The United States Code defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.” 18 U.S.C.A. § 2340 (West 2012). Further,

 “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from: (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D)  the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

18 U.S.C.A. § 2340 (West 2012).  The problem with this definition is its workability.  To one person on the street, keeping a prisoner awake for 36 hours may not fit any of these definitions, while to another person it might “disrupt profoundly the senses.”  The same can be said for stress positions, a 20-hour interrogation, and waterboarding.  Ultimately, the meaning of the definition depends on who you ask, which does little to help interrogators trying to do the right thing.

Further, government agencies are little help.  Ali Soufan, a top FBI Interrogator, testified before Congress that harsh interrogation techniques are slow and unreliable and he recommended the use of the Informed Interrogation Approach, which involves having knowledge beforehand about the detainee’s past and building a relationship with the detainee. On the other hand, the CIA claims that the interrogation of Khalid Sheikh Mohammed (who was waterboarded 183 times) saved numerous lives, both here and abroad, and “led to the arrests of al Qaeda operatives that same month, while they were plotting attacks on American soil.” Both accounts have fair points, but should be taken with a grain of salt.  Since the FBI has a policy not to use harsh interrogation techniques while the CIA does employ such techniques, it makes sense for each agency to defend its own policy.

In sum, torture is not an easy thing to define.  The definition we have is vague and cannot be used to clearly put any tactics in the column of either “torture” or “acceptable interrogation.”  Congress can work on the definition and the president can issue executive orders, but at the end of the day the definition of “torture” is a philosophical and moral issue, complicated by the threats facing our country today.  It is hard to get just right, so until someone comes up with a practical, workable definition, we simply have to trust our government not to go too far.

When I was contacted about being an alumni blogger some time last year, I paused for a brief moment and then said yes. Like the bliss of pregnancy and the denial of eventual childbirth, blogging seemed painless. However, . . . it began to feel uncomfortable as February began to loom.

What could I possibly write about? And more . . . what can I write about that would be at all interesting to the readers, whoever they may be. I was reminded of the scene in “Planes, Trains and Automobiles” where Steve Martin’s character chides John Candy’s character as Candy blathers on and on endlessly. Martin advises Candy that when you tell a story, you should try to have a point because “it makes it so much more interesting for the listener.”

So with that in mind, I set about thinking of something with a point, something interesting. Since I (along with my dear colleague Andrea Schneider) teach one of the two sections of the Negotiation Workshop at MULS, I spend a lot of time thinking about skills related to successful negotiation, something lawyers do daily on any number of different planes. I have my own sense of what skills are important to being an effective lawyer, and certainly some of the recent criticisms of legal education present views on the skills needed to be an effective lawyer, so I decided to seek the input of my colleagues.

I sent out a very informal and un-scientific survey to my neighbors (swing a cat, hit a lawyer on my block!) and to the lawyers on my contact list (friends, colleagues and former students turned lawyers) asking each what they believed to be the most important skills to being an effective lawyer (with a maximum of five).

I got 38 responses back (thanks to all of you for taking the time) from lawyers in traditional private practice, from large and small firms and across all practice areas (IP, family, criminal, creditor’s right, employment, mental health, immigration, litigation of many types, appellate practice and estate planning to name a few); from public service lawyers (DAs, GALs, court commissioners, city attorneys, state appointees); from in-house counsel (manufacturing, real estate, sales support, medical ethics, athletics, and financial services); from ADR practitioners (mediators, trainers, RJ practitioners and conflict management consultants); and from academia (librarians, doctrinal law faculty, skills curriculum faculty).

I reviewed the responses and saw lots of agreement across practices and thought it would be most interesting to create a word map. So, I entered the responses into “Wordle”, a web tool and then this tool, created a visual collection of all the data and the relative size of a given response reflects the frequency of the data point.

From the 38 participants, the top five skills necessary to be an effective lawyer are:

1. Communication

2. Listening

3. Writing

4. Negotiation

5. Time Management

If you really think about it, this is not surprising, and interestingly, it is consistent with the critiques of legal education that we need to teach both analytical skills and skills deemed “soft” (and so somehow less meriting academic endeavor).

There are many other responses that provide insight into being an effective lawyer, and I found the responses to be simultaneously insightful and comforting. As a member of a much maligned profession, we all have had experiences that may support Shakespeare’s call to rid the world of lawyers (I am tempering his sentiment a bit!), and yet these responses showcase a different view of the effective lawyer.

