The Tierneys and the Law

nsliI had the opportunity last month to be involved in the presentation by our National Sports Law Institute of its Master of the Game Award. The NSLI has given out this award, over the years, to such distinguished individuals as Hank Aaron, Donna de Varona, Bob Harlan, Al McGuire, Bud Selig, and Bart Starr. This year the award was presented to the Tierney family, especially to recognize the contributions of the late Joseph E. Tierney, Jr., of our law class of 1941, and his wife, the late Mrs. Bernice Tierney. The Tierneys are an historic family at Marquette, with Joe Tierney “the first” having been a member of our law class of 1911. As dean, I had the privilege to get to know the late Mrs. Tierney before her death earlier this year. As I explained in my remarks at the NSLI’s luncheon where the award was presented, Mrs. Tierney possessed an unusual combination of intelligence, grace, conversational skills, wit, and good humor; truly she was a remarkable woman. The more impressive remarks, from my perspective, were those of Joseph E. Tierney, III, of our law class of 1966 (and of Meissner Tierney Fisher & Nichols), who recalled his parents—their involvement in the Law School and the sports law program in particular, to be sure, but more generally as well. As Joe noted in his closing, “To be masters of the game, it is important to identify the game. For both of them, the game was life.” Joe’s remarks, which touch eloquently in just a few words on such varied topics as law, sports, family, and filial piety and such individuals as Marty Greenberg and the late Chuck Mentkowski and Jane Bradley Pettit, are well worth reading.

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Sentences Merit Closer Scrutiny by Appellate Courts

I have a new article on SSRN entitled “Appellate Review of Sentences: Reconsidering Deference.”  As the title suggests, I review the standard arguments in favor of the prevailing rubber-stamp approach to appellate review of sentences, and I conclude that the arguments are something short of compelling.  Here is the abstract:

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

The article will appear in the William & Mary Law Review in 2010.

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What Is a Lie and Is It Constitutionally Protected?

I think that the three judge panel’s decision to recommend dismissal of ethics charges against Justice Michael Gableman is the right outcome. I doubt that we really want tribunals passing upon the truth and falsity of campaign speech – even for judges.

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for “finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that “the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way. 

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