Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

Posted on Categories Federal Civil Litigation, Legal Practice, Legal Research, Wisconsin Civil LitigationLeave a comment» on Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em:  A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN.  Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law.  She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.

Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.”  She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”   Continue reading “Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?”

Update on Prior Restraint

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Update on Prior Restraint

The Court of Appeals has stayed the TRO, saying “we are aware of no caselaw which permits prior restraint of speech before an adjudication on the merits of the defamatory nature of the statement at issue.” It will, however, permit Radcliffe’s lawyers to submit a brief. I don’t think that’ll change anything.

Update: Having read the entire transcript of yesterday’s hearing, it appears that the court based its order on defamation, not because of constitutional concerns over 12.05 (he declined to entertain them), but because he thought that 12.05 did not provide for a civil action.

Prior Restraint in Black River Falls

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Prior Restraint in Black River Falls

This is astonishing.

On Friday, in Jackson County, a circuit court judge named Thomas Lister issued an ex parte temporary restraining order against an ad run by a group called the Coalition For America’s Families. The court found that the plaintiff, Radcliffe For Assembly, had demonstrated a reasonable likelihood of success on its claim that the ad violated Wis. Stat. § 12.05 in that it “may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election. ”

The ad apparently stated that Mark Radcliffe, a Democratic candidate for the 92nd Assembly District, supports a health care plan that would double Wisconsin’s taxes, impose 15 billion dollars in new taxes, and represent a $ 510/month increase in taxes for every Wisconsin worker. (While news reports have said that the ad also claimed that the plan would provide benefits to out-of-state residents and illegal aliens, neither the complaint nor the restraining order mention any such statements.)

The order is extraordinary for a number of reasons. Continue reading “Prior Restraint in Black River Falls”

Spin Doctoring and the Judiciary

Posted on Categories Judges & Judicial Process, Wisconsin Court System2 Comments on Spin Doctoring and the Judiciary

I was extremely lucky to represent Marquette Law School this past Saturday night at the Wisconsin Equal Justice Fund’s Howard B. Eisenberg Lifetime Achievement Award Dinner, and the highlight of the event for me was not only my opportunity to meet and take a picture with Justice Louis Butler, but also to hear him present the Lifetime Achievement Award to Judge James A. Gramling, Jr. However, there were two things about Justice Butler’s speech that caught my attention. First, he began his speech by saying, “I’m Justice Louis Butler, and I’m not under investigation for anything.” Now, granted, this was an audience that had given him a thunderous standing ovation on his way to the podium, so he was certainly in the right crowd to make that joke. Nevertheless, it surprised me how eagerly everyone in the room applauded him; it certainly didn’t feel as though it was merely humoring him. Second, and perhaps more importantly, his tribute to Judge Gramling touched repeatedly on the Judge’s insistence in doing the right thing regardless of its popularity or public perception, both in his personal life and in the law. Continue reading “Spin Doctoring and the Judiciary”

The Culpability of Passive Abuse

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process5 Comments on The Culpability of Passive Abuse

Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system.  What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather.  Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison.  Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes?  Continue reading “The Culpability of Passive Abuse”

The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

Posted on Categories Legal Research, Legal Writing, Wisconsin Court SystemTags , 1 Comment on The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

As you probably already know, yesterday the Wisconsin Supreme Court heard the petition of the Wisconsin Judicial Council to amend Wisconsin Statue section 809.23(3), to permit citation of unpublished Wisconsin Court of Appeals opinions as persuasive authority.

Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule.  (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)

Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations.  Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only.  This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009.  When parties cite such opinions, they will have to file and serve copies of the opinions.  The rule specifically will  provide that parties are not required to cite unpublished opinions.  Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create.  Those statistics will be used by the court to review the rule three years after its adoption.

