A Misleading Chart

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A September 14 article in the Wisconsin Law Journal (noted elsewhere on this website) included the chart to the left.  Although the story was innocuous enough, reporting that applications to law school in Wisconsin went up last year in spite of the economic downturn, the accompanying chart gives the impression that applications to the University of Wisconsin Law School dramatically exceed those of Marquette.  A quick glance seems to suggest that for the fall of 2009, Wisconsin received more than twice as many applications as Marquette since the red bar appears to be more than twice as long as the blue bar.

That isn’t true, and the problem is the misleading presentation of the graph.

While it is true that Wisconsin does receive more applications than Marquette, the discrepancy is not nearly as great as the graph seems to suggest.  The problem, as anyone who looks at the graph carefully will see, is that it reproduces only the top half of the bar graph showing the relative number of applications at the two law schools.

In fact, if one looks at the entire graph, then it becomes clear that the Wisconsin lead is a more modest one.  For the fall of 2007, Marquette’s application total was 68% of the Madison total.  For 2008, the number jumped to 79%, before falling back to 72% for 2009.  Until 2009, Marquette had been gaining on Madison at a fairly rapid pace.  It seems likely that, in a time of economic downturn, the fact that private Marquette has a much higher tuition than public Wisconsin served to discourage applicants who may well have applied in the past.

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A Republican Form of Government

King-George-III-xx-Allan-RamsayOn September 17, I participated in the Constitution Day program at the Law School.  All of the presenters were asked to discuss one part of the United States Constitution that is often overlooked.  My choice was the “republican form of government” clause, Article IV Section 4, which reads as follows: “The United States shall guarantee to every state in this Union a Republican Form of Government . . .  .”   

To call this clause of the Constitution “overlooked” is an understatement.  The authors of the Federalist Papers spent little or no time discussing the meaning of this clause.  The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning.  This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government.  What does the word “republican” mean?   It certainly does not refer to a specific political party.  Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy.  This interpretation is incorrect.  While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California.  These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government.  But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose?  Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.

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Seventh Circuit Criminal Case of the Week: What Can Be Inferred From a Lie?

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When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant.  The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking.  And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.”  (For an earlier post on the pitfalls of relevant conduct, see here.)  In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest.  Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced.  If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right?  The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly. 

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