Marquette University Law School Faculty Blog

Wisconsin voters remain intensely polarized over Donald Trump

By: John JohnsonMay 12, 2020Lubar Center, Marquette Law School PollLeave a comment»

Writing this feels like the old SNL gag “Francisco Franco is still dead.” Attitudes toward Donald Trump are still polarized. Still, I think it’s worth pointing out that several months into the largest pandemic in a century, Donald Trump’s approval rating (in Wisconsin) hasn’t budged.

We’ve now conducted two polls during the COVID-19 pandemic and accompanying economic shutdown in Wisconsin. Political opinion on actions taken by the state government has shifted, and Governor Tony Evers job approval has fluctuated by double digits in each poll.

But by now it is clear. Donald Trump has not benefited from a significant rally ’round the flag effect, nor has he seen any real decline in his popularity. His overall approval rating was net 0 in late February, -1 in late March, and -2 in early May. Tony Evers, by contrast, began with an approval rating of +12 in February; this jumped to +36 in late March, and fell back to +26 just a month later.

Net approval ratings of Donald Trump and Tony Evers
Poll dates	Trump	Evers
2/19-23/20	0	12
3/24-29/20	-1	36
5/3-7/20	-2	26

What’s remarkable isn’t just that Wisconsin voters have made up their minds about Trump. A large number of Wisconsinites hold intensely strong opinions about Trump. Wisconsin is often discussed nationally as the most divided state in the nation–the most likely “tipping point” in a national election. To an outsider this might suggest that Wisconsin is full of undecided, persuadable voters. Our data suggests otherwise. Wisconsin is just more narrowly divided between strong partisans than most other states.

In our latest poll we asked 8 questions assessing different aspects of Donald Trump’s job performance. They covered things from Trump’s handling of immigration to his policy decisions in response to the pandemic. I combined all of these questions to create one metric for intensity of Trump support. If a respondent evaluated Trump positively I gave them a score of 1. If they evaluated Trump negatively, they received -1. “Somewhat” positive or negative evaluations received a half point in the appropriate direction. A score of 8 means the respondent answered every question in the most pro-Trump way possible, and a score of -8 means the reverse.

Here are the results. Nineteen percent of Wisconsin registered voters gave Trump the worst score they could, and 13 percent gave him a perfect 8/8. Twenty-six percent rated him -7 or worse, while 23 percent gave him a 7 or better. About half of Wisconsin voters have an overwhelmingly positive or negative opinion of the president. Just 5 percent give him a neutral score within the range 1 to -1.

Here is the average score given Donald Trump by different demographic groups in the state of Wisconsin. As expected, party and ideological identification have the strongest polarization. The most narrowly divided group of all in this survey are residents of the Milwaukee suburbs.

Most of the groups in this chart with average scores close to 0 are not, in reality, full of voters with neutral opinions on Trump. Often, they just have close to even mixes of strongly and oppositely polarized voters.

Consistent with Joe Biden’s small (and within the margin of error) lead, Trump’s average rating in this survey was -0.5. Given the potentially decisive importance of Wisconsin’s 10 electoral college votes and the state’s historically razor-thin margins of victory, I anticipate that both Democrats and Republicans will pursue aggressive turnout and persuasion strategies this fall. Even a tiny set of voters could prove pivotal.

Force Majeure – The Little Clause That Could

By: Molly MadoniaMay 5, 2020May 6, 2020Alumni Contributor, PublicLeave a comment»

[The following is a guest post from Molly Madonia, Law ’16, a prior guest alumni contributor to the Blog.]

What do the great Beyoncé Knowles and force majeure clauses have in common? They both demand that we put some respect on their check.

