Marquette University Law School Faculty Blog

Introducing our August Bloggers

By: Lisa A. MazzieAugust 2, 2019Alumni Contributor, Marquette Law School, Public, Student ContributorLeave a comment»

We welcome our alumni and student bloggers for August.

head shot of Rebeca Lopez — Rebeca Lopez

Our alumni contributor is Rebeca López (L’12). Rebeca is an attorney on Godfrey & Kahn, S.C.’s Labor, Employment & Immigration Law Practice Group, where she counsels and assists clients in navigating complex legal issues arising in the employment relationship, including addressing disability and leave accommodation requests, wage and hour complaints, and employment discrimination allegations. Rebeca represents employers in matters before federal and state courts and equal rights agencies, and conducts internal investigations into employee complaints and allegations.

Rebeca also serves on various boards of directors in the legal and non-profit community; she was appointed by Mayor Tom Barrett to the Wisconsin Center District Board of Directors from 2016 to 2018 and was appointed by Governor Tony Evers to the Governor’s Judicial Selection Advisory Committee in 2019. In 2015, Rebeca was named to Milwaukee Business Journal’s “40 under 40,” and in 2016, she was recognized as one of Wisconsin’s 48 most powerful Latinos by Madison 365.

Rebeca López worked as an immigration caseworker and a regional coordinator for seven years before attending Marquette Law School and graduating magna cum laude in 2012. While in law school, Rebeca served as Business Editor of the Marquette Law Review and interned at the United States District Court for the Eastern District of Wisconsin for Judge Lynn S. Adelman. Her student-written law review article was quoted by CNN in April.

head shot of Randal Finger — Randal Finger

Our student contributor is 2L Randal Finger. Randal was born and raised in Germantown, Wisconsin, and lives there now. He attended Ripon College and where he received a Politics & Government degree. While at Ripon College, Randal had a practicing attorney as an adjunct professor, which, he said, solidified his decision to attend law school. Over the summer, he worked downtown at Northwestern Mutual as a summer clerk, working on a variety of projects throughout the company. He noted that he has grown fond of real estate law throughout his short time in law school and his time at Northwestern and is the treasurer of the Real Estate Law Society at Marquette. As of now, Randal said he hopes to practice “somewhere in the real estate realm,” but is open to other areas. “I understand that my limited exposure to law in the real world could mean that there is something out there that I enjoy much more.”

Welcome to Rebeca and to Randal. We look forward to your contributions.

Stare Decisis and Fractured Majorities

By: Daniel SuhrJuly 25, 2019Alumni Contributor, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment»

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

On June 25th the Wisconsin Supreme Court handed down its decision in Koschkee v. Evers, 2019 WI 76, which is in many ways a rerun of questions raised in Coyne v. Walker, 2016 WI 38. Coyne was, to put it mildly, a jurisprudential mess: “Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case” (Koschkee, ¶ 5), plus a principal dissent representing the views of three justices, and a secondary dissent representing the views of only two justices.

Chief Justice Roggensack’s Koschkee majority (which commanded four votes on everything except ¶ 17) briefly discussed the stare decisis weight of Coyne in an early footnote, stating, “When we are asked to overturn one of our prior decisions, lead opinions that have no common legal rationale with their concurrences are troublesome.” (¶ 8, n.5.) They are troublesome, the Court continues, because it is hard to run their rationale through the traditional stare decisis analysis when there is no definitive rationale to analyze.

Justice Bradley’s dissent, by contrast, says the majority “throws the doctrine of stare decisis out the window.” (¶ 62.) To the Court’s argument from the lack of a common rationale in Coyne, she replies, “[T]he split nature of the Coyne opinion is of no import. The mandate of Coyne was clear despite the fractured nature of the opinions. Although the four justices in the majority subscribed to differing rationales, they agreed on the essential conclusion….” (¶ 73.)

In my view, the Chief Justice has the better of the argument. Continue reading “Stare Decisis and Fractured Majorities”

MULS Legal Education: Following Footsteps and Forging Your Own Path

By: Mike HaggenjosJuly 24, 2019Alumni Contributor, Legal Education, Legal Practice, Legal Profession, Legal Writing, Marquette Law School, Public, Student ContributorLeave a comment»

Sensenbrenner Hall

zilber forum — From Sensenbrenner Hall (left) to the Zilber Forum at Eckstein Hall.

When I was asked if I would—together with my daughter Micaela—write a blog for the Marquette University Law School Faculty Blog, I wanted to make sure it was known I haven’t practiced law full-time in fifteen years. So, fair warning, this is not going to be a technical legal discussion.

Let’s start with a short background: I graduated from MULS in 1989. In fact, I just celebrated my thirty-year reunion (quick shout out to my classmates: You guys rock! We had the highest turnout of any reunion class!). It was wonderful catching up with old friends, some I have kept in touch with; regrettably, some I have not.

