Crypto Liability v. Popularity

Posted on Categories Alumni Contributor, Cryptocurrency, PublicLeave a comment» on Crypto Liability v. Popularity

BitcoinSince 2014 the government has engaged in several prosecutions of Bitcoin exchanging institutions and managers.  Of the charges typically brought in these cases, one relates to the legal requirements surrounding any transactions greater than $10,000, whether involving Bitcoin or not.  In order to conduct such transactions, among other things, the managing institution likely has to be licensed in some fashion under state law, the customer’s identity must be known, and the institution has to report the transaction. These requirements have been imposed with strict liability.  According to the Department of Justice and many federal judges, Bitcoin is subject to these requirements.

The opposing view is that Bitcoin is not a currency and therefore not contemplated by these regulations.  That question, after four years in the courts, seems to remain up in the air.  Continue reading “Crypto Liability v. Popularity”

Who Are the Old Folks in Prison? Part II

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on Who Are the Old Folks in Prison? Part II

An image of a prison guard towerAs discussed in Part I, I have gathered data on the Wisconsin prison inmates who are 70 or older. Out of an initial set of 299 inmates, I selected a representative subset of 100 in order to take a closer look at the inmates’ most recent convictions. Thirty-eight of the 100 were convicted of more than one offense in their most recent felony cases. In these cases, I focused only on the conviction that resulted in the longest sentence[1].

In reviewing the offenses of conviction, what stands out most starkly is the prevalence of sexual offenses.  Continue reading “Who Are the Old Folks in Prison? Part II”

Who Are the Old Folks in Prison? Part I

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on Who Are the Old Folks in Prison? Part I

An image of a prison guard towerNationally, the number of senior citizens in prison has grown dramatically in recent years. In Wisconsin, for instance, the number of prisoners aged 60 or older grew from just 202 (or 1.2 percent of the total) in 2000 to 1,231 (5.4 percent) by the end of 2016. Such increases should be of public concern for a number of reasons, including the exceptionally high costs of incarcerating the elderly. To a great extent, these costs are related to the prevalence of chronic illnesses and physical and mental disabilities among older inmates. One national study estimated that the average cost of imprisoning a senior is about twice the overall average. In general, it is less costly to manage chronic health problems in the community than in prisons, which are not designed to function as assisted living facilities, and which tend to be located in rural areas at some distance from specialized treatment providers.

Fiscal and humanitarian concerns alike have sparked considerable interest in recent years in “compassionate release” and other mechanisms that might hasten the return of elderly prisoners to the community. On the other hand, there are also countervailing concerns that early release might endanger the public or depreciate the seriousness of the underlying criminal offenses. On both sides of the debate, there seems a tendency to rely on unexamined stereotypes about who the old folks in prison are—the frail, harmless grandparent serving an excessively harsh sentence for a long-ago offense, versus the confirmed predator whose dangerousness can never be fully erased by age.

In order to develop a clearer picture of this population, and with the help of two diligent research assistants[1], I set out to gather some data on the Wisconsin prisoners who are aged 70 or older.  Continue reading “Who Are the Old Folks in Prison? Part I”

Wisconsin 2018: a shift toward the Democrats, but not a uniform one

Posted on Categories Lubar CenterLeave a comment» on Wisconsin 2018: a shift toward the Democrats, but not a uniform one

In a recent article for the Milwaukee Journal Sentinel, Craig Gilbert described how Scott Walker’s 2018 election loss was the result of declining support across all kinds of populous villages and cities in Wisconsin.[1] Walker averaged a 10% decline in places with at least 30,000 people, a 9% decline in places with 10,000 to 30,000, a 6% decline in places with 5,000 to 10,000, and a 3% decline in places with 2,000 to 5,000 residents.

Things improved for Walker in Wisconsin’s numerous small communities. His performance fell by just 0.6% in municipalities with 1,000 to 2,000, and he actually improved over 2014 in communities with less than 1,000 residents.

The overall trend is shown in the graph below.

Even though Walker beat his 2014 performance in over 40% of Wisconsin communities, these places only represent 16% of the state’s adult citizens.

