Scattered Thoughts

As we are all aware, these past couple of weeks have been a time of historic change for the state of Wisconsin.  The debate surrounding the changes proposed by Governor Walker in the Budget Repair Bill has been amazing for me to witness.  Rather than give my personal opinions regarding the content of the bill, I thought I would share of the ancillary thoughts that have run through my head because of the current political times.

First, these changes have occurred during a great time in my life.  I consider myself lucky to be able to observe such historic legislative action while enrolled here at Marquette.  We as law students are unique within the political discussion because we have access to such great legal minds.  For example, two weeks ago Professor Paul Secunda spoke to students about the then-proposed Budget Repair Bill.  Professor Secunda reserved time to answer very well thought-out and informed student questions regarding things like: the potential legal avenues of those opposed to the bill, the effect that Wisconsin’s labor reforms could have on a national level, and what specific items within the bill actually mean to citizens and public employees within the state. 

The presentation by Professor Secunda is just one of the many opportunities we have as legal scholars to advance our personal knowledge on very important political issues.  This Marquette University Faculty Blog has provided a forum for other Professors and local attorneys to provide their opinions and thoughts regarding the reform.  These forums provide an outlet for legal thinkers as well as a resource for students like me.

Ultimately, while the bill has been passed (although currently subject to a temporary restraining order) by the Legislature, discussions regarding the changes have only just begun.  As a participant in this emotional and heated discussion, I consider myself lucky to have been in law school during these changes.

Second, the changes to public sector labor law have made me think back to some of the statements made by Justice Antonin Scalia during his presentation at Marquette in the fall. 

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William Stuntz, R.I.P.

It’s being reported that Harvard Law Professor William Stuntz died last week at the tragically young age of 52 (see the Times obit here).  I never met Stuntz, but I’ve read and been deeply influenced by much of his writing.  Indeed, I doubt there is any scholar who has had a more profound influence on my generation of criminal procedure professors than Stuntz.  He contributed to a fundamental shift in the scholarly agenda from defining the proper scope of constitutional rights (which preoccupied the generation that came of age during the Warren Court crim pro revolution and the Burger Court counter-revolution) to studying how rights actually work in the real world of plea-bargaining, over-taxed criminal-justice systems, and dysfunctional tough-on-crime politics.  In the real world, he taught us over and over again, the law on the books (whether Supreme Court decisions on constitutional rights or legislative decisions on substantive criminal law) doesn’t necessarily matter much, and well-meaning attempts to improve the law on the books are apt to backfire and produce even worse outcomes than the status quo.

Here are three insights I picked up from Stuntz that have been particularly important to my own work:

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Science, Religion, Politics, and Stem Cell Research

In a new paper on SSRN, Ed Fallone explores one of the most contentious policy questions in the field of public bioethics: whether and under what constraints the federal government ought to fund stem cell research.  Ed provides a thorough overview of the history and competing viewpoints in the debate.  He also draws interesting parallels between the current controversy and the debates over funding AIDS research in the 1980s.

Because religious beliefs inform much of the stem-cell debate, Ed’s paper raises difficult and important questions regarding the proper role of religion in shaping federal science policy.  Ed argues that elected officials, not scientists, should ultimately make the decisions.  In order to guide the decisionmaking, he proposes two principles: “1) the federal government should be the preferred source of funding for basic medical research and 2) government funding decisions should not favor one religious perspective over another.”  Although not everyone will agree with the second principle, Ed argues that it is more consistent with the design of our constitutional system.  He writes:

The Madisonian separation of church and state is an integral part of the limited government created under the United States Constitution, and maintaining that separation is an ethical good that our elected officials must weigh along with other ethical goods such as the protection of vulnerable populations and the promotion of justice.

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