Prof. Merrill’s Hallows Lecture on How Implicit Legal Ideas Have Deformed the Constitution

Thomas W. Merrill amd Joe Kearney at a podium.
Dean Kearney (left) welcomes a question for Prof. Merrill after the Hallows Lecture.

The Law School had the privilege earlier this week to present our annual Hallows Lecture. The occasion remembers E. Harold Hallows, a Milwaukee lawyer who taught part-time at Marquette Law School during 1930–1958 and then served on the Wisconsin Supreme Court from 1958 until his death in 1974, the last six years as chief justice. For the lecture, we welcomed Thomas W. Merrill, the Charles Evans Hughes Professor of Law at Columbia University, one of the nation’s most widely respected legal scholars.

Prof. Merrill’s Hallows Lecture, delivered on March 2 in the Lubar Center before 200 people (we counted), was rather a tour de force. Here were the title and advance description:

“Unstated”: How Three Implicit Legal Ideas Have Sidelined Congress and Empowered the President and the Courts

Why has Congress, the constitutional keystone of the federal government, become so ineffective, relative to the president and the federal judiciary? While many explanations have been offered, one important but unappreciated reason is legal ideas—not just widely discussed concepts such as the unitary executive and originalist interpretation of the Constitution but also, and perhaps even more importantly, unstated ideas that have taken hold without much explicit discussion or acknowledgment. This lecture will identify and discuss three largely unquestioned ideas that have combined to deform our constitutional regime. Their result has been that the president wields immense power in the guise of issuing orders and binding regulations and the courts exercise great power in the guise of interpreting the Constitution and laws, while Congress stands largely out of the picture. While there is no magic incantation for restoring a proper constitutional balance, an important first step is to recognize the role that unstated ideas have played in the transformation, so that they can be unmasked and debated in the open.

Even in advance of its publication this coming fall in the Marquette Law Review and Marquette Lawyer, Professor Merrill serialized the lecture this week for a national audience on the Volokh Conspiracy blog. Following an introductory post by Professor Eugene Volokh, the blog featured the following posts the past four days, March 2–5:

  1. How Unstated Legal Ideas Have Deformed the Constitution
  2. The “Unitary Executive” Theory’s Contribution to the Deformation of the Constitution
  3. The Role of Delegation Theories in Deforming the Constitution
  4. How the Supreme Court’s Conception of Its Role Contributes to the Deformation of the Constitution

The text of the entire lecture as prepared for presentation can be read here, and a video of the lecture is available to view here.

Continue ReadingProf. Merrill’s Hallows Lecture on How Implicit Legal Ideas Have Deformed the Constitution

In Lubar Center Program, Chief Justice Karofsky Calls for Protecting Judges and the Justice System

Wisconsin Supreme Court Chief Justice Jill Karofsky had some friends in the audience when she took part in a “Get to Know” program in the Lubar Center of Marquette Law School on Wednesday, March 4, 2026. There was also someone else with her who sought no attention but was important: a security person. Indeed, to make a point, Karofsky noted the person’s presence.

The point concerned one of Karofsky’s main themes in her conversation with Derek Mosley, director of the Lubar Center for Public Policy Research and Civic Education: the need to increase protection of judges and court personnel at a time when polarization and extremely hateful views are making the possibility of violence more of a concern. In Wisconsin, a retired judge from Juneau County, John Roemer, was murdered in 2022 by a man whom Roemer had sentenced to six years in prison. Karofsky herself was the target of stalking that led to the conviction of a Racine man in January 2026. She said police officers have been stationed outside her house at times. And having security officers around Supreme Court justices has become routine.

“Political violence in the United States is going in the wrong direction,” Karofsky said. “It’s unacceptable.” She said she worries every day about the safety of judges, all other staff people who work in courts, and everyone who comes into contact with the justice system. Karofsky has been urging legislators to increase spending on security for courts. She said only four people are assigned now to work on safety for judges across Wisconsin. “We’re talking about hundreds and hundreds of judges,” she said.