If I have sufficiently piqued your curiosity, I invite you to take a look at the “map”. Simply paste this link into your Browser and enjoy.

http://www.wordle.net/show/wrdl/4811048/Effective_Lawyering_Skills

Until next time . . . Joanne Lipo Zovic

“We can rejoice that so many of the evils he assailed with his beautiful, ferocious quill – dismal debtors’ prisons, barefoot urchin labor, an indifferent nobility – have happily been reformed into oblivion.  But one form of wickedness he decried haunts us still, proud and unrepentant:  the lawyer.”

Dickens included lawyers in 11 of his 15 novels.  Perhaps they made so many appearances because he was enmeshed in England’s legal system.  According the New York Times, at 15 Dickens was hired as an “attorney’s clerk” and later became a court reporter.  “For three formative years he was surrounded by law students, law clerks, copying clerks, court clerks, magistrates, barristers and solicitors . . . .”  And for a time, he was a law student.  One scholar has framed Dickens as a legal historian and another has written a book that examines Dickens’ portrayal of lawyers and others in the legal system.

In honor of Dickens’ birth and his ties to our profession, please share your favorite Dickens quotes.

Where did you work as a PILS Fellow?

This past summer I served as a law clerk at the Cook County Office of the Public Guardian.

What kind of work did you do there? 

In my role there, I advocated for children who had been abused or neglected by their parents. This included client interviews (both in the community and in the office), drafting pre-trial motions, researching case law in preparation for an appeal, and standing up in court for permanency hearings.

How was the experience meaningful to you?

This experience was meaningful to me for several reasons, in particular the strong relationships I developed with my clients and the opportunity to advocate for one of society’s most vulnerable populations.

What did you learn in the course of your work?

Legally, I was able to enhance and develop my trial skills by appearing on record before the court, and specifically, the importance of laying a good foundation and preserving the record for an appeal. I also developed my client interviewing skills by working with children of various ages, races, and sexual orientations. Personally, I also learned the importance of collaborating with colleagues when faced with unfamiliar or emotionally-charged issues. When the summer was over, this experience affirmed my desire to work with children after graduation.

What do you like best about doing public interest law work?

I came to know the children behind the case number, which only strengthened my commitment to ensuring that the court kept their best interests at heart. This personal connection is what I like best about public interest work—the opportunity to make such a long-lasting and powerful impact on an individual’s life. So that at the end of the day, I can go home and feel that maybe, just maybe, I used my gifts and talents to help improve the life of another.

What are you doing to help with the PILS Auction?

This year, I am co-president of the Public Interest Law Society. In this role, I have collaborated with our Do-Gooders’ Auction committee to create an event that we hope will be both profitable and enjoyable. We look forward to bringing the auction to Eckstein Hall and supporting our students’ interest in and commitment to public interest law.

How times have changed. Insofar as I have been able to tell, this past Saturday—February 4, 2012—seems to have come and gone without any public notice of its being the 125th anniversary of the Interstate Commerce Act. That, too, is logical enough: after all, the Interstate Commerce Commission (ICC) created by the Act was abolished by Congress in 1995, and the landmark building along Constitution Avenue (pictured here) has been rededicated to other purposes of the federal government. At the same time, the Act lingers: there is no sign of the coming abolition of most of the ICC’s various descendants (grandchildren, I suppose they must be, if the ICC is the “granddaddy of them all,” as we are sometimes told), such as the Federal Communications Commission and the Federal Energy Regulatory Commission. And no one would suggest that the now larger administrative state is in danger of passing away anytime soon.

In all events, whether for its lasting effects or for itself in its time, the Interstate Commerce Act is worth remembering. So we will fill the void, as it seems. I will be joined by six distinguished scholars of regulated-industries law in writing short remembrances of the Interstate Commerce Act:

• Richard D. Cudahy, Senior Judge, United States Court of Appeals for the Seventh Circuit
• Paul Stephen Dempsey, Tomlinson Chair in Global Governance in Air and Space Law, McGill University
• James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus and Professor of History Emeritus, Vanderbilt University
• Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia University
• Randall C. Picker, Paul H. and Theo Leffmann Professor of Commercial Law, University of Chicago
• James B. Speta, Professor of Law, Northwestern University

Prof. Speta and I will edit these essays for a future issue of the Marquette Law Review; we may find a spot for them on this blog during the next several months.