An uneven Democratic wave

I divide the state’s communities into 6 categories based on their shift between the 2012 and 2016 presidential elections.[2]

  1. FLIP BLUE: 5 communities turned blue in 2016 (pop. 17,000).
  2. FLIP RED: 543 communities turned red (pop. 847,000).
  3. TRUMP ENTHUSIASTIC: 977 communities voted for Romney and Trump, and gave Trump an even larger victory (pop. 1,631,000)
  4. TRUMP SKEPTICAL: 85 communities voted for Romney and Trump, but gave Trump a narrower victory (pop. 700,000).
  5. CLINTON ENTHUSIASTIC: 46 communities voted for Obama and Clinton, and gave Clinton an even larger victory (pop. 582,000).
  6. CLINTON SKEPTICAL: 213 communities voted for Obama and Clinton, but gave Clinton a narrower victory (pop. 1,937,000).

Clinton Enthusiastic places include Madison and some of the mostly-wealthy Madison and Milwaukee suburbs. Clinton Skeptical areas include the more peripheral Madison-area suburbs as well as some of the traditional northwestern Democratic strongholds. The only two places of any size which flipped blue are River Falls and Hudson–both located in the St. Paul suburbs.

Communities which flipped red are strewn across the western half of the state with concentrations in the southwestern Driftless Area as well as the northwestern Lake Superior coastal counties of Douglas, Bayfield, and Ashland. Trump Enthusiastic areas cover most of the remaining rural northern half of the state. Trump Skeptical areas are predominantly located outside of Milwaukee in suburban Waukesha and Ozaukee counties.

2018 was a Democratic wave year, and Evers improved over Mary Burke’s margin in every type of community. However, the 2012-2016 shifts described above still had enduring consequences for the 2018 gubernatorial race.

Summarizing the entire vote in each category reveals that Walker won the vote in communities which flipped red in 2016 while Evers narrowly won in places which flipped blue. But the largest and most notable shifts relative to 2014 occurred in Clinton Enthusiastic and Trump Skeptical places, which shifted 13% and 12% toward the Democrats, respectively. These categories represent the two partisan poles of the state. Evers won Clinton Enthusiastic places by 47%; he lost Trump Skeptical places by 29%. But the trend in each place was nearly identical–a double-digit swing toward the Democrats.

In other words, the areas which shifted the most away from the Republican candidate in 2016 were the most Republican parts of the state. Communities which were the most supportive of the pre-Trump Republican Party were the least satisfied with Trump. At least to some extent, that dissatisfaction carried over to 2018. Likewise, support for the Democrats only intensified in communities which were already enthusiastic about Clinton.

2018 governor’s vote trends by category

MCD count Population % of Pop. Evers’ margin Clinton’s margin Burke’s margin Shift from 2016 Shift from 2014
Clinton Enthusiastic 46 582086 10.2 47.2 45.8 34.4 1.5 12.8
Clinton Skeptical 213 1937002 33.9 29.8 25.6 23.2 4.1 6.6
Flip Blue 5 17447 0.3 0.2 1.2 -9.0 -1.1 9.2
Flip Red 543 847386 14.8 -6.0 -11.8 -7.2 5.7 1.1
Trump Enthusiastic 977 1630848 28.5 -27.8 -29.3 -31.1 1.6 3.3
Trump Skeptical 85 700210 12.3 -29.2 -22.8 -41.1 -6.4 11.9

Most of Wisconsin’s wards (52%) experienced flip-flopping trends between the last two races for president and governor. They voted more for Trump than for Romney, but supported Evers more than Burke. Twenty-nine percent of wards shifted in a Republican direction each time. Nineteen percent of wards moved toward both Clinton and Evers. Virtually nowhere moved Democratic in presidential voting and Republican in gubernatorial races.

These divisions have a strong geographic component. Imagine a diagonal line stretching across the state from Green Bay to where the Wisconsin River meets the Mississippi. Trump/Walker trending places are strongly concentrated north of that line.

Clinton/Evers places, by contrast, are mostly south of that line. They include Madison and some suburbs, Milwaukee’s suburbs (but not the city itself), and a few communities in the Fox Valley. A handful of more rural population centers in the northern and western parts of the state are also trending Democratic. Most notably, Democrats have been gaining ground consistently in the Wisconsin suburbs of St. Paul.

