Brown v. Board of Education as a Disputing Process Lesson

supreme courtLast week, we were privileged to hear Professor Michael Klarman speak on “Why Brown v. Board of Education Was a Hard Case.”  This was one of the most enjoyable and interesting talks I have heard in a long time.  I highly recommend it, and you can click here to get the webcast.  My guess is that this would still be as funny and insightful on the audio.   There were two particular points that he made in reviewing the history of the case that linked to conflict resolution theory that I want to highlight here.

First, Klarman noted that, contrary to typical practice, the justices facing the Brown decision did not take a straw poll at their first conference discussing the case.  In fact, as he notes, by his count, there would have been only four votes to overturn Plessy at the beginning and nothing near the unanimity that the Court presented in its decision the following year.  What was the import of not taking this poll?  As Klarman notes, this allowed the justices to change their mind and to preserve fluidity in their thinking.  In other words, the justices did not lock themselves into an opening position that then they would feel necessary to defend throughout the discussions. 

The impact of publicly locking yourself in to an opening position is problematic, as we know. 

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!Escuchan bien! Is that Spanish you hear in MULS hallways?

PRIMER_DIA_DE_ACTIVIDADES_EN_MARQUETTE_081[1]This week MULS is hosting a delegation of students and faculty from Alberto Hurtado University School of Law, Chile’s only Jesuit law school located in the capital of Santiago (Five students will participate in a week-long program, conducted in Spanish, to gain a first-hand look at the U.S. legal system as their country implements significant legal reforms.

Today Dean Kearney hosted a welcome reception for our guests in Eisenberg Hall in which he recognized the significance of this academic exchange.  In particular, he noted an unique opportunity to contribute to Chile’s ongoing criminal justice reforms designed to replace an inquisitorial criminal justice system inherited from Spanish civil law with an adversarial one more like that found in the United States.  Such an undertaking is, in the words of Hurtado’s Dean for International Relations Rafael Blanco and his colleagues, “a complete paradigm shift and can be understood as almost revolutionary.” (Rafael Blano, Richard Hutt, Hugo Rojas, The Reform to the Criminal Justice in Chile: Evaluation and Challenges, The Loyola University Chicago International Law Review )(2005)

In fact, the faculty of HULS are credited for taking a leading role in spearheading this judicial reform following the end of the dictatorship of General Augusto Pinochet in 1990 as part of Chile’s “transition to democracy”, but which took up special momentum after 2000.  At that time, the government promulgated a new code of criminal justice that began as a pilot program in selected cities, and is being gradually implemented throughout the country.   Since then, these legal reforms have become a model for all of Latin America.

Dean Kearney also recognized that HULS and MULS share the same educational mission and identity grounded in a long Jesuit tradition that recognizes lawyering as a ‘helping profession.’     At the same time, as legal professionals, we understand that social justice is grounded in a solid respect for the rule of law.  Certainly, Hurtado University Law School’s founder Saint Alberto Hurtado Cruchaga embodied this spirit through his work as a Chilean Jesuit priest, lawyer, and social worker.  His important work led to his being was canonized on October 23, 2005 by Pope Benedict XVI, becoming his country’s second saint.

Today kicked off the week-long program with an orientation led by our MULS students Juan Amado and Sara Grill, who helped translate presentations by: Professor Tom Hammer on MULS’ Internship program; Editor and Chief Marvin Bynum on Marquette Law Review and Associate Justice of Administration, Rachel Helmers on Moot Court; and finally, Assistant Dean for Public Service Daniel Idzikowski and Lori Zahorodny on the pro bono legal clinics and the public service office.  In the afternoon, they received a tour of our law library by librarian Julia Jaet followed by a talk on legal research by Reference Librarian, Elana Olson, all interpreted with the help of Yolanda Toral-Zeider.   They also listened to lectures by Professor Ed Fallone on Constitutional and Immigration Law and Professor Scott Idleman on Federal Indian Law.

The rest of the week will be equally packed with informative lectures by faculty and alumni, as well as a meeting with Wisconsin Supreme Court Chief Justice Shirley Abrahamson and a trip to the Milwaukee County Courthouse to observe a trial. The students will learn about Marquette Law School’s Restorative Justice Initiative, led by Distinguished Professor of Law Janine Geske, and its “Safe Streets” project to reduce gang and drug crime in Milwaukee neighborhoods. They will also hear from Professor Andrea Schneider, leader of Marquette Law School’s nationally ranked Alternative Dispute Resolution program, which trains legal practitioners in the art of resolving disputes outside of legal adjudication. In addition, the students will meet with lawyers from non-profit organizations working with the Milwaukee’s Hispanic community, including Centro Legal, Catholic Charities and Voces de la Frontera.

Due to the generosity of our faculty, students, alumni as well as members of the MU and Milwaukee community, we will be able to offer the Hurtado delegation an exceptional week of activities.

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Seventh Circuit Criminal Case of the Week: The Limits of Constructive Possession

seventh circuitThe Seventh Circuit had only one new opinion in a criminal case last week, but, fortunately, it was an interesting one.  Under 18 U.S.C. § 922(g), it is a federal crime for felons to possess a firearm.  Proof of the crime is easy enough when a felon is found actually carrying a gun.  But what if the gun is nowhere on his person, but merely, say, in his home? 

In practice, the federal courts have interpreted the law expansively so as to encompass a broad range of circumstances beyond actual possession.  Thus, under the doctrine of “constructive possession,” a felon may indeed be convicted based on the discovery of a firearm in his home. 

But,  as the Seventh Circuit made clear last week in United States v. Katz (No. 08-2341), even the doctrine of constructive possession has its limits. 

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