Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law

Posted on Categories Tort Law1 Comment on Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law

I am very happy with the state of tort and insurance law. Thus, my message to the new president would be: Don’t change a thing.

I suspect that will be true if a Republican is elected president. If a Democrat is elected, I also suspect there will be little change in tort law brought about by Congressional action, especially when one considers the financial support the organized plaintiffs’ bar is providing to the dems, particularly to their presidential candidate.

However, if the November election results in the continuation of Democrat control of Congress and puts a Democrat in the White House, there could be a significant impact on insurance law. That impact could well be a switch from state to federal regulation of insurance. Continue reading “Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law”

Why Can’t We Just Get Along?

Posted on Categories Political Processes & Rhetoric4 Comments on Why Can’t We Just Get Along?

Over at his blog, Brazen Maverick, one of our students, Sam Sarver, echoes a conversation that has been happening here about the difficulty of communication across the ideological divide. He was singularly unimpressed with Sarah Palin’s performance in Thursday’s debate but recognizes that others (I would be among them) thought that she did quite well, albeit with neither syntax or word choice calculated to appeal to academic types.

Mr. Sarver wonders whether people holding what seem to be radically differing perceptions of reality can ever talk to one another. I think that they can, but mostly they don’t. Continue reading “Why Can’t We Just Get Along?”

When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

That is the question that lurks behind a fascinating new paper by Dan Kahan, David Hoffman, and Donald Braman. The paper responds to Scott v. Harris, 127 S. Ct. 1769 (2007), in which the Supreme Court held that summary judgment was properly granted to a police officer in a § 1983 lawsuit challenging the officer’s decision to ram his police car into the car of a fleeing motorist. One of the paper’s authors, Dan Kahan (pictured at left), is visiting the Law School today to present the paper at a faculty workshop. (Dan will also be delivering the Boden Lecture here late this afternoon.) The paper begins by taking issue with a particular, case-specific assertion by the majority in Scott, but then opens up some much deeper questions about the roles of judge and jury in a culturally diverse democracy.

The majority in Scott relied on a videotape of the fleeing motorist, which purported to show that he was driving in such a dangerous manner as to justify the use of deadly force to stop him. The majority found the videotape sufficiently compelling that, in its view, no reasonable juror could find in favor of the motorist on his claim that the police officer had acted unreasonably in violation of the Fourth Amendment–thus, warranting a grant of summary judgment. Kahan and his coauthors, however, showed the same videotape to a diverse sample of 1,350 Americans, and found evidence of some disagreement with the majority’s view of the case. Thus, had the case been permitted to go to a jury, there is a statistically sound basis for expecting that one or more of the jurors would have had a considerably less positive view of the officer’s conduct than did the members of the Supreme Court.

Continue reading “When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?”

On Zeigler: How He Teaches

Posted on Categories Legal Education1 Comment on On Zeigler: How He Teaches

Thirty years of law teaching entitles an individual to pause, reflect, and pass along some insights about the craft.  Or so it seems to me.  Professor Donald Zeigler of New York Law School has availed himself of the opportunity by giving American legal education a slim yet rich volume with the three-word title How I Teach (Tribeca Square Press 2008). 

In much smaller print on this paperback’s cover appear the words “Successful techniques for the law school classroom.”  These seven additional words, coupled with the big three, pose something of a paradox.  Together they can be construed to suggest that all or virtually all of law teaching (or perhaps all or virtually all of what Professor Zeigler considers his law teaching) unfolds within the walls of the law school classroom.  In Professor Zeigler’s defense, the seven words do lend themselves to an alternative construction, a construction that conveys the limits and boundaries of his scholarly project.  Quite simply, Zeigler is eager to share with professional colleagues lessons that, presumably, have enabled him to develop into an effective classroom instructor and, also presumably, have enabled his students to extract considerable value from his classroom teaching.  And share he does.  It thus seems fair to cut Zeigler some slack in connection with the ten words he has selected to characterize his project.  Enough said about the volume’s cover, title, and subtitle. Continue reading “On Zeigler: How He Teaches”