Force majeure clauses in transactional agreements have often been used arbitrarily, perhaps as a legalese-y afterthought, as an easy exit from the contract, or even added merely to shift the signature blocks onto the proceeding page. However, in the time of an international pandemic, unpredictable supply chain, and abundant contractual frustration of purpose, force majeure clauses are finally getting their time to shine. Now, these often-tertiary little provisions are single-handedly keeping businesses afloat, keeping creditors at bay, and punching well-above their weight class across all types of contracts. Continue reading “Force Majeure – The Little Clause That Could”

Enforcing Environmental Laws During The Pandemic

By: David StriflingApril 30, 2020April 30, 2020Environmental Law, Public, Water Law2 Comments

According to basic economic theory, regulated entities will comply with the environmental laws when the expected benefits of doing so (most prominently, avoiding penalties) outweigh the expected costs of compliance. Theoretically, economists say, there is an optimum level of enforcement where expected sanctions equal expected harm, taking into account the probability that violations will be detected.

Yet the actual level of enforcement of the environmental laws is never optimal, even at the best of times. Enforcement agencies such as the United States Environmental Protection Agency (EPA) and its state counterparts like the Wisconsin Department of Natural Resources (DNR) have imperfect information about ongoing violations. They are not omniscient. And even if they had perfect information, there are often many more potential enforcement targets than can be pursued with limited agency resources. Enforcement, of course, is part of a broad mix of agency responsibilities that also includes rulemaking, standard setting, monitoring, and many other activities. Finally, political leaders may appoint agency heads who drive the pursuit of more or less than the optimal enforcement level.

Enter the pandemic. It adds a new layer of complexity, to understate the matter, in that enforcement agencies must take several new and highly important factors into account, such as the safety of agency personnel and the economic damage some regulated entities are experiencing. Staff who might normally be inspecting permitted facilities or investigating reported violations may be sick, quarantined, or at the very least, working from home. These factors have led some agencies to relax enforcement activities, as discussed in more detail below. Even if they are presumed to be well-meaning, such policies may worsen the situation in communities already disadvantaged by pollution levels that seriously impact public health. In turn, this may expose those communities to additional risks during or following the pandemic. Continue reading “Enforcing Environmental Laws During The Pandemic”

Milwaukee’s 2020 Property Assessments take their largest jump since 2006

By: John JohnsonApril 28, 2020Lubar Center, Milwaukee Area Project1 Comment

The 2020 total value of Milwaukee’s tax base is $31.4 billion, up $2.2 billion from 2019, but still $4.1 billion less than the peak in 2007. The city’s total assessment grew 7.6% from 2019 to 2020. This is the largest year-over-year increase since 2005-2006.

Unless stated otherwise, all values in this post are adjusted for inflation to current (2020) values using the Consumer Price Index.

In unadjusted (“nominal”) dollars, the city’s total 2020 valuation exceeded its 2008 peak for the first time. Homeowners who bought their properties near the top of the pre-Recession market will be glad to see their home values approach the sale price, but apart from this the nominal dollar comparison has little value.

By law, the assessments released in April 2020 are intended to reflect the value of the property on January 1, 2020, so they do not take into consideration the current economic turmoil facing the entire nation. As research from the Public Policy Forum has shown, municipalities in Wisconsin are disproportionately dependent on property taxes compared to local governments in other states. Usually this lack of a diversified income stream is a bad thing, but in this case it may shelter municipalities from even worse fiscal fallout for at least another year.

The residential picture

The average residential property assessment in 2020 was $115,700. The median home’s assessment grew 9.9% from 2019 to 2020, or $9,800. Home valuations increased for 82% of homes and decreased for 12%.

Among neighborhoods with at least 200 homes, values grew the most in Brewer’s Hill ($46,000 on average). Murray Hill, on the other side of the Milwaukee River, saw the largest decline ($9,000). Other neighborhoods with large increases include Harambee, Mount Mary, Maple Tree, and Riverwest. In addition to Murray Hill, property values declined in Riverside Park, Uptown, Clock Tower Acres, Granville Station, Washington Park, and Sherman Park.

There are a handful of neighborhoods where property values in 2020 are higher than in 2007. They include neighborhoods near the Lake such as Bay View, Fernwood, Harbor View, the Historic Third Ward, and Yankee Hill; the two near-north side neighborhoods of Triangle and Triangle North; and a cluster of far-northwest side developments near Dretzka Park.

