New Marquette Lawyer Focuses on Efforts to Repair and Respond to Harm

Summer 2022 Marquette Lawyer - Janine Geske, Louis Andrew, L’66, and his wife, Suzanne Bouquet AndrewIn important but differing ways, the four major stories in the summer 2022 edition of Marquette Lawyer magazine all focus on what can be done to improve things when harm occurs.

The cover story—featuring the biggest news this past year for Marquette University Law School itself—spotlights a $5 million gift from Marquette alumni, Louie Andrew (L’66) and his wife, Suzanne Bouquet Andrew (Sp’66). The gift has established an endowment enabling the university to create the Andrew Center for Restorative Justice at the Law School. The Andrews have been longtime generous supporters of the Law School, both generally since the tenure of the late Dean Howard B. Eisenberg and, particularly, of the work of Distinguished Professor of Law Janine P. Geske, L’75, an internationally known advocate of restorative justice.

Restorative justice work, broadly speaking, involves bringing together people who have been affected by harmful situations and, through discussions, often in moderated circle groups, seeking ways to reduce the harm. Geske, a former state supreme court justice and trial judge, first took part in restorative justice sessions at the Wisconsin correctional facility in Green Bay. The Andrews became supporters of Geske’s work through the Law School to bring restorative justice principles to bear on a range of major social issues and to hold a series of conferences at the Law School, beginning in 2004.

In recent years, the Law School’s Restorative Justice Initiative, as it was called beginning in 2004, reached a crossroads, on account of factors including the impact of the pandemic and Geske’s retirement. When Geske, the Andrews, and others then determined to renew the work in an enduring way, the Andrews stepped up with their historic donation this past December and Geske agreed to return to the Law School to get the permanent effort launched.

In the new magazine, an article, headlined “Starfish Enterprise,” describes the past path of restorative justice at the Law School—and its anticipated future through the new Andrew Center for Restorative Justice. Click here to read the piece. A companion article, “A Quiet Approach, Resounding Accomplishments,” profiles the Andrews and may be read by clicking here.

The next entry takes up the law’s more traditional (civil) approach to harm. In a new book rich in detail and perspective, Joseph A. Ranney, Marquette Law School’s Adrian P. Schoone Fellow in Legal History, examines legal approaches to civil wrongs and their aftermath—the harms that lead people to turn to courts. That is to say, Ranney writes about the law of torts. The magazine offers excerpts from his new book, The Burdens of All: A Social History of American Tort Law (Carolina Academic Press 2021), and from related pieces by Ranney.

From the early days of railroads to the rise of automobiles and the expansion of product liability law, Ranney describes trends and ideas that have shaped tort law. The magazine piece concludes with observations by Alexander B. Lemann, assistant professor of law at Marquette University, on Ranney’s book. Both Ranney’s collection, “Exploring the Fault Lines,” and Lemann’s comment, “Tort Law’s Past—and Future,” may be read by clicking here.

The third entry in this series takes up a particular, even unique, aspect of the past academic year’s pro bono work—which is, more generally, an important part of life for many Marquette Law School students. During the holiday break this past December and January, 49 law students, nearly 10 percent of the Law School’s enrollment, volunteered to spend time at the U.S. Army base, Fort McCoy, in rural west central Wisconsin. Thousands of people who had been evacuated from Afghanistan during the collapse of the government there in August 2021 had been temporarily settled at Fort McCoy, hoping for, awaiting, new homes in the United States.

The law students did not receive pay or academic credit for their work. But they found satisfaction in the assistance they were able to give the Afghans in getting started on the process of getting permission to stay in the United States permanently. An article in the magazine describes the students’ work and includes comments from five of them on this special way of helping others deal with the harm that had overturned their prior lives. The article, “Helped Today; Gone Forward Tomorrow,” may be read by clicking here.