She also said it was “completely unacceptable” for the president of the United States to attack justices and judges for doing their jobs. “That’s as un-American as you can get,” she said.

“There are judges and justices in this country who are accessing an incredible level of courage” to do their jobs, Karofsky said. “I think in many ways the judiciary is the bulwark for protecting our democracy.”

But when an audience member asked whether the personal risk meant attorneys shouldn’t aspire to be judges, Karofsky said the value and importance of the work can continue to make it worth being on the bench. More broadly, Karofsky said she encourages people to go to law school and become lawyers. “We need good lawyers in this country right now more than we ever have.”

Among her priorities, Karofsky is pushing to have a policy created for when judges and justices should recuse themselves from taking part in cases, including when one of the parties has been a donor to their campaigns. Karofsky said there is a rule petition in front of the Wisconsin Supreme Court currently. “We’re going to have a rule hearing . . . , and it is my hope and my desire and my plan to work together to craft a rule that is best for the people in this state” by the end of the current court term in June, she said.

Although the partisan split between conservatives and liberals on the Wisconsin high court has received great attention and shaped recent races for the court, Karofsky said the reality of the court’s work is generally much different. “We are far more likely” to have decisions that are 7 to 0 or 6 to 1 or 5 to 2 than 4 to 3, she said. She said the justices work together, socialize together, and take part in events and celebrations outside of work. The idea that the court is split 4 to 3 on everything, “that’s not the world I live in,” she said.

Although she said she does not like the high costs of recent Supreme Court races in Wisconsin, she said that the blame should be put on the U.S. Supreme Court’s 2010 decision known as Citizens United v. Federal Election Commission, which she characterized as opening the way for large donations by corporations and organizations. And she said she continues to support election of judges and justices, rather than appointment through a political process.

Asked by Mosley if she had a message for the law students in the audience, Karofsky said, “We are at a pivotal time in our democracy. And this is a time when the law can really be used as a vehicle to protect the rights of people in our communities, and it can be used as a vehicle to change things that aren’t working for people. I think you are learning how to be lawyers here, and graduating with your law degrees is going to give you incredible power and the incredible opportunity to make a difference in this world are time when we need it most.” Video of the one-hour conversation may be viewed by clicking here.

Video of the one-hour conversation may be viewed by clicking here.

Continue ReadingIn Lubar Center Program, Chief Justice Karofsky Calls for Protecting Judges and the Justice System

Congratulations to the Environmental Law Moot Court Team!

Marquette’s environmental law moot court team, consisting of 3Ls Alana Borman, Thais Marques, and Grady Rosin, traveled to New York in late February to represent the Law School at the National Environmental Law Moot Court Competition (NELMCC) hosted by Pace University in White Plains, New York. Several months of grueling preparation paid major dividends at the competition, as the team performed extremely well across a variety of metrics. Out of more than 50 teams competing, the Marquette team’s brief was ranked second overall, and after three preliminary rounds of oral argument, the Marquette team was ranked fourth. Ultimately, the team advanced to the quarterfinals before falling in a tightly contested match.

Afterwards, Alana, Thais, and Grady reflected on the journey. “Writing an appellate brief with my teammates and advocating for the three different parties in the lawsuit at oral arguments was an intense, complex, and creative way of wrapping up my last year of law school,” said Marques. “I am sure I will look back at this experience with pride.”

Rosin summed it up this way: “The competition was a great way to cap off our brief writing and oral argument practice. We performed well and were able to meet many like-minded students and connect over the shared law school experience.”

Borman added, “NELMCC gave me an opportunity to litigate an environmental issue, an opportunity I would not have had without this competition. The competition solidified my desire to help the environment. I will bring this experience into my practice as I graduate in May. I hope every student has this same opportunity to grow in their law school career, especially at the NELMCC competition.”

The team also thanked practitioner-coaches Tressie Kamp and Dennis Grzezinski, as well as Professor Sarah Fox and Professor Christine Chabot, all of whom helped prepare the team for the competition.

Congratulations, team!

Continue ReadingCongratulations to the Environmental Law Moot Court Team!
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