Money and the Recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.

Paul complains of the “8 to 1” spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court’s decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the “8 to 1” figure.

As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn’t reflect the situation on the ground.  (more…)

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Tearing Down Fences

G.K. Chesterton, the English essayist and Catholic thinker, said the following:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.”

To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

G.K. Chesterton, “The Drift From Domesticity,” in THE THING (1929).

It is long past time to stop tearing down fences in Wisconsin. (more…)

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Who Will Lead the Fight for Access to Justice?

Jess Dickinson was on a roll, his Southern delivery infused with force and emotion. The Constitution is meaningless unless it is effective, said the presiding justice of the Mississippi Supreme Court. It is time, he said with rising voice, for judges to “stand up” and help insure that poor people have equal access to the courts.

The audience noted its approval with a standing ovation, but that result was never in doubt. After all, the occasion was the Annual Meeting of State Access to Justice Chairs last Saturday in Jacksonville, a gathering of 168 lawyers, judges and state supreme court justices from over 40 states, Puerto Rico and the District of Columbia, all of whom have signed on to the cause of equal access. There was an understandable enthusiasm for the justice’s remarks.

And the audience included the Honorable Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court, making a rare but significant appearance at the meeting; significant because in Wisconsin, access to justice has not enjoyed the out-front leadership of the highest court as it has in many other states, including Justice Dickinson’s Mississippi.

The Wisconsin court, principally the Chief Justice, has been active in the cause of self-representation, striving to make the courts more user friendly to those who cannot afford a lawyer. The Court also approved changes to the rules of professional responsibility that paved the way for the expansion of brief advice clinics, and adopted a State Bar petition to create an Access to Justice Commission. The Chief Justice has led the way in promoting the study of limited representation, considered an essential step in addressing the problem of access to the courts.

Most significantly, the court approved the $50 annual assessment that goes to the Wisconsin Trust Account Foundation’s Public Interest Legal Services Fund, providing much needed funds as IOLTA income fell. (One of the more bizarre events I’ve ever witnessed is the State Bar Board of Governors actually debating a proposal to sue the Court because of the assessment.)

But it would be a stretch to say that our Court has been out in front, leading the way on access to justice issues in Wisconsin. (more…)

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The Pro Bono Oath

When the Wisconsin Supreme Court declined in February to grant the Civil Gideon petition and its proposed requirement that legal counsel be appointed for impoverished civil litigants, it instead noted a familiar fallback solution: pro bono initiatives. When Congress decided in 2011 to drastically cut funding for the Legal Services Corporation, which funds legal services providers such as Legal Action of Wisconsin, the message was similar: lawyers should do more pro bono.

When it comes to the issue of poor people and their legal problems, passing the buck to lawyers in private practice is par for the course. Those who have the greatest ability to affect the problem and acknowledge it as a societal issue always give it back to the lawyers.

So much for venting.

The fact is, more lawyers should do pro bono, and not because those with the money and power shift the attention to the profession. Lawyers should be involved in pro bono because we took an oath that said we would; because we are ethically obliged “to provide legal services to those unable to pay;” because with very few exceptions, no one else can represent the unrepresented poor; because the problem is overwhelming; because it is the right thing to do. (more…)

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New Appellate Brief Filing Checklist

The Appellate Practice Section of the State Bar of Wisconsin has created an Appellate Brief Filing Checklist. The checklist was published as a link in the Appellate Practice Section’s De Novo newsletter and can be accessed here. Thanks to the Appellate Practice Section for creating this useful checklist.

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