Continue reading “The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations”

Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Posted on Categories Wisconsin Civil LitigationLeave a comment» on Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Last week, the Fourth District Court of Appeals in Wisconsin ruled on a case involving a testator (Edward Schunk) who committed suicide and the inheritance rights of the family who survived him. Apparently, Edward was on a one-day pass from a hospital when he was found dead in a cabin which he owned. The death resulted from a single, self-inflicted shotgun blast to his chest. His will left property to his wife, to his daughter from his second marriage, and to some (but not all) of his six older children who were not Linda’s children. Five of those older children challenged the inheritance by the second wife (Linda) and child from that marriage (Megan) on the grounds that they had aided Edward in committing suicide, and thus should be barred from inheriting under a Wisconsin statute that forbids inheritance by persons who unlawfully and intentionally kill the decedent. Linda and Megan denied providing any help to the decedent’s suicidal act, and asserted that Edward had taken his gun and gone to the cabin without their knowledge. Continue reading “Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals”

Responding to Racial Disparities in the Criminal Justice System

Posted on Categories Criminal Law & Process, Milwaukee, Race & Law, Wisconsin Criminal Law & Process1 Comment on Responding to Racial Disparities in the Criminal Justice System

The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities.  This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation.  As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed.  Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted.  For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted.  Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.

Fastcase: Free Online Research for All Wisconsin Bar members

Posted on Categories Legal Writing, Wisconsin Court System1 Comment on Fastcase: Free Online Research for All Wisconsin Bar members

If you are a member of the Wisconsin State Bar, beginning in November you will have free access to Fastcase.  Fastcase is a searchable online database of federal and state law.  The product overview at the Fastcase website makes the service look user-friendly.   Its coverage is fairly deep too, including state cases back to 1950 or earlier.

I was wondering when a convenient but much lower-cost legal research service like this would become widely available.  It seemed inevitable that it would eventually happen.  I haven’t tried Fastcase yet, but I am going to do so and will follow up with my thoughts about the interface and more details about the coverage.   In the meantime, I would be very interested to hear from anyone who already has experience using the service.

Judge White Visits Her Alma Mater

Posted on Categories Milwaukee, Speakers at Marquette, Wisconsin Court SystemLeave a comment» on Judge White Visits Her Alma Mater

Yesterday’s On the Issues with Mike Gousha featured a conversation with Marquette Law School graduate and Milwaukee County Circuit Court Judge Maxine Aldridge White. Judge White’s journey from growing up in the Mississippi Delta as the daughter of a sharecropper to her current position on the bench is a compelling and inspiring one. Judge White reflected on her time at the Law School and how her experience here helped shape and influence her career. In particular, she pointed to the support and guidance provided her by Professor Phoebe Williams. Continue reading “Judge White Visits Her Alma Mater”

Privacy Interests in Extremis

Posted on Categories Criminal Law & Process, Privacy Rights, Wisconsin Court System, Wisconsin Criminal Law & Process1 Comment on Privacy Interests in Extremis

In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home.  See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008).  The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years.  The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.”  Wis. Stat. § 940.225(2)(d).  The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.”  Wis. Stat. § 940.225(6). Continue reading “Privacy Interests in Extremis”

Economic Loss: Learning From Insurance Law

Posted on Categories Legal Scholarship, Tort Law, Wisconsin Civil LitigationLeave a comment» on Economic Loss: Learning From Insurance Law

My colleague Ralph Anzivino has a helpful new article that explores the fine line between contract law and tort law: The Economic Loss Doctrine: Distinguishing Economic Loss from Non-Economic Loss, 91 Marq. L. Rev. 1081 (2008). As developed by Wisconsin and many other states, the economic loss doctrine indicates that purely economic losses are recoverable in contract, while non-economic losses are recoverable in tort. The difficulty lies in distinguishing economic from non-economic, particularly with respect to property damage resulting from product failure. (Imagine, for instance, a defective garage door opener that causes a garage door to close on the owner’s car.) Continue reading “Economic Loss: Learning From Insurance Law”