Marquette University Law School Faculty Blog

Tommy Thompson Describes Lessons from His “Journey of a Lifetime”

By: Alan J. BorsukSeptember 5, 2018September 5, 2018Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment»

There are few people in recent Wisconsin history – maybe all Wisconsin history – who could work a crowd better than Tommy Thompson, and he showed he still has that ability in an “On the Issues with Mike Gousha” program at Eckstein Hall on Wednesday that was interesting, insightful, provocative and entertaining.

Elected four times, he was governor of Wisconsin from 1987 to 2001, followed by four years as health and human services secretary in the administration of President George W Bush, Thompson, now 76, spoke on the day after his autobiography, Tommy: My Journey of a Lifetime, written along with journalist Doug Moe, was released officially. Continue reading “Tommy Thompson Describes Lessons from His “Journey of a Lifetime””

10 Things You Didn’t Know About Study Abroad Opportunities at MU Law

By: Edward A. FalloneSeptember 3, 2018September 3, 2018International Law & Diplomacy, Legal Education, Marquette Law School, Public, UncategorizedLeave a comment»

The interior of a classroom as Professor Pablo Rueda-Saiz stands at the front of the class and studdents sit attentively in their seats. — Professor Pablo Rueda-Saiz teaches Comparative Constitutional Law in Giessen, Germany

An Orientation Session about your study abroad opportunities during law school, with important deadlines, will take place Thursday September 6 at 12:15 pm in Room 257 of the Law School.
The shortest study abroad opportunity takes place over Spring Break 2019 and is a component of Professor Schneider’s International Conflict Resolution class. The class will travel to Israel and study the Israeli-Palestinian conflict first hand.
The month long Summer Session in International and Comparative Law, scheduled to take place in Giessen, Germany Saturday July 20 through Thursday August 15, 2019, includes multi-day field trips to Berlin and Hamburg. In Hamburg this past summer, MU students danced until dawn and then had breakfast at the Fish Market as the sun rose. Apparently, its a thing.
MU Law regularly hosts exchange students visiting for an entire semester from the University of Comillas in Madrid, the University of Copenhagen, and the University of Poitiers in France. Oddly enough, these students find Milwaukee to be an exotic locale.
At the same time, MU Law students have the opportunity to spend one or more semesters of their legal education as a visiting law student in Madrid, Copenhagen, or Poitiers. We definitely get the better of that deal.
Professor Sorcha MacLeod, who teaches in the Summer Session in Giessen, Germany, is an expert in the law of armed mercenaries. And I thought I was cool because I teach Con Law.
You can explore the Study Abroad homepage on the Law School website, however updated information for 2019 will not be available online for a few weeks.
After teaching in Germany for 6 summers, I have come to the conclusion that the words “German” and “pizza” should never be used in the same sentence.
Things you learn teaching Comparative Constitutional Law: the first two words of the German Constitution are “human dignity,” while the U.S. Constitution did not originally mention human rights at all.
Did I mention that an Orientation Session will take place Thursday September 6 at 12:15 pm in Room 257 of the Law School?

Emoluments, Textualism and Original Intent

By: Edward A. FalloneAugust 5, 2018August 6, 2018Constitutional Interpretation, Constitutional Law, Legal History, Public1 Comment

The ongoing refusal of President Donald Trump to both reveal the specifics of his personal finances and to decline any income from sources outside of his official salary as President has brought renewed attention to the Emoluments Clauses of the United States Constitution. There are two such clauses, which state as follows:

The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” absent “the Consent of the Congress.” U.S. Const. art. I, §9, cl. 8. The Domestic Emoluments Clause entitles the President to receive a salary while in office and forbids him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, §1, cl. 7.