Finally, dealing with environmental issues and the future of water—indeed, the rise of the administrative state more generally—can also be looked at as a way of responding to harm and potential harm in our society. Since 2014, the Law School’s Water Law and Policy Initiative, part of the broader emphasis on water issues at Marquette University, has addressed important water issues. Led by Professor David Strifling, the initiative has contributed to understanding of subjects ranging from high-tech ways of managing water use to the virtues of using kitchen garbage disposals. The work of the initiative is described in ”Even the Kitchen Sink,” which may be read by clicking here.

To be sure, there is more to the magazine. This includes an encomium of William C. Welburn, upon his retirement as Marquette University’s vice president for inclusive excellence this past academic year, and Dean Joseph D. Kearney’s reflections on the Andrew Center for Restorative Justice and some of the relationships that have moved Marquette Law School forward during the past 130 years. His column, “Let Us Tell You a Story—or Many Connecting Ones,” may be read by clicking here. And, scarcely least, the Class Notes pages succinctly describe recent accomplishments of more than 90 Marquette lawyers and may be read by clicking here.

The full magazine may be viewed by clicking here.

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State Gun Laws And Public Opinion

Summary

Let’s begin with some general context: Nationwide, 66% of those with an opinion favor a Supreme Court ruling that the Second Amendment includes a right to possess a gun outside the home. When it is presented as a matter of state policy choice (law), 62% favor allowing concealed carry of handguns with a permit or license required. So public opinion substantially favors allowing “licensed concealed carry” of handguns.

In contrast, there is substantial majority opposition to laws allowing concealed carry without a licensing requirement. Concealed carry without a license requirement is supported nationwide by 19% and opposed by 81%.

In fact, even in the 25 states with “permitless concealed carry” laws, a minority of 28% of adults favor such laws, while 72% are opposed to them, based on a May 2022 Marquette Law School Poll national survey conducted last month (before the school shooting in Uvalde, Texas). And state surveys, by other polling entities, in Texas and Tennessee (states with permitless concealed carry laws) found 34% and 39% favored these laws, respectively, with 59% opposed in both states.

State gun laws

In the following analysis, state gun laws are grouped into four categories.

  • Twenty-five states have adopted laws allowing “permitless” concealed carry, requiring no license or permit to have a concealed weapon. (This includes states that have adopted such a law that will go into effect by Jan. 1, 2023.)
  • Ten states have “shall issue” laws, which give no discretion over issuing a license or permit to an applicant meeting the criteria specified by law.
  • Seven states have “shall issue” laws, which allow some discretion over issuing a license or permit if the applicant is judged to raise some public safety concerns.
  • Eight states and the District of Columbia have “may issue” laws, which give authorities greater latitude in determining when to issue a license or permit.
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As Our Climate Changes, What Can Be Done about Flood Risk?

Flooding is the most common and most costly natural disaster in the United States, and the toll it takes is only expected to grow over the coming years. Rising sea levels, more powerful hurricanes, and more intense rainfall—all worsening thanks to climate change—will displace people from their homes and put increasing strain on the systems we use to address these A flooded streetrisks. One of the most important such systems is the National Flood Insurance Program (“NFIP”), which has been in debt to the U.S. Treasury since 2005 and is perpetually derided as “broken.” It seems obvious that a big part of the solution to the problems ailing the NFIP (and to our problem of flood risk more generally) is to move people away from flood-prone areas, and yet the policy reforms intended to address these issues have prove extremely difficult for Congress to enact. In a new paper recently published in the Colorado Law Review, I offer some theories as to why.

A key obstacle to seemingly enlightened policy reform, I argue, is our country’s deep-seated hostility to paternalistic interventions. Drawing on the philosophical literature on paternalism, I note the key features that make such laws objectionable to many people: they seek to override individuals’ judgments about what is best for them. Even when such decisions appear to be flawed (like the choice to live in a flood-prone area, for example), they often depend on value judgments, and it is therefore hard to say that a different choice would be objectively rational. It is impossible, for instance, to weigh the emotional value of a home or neighborhood against the expected future costs of flooding in a way that produces an objectively optimal course of action, in the same way there is no objectively correct way to eat, given the emotional and cultural significance of food.

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