“Nucular” and “Nuclear” and So-Called Standard English

Posted on Categories Legal Education, Legal Writing, Political Processes & Rhetoric4 Comments on “Nucular” and “Nuclear” and So-Called Standard English

As a legal writing professor, one part of my job is to help students who didn’t grow up speaking or writing “Standard English” continue adapting their writing to meet the expectations of employers and clients.  Of course, to get through college, many students have already made changes in the way they use English.  But some students come to law school with additional work to be done.  In fact, at least for me, the effort to consciously conform my English speaking and writing patterns to expectations different from those I grew up with never really ends.  

So, like the blogger in this post at frogs and ravens (which I reached via feministlawprof), whatever criticisms I might make of Sarah Palin, jabs at her speech patterns rub me the wrong way.  As frogs and ravens points out, “How you pronounce a word says nothing about your character, your intelligence, your values, or your education.  All it says is whether you are (a) one of the lucky people who grew up speaking ‘the right way’ as your native accent, (b) one of the people who did not, or (c) one of the people who did not and makes a conscious effort to abandon the speech patterns of their childhood to fit in with the expectations of others.”  And it seems somewhat ironic, and, well, dumb, that the prejudice against “regional and working-class accents” enables a candidate “to distance herself from her upper-middle-class lifestyle, her position of power, and her lofty ambitions” just by the way she pronounces words.

Priorities for the New President: Health Care

Posted on Categories Health CareLeave a comment» on Priorities for the New President: Health Care

This month, we are inviting contributors to identify what they think should be the highest priorities of the next President in the areas of law they teach.  Coincidentally, my colleague Alison Barnes was part of a 4th Street Forum program just a couple days ago addressing priorities in the field of health care.  A podcast is available here.  Along with Alison, other panelists included David Newby of the state AFL-CIO; Bill Jenkins, former CEO of Milwaukee County Medical Complex; and George Lightbourn of the Wisconsin Policy Research Institute.  The program will also be telecast on Milwaukee Public Television tomorrow at 3:00.

Milwaukee’s Safe Streets Initiative

Posted on Categories Marquette Law School, MilwaukeeLeave a comment» on Milwaukee’s Safe Streets Initiative

An interesting new website describes the activities of Milwaukee’s Safe Streets Initiative, an innovative antiviolence program involving Marquette Law School, local and federal law enforcement authorities, and community organizations and volunteers.  The SSI represents an effort to bring principles of restorative justice to bear in mobilizing high-crime communities against gang- and drug-related violence.  The core of the program seems to be the “call-in,” a session in which community leaders meet with known drug dealers and offer a choice: either stop dealing (in which case mentoring and community support will be made available to help the offender transition to a law-abiding life) or face swift, tough law enforcement action.  (A photograph from the first call-in in 2007 is above.) The SSI also sponsors similar meetings for offenders returning to the community from prison. 

The community involvement piece seems to me an especially welcome development.  As I discuss in a forthcoming article in the Standford Law & Policy Review, when police and prosecutors come down hard on drug offenders in poor, minority neighborhoods, it is important that their actions are seen as having legitimacy in those neighborhoods, rather than being perceived as arbitrary or racially discriminatory.  Opportunities for neighborhood residents to voice their opinions and collaborate with law enforcement in responding to crime can help build the perceived legitimacy that is necessary for long-term gains in crime reduction.