The meaning of these two provisions has become the subject of public debate and also litigation. In one leading case, the State of Maryland and the District of Colombia have sued Donald Trump for violating these constitutional provisions. They are suing for declaratory and injunctive relief which would compel President Trump to comply with the terms of the Constitution. Continue reading

Violent Crime Versus Property Crime: Law School Poll Reveals Notable Differences in Public Opinion

By: Michael M. O'HearJuly 28, 2018Criminal Law & Process, Marquette Law School Poll, Public, Wisconsin Criminal Law & Process1 Comment

Public opinion polls typically find a preference for tougher treatment of defendants in the criminal-justice system. However, few polls attempt to disaggregate types of crime. When laypeople are asked what they think should be done with “criminals,” their responses are likely based on the relatively unusual violent and sexual offenses that dominate media coverage of crime. However, punitive attitudes toward such offenses may not necessarily indicate that similar attitudes prevail more generally.

In order to develop a better understanding of the extent to which public attitudes differ based on crime type, I collaborated with Professor Darren Wheelock of the Marquette Social and Cultural Sciences Department on a set of questions in the most recent Marquette Law School Poll. Rather than asking respondents about crime in general, we posed questions regarding violent crime and property crime. Our results were consistent with the expectation that members of the public see these two types of crime in a rather different light.

Continue reading “Violent Crime Versus Property Crime: Law School Poll Reveals Notable Differences in Public Opinion”

First Looks Can Be Deceiving in Giessen, Germany

By: Edward A. FalloneJuly 24, 2018July 24, 2018International Law & Diplomacy, Legal Education, Marquette Law School, Public, UncategorizedLeave a comment»

To the left you can see a photo that seems to show a plate of spaghetti noodles topped by some sort of strawberry sauce. However, first looks can be deceiving. This is actually a photo of a popular type of gelato, called “spaghetti eis,” that is served at the Cafe San Marcos and at numerous other locations in Giessen, Germany.

Similarly, if you were to walk around the campus of Justus Liebig University for the next three weeks, you would undoubtedly see a large group of students laughing and talking as they make their way to and from classes. You might even assume that these are German law students attending a summer session. However, once again first looks can be deceiving.

These students currently enjoying the warm and sunny weather are actually over 40 law students who have gathered in Giessen from the United States and across the globe to participate in the Summer Session in International and Comparative Law co-hosted once again by the Marquette University Law School and our partners the University of Wisconsin and Justus Liebig University. There are 14 students attending from the United States and a variety of other countries represented including Brazil, Poland, Egypt, Portugal, Belgium, Macedonia, Italy and Vietnam, to name a few.

At this stage of the program, the students have finished a week of classes, and a whirlwind field trip to Berlin, and they are beginning to feel at home in Giessen. A Laser Tag outing has been planned. The best Karaoke Bar in town has been located. Continue reading “First Looks Can Be Deceiving in Giessen, Germany”

Partisan Divides Are Vivid in New Law School Poll Results

By: Alan J. BorsukJuly 18, 2018Marquette Law School Poll, Political Processes & Rhetoric, PublicLeave a comment»

“If there’s a subtitle to today’s presentation, it is partisan differences.”

That comment from Professor Charles Franklin, director of the Marquette Law School Poll, as a new round of poll results was released Wednesday at Eckstein Hall, spotlighted a striking and important aspect to public opinion in Wisconsin (and probably across the United States). In short, there are two different worlds of perception on what is going on when it comes to politics and policy.

Start with the most obvious example, opinions of President Donald Trump. Overall, 42 percent of registered voters polled in Wisconsin approved of Trump’s job performance and 50 percent disapproved. In polling a month ago, it was 44 percent and 50 percent. Since Trump took office, those numbers have not varied much.

But break it down by partisanship and there’s a canyon of difference. Among Republicans, 86 percent approve of how Trump is doing as president and 8 percent disapprove. Among Democrats, 3 percent approve and 93 percent disapprove. Continue reading “Partisan Divides Are Vivid in New Law School Poll Results”

Groundwater: A “Gaining Stream” Of Controversy

By: David StriflingJuly 16, 2018July 19, 2018Environmental Law, Public, Water LawLeave a comment»