This means that Judge Davis’ earlier ruling, interpreting the statutory procedures for recalls under Section 9.10, is now vacated.  On January 5, 2012, Judge Davis ordered the Government Accountability Board (GAB) to take affirmative steps to identify and strike any recall signatures that are fictitious, duplicative or unrecognizable.  Because of this earlier ruling, the GAB went ahead and adopted new procedures, purchased new signature recognition software, and sought additional time in which to review the recall petitions.

The GAB had argued unsuccessfully before Judge Davis that the statute contains no explicit command for the agency to undertake such duties.  Instead, the GAB argued, the the statutory language of Section 9.10 clearly places the burden on the officeholder to bring challenges to suspicious recall signatures.  The agency contended that the duty of the GAB was limited to weeding out signatures that are insufficient to meet the technical requirements of Section 9.10(2)(e).  In an earlier post, I agreed with the GAB.  I argued that Judge Davis’ interpretation of Section 9.10, requiring the GAB to take “reasonable steps” in order to identify invalid signatures, is simply not supported by the statutory language.

In its opinion today, the Court of Appeals signaled that it shares my doubts concerning Judge Davis’ interpretation of the statute. To be clear, the decision of the appellate court today does not directly reverse Judge Davis’s ruling that the statute imposes an affirmative obligation on the GAB to identify and strike invalid signatures.  The holding of the Court of Appeals opinion is limited to reversing Judge Davis’ denial of the motion to intervene brought by the various recall committees, and vacating Judge Davis’ earlier ruling so that it can be reargued.

However, in the course of describing the interests of the proposed intervenors that are at stake in this litigation, the Court of Appeals uses language that seems skeptical of the idea that Section 9.10 can be read to place an affirmative burden on the GAB to seek out invalid signatures.  Here is how the Court of Appeals summarized the interests of the recall committees seeking to intervene in the case:

To summarize, the recall committees have an interest in the complaint’s proposed relief because such relief may include new procedures not required by law that may result in (1) striking valid signatures and placing an increased burden on the committees at a later stage of the review process and (2) causing delay to the recall process.

(Opinion at p. 16).

According to the Court of Appeals, the recall committees had an interest in the lawsuit filed by the Friends of Scott Walker, and ultimately a right to intervene in that case, because the lawsuit sought a form of relief that would increase the burden on the recall committees.  The Court of Appeals gave three examples of how the placing of an affirmative duty on the GAB to “look for and eliminate“ certain types of signatures could act to increase the burden that the statute would otherwise place on the recall committees.

First, if the GAB applies new, stricter criteria for the removal of addresses that the GAB concludes are illegible, then the recall committees must expend additional resources to verify that the addresses are correct or else risk losing those signatures.  Second, the GAB might adopt procedures for eliminating duplicate signatures that would eliminate a signature even in circumstances where the challenger would have been unable to provide any evidence that a duplicative signature existed (i.e., where both John Smith, Sr. and John Smith, Jr. in the same household sign as “John Smith”).  Third, the GAB procedures for removing fictitious names might remove names that actual voters share with celebrities (i.e., an actual “George Clooney”) on the assumption that the name is suspicious, thus placing the burden on the recall committees to expend resources in order to verify the signature.

As currently written, the statute places the burden on the officeholder to challenge any signatures that fall into the above situations.  Therefore, unless a challenge is filed the statute itself does not require the petition circulator to supply one iota of evidence proving the validity of such signatures.  However, the new procedures adopted by the GAB in the wake of Judge Davis’ ruling may force the recall committees to come forward with such evidence.

What these examples given by the Court of Appeals illustrate is that the new recall procedures sought and received by the Friends of Scott Walker impose an extra burden on the recall committees in a manner inconsistent with the overall statutory scheme of Section 9.10.  The Court of Appeals points out that, if the GAB attempts to play an affirmative role in identifying and eliminating suspicious signatures, it runs a very real risk of improperly shifting the burden from the shoulders of the officeholder challenging the signature onto the shoulders of the recall committees:

The relief sought potentially places an increased burden on the recall committees to prove that certain valid signatures are indeed valid.  If the board is required to “look for and eliminate” certain classes of signatures, that may cause the board to strike signatures that appear to be improper, but which in fact are not improper.  Because these signatures are indeed valid, the officeholder would not have been able to produce the affidavits or other evidence required to support a successful challenge to them under WIS. STAT. sec. 9.10(2)(h) and (3)(b).  Nonetheless, the court order [sought by Friends of Scott Walker] may require the board to strike such signatures in its initial review.

