Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG).  The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report.  We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Continue ReadingConfrontation Avoidance? Part I: A Good Article to Read While Waiting

Remembering Howard B. Eisenberg

eisenbergToday marks the seventh anniversary of the death of Dean Howard B. Eisenberg, on June 4, 2002. This means that Howard has been gone from the Law School longer than he was here, for he served as dean just a month shy of seven years. Yet, in some metaphysical but important sense, I do not believe him to be gone. His “ideals and [his] spirit,” to return to words that I used in 2002 (and that I borrowed from the opening page of the Marquette Law Review in 1916), continue to suffuse-indeed, guide-much of what Marquette University Law School does, even (or especially) with respect to initiatives that we have started since Howard’s death. To be sure, I appreciate that not all who read this blog knew Howard. Therefore, on behalf of the Law School, I warmly invite you to spend a few moments perusing the memorial issue of the Law Review that we published in 2002. It is a remarkable book, containing essays by more than 50 individuals who knew Howard in different parts of his life: the contributors were classmates, professors, fellow lawyers, judges, clients, university colleagues, relatives, students, and others. The memorial issue also contains several of Howard’s speeches, including “What’s a Nice Jewish Boy Like Me Doing in a Place Like This?”

My favorite words in the issue are not my own or even Howard’s. They come from Professor Walter J. Dickey of the University of Wisconsin Law School. Professor Dickey did not suggest that he had known Howard as well as had some of the other essayists. But, after recounting some common experiences, Professor Dickey captured this essential aspect of the man:

Here is how I would characterize these several interactions with Howard. While he was aware of the “politics” of issues, the core of his concern was with substance. His attention and talent were invariably focused on the substantive issue. He had a keen desire to discover what the right thing was to do and to do it. He was well prepared, and he always followed up with a high-quality execution of whatever idea required implementation. Not much for speeches, not a lot of noble talk. He just did. This was not just his job, this was his duty. He would do it as well, as honorably, and in as straightforward a fashion as he could. If some of the causes he advocated were out of favor in the brittle world of politics, he did not apologize or even explain why he was advancing the cause or position he stood for. His expectation was that others would and should know that what he did was to fulfill the responsibility of the legal profession. His expectations brought out the best in others.

While Howard surely had passion for what he did, it was his business-like, matter-of-fact, direct approach which most impressed me. He channeled his passion, his concern and caring for others, in ways that were likely to be effective for those he sought to help. Howard possessed the qualities of a good lawyer. No cause in which he believed was either too large or too small for his attention. For me, he is a model of the best in the legal profession.

I invite you to reread the quotation-there is much wisdom in it-and, particularly, to note the present tense in Professor Dickey’s final sentence.

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Bork Reconsidered, Part I

borkIn my third year of law school, the speaker at our law review banquet was a Boston Globe reporter who talked about a book he was writing on the Robert Bork confirmation battle.  I didn’t pay much attention to his speech, other than to complain loudly to all within hearing that a judge would have been a much more prestigious invitee than a reporter.  Ethan Bronner’s book, Battle for Justice, came out the following year and has since been recognized as a classic treatment of the modern Supreme Court nomination process.

The nomination of Judge Sonia Sotomayor provided me with a convenient excuse to reread Bronner’s treatment of the Bork confirmation debate and to consider whether the lessons learned during that experience have any application to the Obama Administration’s first Supreme Court nominee.  The first, and most obvious, conclusion is that extreme rhetoric about the nominee has become an accepted tactic by the opponents of the party in power.  Senator Edward Kennedy’s denunciation of “Robert Bork’s America” as a land where women are forced to seek back-alley abortions and lunch counters are re-segregated will rightly be remembered as the low point in a long political career.  Similarly, the former Speaker of the House, Newt Gingrich, has had his reputation irrevocably damaged by his casual labeling of Judge Sotomayor as a “racist.”  However, in both cases, the extreme rhetoric served the larger purpose of energizing the base against a nomination and simultaneously engaging the attention of the public at large by raising the stakes of the confirmation. 

Continue ReadingBork Reconsidered, Part I