As I stood in the Zilber Forum (as I have done several times previously, more on that later), I reflected on my law school experience at Sensenbrenner Hall, and, despite feeling envious of the students who are privileged to study law in such a marvelous facility, was transported in back thirty years to the year I graduated from MULS. I remember the hope, the promise, coupled with the uncertainty and anxiety I was feeling at the time. Not to mention the excitement of my impending marriage one month later to my beautiful wife of thirty years, Ellen, whom I met while we were both studying at Marquette (she was earning her Masters in Analytical Chemistry at the time).

Flash forward thirty years and imagine my pride when Micaela announced to us that she would be attending MULS. In fact, Micaela is officially a 3L and is on track to graduate in May 2020. While it may not be shocking for a child to follow in a parent’s footsteps, it didn’t look like that would be happening with Micaela. Continue reading “MULS Legal Education: Following Footsteps and Forging Your Own Path”

Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)

By: Joseph D. KearneyJuly 22, 2019July 25, 2019Civil Rights, Marquette Lawyer Magazine, Milwaukee Public Schools, Public, Race & LawLeave a comment»

Judge John W. Reynolds sitting in a chair A previous blog post discussed a pair of stories in the Summer 2019 Marquette Lawyer magazine and concluded by quoting one of them: specifically, an observation by Professor David Strauss of the University of Chicago, based on the Boden Lecture at Marquette Law School by Duke’s Professor Ernest Young, that “in the end, there is only so much the law can do to save a society from its own moral failings.” This post takes up a second pair of stories in the magazine, from which one might draw the same conclusion.

While it remains a fact about the large majority of schools in the Milwaukee area now, segregation of Milwaukee school students by race was the subject of great energy—attention, advocacy, and controversy—in the 1960s and 1970s. Two pieces in this summer’s Marquette Lawyer focus on the Milwaukee education scene of that earlier era.

In one, Alan Borsuk, the Law School’s senior fellow in law and public policy, writes about the decision issued in January 1976, by U.S. District Judge John W. Reynolds, which ordered that the Milwaukee Public Schools be desegregated. “A Simple Order, a Complex Legacy” touches upon the legal history of school desegregation cases, Reynolds’ 1976 ruling itself, and the legacy of that Milwaukee ruling. To borrow a phrase from Professor Young’s Boden Lecture, there is scarcely “an optimistic, onward-and-upward feel” to the account. Continue reading “Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)”

New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

By: Joseph D. KearneyJuly 15, 2019July 16, 2019Civil Rights, Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, Marquette Lawyer Magazine, Popular Culture & Law, Race & Law, Speakers at Marquette, U.S. Supreme CourtLeave a comment»

This cover of the summer issue of the Marquette Lawyer. The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.

The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.

Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.

In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”

A future post will discuss another pair of articles in the magazine that would support the same reaction. Click here to read both Young’s lecture and Strauss’s comment.

Unconscious Mistake: Wisconsin Implied Consent Statute Upheld for Wrong Reasons

By: Nicholas WanicJuly 3, 2019Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Public, Student Contributor, U.S. Supreme Court, Wisconsin Supreme Court2 Comments

It’s no secret that Wisconsin has long been known for having some of the most lenient drunk driving laws in the country. Throughout the spring semester I saw firsthand just how limited the consequences can be—compared to other states like my native Illinois—as first-time offenders were simply cited for ordinance violations in Milwaukee Municipal Court and not charged criminally. However, there have been efforts in recent years to crack down on drunk driving in a state famous for its beer. State legislators have passed a number of measures to deal help law enforcement, and this past week one such measure found itself before the United States Supreme Court.

In its decision in Mitchell v. Wisconsin, the Court upheld Wisconsin’s implied consent statute and ruled that states are not restricted from taking warrantless blood samples from unconscious drunk-driving suspects by the Fourth Amendment.

In 2013, Mr. Mitchell was arrested in Sheboygan Wisconsin after police, who were responding to reports of an intoxicated driver, found him drunk and disheveled at a local beach. Mitchell stated that he wound up there after he felt too drunk to drive. The officer decided not to preform sobriety tests at the scene because Mitchell’s condition would have made it unsafe to do so. Instead, a preliminary breath test was administered with a resulting BAC of 0.24. While being transported to the police station Mitchell’s condition deteriorated and he was eventually taken to the hospital. Upon arrival, Mitchell was completely unconscious. He was then read the standard Informing the Accused form and a blood sample was taken, all without him regaining consciousness. That sample indicated a BAC of 0.22. While consent to a blood draw is normally withdrawn when the Informing the Accused is read—a form that actually asks if the subject will submit to an evidentiary test—Mitchell was obviously unable to withdraw consent in his condition.