The flip-floppers are spread across the state. They make up most of the populous south-eastern half of the state apart from the Clinton/Evers communities.

In another post-election column, Craig Gilbert observed that despite the partisan changes taking place around Wisconsin, “the state persists as a partisan battleground because all those regional shifts over the past two decades have somehow canceled each other out.”[3] Judging by the past two gubernatorial and presidential election cycles, Wisconsin can currently be divided into three general regions. Republican-trenders, Democratic-trenders, and a sizeable third group which moves whither the political winds blow.


[2] 42 minor civil divisions have missing data and are excluded from the analysis.


[4] Ward analysis is conducted using the LTSB’s disaggregated ward files.

Minimizing the Risk of Lead Intake at Schools

Posted on Categories Education & Law, Environmental Law, Public, Water LawLeave a comment» on Minimizing the Risk of Lead Intake at Schools

It might come as a surprise to learn that federal law does not require public or private schools to test their drinking water sources for lead or for any other contaminant. Instead, the Safe Drinking Water Act operates by regulating the “public water systems” that deliver water to the schools. Too often, this broad focus on public systems overlooks the potential contamination sources on private (or school) property, such as lead service lines and indoor lead plumbing “fittings”—valves, bends, and the like. This gap in federal law presents an important opportunity for state intervention.

Indeed, the loophole has already led to some disturbing results. In Detroit, for example, officials found unsafe lead and copper levels at 57 of 86 schools tested. Testing in Vermont recently revealed lead contamination in over a dozen schools. And here in Milwaukee, testing showed high lead levels at 183 of Milwaukee Public School’s 3,000 drinking fountains, and at 28 of 425 water outlets tested at charter schools. Worse yet, a recent federal report shows that more than half of public school districts don’t test their water for lead at the point of delivery. Those that did test often found elevated levels of lead, as illustrated in the report’s summary figure:

Graphic showing lead testing by public school districts

Continue reading “Minimizing the Risk of Lead Intake at Schools”

Making a Splash

Posted on Categories Legal Education, Marquette Law School, Public, Student ContributorLeave a comment» on Making a Splash

As a current .5L, I’ve discovered that law school has a sister: swimming. While it may not turn your hair green or get you ripped abs, law school involves a lot of the same principles that swimming does: hard work, discipline, and patience. I believe I am qualified to make this comparison because I earned my time in the pool. I swam competitively for fifteen years. Around middle school, my coach decided to put my awkwardly long limbs to use as a backstroker.

Swimmers beginning a backstroke race

For those who don’t know, backstroke is the loneliest stroke. Your practices and races consist of staring at the ceiling, listening to yourself breathe, and praying for the pain to be over. You can’t tell where you are compared to others in the race. You have to memorize the distance between the flags near the end of the pool and the wall to know when you must “flip-turn,” or do that little somersault to change direction. If you miscalculate, you risk missing the wall entirely to stop dead in the water. I recognized this “dead in the water” feeling during my first cold call, in which I temporarily left my body from fright and forgot every detail of the case I’d read. Luckily, years of being in this situation had taught me that the only thing you can do is keep going, so I basically read out of the textbook and wrote myself a note on my bathroom mirror to do better next time. You will mess up. What matters is that you keep on going.

Continue reading “Making a Splash”

Welcome Our January Bloggers!

Posted on Categories Alumni Contributor, Marquette Law School, Public, Student Contributor, UncategorizedLeave a comment» on Welcome Our January Bloggers!
Headshot of attorney Daniel Murphy standing in front of a window.
Attorney Daniel Murphy
Student Foley Van Lieshout

We start off the new year with two guest bloggers.

Our Student Blogger for the month of January is Foley Van Lieshout. Foley is a current 1L at Marquette University Law School. She graduated cum laude from Lawrence University in June 2018. She majored in English with a minor in Creative Writing. Ten of her relatives attended Marquette University Law School, but she is the first guest blogger of the family. Foley hopes to focus her studies on criminal law and litigation while at Marquette. She is currently a member of the MULS Association for Women Lawyers and the Federalist Society.

