When in School, Be a Student

There is a lot of discussion within the legal community about how law schools can (or should) prepare students for the business of practicing law.  It is common to hear complaints about how young graduates do not understand how to run a practice, and that the law school faculty and administrators should better prepare them for the real world.  I respectfully disagree.

There are so few times in our lives when we can truly immerse ourselves in the science of our profession.  The years in law school expose us to intellectual experiences that may never be found in a private practice.  The law school faculty is best equipped to challenge the law student’s mind in the most thought-provoking and critical ways.  In law school, we learn how to write clearly, concisely, and persuasively.  Law schools offer opportunities to study and understand fundamental legal rights that serve as the foundation for most legal disputes that arise within the practice.  Learning about and discussing, in a critical and theoretical manner, constitutional rights or contract rights or procedural options instills a preliminary basis for everything we do as lawyers.

The best way to run a well-respected law practice is to demonstrate strong skills as a lawyer.  You can’t do that unless you have obtained a good education – one that offers the type of critical legal analysis and knowledge that is acquired in school.

Don’t get me wrong.  There are many pieces that need to fit together properly to run a successful law practice.  I submit that a solid legal education is the first and arguably largest piece in the cog.  A commitment to an ethical method of practice with a high level of integrity will naturally lead to the acquisition of the other pieces necessary to operate the machine we call a law practice.

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Do Criminals Count?

Do criminals count?  Are they really “one of us”?  That is the big question that hangs over all of the Supreme Court’s Cruel and Unusual Punishments Clause cases, including the Court’s decision earlier this week in Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population.  Do we regard criminals as fellow citizens, or at least fellow human beings, who are entitled as such to some irreducible minimal level of decent treatment?  Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?

The latter view is hardly foreign to the American legal tradition.  The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s.  Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.

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Judge Sumi Does Her Job

Judge Maryann Sumi issued the long anticipated opinion in Ozanne v. Fitzgerald yesterday, holding: 1) that the circuit courts have jurisdiction to hear cases alleging that a particular piece of legislation was not constitutionally enacted; 2) that the court’s jurisdiction includes challenges alleging noncompliance with Wisconsin’s Open Meetings Law; and that 3) the failure of the March 9, 2011 Joint Committee of Conference Meeting to comply with the Open Meetings Law rendered the legislative action taken at that meeting — 2011 Wisconsin Act 10 — void.

Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about.

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