But why was Mitchell required to withdraw consent in the first place? Continue reading “Unconscious Mistake: Wisconsin Implied Consent Statute Upheld for Wrong Reasons”

Guest Blogging is a Family Affair!

By: Edward A. FalloneJuly 3, 2019Alumni Contributor, Marquette Law School, Public, Student Contributor, UncategorizedLeave a comment»

Photo of father and adult daughter standing in front of a brick wall, smiling. — Mike and Micaela Haggenjos

For the month of July, we welcome father-daughter pair Mike and Micaela Haggenjos as our alumnus and student bloggers.

Mike grew up in Prophetstown, Illiniois, attended the University of Iowa and received a B.S. degree in Political Science and Economics. He graduated from Marquette Law in 1989. He was in private practice until 2004 at the Port Washington, Wisconsin law firm of Ansay & Haggenjos (now O’Neill, Cannon, Hollman, DeJong & Laing, S.C.). Mike left the practice of law to become an owner and officer of Voeller Mixers, Inc., in Port Washington, a manufacturer of equipment used to make concrete products. Mike has been married to Ellen for 30 years and has two children, Micaela and Matthew. Mike enjoys golf, boating and performing as the lead singer in a rock band that plays in Ozaukee and Washington County.

Micaela grew up in Port Washington, Wisconsin and received her B.A. in English Literature from the University of Wisconsin-Madison. During her time at MULS, Micaela interned with the Honorable Rebecca Bradley of the Wisconsin Supreme Court and is currently working for the firm Alan C. Olson & Associates in New Berlin. Micaela is a member of the Association of Women in Law and the Business Law Society at MULS and has volunteered for the MJC Family Law Forms Clinic and the Eviction Defense Project. Micaela and her competition partner, Brooke Erickson, were the champions of Marquette’s 2019 Jenkins Honors Moot Court Competition and won the Franz C. Eschweiler Prize for Best Brief. She looks forward to representing MULS at the National Moot Court Competition this fall and serving on the 2019-2020 Moot Court Executive Board as Associate Justice of Intramural Competitions. Micaela hopes to work in litigation and appellate practice after graduation.

We hope that this is the first of many family pairings on the Faculty Blog.

The Class of 2020: The First of a New Generation

By: Nicholas WanicJuly 2, 2019July 15, 2019Immigration Law, Legal Education, Legal Ethics, Legal Profession, Political Processes & Rhetoric, Public, Student Contributor, UncategorizedLeave a comment»

Painting depicting four men dressed in suits grabbing and fighting each other. — By Blaine A. White – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=73482463

I was recently posed an interesting question which I thought would make a great topic for discussion and,while I’m unsure of how this post will be received on the faculty blog, I hope it will spur conversations as interesting as those I’ve had about the subject over the past month.

Next year I will graduate from Marquette Law School along with my fellow classmates. What is particularly noteworthy about our class is that, having first come to campus in the summer of 2017, we will be the first class to graduate who started law school under the current presidential administration. Whether you voted for Donald Trump or not, one cannot deny that his presidency has created an interesting climate not just in politics, but for the law in general. So, I was left to ponder how that interesting factoid has colored my law school experience and might affect the legal field for first year lawyers next year and in the near future.

My first intuition when pondering that question was to discuss how divisive politics and social media appear to be impacting the teaching and practice of law, but I can’t presume that my class is novel in thinking that these are tumultuous times in the legal field. I can’t personally speak to the law school climate in the past, but in my own experience being a law student can be a bit a political minefield, especially outside of Eckstein Hall. Throughout my time in law school, all of my friends and family have been eager to ask me about or to debate about constitutional issues the president has raised that month. But that is almost to be expected, as I have been told by some of my family members who are in the field.

What I was not prepared for was how politics would influence my interactions in my various intern experiences as well. Continue reading “The Class of 2020: The First of a New Generation”

Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

By: April ToyJune 29, 2019Alumni Contributor, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Public, Race & Law, U.S. Supreme CourtLeave a comment»

On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers. The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi. Mr. Flowers has been incarcerated for over 20 years, as he awaits trial. Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black. Douglas Evans, the prosecuting attorney of all six trials, is white.

APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case. The podcast explores the nature of the circumstantial evidence that the prosecution relied upon. It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered. But, for the purpose of the appeal, sufficiency of evidence is not at issue. The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.” And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court. Continue reading “Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi”

In Support of the Humanities

By: David R. PapkeJune 3, 2019June 6, 2019Education & Law, Higher Education, Political Processes & Rhetoric, PublicLeave a comment»

Given the Trump Administration’s denunciations of various Americans and numerous manufactured crises, we might easily overlook its attack on the humanities. For the third consecutive year, the Trump Administration has proposed closing down the National Endowment for the Humanities. It has also proposed major cuts for the National Archives Administration and the complete elimination of the National Historical Publications and Records Commission.