These neighborhoods are by far the exception to the general trend. As of 2020, the median home in Milwaukee is assessed at 73% of it’s value in 2007–an average decline of $42,000.

Click here for an interactive table showing the median values of residential properties in each Milwaukee neighborhood for the years 2000, 2007, 2019, and 2020.

Student Lessons on Distance Mediation

By: Natalie FleuryApril 28, 2020Marquette Law School, Mediation, PublicLeave a comment»

“Could we try and mediate over the phone?” I was a bit surprised by the response from the attorney when I called to let him know that the Small Claims Mediation Clinic’s courthouse mediation options had been curtailed by the Coronavirus. The Clinic, which was started by former Wisconsin Supreme Court Justice and retired MULS Professor Janine Geske, has been in operation since 1998. A typical Clinic day revolves around same day referrals for mediation cases from Court Commissioners in Room 400 of the Milwaukee County Courthouse. Cases are mediated then and there. In addition to the typical same-day referrals, this semester the Clinic received a number of referrals from judges dealing with civil cases. This particular case, a dispute between relatives, seemed tailor-made for mediation. I hesitated for just a second before saying yes, we would try mediating the case by phone. Continue reading “Student Lessons on Distance Mediation”

More Book Spine Poetry to Celebrate National Poetry Month

By: Lisa A. MazzieApril 28, 2020PublicLeave a comment»

A couple weeks ago, I posted about creating book spine poetry to celebrate National Poetry Month. I asked for your creations and some of you got busy and created poetry. Here are the book spine poems of faculty, staff, and alumni.

Paul Anderson, Director of the Sports Law Program and the National Sports Law Institute, insists all of the books he used to create his poem are his, except one. Do you know which one? stack of books

Student Services Librarian & Adjunct Professor of Law Deborah Darin submitted this poem:

stack of books

Molly Madonia (L’16), associate counsel at Milwaukee World Festival, Inc. (producers of Summerfest) called this poem “Feminism”:

Corinthia Van Orsdol (L’07), who works with Marquette University Advancement, submitted this poem:

An avid reader Christine Wilczynski-Vogel, Associate Dean for External Relations, Events, and Facilities, submitted this poem:

Just because National Poetry Month is ending, doesn’t mean you need to stop creating. After all, we’re still stuck inside, staring at all those books. . . .

Might the Pandemic (Finally) Change the Leadership Stereotype?

By: Andrea K. SchneiderApril 22, 2020April 22, 2020Feminism, PublicLeave a comment»

Does having a woman in charge of a country impact how that country is dealing with the pandemic? In the midst of the Covid-19 crisis, more than one commentator has noticed that it does. From Forbes to The Atlantic in the U.S., to think tanks around the world, “feminist leadership matters.”

Forbes Magazine wrote just last week that women leaders are saving lives. In the limited data that is available, researchers have already noted that countries led by women are, thus far, doing better in overall testing rates and in lower mortality rates. Why might this be so? One reason could well be how women make decisions, or as I and others have studied, how women are less susceptible to common decision errors including overconfidence, are less likely to take risks, and are more conscientious in their decision making approach. Women are more likely to consult others before deciding and less likely to go it alone. (I review this and other negotiation skills that women are more likely to have in What’s Sex Got to Do With It?)

Continue reading “Might the Pandemic (Finally) Change the Leadership Stereotype?”