Our Alumni Blogger for the month of January is Daniel Murphy, a recent graduate of Marquette University Law School. Dan provides the following self-introduction:

“After graduating from Marquette Law School in 2016, I was hired  by the Milwaukee County District Attorney’s Office.  I had participated in the Prosecutor Clinic there working in the Violent Crimes Unit on Drug Team 1 assigned to Judge Timothy Witkowiak’s court. As a newly minted Assistant District Attorney I was fortunate to start in that same position. Judge Witkowiak rotated in January of 2017.  Since that time, I’ve practiced in front of Judge Janet Protasiewicz.  As a member of the Drug Unit, I prosecute felony level drug and gun crimes. My job mainly consists of charging cases, reviewing search warrants, providing discovery, and litigating motions and trials.  My case load fluctuates but is typically around 90 cases. In addition to my normal responsibilities, I’m lucky to have had the opportunity to work closely with a group of officers assigned to the Milwaukee Metropolitan Drug Enforcement Group. Those officers work longer term, more complex investigations.  Through that portion of my work I’ve rode along with officers for take downs and search warrants, I work with the officers on planning investigations, and I help wade through legal issues that crop up during the investigations. I thoroughly enjoy being an ADA in the Violent Crimes Unit.  The work is challenging and exciting.  My colleagues at the DA’s office are excellent attorneys and supportive teammates.  I’ve learned an enormous amount about criminal prosecution in my short time there. My personal life has also seen a significant change since graduating law school with the birth of my son, our first.  And life continues to get more (happily) complicated as my wife and I are expecting our second child, a girl, any day now.  We are very happy with our small but growing family and fortunate to have the support of many close friends and family.”

Welcome! We look forward to starting off 2019 with your posts.

Moot Court Association Names Participants in the 2019 Jenkins Honors Moot Court Competition

Posted on Categories Legal Education, Legal Writing, Marquette Law School, PublicTags Leave a comment» on Moot Court Association Names Participants in the 2019 Jenkins Honors Moot Court Competition

The Jenkins Honors Moot Court Competition is the appellate moot court competition for Marquette law students and is the capstone event of the intramural moot court program. Students are invited to participate based on their top performance in the fall Appellate Writing and Advocacy course at the Law School. 

Congratulations to the participants in the 2019 Jenkins Honors Moot Court Competition:

Charles Bowen

Colin (Cole) Dunn

Elizabeth Elving

Brooke Erickson

Jason Findling

Luis Gutierrez

Micaela Haggenjos

Mitchell Kiffmeyer

Peter Klepacz

Julie Leary

Marnae Mawdsley

Alison Mignon

Kieran O’Day

Kylie Owens

Darrin Pribbernow

Mikal Roberson

Jacob Rozema

Caleb Tomaszewski

Brighton Troha

Emily Turzinski

Alexander Sterling

Adam Vanderheyden

Nick Wanic

Sadie Zurfluh

The Jenkins preliminary rounds begin March 30, 2019, with the winning teams progressing through the quarterfinals, then semifinals, to the finals. The final round will take place April 11, 2019. All rounds are open to the public. Stay tuned for more information.

Correction (1/4/19): Earlier, this post said the final round was April 7, 2019; however, the correct date is April 11, 2019.

On Originalism and the First Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Political Processes & Rhetoric, Public, U.S. Supreme CourtLeave a comment» on On Originalism and the First Amendment

Political cartoon from 1888 showing little demons with names like "garbled News," "Paid Puffery," and "Boastful Lies" emerging from the mouth of a printing press.
The Evil Spirits of the Modern Daily Press (Puck Magazine 1888)

On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse).  The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation.  What follows is a copy of my prepared remarks.

“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government.  This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.

The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).

However, originalism as a theory was not invented in order to provide a vehicle for cultural expression.  Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.

Originalism is an interpretive theory that understands a legal text to retain the meaning it had at the moment when it was enacted or ratified, until such time as the law is amended or repealed. (Chris Cooke, “Textualism is Not Strict Constructionism is Not Originalism,“, July 8, 2018).  It holds that the discoverable public meaning of the U.S. Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation. (Keith Whittington, “Originalism: A Critical Introduction,” 82 FORDHAM L. REV. 375, 377 (2013)).

