Marquette Law School Alumnae Honored as “Women in Law”

On Thursday, June 23rd, the Wisconsin Law Journal recognized its 2011 Women in Law honorees.  There were several MULS alumnae among the group: Elizabeth Blackwood, Michelle Fitzgerald, Mary Gerbig, Christine Liu McLaughlin, and Linda Meagher.  As you can read further on the Wisconsin Law Journal’s website here, these Marquette lawyers have compelling stories, have accomplished so much in their careers, and have served their communities with great distinction.

The other MULS alumna honored on Thursday night was our own Professor Phoebe Williams.  It is hard to properly describe the long and meaningful list of contributions that Professor Williams has made to the Law School, the Milwaukee community, and beyond.  Perhaps the clearest manifestation of the impact Professor Williams has had are her “living legacies” (the term Justice Scalia used to describe students at the dedication of Eckstein Hall).  Indeed, I have had countless students and graduates who have told me about the significant effect that Professor Williams had on their lives and careers.  So it was wonderful to be there on Thursday night to help celebrate Professor Williams’ much-deserved recognition.

Congratulations to all of this year’s honorees!

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Bullcoming Arrives, But Where’s the Path?

The Supreme Court continues to refurnish the modern courtroom with eighteenth-century antiques. Without the slightest glint of irony, or even humor, the Court assessed the admissibility of twenty-first century scientific evidence using legal doctrine crafted on parchment with quill pens in an age when mirrors were placed to direct sunlight into the face of the accused at trial. (Why the mirrors at a time when the accused could not testify in his defense anyway? That’s another story.)    

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.)

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Ozanne v. Fitzgerald: Haste Makes Waste

On June 23, I participated in a discussion concerning the Wisconsin Supreme Court’s decision in Ozanne v. Fitzgerald, 2011 WI 43, on the Wisconsin Eye public affairs show “Legally Speaking.”  Rick Esenberg and I continued our ongoing difference of opinion regarding this litigation, which seems to generate an endless supply of novel and contentious legal questions.  You can view the program at this link.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

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