The Wisconsin Supreme Court Misinterprets Emergency Powers

By: Edward A. FalloneApril 21, 2020April 22, 2020Constitutional Interpretation, Constitutional Law, Election Law, Health Care, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment»

A young woman during the coronavirus outbreak of 2020

Under Wisconsin Law, the governor possesses extremely broad power to issue any order that he or she deems necessary to protect lives and property during a state of emergency. When responding to an outbreak of a communicable disease, the governor has the specific power to prohibit public gatherings in any place within the state and for any period of time while the emergency is ongoing. The source of this authority is the power granted to the governor under the Emergency Management Act, which places a duty on the governor to issue orders coordinating the state’s response to a disaster, and the power granted to the Secretary of the Department of Health Services to issue orders forbidding public gatherings during an epidemic. As the top executive branch official in the State of Wisconsin, Governor Evers has both the statutory authority to direct the state’s emergency response efforts and the constitutional authority to make full use of the power of the state’s administrative departments.

On April 6, the Wisconsin Supreme Court — its members meeting under emergency procedures intended to protect their own health — issued an order that had the practical effect of requiring Wisconsin voters who had not already received an absentee ballot to visit a polling place on April 7 and vote in person if they wished to cast a ballot in the spring election.

The result of the Court’s ruling in Wisconsin Legislature v. Evers was to place Wisconsin voters in an untenable position. The ruling disenfranchised anyone who wished to shelter at home in order to avoid possible exposure to Covid-19, a deadly communicable disease, if that person lacked either a computer, internet access, a scanner for making a digital copy of their ID, or a witness to verify their absentee ballot. All of these prerequisites were necessary before a Wisconsin voter could obtain and cast an absentee ballot whilst still sheltering in place. The majority opinion was clear: for anyone who fell into this category, the price of casting a ballot was risking exposure to Covid-19.

The majority opinion in Wisconsin Legislature v. Evers has nothing to do with defending the Rule of Law, and it is a mistake to characterize it in that fashion. There is nothing in any law passed by the Wisconsin legislature that requires the result announced by the Court. Indeed, had the Wisconsin Supreme Court truly intended to uphold the longstanding statutory scheme relating to government powers in response to an outbreak of communicable disease, the Court would have arrived at a contrary result.

A. Background

The State of Wisconsin, like the rest of the country, has been engaged in a struggle to contain the spread of a coronavirus known as Covid-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, declaring a public health emergency in Wisconsin. This order was part of a series of executive actions taken by Governor Evers and other executive branch officials in order to address public health and safety concerns during the spread of this deadly communicable disease. On March 24, 2020, the Secretary-designee of the Wisconsin Department of Health Services, Andrea Palm, acting at the direction of Governor Evers, issued Emergency Order 12 (the “Safer-at-Home Order”). That order directed all individuals in Wisconsin to shelter at home, unless engaged in essential activities, until April 24, 2020, or until such time as a superseding directive took effect.

Continue reading “The Wisconsin Supreme Court Misinterprets Emergency Powers”

National Poetry Month: Create Book Spine Poetry

By: Lisa A. MazzieApril 16, 2020April 17, 2020PublicLeave a comment»

April is National Poetry Month, and this April, particularly, is a perfect time to discover poetry. One way to enjoy poetry is to read it; the other way is to write it.

“Poetry is just the evidence of life. If your life is burning well, poetry is just the ash.” — Leonard Cohen

I’ve found one of the most enjoyable ways to write poetry is to create book spine poetry. Book spine poetry is considered “found” poetry; that is, a poem made up of words from other sources. You, the poet, aren’t writing the words, trying to fit a form, or looking for words that rhyme. Instead, with book spine poetry, you simply arrange books so their titles to create a poem.

books on a bookshelf — Phil Shaw’s book spine poetry.

A timely book spine poem by Phil Shaw made its way around Twitter recently, though author Stephen King was “unconvinced . . . these are real covers.” (Why? The fourth book from the left on the top shelf is supposed to be King’s bestseller It. King points out that the artwork seems wrong and his name is misspelled.)

Still, Shaw’s quarantine project got me working on my own book spine poems. While I have a pretty full bookshelf at work, I have even more books at home. And more variety. I’ve had fun throwing together some poems. It’s easier than trying to find a word that rhymes with “quarantine.”

a stack of books — One of Professor Mazzie’s book spine poems.

What can you create? Send pics of your book spine poetry to me and we’ll create another post with all the submissions.