(Opinion at p. 10).

Such a result runs directly counter to the statute itself, which clearly states in Section 9.10(2)(g) that “[t]he burden of proof for any challenge rests with the individual bringing the challenge.”

In addition to the foregoing discussion, the Court of Appeals opinion also underscores the fact that “the recall committees have an interest in holding timely recall elections, as embodied in the recall statutes and our Constitution.” (Opinion at p. 16).  Unfortunately, it may already be too late to prevent the recall elections from being delayed substantially.

Therefore, while Judge Davis’ interpretation of the statute was not directly reversed, the overall tenor of the Court of Appeals opinion is not friendly to the strained interpretation of Section 9.10 that was advanced by the Friends of Scott Walker.  The language of the Court of Appeals decision might well give Judge Davis pause when he is asked to reconsider the statutory interpretation issue.

Will that happen?  It is unclear where the case goes from here.  The Friends of Scott Walker could appeal the decision of the Court of Appeals allowing the recall committees to intervene to the Wisconsin Supreme Court.  Alternatively, the Friends of Scott Walker could simply allow Judge Davis to vacate his earlier ruling as directed and then renew its argument concerning the meaning of Section 9.10 in the circuit court, this time with the recall committees as parties.  In either event, the Court of Appeals has invited a briefing on the question of whether to order relief or to order a stay of its decision, pending further proceedings.

As the debate over the correct recall procedures continues, it is possible that the Friends of the Scott Walker might downplay its statutory arguments and place more weight on its unprecedented argument that the Fourteenth Amendment of the United States Constitution requires the GAB to account for the so-called “rights” of non-voters.  Judge Davis was wise to resist such a sweeping expansion of Equal Protection doctrine when he issued his earlier ruling, and he would be wise to reject such a novel theory if it were advanced again.  The Equal Protection Clause is not an open invitation to the courts to remake election procedures to the liking of the judiciary, and the Supreme Court’s decision in Bush v. Gore does not suggest otherwise.

This procedural morass, occurring in the midst of a recall campaign where over one million Wisconsin voters have exercised their constitutional right to demand a recall, was entirely avoidable.  The Government Accountability Board was created as a non-partisan agency precisely because the legislature decided that election procedures should not become playthings for partisan appointees, nor changed willy-nilly in the middle of campaigns.  If anything, the ongoing saga of Friends of Scott Walker v. Brennan should remind us of the wisdom of that decision.

Where did you work as a PILS Fellow?

This past summer I worked for the Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity Milwaukee Field Office (HUD).

What kind of work did you do there?

The bulk of my time was spent assisting various Equal Opportunity Specialists in the office investigate fair housing complaints and prepare determinations regarding fair housing complaints. I also performed research for two larger matters that may still be under investigation, so I will not discuss those activities further. Overall, it was a lot of research and writing, with some field investigations from time to time.

How was the experience meaningful to you?

The experience was meaningful to me in two ways. First, I met many great people who showed me the importance of working for a cause that I believe in and how to do so correctly. Everyone in the office was passionate about ending housing discrimination, and they did not hesitate to express that feeling. However, they did not allow those feelings to overcome their professional and ethical duties as HUD employees. It was just as important to guard those wrongly accused of housing discrimination as it was to assist those who had experienced housing discrimination. Even though everyone was passionate about ending housing discrimination, they were also passionate about doing it correctly. It was a great working environment and I am glad I could be a part of it.

Second, it exposed me to an area of the law that I want to continue to participate in. I really enjoyed the work that I did this summer, so this experience showed me the career path that I would like to take.

What did you learn in the course of your work?

I really learned a lot working for HUD. I gained extensive knowledge regarding the Fair Housing Act. My whole summer involved claims under the Act, so it is difficult to express exactly how much information I learned regarding the Act in a few sentences. I also did research regarding private causes of action, administrative procedure, real estate closings, and various public housing issues. My boss did a good job making sure that I saw a wide variety of issues that HUD handles, so I was exposed to a lot of new areas of the law that I had never dealt with before. I had a great learning experience.