The justifications for these kinds of cuts are predictable. The endangered programs are said to be too costly, although the projected savings of only $28 million for National Endowment grants is not even a drop in the bucket compared to military and defense spending. More generally, supporters of the cuts are prepared to echo the public’s growing skepticism about the value of the humanities, particularly because they purportedly do not result in marketable skills.

What we really need, some might insist, is more funding for STEM programs or, at least, a greater commitment to programs that develop roll-up-your-sleeves practical approaches to problem-solving. These are the types of programs, it is claimed, that best prepare people for life and especially for work and employment in the context of the proverbial market economy.

Holding to the side the fact that STEM and skills funding already greatly exceed grants for teaching and research in the humanities, denigrators of the humanities overlook what might be gained from teaching and learning in such disciplines as art, classics, foreign languages, history, literature, music, philosophy, and religion. Each of these disciplines in its own way invites us to reflect on the most fundamental of questions: What does it mean to be human? Continue reading “In Support of the Humanities”

Implicit Bias and the Gender Leadership Gap

By: April ToyJune 2, 2019Alumni Contributor, Feminism, Labor & Employment Law, Legal Practice, Legal Profession, PublicLeave a comment»

A woman carrying buckets looks up at a ladder leading to the sky; the ladders' rungs are labeled with the various opportunities that have been historically available to women, beginning with "Slavery" at the bottom and "Presidency" at the top. — E.A. Bushnell cartoon from the New York Times, October 1920

On April 29, 2019, I moderated a panel discussion for the State Bar of Wisconsin’s Diversity Counsel Program titled “Closing the Gender Leadership Gap.” The following statistics were shared at the program. According to a study by the American Bar Association, “A Current Glance at Women in the Law,” half of the students graduating from law school with a J.D. are women. Yet, only 22.7% of law firm partners are women, 22% of state court judges are women, and 26.4% of Fortune 500 general counsel positions are held by women. A significant barrier for women in the workplace is implicit bias. After serving on this panel, I was curious to explore how the concept of implicit bias might contribute to the gender leadership gap in the legal profession.

Implicit bias is the term that describes how the subconscious mind categorizes people. The concept was first developed by psychologists Mahzarin Banaji and Anthony Greenwald in the 1990s. Through the use of implicit association tests (“IAT”) Banaji and Greenwald evaluated the time it took for a participant to categorize concepts such as family or career with gender. The quicker the applicant could categorize concepts, the stronger the implicit association. The most frightening aspect of implicit bias is that a person may be consciously opposed to gender discrimination but may unknowingly discriminate against women due to an implicit bias that exists only in the subconscious mind.

Studies suggest that implicit bias may play a role in explaining why men are systematically preferred for positions over women. For example, a Yale study demonstrated a statistically significant preference for men in the field of science. The study involved sending a fictional resume to 100 faculty members at top universities. The only difference was that 50 fictional students were named John, while the other 50 fictional students were named Jennifer. Even though the candidates had identical experience and qualifications, faculty members were more likely to find John competent and were more likely view him as a suitable candidate for lab positions. Continue reading “Implicit Bias and the Gender Leadership Gap”

The June Bloggers Have Arrived!

By: Edward A. FalloneJune 2, 2019June 6, 2019Alumni Contributor, Marquette Law School, Public, Student ContributorLeave a comment»

Let’s welcome our Guest Bloggers for the month of June.

Our Student Blogger of the Month is Nicholas Wanic.

Nick is from Crystal Lake, Illinois, a town which has recently become somewhat infamous in the legal community. Nick received his bachelors from Illinois State in Business Administration, but knew he wanted to go to law school long before he graduated high school. While here at Marquette Law, Nick has worked for the Honorable Joan Kessler of the Wisconsin Court of Appeals and has worked with the Milwaukee City Attorney’s Office prosecuting ordinance violations and working on civil litigation including the recently resolved and much publicized Bird Scooters case. He was a finalist in the Jenkins Competition this past April and looks forward to representing Marquette at the Chicago Bar Association Competition this Fall.

He is currently working toward his litigation certificate and hopes to work in litigation and appellate practice after graduation. In his free time Nick enjoys painting, cooking, and golfing.

Our Alumni Blogger this month is April K. Toy.

April is an attorney in Meissner Tierney’s commercial litigation practice group. April represents businesses, insurance companies and individuals in a wide range of civil matters including liability and insurance coverage. She also defends businesses against professional liability claims and advises insurers on extra-contractual claims handling issues, including bad faith and duty to defend issues. April graduated from Marquette University Law School in 2010.

April is a member of the Hispanic National Bar Association and Hispanic Professionals of Greater Milwaukee. In addition, she volunteers at the Milwaukee Justice Center.