UPDATE (4/17/2020): Student Affairs Specialist Sarah DiStefano and I both had cats on the brain when we created these poems.

books on a table — Professor Mazzie’s poem on “What Cats Think.”

Thanks for sharing, Sarah!

books on a shelf — Poem by Sarah DiStefano, Student Affairs Specialist

Real-time Control of Stormwater Management Systems

By: David StriflingApril 9, 2020April 9, 2020Environmental Law, Public, Water Law1 Comment

Earlier this week the Notre Dame Journal on Emerging Technologies published Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies, a paper I co-authored with Dr. Walter McDonald of the Department of Civil, Construction and Environmental Engineering (CCEE) in Marquette’s College of Engineering; Joe Naughton, a 2020 Sea Grant Knauss Fellow at the National Oceanic and Atmospheric Administration; and Hannah Hathaway, a member of the Law School’s Class of 2020. Another faculty colleague, Dr. Tony Parolari of the CCEE department, participated in the underlying research grant that resulted in the paper. This kind of work is part of our core mission: the Marquette University Water Law and Policy Initiative seeks, among other things, to employ an interdisciplinary approach, and to pursue opportunities for information exchange and collaboration within and outside Marquette University.

The following excerpt describes the work. The full article is freely available at the above link.

Communities in the United States face growing challenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors. These changes have increasingly stressed existing “static” stormwater management systems such as pipe networks, retention ponds, and detention ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors may require innovative solutions such as real time control (RTC) or “dynamic” stormwater management systems. Continue reading “Real-time Control of Stormwater Management Systems”

When Must a Catholic Judge Recuse from Cases Involving His Diocese?

By: Daniel SuhrApril 7, 2020Alumni Contributor, Judges & Judicial Process, Public, Religion & Law, U.S. Supreme Court1 Comment

[The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]

Yesterday the U.S. Supreme Court denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority. According to the order in the case, Justice Kavanaugh took no part. In his statement respecting the denial of certiorari, Justice Gorsuch wrote, “Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted….” Justice Kavanaugh was a member of the D.C. Circuit panel that first heard oral argument in the case when he was Judge Kavanaugh, and thus could not hear the case again on appeal. See 28 U.S. Code § 47 (he subsequently withdrew from the panel).

Some have suggested that Kavanaugh was recused (either at the DC Circuit or SCOTUS) because he was an active member of a parish in the Archdiocese of Washington. This is not the standard for recusal for any judge on cases involving institutions of his or her faith.

Courts consistently hold that judges do not have to recuse when their denomination has taken a public stand on an issue before the judge. Continue reading “When Must a Catholic Judge Recuse from Cases Involving His Diocese?”

Ireland Reflections 2020–Final Thoughts

By: Andrea K. SchneiderApril 3, 2020April 3, 2020International Law & Diplomacy, Marquette Law School, Public1 Comment

As you might have calculated, we returned to the U.S. on that Saturday that the world saw those crazy pictures at O’Hare after the President’s announcement to shut down the U.S. [Nothing like hearing from him that “no one from Europe” will be allowed back to the U.S. and taking 2 hours from 1:30 a.m.-3:30 a.m. to confirm that the rules were actually not applying to U.S. citizens nor to flights from Ireland!]

And the end of our trip was definitely informed by the fact that we were coming home to a world quite different from one we left. Our fun travel story included several long lines (luckily in Dublin for customs and not Chicago); a plane that finally took off with no luggage on it (!) since they couldn’t take the time to sort the bags between those who made it through customs and those who were detained; and then another 2 hour line at Aer Lingus to fill out a form to claim our bag! Now that we can confirm all bags have returned home and, more importantly, all participants have remained safe and healthy, I can comfortably say this was just another layer to our memorable trip. I am truly grateful that we were able to have this last trip before we all came home to lockdown.

This trip and experience provided an avenue to understand Irish culture in a way that few can. Continue reading “Ireland Reflections 2020–Final Thoughts”