What do you like best about doing public interest law work?

The people. In my experience with public interest law, you are normally presented with an individual who has encountered a legal problem in the form of a stack of papers with a lot of confusing language. The person feels overwhelmed and is often extremely intimidated by the problem. In fact, they probably feel the same way many law students do before going into a final exam; the only difference is that they are facing the prospect of losing a home, license, job, etc., rather than the prospect of a disappointing grade. It is hard to explain the feeling that I get when I am able to help someone in a situation like that. I am able to connect with them on a personal level, and it really puts the “problems” in my life into perspective.

The law dominates my life and will continue to do so from this point on. The people I have encountered, and will hopefully continue to encounter, through public interest work remind me that there is more to life than statutes, rules, and structured arguments. They also remind me why I am passionate about the law and reinforce the fact that legal work really is worthwhile. Finally, they also remind me that sometimes they just want someone to listen and are truly grateful when someone does. It gives them hope, and it makes me feel good.

What are you doing to help with the PILS Auction?

This year I have done a lot of work helping prepare for the auction. I have sold raffle and auction tickets, requested donations by phone and in person, and have picked up quite a few donations. In years past I have helped with the clean-up and have volunteered for various activities during the auction. This year I do not plan on helping during the actual auction so that I can experience it as a participant, rather than a volunteer, for the first time.

“Get out of my way,” Thompson answered quickly.

If you think that at 70, the political fire inside Thompson has diminished, you should have seen him during the “On the Issues” session with Gousha, the Law School’s distinguished fellow in law and public policy at Eckstein Hall on Thursday. (In fact, you can, by clicking here for the video.)

The man elected governor of Wisconsin four times before serving four years as US Secretary of Health and Human Services was every bit the forceful, self-confident, optimistic, almost swaggering figure before about 200 people that Wisconsinites knew so well in the 1980s and 1990s.

When Gousha said other people running for the open US Senate seat wanted the job as much as Thompson did, Thompson said, “I don’t think so.”

Thompson appeared to be close to taking offense when Gousha said that, if elected, he would be only a junior senator from Wisconsin. “I don’t believe that,” Thompson said. He said he believed he would be regarded as a leader who could bring Republicans and Democrats together to deal with a federal debt problem that is threatening the quality of life in the future and to promote a stronger economy. He said he’d be looked to by other senators as an expert on issues such as health care policy.

He recounted his successes as governor and as a cabinet member, including Wisconsin’s economic record while he was in office and his roles in reforming welfare policy and launching Milwaukee’s private school voucher program. (He even mentioned a Super Bowl victory by the Packers and Rose Bowl wins by the Wisconsin Badgers while he was governor.)

“I was able to change the attitude of this state,” he said. “I did this, ladies and gentlemen, with Democrats in charge of both houses of the Legislature.”

He can do the same as a senator, he said. “We can build Wisconsin and we can build America, and that’s what I believe America and the public are thirsting for me, and I think they would love to have somebody like me stand up and say, that’s the way we’re going to do it and that’s the direction we’re going to go. And I bet you I got a lot of people who want to follow me,” Thompson said.

He referred to himself frequently as “a builder” and said he would rather be labeled “a do-er” than any political label such as “conservative.”

Thompson defended himself against contentions by critics that he had reversed his positions on issues such as the federal health care law and high speed rail. Asked about attacks that he is not sufficiently conservative, attacks largely funded by the national Club for Growth, Thompson said:

“Just because the Club for Growth nationally is wrong doesn’t mean anyone else has to follow them. They want somebody else to win the Republican primary in Wisconsin. They want somebody to go to Washington just to vote no. . . . They know that I’m going to go out there and shake things up and make things happen, and they’re afraid of that.”

“That’s what America wants, they want a builder again,’ Thompson said. “They want somebody that is optimistic, that believes the United States’ future is still the shining city on the hill that Ronald Reagan talked about.”

As for others who want to succeed retiring Democrat Herb Kohl in the Senate, Thompson said, “Who are they? . . . Did they ever get endorsed by Ronald Reagan?”