There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.

In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning. Continue reading “On Originalism and the First Amendment”

Putting Christ Back in Christmas

Posted on Categories Popular Culture & Law, Public, Religion & Law, UncategorizedLeave a comment» on Putting Christ Back in Christmas

Drawing of an elderly man in sleeping attire sitting in a Victorian style armchair and gazing at the ghost of an elderly man not unlike himself.
Scrooge and the Ghost of Marley by Arthur Rackham

Some are calling for a stronger connection between Christianity and Christmas, concomitantly rejecting the term “Xmas” as blasphemous, deploring the substitution of “Happy Holidays” for “Merry Christmas,” and urging generally that we “put Christ back in Christmas.”  Sincere religious beliefs prompt most of this campaign, but to what extent has Jesus Christ ever been the true heart of Christmas?

The Bible does not give the date of Jesus Christ’s birth, and it was not until the fourth century that the Catholic Church recognized December 25th as Jesus Christ’s birthday.  Historians have suggested the day was selected to coincide with pagan winter solstice celebrations that were held in many locations throughout Europe.  The solstice came at roughly the same time large numbers of cattle were slaughtered so they would not have to be fed during subsequent months.  Meat was as a result plentiful, as was the wine and beer that had been started during the preceding spring and summer and had now fermented.

In some areas, the partying was raucous and drunken, comparable perhaps to the partying that occurs at Mardi Gras.  Continue reading “Putting Christ Back in Christmas”

Getting an Education on Being a Lawyer, and Not Just on the Law

Posted on Categories Legal Education, Public, Student ContributorLeave a comment» on Getting an Education on Being a Lawyer, and Not Just on the Law

What is your personal conception of professional success and satisfaction for yourself as a lawyer?  How will you know when (or whether) you achieve your conception of success and satisfaction?  These are important existential questions for anyone working in a professional setting to reflect upon, but especially for me, as a 3L gearing up for my last semester of law school.  Yet, I was struggling.  I always knew I wanted to go to law school.  I always knew I wanted to litigate, and I had always planned on going into criminal law.  I have known these things for years.  Why had I never gone a step further, and thought about how I viewed success and satisfaction, and at what point I would feel I achieved those goals?

The questions were posed to those of us in Professor Peter Rofes’ Lawyers & Life course during the Fall 2018 semester.  They were the first of what would be scores of questions, each one seemingly simple in language and length, but digging deeper than many of us had ever been asked to do in our law school careers.  What parts of your legal education have you found to be the most rewarding?  What makes you stand out from other soon-to-be new lawyers?  What do you look for in an employer’s organizational culture? What aspects of your career, disposition, or accomplishments would you want emphasized in your “career obituary”? Continue reading “Getting an Education on Being a Lawyer, and Not Just on the Law”

Resume Booster

Posted on Categories Legal Education, Legal Writing, Marquette Law School, Public, Student ContributorLeave a comment» on Resume Booster

Pen and ink caricature showing a lawyer arguing very strenuously while three judges are sitting at the bench, napping.While I was working into the evening on the third floor of Eckstein Hall, a friend stopped to catch up.  On the table in front of me were piles of handwritten notes, highlighted cases, outlined arguments, and cheat-sheets, organized by Petitioner or Respondent.  Color-coded flashcards were stacked in the corner. I was surrounded by seven-and-a-half weeks worth of sticky notes. I was a few days away from my moot court competition, and reviewing every single note card’s scribbled phrase, ensuring I was ready for any and all arguments from opposing counsel and questions from the judges.  She gave me a sympathetic look.  “Moot court,” I said.

She asked if I felt it was all worth it, for “just a resume booster.”

I looked at everything in front of me.  Seven-and-a-half weeks of color-coded chaos.  The disorganization reflected my anxiety.  But all of it also reflected an extraordinary amount of work and number of hours mastering an area of the law that just seven weeks ago I found foreign and intimidating.  I smiled.  Was it all worth it? Continue reading “Resume Booster”