Welcome, July Blogger
Thanks to our June bloggers, Greg Weyandt ’76 and rising 3L Garrett Soberalski. Our July guest will be Andrew Spillane ’11.
Milwaukee Foreclosure Mediation Program: Theory to Practice
Andrea Schneider and Natalie Fleury have a new paper on SSRN that describes the Milwaukee Foreclosure Mediation Program and analyzes the MFMP’s design by reference to dispute resolution theory. The MFMP responded to the ongoing foreclosure crisis in Milwaukee, emerging from an initiative involving Marquette Law School and several government agencies, elected leaders, and community organizations. The MFMP creates voluntary mediation opportunities for homeowners and lenders in the hope of renegotiating payment terms such that both sides will benefit. So far, the results seem impressive, with home-retention agreements reached in more than forty percent of mediations and high levels of satisfaction reported by program participants.
Andrea and Natalie conclude as follows:
The opportunity to put years of writing and work in the field to use to help out the city, state, and court system was an honor and unique opportunity for the law school. Both professors and students witnessed law school teachings put to work and had a rewarding impact in their own backyard. It also has given us, as designers, far greater insight into the local government and local community than we would have had without this collaboration. Most importantly, mediation has worked in exactly the way that we theorized. The communication between the parties is vastly improved through the program than it would be otherwise. Parties have control over the outcomes, not perfectly, but again, much more so than they would have in the alternatives. And the program provides for efficient solutions as the city continues to struggle with foreclosures. Moving forward, we have to map student availability and interest with the needs and opportunities presented by the program. But we have witnessed the putting of theory into practice in a wonderful way while recognizing that we would have all preferred that this particular need not exist.
Their paper, entitled “There’s No Place Like Home: Applying Dispute System Design Theory to Create a Foreclosure Mediation System,” will appear in the Nevada Law Journal.
SCOTUS Takes Another Case on Right to Counsel in Collateral Proceedings
For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings. The first case, Martinez v. Ryan (see my post here), concerns a potential constitutional right to counsel in a collateral proceeding in state court. The new case, Martel v. Clair (No. 10-1265), deals with a potential statutory right to counsel in a federal habeas case.
Here’s what happened. Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition. After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender. It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim. The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition. On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender. The Supreme Court granted the state’s petition for certiorari yesterday.
At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.