In hydrologic terms, a “gaining stream” is a surface stream augmented by groundwater flow. In a more conventional sense of the term, legal and policy disputes surrounding groundwater are also “gaining” in importance, though localized groundwater-related issues have perplexed the courts for generations. In a 1903 opinion, at the end of a lengthy discourse summarizing various authorities on the subject of groundwater withdrawals, Justice John B. Winslow of the Wisconsin Supreme Court admitted that “[p]erhaps more time has been spent in reviewing these decisions than is profitable, but the subject is interesting, and . . . should be given serious consideration.”[1] Winslow’s comments came during the latter part of a long period of judicial unfamiliarity with the science of groundwater. Nineteenth century jurists characterized its movement and sometimes its very existence as “unknown”[2] or even “occult.”[3]

About two -thirds of Wisconsinites draw their drinking water from the ground. Still, both in this state and elsewhere, groundwater lacks the intuitive familiarity of surface water. Perhaps as a result, many states still don’t have well-developed jurisprudence or legal management systems for groundwater even though hydrogeology has become a well-developed and well-accepted science. Judicially-created groundwater doctrines vary widely from state to state. This legal dissonance is of increasing concern in light of a surge of groundwater problems and disputes involving water quality concerns, the viability of the public trust doctrine as a tool for groundwater regulation, and transboundary management issues, among many others. This societal and legal evolution proves Justice Winslow correct: The law of groundwater is indeed “interesting,” and courts are giving it ever more “serious consideration.” Consider the following examples:

Continue reading “Groundwater: A “Gaining Stream” Of Controversy”

The Developing Shape of August Primaries Comes into View in New Poll Results

By: Alan J. BorsukJune 21, 2018Marquette Law School Poll, PublicLeave a comment»

The results of the Marquette Law School Poll, released on Wednesday, June 20, showed both how long a time and how short a time two months is as an election approaches.

The primary on Aug. 14 will decide which of a large field of Democrats will race incumbent Republican Scott Walker in the November election for governor and which of two Republican candidates will face incumbent Democrat Tammy Baldwin in the election for a US Senate seat.

How long is it until Aug. 14? The poll, conducted through telephone interviews with 800 registered voters statewide from June 13 to 17, found that large majorities said they did not know enough about or did not yet have a favorable or unfavorable opinion of every one of the candidates in the top spotlighted contests. The figures ranged from 61 percent to 94 percent. Large portions of the public haven’t yet felt the election is close enough to require a lot of attention.

On the other hand, now that the clock is under two months, interest in the poll results, including news coverage of the findings, is increasing. While the general public may not have tuned in strongly yet to the campaigns, those who are involved know time is running short. Increasingly active campaigning and advertising almost surely will lead to more voters knowing the people running for office by the time Aug. 14 arrives. Continue reading “The Developing Shape of August Primaries Comes into View in New Poll Results”

Facts and History — But No Predictions — as Program Sets the Political Scene

By: Alan J. BorsukJune 17, 2018Lubar Center, Marquette Law School Poll, Political Processes & Rhetoric, PublicLeave a comment»

Set aside (for the moment) the poll numbers, the partisanship, and the passion and analyze the facts and data.

That was the goal of an “On the Issues with Mike Gousha” program on Thursday, June 14, at Marquette Law School that was a bit unusual. How so? The guests were Charles Franklin, director of the Marquette Law School Poll, and John Johnson, research fellow for the Law Schools Lubar Center for Public Policy Research and Civic Education, but, unlike the large majority of such sessions, particularly involving Franklin, they didn’t have any fresh poll results.

Instead, the goal, as Franklin put it, was to look at the lay of the political landscape, both in Wisconsin and beyond. Results from four special elections so far in 2018 for legislative seats in Wisconsin and from the statewide election of a Supreme Court justice offered the opening insights on current Wisconsin voting patterns. But the discussion expanded to encompass results from more than 300 elections nationwide since the 2016 presidential election and to look at history going back as far as the 1860s.

Franklin and Johnson showed the degree to which Democrats generally had gained ground since 2016 in election results in Wisconsin and nationwide. But Franklin looked at historical trends that show how the party of a sitting president usually loses ground in mid-term elections. What is shaping up for this fall’s elections may (or may not) be more in line with historical patterns than many people think.

