No Exit

Prof. Rick Hasen of UCLA, an expert in election law, had an op-ed in Friday’s New York Times that argued that in the wake of the 2020 election and its aftermath, including the January 6th attack on Congress, “[w]e must not succumb to despair on indifference. It won’t be easy, but there is a path forward if we begin acting now, together, to shore up our fragile election ecosystem.”

Unfortunately, I disagree. The fact that there is no path forward unless X, Y, and Z happen does not mean that X, Y, and Z will happen. It could well be that there is no path forward. And no path is likely to be available until a significant portion of the American public fundamentally change their present views about their society and their fellow citizens.

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The Last Bastion

The United States, like most democracies, takes pride in being governed by the “rule of law”; it aspires to be what John Adams once called “a government of laws and not of men.” There’s a sense, in this imagery, that law is something distinct from human beings; that it’s a sort of machine, that operates autonomously to generate answers to legal questions.

Of course, as the legal realists recognized, that’s all transcendental nonsense. Laws do not apply themselves, they are written and interpreted and applied by human beings. But a rule of laws that is subject to the whims of individual decisionmakers is no rule at all. Believing in the rule of law requires a sort of leap of faith. It requires a form of trust that other actors in the system, even ordinary citizens, will generally coalesce around the same outcomes and interpretations.

And that sort of trust — any sort of trust in institutions, including law — is breaking down. Faith in courts to provide the law, and faith in lawyers to be able to say what the law is, will fade with it. And after that, in the words of Felix Frankfurter: “first chaos, then tyranny.”

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2022 Jenkins Honors Moot Court Competitors

The Jenkins Honors Moot Court Competition is the appellate moot court competition for Marquette law students and is the capstone intramural event of the moot court program. Students are invited to participate based on their top performance in the fall Appellate Writing and Advocacy course at the Law School.

Congratulations to the following students who were selected to the 2022 Jenkins Honors Moot Court Competition:

Jake Apostolu
Tristan Bednarek
James Carpenter
Hunter Cone
John Curran
Ilana Friedman
Travis Goeden
Anne Gonring
Bailey Groh Rasmussen
Alesha Guenther
Nolan Heck
Munifeh Jaber
Nicole Jennings
Samantha Jozwiak
Kyle Kasper
Matthew Kass
Abigail Kincheloe
Ruth Nord-Pekar
Robyn Shepard
Ronald Tenuta
Aimeé Treviño
Rose Vanelderen
Meghan Wallace
Emily Ward
Austin Wesner
Jessica Zimpfer

The preliminary rounds of competition be held on March 26-27, 2022, with the winning teams progressing through the quarterfinals, then semifinals, to the final round. Stay tuned for more details.

Any questions about the competition should be directed to Lauren Brasington, Associate Justice of Intramural Competitions.

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