Other candidates for senator are expected to take part in upcoming “On the Issues” sessions. Rep. Tammy Baldwin, a Democratic candidate, is scheduled to appear at 12:15 p.m. April 9.

When most people hear the word “adoption,” they picture what I often call the “Little Orphan Annie” model. You will recall in the Broadway play “Annie,” and before that in the “Little Orphan Annie” comic strip, Annie was only an infant when she was abandoned on the orphanage steps by her poor parents. After many adventures, Annie was adopted by Daddy Warbucks, a kind man with the emotional and economic resources to provide Annie with a real, forever home. Similarly, many people think of adoption mainly as a procedure for bringing babies and young children into forever families who will love and protect them. Although adoption takes that form for many people, in fact adoptions of older children and of stepchildren (adopted by second spouses to one of the children’s birth parents) are becoming more and more common.

There are also adult adoptions. The original model for adult adoptions may have been to formalize de facto family relationships, such as those that occurred when relatives would take in and raise an orphaned relative. Later, the model expanded to adoption of other adults who were significant to the adopter. In all of these situations, the adoption was not done for sentimental reasons; adoption served to secure inheritance rights for the adoptee. If the adopter wanted to leave significant property to a beloved person this could be done with a will, but disgruntled children or other relatives could seek to have the will set aside on grounds of undue influence or improper execution, thereby cutting out the interloper and increasing the shares of the will contestants. If the beloved person is legally adopted, challenging the will does not work because if a will is set aside, the property will pass by intestate succession to the children, including the adopted adult child. This technique has been effective to protect the inheritance rights of same-sex partners, although not every state allows adoptions where the parties have had a sexual relationship. Adoptions are rarely set aside, and it is questionable whether other children would even have standing to challenge the adoption.

The adoption of the adult girlfriend apparently makes her eligible for trust distributions as a child of Goodman. Goodman’s lawyer claims that his client’s motivation is to protect his children. Certainly that is part of Goodman’s motivation, given that he is facing the possibility of jail time in a criminal case as well as a potential damage judgment in the civil case. Still, the possibility of setting aside money to support children whom you already have a legal obligation to support is based on notions of protecting children and reducing the chances that society will have to support them. Here, arranging to have an adult girlfriend, who is presumably capable of self-support, share in the protections afforded to minor children seems like honoring the letter but not the spirit of the law. Even the judge who approved the adoption petition said it was “border[ing] on the surreal.” It will be interesting to see whether it withstands the inevitable legal challenges.

The comparison of the two judicial systems stems from the fact that both are designed to avoid trials on baseless charges. Beyond the similarity of this broad rationale for each process, however, little is in common between the two. An Article 32 investigation results in a non-binding recommendation, is limited to the charges on the charge sheet, and provides that the accused and counsel may be present. Conversely, a grand jury session’s indictment is final, allows any charges to be found, and neither the accused nor his or her counsel is allowed at the session.

First, in an Article 32 investigation, an assigned officer, after reading a report on the crime, hearing both sides argue, and listening to witnesses, determines whether reasonable grounds exist to believe the accused committed the offense charged. This determination is then given to a higher-ranking officer in the form of a recommendation. That officer then also reviews the material and decides if the case should actually go to trial.

On the other hand, once a government prosecutor has an indictment from the grand jury, it is final, and the government may move forward. The Article 32 investigation is thus favorable because it adds a layer in the form of a second set of reviewing eyes before the case is sent to trial.

Second, during an Article 32 investigation only the specific charges of which an individual has been accused are addressed, compared to a grand jury that can indict for anything it believes there is evidence, including things that come up during witness questioning. In an Article 32 investigation, the accused faces a limited set of charges, as opposed to a grand jury, where the accused faces indictment on any crimes the jury finds may have been committed by him or her, whether they are the reason for the session or come up during testimony. This comparison again greatly favors the accused in the military system.

The third, and key, difference between an Article 32 investigation and a grand jury session is that an Article 32 investigation allows the accused and his or her counsel to be present while the grand jury session does not. Along with the benefit of seeing and hearing the government prosecutor’s case, the accused has the benefit of being able to call his or her own witnesses, give evidence, and cross-examine witnesses. This provides the accused with an opportunity to go more in depth about learning the government’s case, hear and question witness testimony (which provides grounds to impeach the testimony at trial if the testimony changes), and make a case for him or herself to prove innocence or provide mitigating evidence.

