Repairing the Harm From Clergy Sex Abuse

For the last ten years I have worked in the field of restorative justice. My students, community members, and I, along with the survivors of crimes of severe violence, regularly participate in intensive three-day healing circles we conduct in maximum-security prisons. Our MULS Restorative Justice Initiative (RJI) also facilitates victim/offender dialogues in very serious cases. My students help teachers, social workers, and students in central-city schools to develop restorative processes which address bullying and other harmful behaviors. Each experience reminds me that when serious harm has occurred, it is important to afford victims a safe environment to be able to tell others what has happened to them. People need to understand how some of their decisions and actions can send out negative ripples that have far-ranging effect. One of the most effective ways to promote that conversation is to create a facilitated talking circle in which a symbolic “talking piece” is passed from person to person. One can only speak when in possession of the “talking piece.”  These circles succeed in getting everyone present to deeply listen to each other and provide a safe environment in which to speak from the heart. I have participated in hundreds of circles through the years and still am amazed at what I learn from people through this process.

A few years ago, I started thinking about how the Catholic Church, as a community of people, really needed to look  from different perspectives at the deep-seated and far-ranging effect of the sex abuse scandal. So the RJI, with the assistance of Amy Peterson, Victim Assistance Coordinator of the Milwaukee Archdiocese, began the project of gathering people for a circle. 

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Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

The New York Times has published a story about some studies showing a strong correlation between the number of questions the Supreme Court justices ask a particular litigant during oral argument and an increased likelihood that that side will lose.  In the words of the attorney who did some of the first work on this question while she was a still a law student,

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.  

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists.  From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.'” 

The result seems obvious.  It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory.  In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument.  That would be a real secret to successful advocacy.

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O’Hear, Twerski, and the Work of the Professoriate

Aaron TwerskiProfessor Jessica E. Slavin recently posted concerning Professor Michael M. O’Hear’s well-deserved receipt of the Eastern District of Wisconsin Bar Association’s Judge Robert W. Warren Public Service Award. Through the resources available to me as dean, I have been able to secure a copy of Michael’s brief and well-stated acceptance remarks. Professor O’Hear describes his basic belief that law schools can act as “bridge builders” — first, “between, on the one hand, the world of legal practice, judging, and lawmaking, and, on the other hand, the world of rich and diverse learning contained in the modern university” and, second, between “the local and the national” (the latter being, Professor O’Hear notes, “a two-way street”).

These remarks bring to mind — but are not identical to — somewhat more pointed comments delivered by a renowned Marquette lawyer, Aaron D. Twerski (pictured above), who is the Irwin and Jill Cohen Professor at Brooklyn Law School (and former dean at Hofstra). Twerski is an extremely well-regarded law professor (as is O’Hear, although they are at different points in their careers) and received the prestigious Robert C. McKay Law Professor Award from the Tort Trial & Insurance Practice Section of the American Bar Association. Professor Twerski used the occasion of his award to lament the seeming lack of interest of many law professors in saying things of interest to judges and practicing lawyers.

Among his milder comments:

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