Marquette University Law School Faculty Blog

Felony Convictions and the Right to Vote

Post author:Michael M. O'Hear
Post published:April 13, 2009
Post category:Criminal Law & Process Speakers at Marquette

On April 23, Marc Mauer, Executive Director of the Sentencing Project, will be on campus to speak on “Losing the Vote: Felony Disenfranchisement and American Democracy.” Mauer has been a national leader in drawing public attention to the ever-expanding body of “collateral consequences” suffered by convicted felons, including loss of the right of vote. I look forward to hearing Mauer’s talk, which is part of the McGee Lecture series sponsored by Marquette’e Department of Social and Cultural Sciences. The talk will begin at 7:00 in Room 001 of Cudahy Hall.

More Thoughts on Marriage

Post author:Richard M. Esenberg
Post published:April 13, 2009
Post category:Constitutional Interpretation Human Rights Political Processes & Rhetoric Privacy Rights

Sean Samis has posted a lengthy response to my post expressing “different” thoughts on the Iowa decision on same-sex marriage. I thank him for his response and, while I think he has got it wrong, he’d get a great grade for his efforts in my Law & Theology seminar or Wisconsin Supreme Court class and so he deserves a response. Given the length of the remarks that I am about to make, I once again thought it better to post separately.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

Seventh Circuit Week in Review: Corporate Criminal Liability, Reconsideration of Suppression Rulings, and More

Post author:Michael M. O'Hear
Post published:April 11, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had four new opinions in criminal cases this week. The cases addressed the mens rea requirements for corporate criminal liability, procedural aspects of suppression hearings, child pornography sentencing, and conditional guilty pleas. Taking the cases in that order:

In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees. The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions. The errors related to mens rea issues. Myers was convicted under a statute that bases liability on the knowing creation of a hazardous condition in knowing violation of an OSHA requirement.

The problem is that a corporation, as a legal construct, cannot really know anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to the corporation. Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.” More specifically, the corporation was said to know what an employee knows if the employee has a duty to report that knowledge to someone higher up in the corporation.