One interesting insight: On average, Franklin said, the opposition party has gained 24 seats in the US House of Representatives in mid-term elections. And for the Democrats to gain control of the House this year, they need to gain 24 seats. That means it’s anyone’s guess which party will have the majority in the House after November. Or, as Franklin put it, “uncertainty is the order of the day.”

Franklin looked at the history of the impact on mid-term election of factors such as a president’s popularity, change in the national gross domestic product, unemployment rates, and the results of polling that asks people a generic question (with no candidate specified) about which party they hope will win the upcoming election. Based on history, some of those indicators suggest good prospects for Democrats – and some don’t.

The four special legislative elections in Wisconsin this year, as well as the Supreme Court election (assuming you assign partisan interpretation to it), each showed Republicans doing worse and Democrats doing better than they did in recent elections, Franklin and Johnson showed.

Some suggest that the low turnout in those races reduces the weight that should be put on such trends. Johnson analyzed results of special elections compared to general elections broadly and found that the differences in outcomes between the low turnout and high turnout elections were not as great as many people assumed.

But Franklin said a shift toward Democrats in the legislative elections in Wisconsin this fall wouldn’t necessarily mean changes in which party controls each legislative house in Madison. For example, few legislative elections in recent years have been settled by five percentage points or less, he said, so a five point shift toward Democrats might not change the winning party in many cases.

The first round of results for the Marquette Law School Poll since March is set to be released on Wednesday (June 20). It will include results for the Democratic primary for governor and the Republican primary for a US Senate seat. The pace of campaigning (and polling) will accelerate through the coming months.

But at this point, Franklin said, it was good to pause and look at the bigger and historical perspective.

“The main thing I want to leave you with is uncertainty (about what lies ahead), but I want you to appreciate why we are uncertain and how these different indicators are pushing in different directions,” Franklin said.

To view video of the one-hour conversation, click here. To get information on the poll release program at Eckstein Hall on June 20, click here.

J. Gordon Hylton: In Memoriam 1952-2018

By: Alan R. MadryJune 14, 2018July 16, 2018Legal Education, Legal History, Marquette Law School, Marquette Law School History, PublicLeave a comment»

On May second, the Marquette community lost one of its most interesting, wonderfully eccentric, and beloved members, Professor Gordon Hylton, who died of complications from cancer. Academics by and large are an enthusiastic group of people with extraordinary jobs that give them a privileged opportunity to study and share their passions with colleagues and students. No one more thoroughly enjoyed and reveled in being part of that world than Gordon Hylton. He was a devoted teacher, a relentless, careful, and thorough scholar, and a cherished colleague.

I personally found Gordon to be one of the most interesting people of my acquaintance largely because he had so many interests, found so many things fascinating, and, aided by a legendary memory, pursued them with passion and rigor and a remarkable urge to synthesize, to explain everything. And he was generous. He enjoyed nothing so much as chatting with his students and his colleagues about baseball, country music, the odd personalities who sat on the Supreme Court, the reasonableness of property doctrines, the early history of Christianity, and always with great enthusiasm and courtesy, as if knowledge and insight were both important and the most fun.

Professor Hylton was a native of Pearisburg, a small town (population, 2,699 in 2016) in Giles County in the SW corner of Virginia near the border with West Virginia. He began his college and university career at Oberlin College in Ohio, where, he often explained, he enrolled because they let him play baseball. In the course of his four years at Oberlin, the student radio station also let him host a country music program in the late night, early early morning hours. Oberlin nurtured a pronounced competitive streak. His roommates recall Gordon organizing them to enter a team in every intramural sport including inner tube water polo despite the fact that Gordon did not know how to swim, something his teammates discovered only well into the water polo season.