The accused in civilian court, at a grand jury session, has none of these rights. The ability to be present at a hearing on the merits of the evidence is greatly beneficial to the accused. Sol Wachtler, a former Chief Judge of the New York Court of Appeals, famously said that a grand jury would “indict a ham sandwich” if that was what a prosecutor wanted. Joshua A. Dressler & George C. Thomas III, Criminal Procedure Prosecuting Crime 840 (4th ed. 2010). Wachtler’s quote illustrates the ease with which a prosecutor can obtain an indictment with no accused or counsel present, and in so doing demonstrates the benefit to having the accused at the session. Because the accused has another opportunity to get his or her case dismissed, and because it can be used as a discovery tool, an Article 32 investigation is much more beneficial to the accused than a Grand Jury session.

In light of the dignity to be afforded accused individuals and in light of accuracy concerns, the Article 32 investigation is simply better. By adding another level of review before going to trial, and allowing the accused to defend him or herself before the case is brought to trial, not only does the accused have an extra chance to avoid the stigma attached to being brought to trial (whether guilty or innocent), but there is also a greater chance of accuracy at this early stage. An individual’s dignity should be worth the effort.

Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

Myron Gordon I did not know, but the Chief’s remarks certainly gave me a strong sense of the man and the times. Gordon attended college at the University of Wisconsin and graduated from Harvard Law School in 1942. In his academic successes, the Chief—with some perspective on the matter—stated, “Myron Gordon lived the dream of Eastern European Jewish immigrant parents.” He became a Milwaukee County Civil Court judge in 1950, holding a seat on the state trial bench for eleven years; was a justice of the Wisconsin Supreme Court from 1961 to 1967; and served as a judge of the United States District Court for the Eastern District of Wisconsin from 1967 until his retirement several decades later.

Gordon seems not to have forgotten his forbears. The Chief recalled one incident to make a large point: “When Myron Gordon was on the Supreme Court, several prominent Madisonians wanted to nominate him for membership in a private eating club that discriminated against Jews. They wanted to eliminate religious discrimination and selected Myron Gordon and Gordon Sinykin as their nominees because Myron and Gordon were above reproach. Myron understood the publicity that would ensue (which was not pleasant) and ill will that might follow (and it did). Neither he nor Gordon needed to be a member of the club—it added little if anything to their lives. But discrimination should be battled wherever it raises its head. And if Myron and Gordon were asked to lead the battle, they would do so. A small win, but every little win makes a difference.”

I asked Chief Justice Abrahamson for a copy of her 2010 remarks, and I have made them available here.

Terry Evans I knew, though scarcely so well as did Judge Sykes, who was both his law clerk and, for some seven years, his colleague on the Seventh Circuit. Judge Evans attended Marquette University for both college and law school and was of Milwaukee in just about every other respect as well. He, too, became a trial judge in Milwaukee County at a young age (34 years old), before also being appointed to the federal district court here in Milwaukee (in 1979). Judge Evans joined the Seventh Circuit in 1995 and passed away quite unexpectedly this past year.

It is perhaps natural that Judge Sykes would especially remember Judge Evans as a trial judge, where he spent the majority of his time on the bench and she served as his law clerk for a year: “He was steeped in everything that is Milwaukee—its people, its traditions, and its institutions. Add to that his legendary sense of humor and his considerable powers of perspective and intuition and you’ve got a truly masterful trial judge. He could read the courtroom, size up each case really quickly, cut through the clutter, pull the story line from mountains of evidence, identify the real clash of interests, and articulate a concise and well‐reasoned decision that everyone could grasp. He did all this with a clarity of expression and wit rarely found in the world that we lawyers and judges inhabit.”

Judge Sykes has been kind enough to share her remembrance of Judge Evans.

Judges are a mixed lot—as is the case for any large category of individuals. Some are good, others less so. Some work hard; others are unwilling to do all the work that is the premise of an efficient litigation system (e.g., superintending discovery disputes), and the practice (along with the society) suffers for it. But, in all events, the role of the judge is at the heart of the legal system, and so it is a contribution to our continuing education that Chief Justice Abrahamson and Judge Sykes would spend, no doubt, a considerable amount of time preparing their remembrances of Judges Gordon and Evans and permit us to share these in written form. These writings may, indeed, teach us some of “the lessons of the law (and life).”

