreting contractual, regulatory, statutory, and constitutional texts. Prof. Gluck observes that in some state courts, including Wisconsin, a single case definitely sets the method by which future judges will interpret legal texts.

The Wisconsin case she refers to is, of course, State ex rel. Kalal v. Dane County Circuit Court (2004), which set a method by which the court would interpret statutes. That method focuses first on the text of the statute, and circumscribes the use of legislative history and other secondary sources.

Another Wisconsin case Prof. Gluck could mention is Buse v. Smith (1976), decided nearly thirty years before Kalal. 

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Special Committee on Judicial Discipline and Recusal

One important, but perhaps underreported, development in our legal world is the work of the Legislature’s Special Committee on Judicial Discipline and Recusal. The committee grew out of a request from Justice Patrick Crooks for the legislature to consider amendments to statutes governing judicial discipline and disqualification. Both issues have been hot button items in the Wisconsin Supreme Court in the wake of hotly contested and exceedingly well financed campaigns for seats on the Court in the 2007 and 2008 election cycles. The committee, consisting of legislators and public members, is charged with studying both issues and, if appropriate, make recommendations to the legislature.

Yesterday, I had the privilege of being one of nine invited guests to testify before the Committee. Four of the nine witnesses were sitting Justices on the Court – Chief Justice Abrahamson and Justices Bradley, Crooks and Roggensack. The hearing can be viewed here. I am the last (or as I would prefer to say “clean up”) witness.

Yesterday’s hearing had to do with recusal although some of the speakers addressed matters of discipline, largely addressing issues concerning the deadlock in the Gableman matter and how that might be avoided in the future. Much of the discussion on recusal centered on whether the legislature should adopt an objective standard (presumably other than, as I pointed out, the one announced in Caperton v. A.T. Massey Coal Co.), how that standard should be enforced and what it should be.

More to follow.

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