Continue reading “J. Gordon Hylton: In Memoriam 1952-2018”

Deconstructing Our Segregated Reality

By: Mark ThomsenMay 31, 2018Alumni Contributor, Civil Rights, Legal Profession, Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public, Race & Law1 Comment

A map of the city of Milwaukee and surrounding counties illustrating the racial segregation of residents per the 200 census. — Black residential segregation as reflected in 2000 Milwaukee Census

In his commentary on May 24, 2018, “Bucks guard Sterling Brown is lucky he wasn’t killed by Milwaukee Police,” Martenzie Johnson casually observes that “Milwaukee is one of the most segregated cities in America, is one of the worst cities for black Americans, economically, the worst city for African-American children to grow up in and is home to the zip code with the highest incarceration rate in the country.”

I moved to Milwaukee in 1984 to become a Marquette Lawyer. I took my first law school exam on my 30th birthday – Torts by Professor James Ghiardi. In May of 1987, like every Marquette lawyer graduating before me and after me, I took the attorney’s oath. I swore to “support the Constitution of the United States,” the one ordained and established in order to “form a more perfect Union.” I never left Milwaukee and I am proud to say I am from Milwaukee. Yet I am at a complete loss of words to describe how it is that we, my law school and my fellow Marquette lawyers, go about our busy daily lives virtually unconscious of living in “one of the most segregated cities in America.” If you believe you can frame the types of questions that, if answered properly and acted on, will help us deconstruct our segregated Milwaukee, then I strongly encourage you to write and to weigh in now.

In October 2015, I was involved in a three week medical malpractice trial in Outagamie County. Judge Mark McGinnis was presiding, who is one of the best trial judges currently on the bench. I came home Friday to rest and prepare for the final week of trial. A little after 1 am on October 31, 2015 the incessant ring of the telephone pulled me from a deep slumber. The voice of a woman said, “Mr. Thomsen, we tried for 45 minutes, but we couldn’t save your son.” My wife, Grace, sitting up asks: “What did they say?” “He’s gone.” “Noooooo…” turned into a mourning howl. It is unforgettable. And so it is that in one instant the eye of a category 5 hurricane shreds your bed, your son’s mother, your wife, his sister, his fiancé, his daughter, his uncles, aunts, cousins, grandmothers, friends — my life and theirs too. Judge McGinnis and defense counsel all agreed to a mistrial if I asked for one. I returned to finish the trial. The case had progressed and in a way that could not have been replicated. The lawyer’s oath is a demanding one.

Yet somehow in the eye of the hurricane you can find love: the love of my son’s fiancé, of my now daughter-in-law Sydney, and my granddaughter, Sienna. They are proudly biracial. Sydney is considering law school. I suggested that she become a Marquette Lawyer. She said “no” because Milwaukee and Milwaukee County are too segregated. The truth hurts so much. Continue reading “Deconstructing Our Segregated Reality”

Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?

By: David StriflingMay 31, 2018May 31, 2018Environmental Law, Public, Water Law1 Comment

In recent years, it has become relatively common knowledge that the Great Lakes Compact generally bans diversions of Great Lakes water outside the Great Lakes basin but offers limited exceptions. A community that straddles the basin line, or that lies within a county that straddles the basin line, may apply for a diversion subject to certain stringent technical conditions. I have previously written in this space that the Compact has been successful at least insofar as the party states were able to agree on and subsequently enforce a common decision-making process to consider such requests. In October 2018, Compact supporters will celebrate its 10-year anniversary.

But the Compact’s first decade has not passed without controversy, much of it centered on the diversion provisions generally and on southeastern Wisconsin in particular. In fact, during a recent conference keynote address here at the Law School’s Lubar Center, Compact expert Peter Annin noted that our area has more “diversion hotspots” than the other Compact party states combined. Consider that in 2009, the City of New Berlin (a straddling community) became the first community to successfully apply for a diversion, and in 2016, the City of Waukesha became the first community within a straddling county to successfully apply for a diversion.

Just last week, the region made Compact history for yet another reason. For the first time, opponents to an approved diversion have filed a legal action to challenge the approval in a state administrative hearing, potentially as a precursor to an appeal to Wisconsin circuit court. The proceedings to follow will provide important and novel insights on how to interpret the Compact. Continue reading “Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?”