A Judicial Visit to the Classroom

Thanks to the Hon. Diane S. Sykes (Marquette University Law School, ’84) for speaking to my Wisconsin Supreme Court class this afternoon. Judge Sykes now serves on the Seventh Circuit Court of Appeals, but spent five terms on the Wisconsin Supreme Court and shared something of her experience on the court and about the nature of a collegial court with students.

One of the things that I hoped was clear to the students is the notion that even these experienced and gifted lawyers on a court of last resort struggle with the law. Minds change and dissents become majority opinions. While differences in philosophy are real (Judge Sykes does not shy from referring to “conservative” and “liberal” jurists while warning that these labels are not comprehensive and their use is complicated), judges grapple with hard cases and their differences are not simply consequentialist. She talked briefly about a decision — which she knew we had discussed in class — about whether a condition of probation might be that the defendant (who had been convicted of wilful failure to support his nine children) refrain from having further children until he could support those he already had (a state of affairs that was extremely unlikely). While the potential consequences are unpalatable, then Justice Sykes (joined in dissent by two “liberal” justices, Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley) concluded that the law prohibited such a condition. Even if we disagree with that view, the recognition that hard cases can make bad law should be married to the idea that they should not.

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Laboratories of Democracy at the Local Level

Matt Parlow has a thought-provoking new article in print: Progressive Policy-Making on the Local Level: Rethinking Traditional Notions of Federalism, 17 Temp. Pol. & Civ. Rts. L. Rev. 371 (2008).  (A draft can be downloaded here.)  Matt contends that the oft-quoted argument of Justice Brandeis (pictured to the left) that states may appropriately serve as laboraties for “novel social and economic experiments” applies equally well — indeed, perhaps even better — to cities and other local units of government.  Citing recent immigration initiatives and living wage ordinances (including one in Madison, Wisconsin), Matt notes a long history of local-level policy innovation in this country.  He argues,

Because they are smaller in size, local governments are more capable of being responsive to the needs of their respective communities because they are more in touch with their constituents.  This leads, in theory, to more responsive and representative policy-making as local government officials make decisions informed by the community’s wants and needs.

In light of these considerations, Matt argues against the tendency of some courts to squelch local initiatives through narrow constructions of home rule powers and liberal invocations of the implied preemption doctrine.

All of this connects nicely to the recent, lively discussion on this Blog of Milwaukee’s ballot initiative mandating paid sick leave for employees.  I take it that Matt would be skeptical of arguments that the Milwaukee law is preempted by state and federal law — at the least, his analysis would suggest some good reasons why a court ought to be slow to find preemption. 

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Appreciating Our Professors: Martin F. Guggenheim

 

I was the idiot in civil procedure who asked, on the first day of class, “So what happened to the plaintiff after remand?”  Actually, I’m not sure I understood or used the word “remand.”  But I definitely wanted to know what happened to the parties after the decision.

I will never forget my professor’s response.  She became quiet.  She narrowed her eyes.  She squinted at me in a way that suggested she was repulsed by the question.  Of course, everyone else in the 100-person class looked at me as well.   Finally she said, “It doesn’t matter.”

We continued with another case.

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