Marquette University Law School Faculty Blog

The Wages of Speech

Post author:Richard M. Esenberg
Post published:December 10, 2009
Post category:First Amendment Judges & Judicial Process Wisconsin Supreme Court

Apparently, the Wisconsin Supreme Court is not the only one sharply divided on an array of issues and fighting over questions of recusal. In Michigan, the Supreme Court voted 4-3 to require that individual justices who have denied a motion to recuse themselves explain the reason in writing and to permit the Court to overrule the refusal to step aside. A Detroit Free Press columnist says that the Michigan court has been characterized by “back-biting, name-calling and playground-level cruelty” and adoption of the rule did draw sharply worded dissents. Sound familar?

Locally, there appears to be a concerted effort (spurred, in part, by an internal memo circulated within the State Public Defender’s office) to seek the recusal of Justice Michael Gableman in a number of criminal cases because he has allegedly expressed a general bias against criminal defendants. Justice Gableman has refused to step aside (the rationale for the motions would apply in every criminal case), and it is unclear whether the Court can compel him to do so.

I think the controversy raises some interesting questions about the interaction between campaign speech and recusal. I am writing a paper on the topic and thought I’d test drive a few of the arguments here as applied to our local controversy.

Learning (At Last) to Value Water

Post author:Alan J. Borsuk
Post published:December 9, 2009
Post category:Environmental Law Speakers at Marquette

wel In 1774, Ben Franklin said, “When the well’s dry, we know the worth of the well.”

“He was wrong,” author Robert Glennon told an audience of about 100 Tuesday at the Alumni Memorial Union at Marquette University. Even as wells and water supplies move ominously closer to dry in parts of the United States, the public and many policy makers are not responding in ways that could avert major impacts, warned Glennon, whose books include Unquenchable: America’s Water Crisis and What to Do About It, published last spring.

“We don’t value water in the United States,” Glennon told the session, part of the “On the Issues” series hosted by Mike Gousha, Marquette Law School Distinguished Fellow in Law and Public Policy.

Wisconsin is not standing at the precipice of a water crisis to the same degree as metropolitan Atlanta and much of the western United States, but it would still be wise to undertake public education efforts here and to make more effective water use decisions, Glennon said.

Punishment Permitted for Both Attempt and Conspiracy in Seventh Circuit

Post author:Michael M. O'Hear
Post published:December 7, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

Police found marijuana hidden in a car that Maurice Crowder and a colleague tried to ship from Arizona to Illinois. Crowder was then charged with, convicted of, and sentenced for two crimes: attempted possession with intent to distribute and conspiracy, both in violation of 21 U.S.C. § 846. Sounds like double-dipping, right? After all, both crimes of conviction arose from the same underlying criminal plot. Crowder appealed to the Seventh Circuit on this basis, arguing that he could not be punished for both crimes.

Crowder’s appeal raised an issue that has divided other circuits. The Ninth Circuit prohibits double punishment for attempt and conspiracy under § 846 if both convictions arise from a “single course of action.” By contrast, the Sixth, Eighth, and Tenth Circuits permit double punishment in these circumstances.

In United States v. Crowder (No. 08-3320) (Kanne, J.), the Seventh Circuit sided with the Sixth, Eighth, and Tenth Circuits, and affirmed Crowder’s conviction and sentence.