The Mythical Palin Effect–Women Focus on the Message Rather Than the Messenger

Posted on Categories Political Processes & Rhetoric2 Comments on The Mythical Palin Effect–Women Focus on the Message Rather Than the Messenger

Much has already been written about the Palin Effect and what impact nominating Sarah Palin has had on the McCain campaign. At first, many commentators thought that her nomination would convince former Hillary Clinton supporters to switch parties and vote Republican. It’s a basic testing of Robert Cialdini’s theory on likeability in a negotiation-we are more likely to be persuaded by others when we like them or when we are just like them. But, while Palin’s nomination is clearly a historic first, that, in and of itself, has actually not resulted in women changing their mind on the issues. Continue reading “The Mythical Palin Effect–Women Focus on the Message Rather Than the Messenger”

What Types of Documents Should Law Students Write in Legal Writing Classes?

Posted on Categories Legal Education, Legal Practice, Legal Scholarship, Legal Writing, Marquette Law School6 Comments on What Types of Documents Should Law Students Write in Legal Writing Classes?

I am enjoying reading the current issue of the Journal of Legal Education.  In particular, the second article, From Snail Mail to E-mail:  the Traditional Legal Memorandum in the Twenty-First Century, authored by Kristin K. Robbins-Tiscione, has gotten me thinking about the documents we use to teach students in the first-year writing courses.   Continue reading “What Types of Documents Should Law Students Write in Legal Writing Classes?”

Priorities for the New President: Restore Parole in the Federal Criminal Justice System

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process2 Comments on Priorities for the New President: Restore Parole in the Federal Criminal Justice System

This is part of a series of posts this month focusing on priorities for a new presidential administration.

In the area of federal criminal law, the next administration ought to undertake a number of initiatives: polish the Department of Justice’s tarnished image by ensuring that appointments to leadership positions are rigorously merit-based and by avoiding dubious prosecutions that appear politically motivated; make the federal criminal justice system a real leader and innovator in developing community-based alternatives to prison for nonviolent offenders; likewise, make the federal system a leader and innovator in implementing restorative justice and other processes that are more responsive to victim needs than conventional criminal case processing; seek the elimination of mandatory minimum sentencing statutes; and bring greater coherence and transparency to an executive clemency process that was extraordinarily kind to Scooter Libby, but that rarely does anything for offenders who are not politically connected. Although I regard all of these as matters of considerable urgency–and will perhaps blog about some of them at greater length later this month–I might put still another initiative at the top of the list: restore the possibility of parole release for federal prisoners. Continue reading “Priorities for the New President: Restore Parole in the Federal Criminal Justice System”

Exciting Term Ahead at Supreme Court for Labor and Employment Law

Posted on Categories Labor & Employment Law, U.S. Supreme CourtLeave a comment» on Exciting Term Ahead at Supreme Court for Labor and Employment Law

4united_states_supreme_court_112904 There are not quite as many cases as last year, but 2008-2009 could be a blockbuster year for Supreme Court labor and employment law cases.

BNA Daily Labor Report provides some context:

The U.S. Supreme Court is scheduled to open its 2008-2009 term Oct. 6 with six labor and employment law cases awaiting oral argument.

Continue reading “Exciting Term Ahead at Supreme Court for Labor and Employment Law”

Lawyers and Legal Scholarship

Posted on Categories Legal ScholarshipLeave a comment» on Lawyers and Legal Scholarship

This [i.e., engaging in the conversation started in this post] wasn’t where I’d planned to start, but since I’ve got some thoughts on the scholarship-practice divide I might as well add my two cents. I spent just over eight years in practice before entering academia, so I have some understanding for the practitioner perspective. My firm maintained subscriptions to many of the top law reviews, which I would browse as time permitted. My reactions ranged from “wow that’s really interesting!” to “wow that’s complete ivory tower BS!” to “you know, I think I can actually use that!” And use them I did. I distinctly recall, for example, discussing Alan Michaels’ “Constitutional Innocence” article in the Harvard Law Review at oral argument before the Minnesota Court of Appeals. Nobody laughed.

So I think there’s plenty of scholarship, even work done at relatively high levels of abstraction, that can be put to work in practice. Continue reading “Lawyers and Legal Scholarship”