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. To be sure, such reasoning held meaningful sway with the Supreme Court until 1937, when a majority of the Court, after a game of chicken with FDR, relented and began recognizing greater congressional power to legislate under the Interstate Commerce Clause. Among other things, Congress could regulate activities that, in the national aggregate, substantially affected interstate commerce, regardless of whether a given activity was interstate or intrastate and regardless of Congress’ actual motives or purposes. Under this approach, not only were various New Deal statutes upheld, but so were subsequent statutes in the 1960s and 1970s concerning such matters as civil rights and environmental protection.

Over the past two decades, however, the Court has again shown a willingness to henpeck Congress regarding its commerce-based legislation. The turning point occurred in a 1995 case, United States v. Lopez, in which the Court by a 5-4 vote struck down a federal statute criminalizing gun possession within 1000 feet of a school. Five years later, in United States v. Morrison, the Court again by a 5-4 vote struck down a federal statute creating a cause of action, and authorizing civil liability, for gender-motivated violence.

Both of these statutes, said the Court, governed conduct that was not commercial in nature, and neither statute was part of a larger federal scheme of commercial regulation. Nor did either law require proof that a defendant’s conduct actually bore a relationship to interstate commerce. The Court also noted that the statutes touched on one or more areas, such as criminal law, traditionally within the legal domain of the states. Given these factors, the Court in both cases concluded that Congress had exceeded its interstate commerce authority.

In light of these recent decisions, the defendants’ arguments can hardly be characterized as frivolous, much less bird-brained. Like all litigants, however, they should be wary of counting their legal chickens before they’ve hatched. As it turns out, most statutes challenged since Lopez have not suffered the same fate as those at issue in Lopez and Morrison. Lower courts have generally been reluctant to apply the Lopez factors too strictly, and the Supreme Court itself—with the exception of Morrison—has only made suggestions of potential unconstitutionality with regard to other statutes, otherwise upholding every law it has reviewed under the Interstate Commerce Clause. In the 2005 case of Gonzales v. Raich, for example, the Court (by a different majority) upheld an application of the federal Controlled Substances Act to the intrastate cultivation and possession of marijuana used for medical purposes pursuant to a state law. Congress, meanwhile, seems to have taken at least somewhat seriously the admonitions of Lopez and Morrison and appears less likely today to enact statutes possessing the flaws of the statutes struck down in those cases.

The relevant provision of the Animal Welfare Act, 7 U.S.C. § 2156, covers a range of conduct related to “an animal fighting venture.” (This provision, among others, resulted in NFL quarterback Michael Vick’s 2007 federal conviction for financing and participating in dogfighting operations, which partly took place in South Carolina.)  Taken together, § 2156’s subsections make it criminal “to knowingly sponsor or exhibit an animal in an animal fighting venture,” § 2156(a)(1); “to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture,” § 2156(b); “to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture,” § 2156(c); or “to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture,” § 2156(e). A violation of any of these subsections can lead to a fine, to imprisonment up to five years, or to both (see § 2156(j) and 18 U.S.C. § 49). The term “animal fighting venture,” though expressly excluding hunting, is defined as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment,” § 2156(g)(1).

Applying the Lopez and Morrison factors to § 2156, it is apparent that some of its prohibitions are clearly constitutional. Those that target inherently commercial activities such as buying and selling, and especially those that also expressly link the activity to interstate commerce or to a channel or instrumentality of interstate commerce, seem well within the judicially defined scope of Congress commerce power. Conversely, those that target activities that are not inherently commercial—for example, exhibiting or possessing—potentially stand on a weaker footing, but they do explicitly require proof that the animal or object be knowingly destined for use in an animal fighting venture that (by statutory definition) is “in or affecting interstate or foreign commerce . . . .” To be sure, the federal prosecution introduced evidence of out-of-staters that traveled to the event; of out-of-state items—including feed and a host of resources used for the fighting—that were shipped to individuals at, or seized from the scene of, the event giving rise to the convictions; and of the deposit of event proceeds into a bank account, from which funds were drawn by checks that were then processed out-of-state.

In past Supreme Court cases, most notably Katzenbach v. McClung from 1964, it has been held that Congress’ commerce power can reach a business that receives from out-of-state a portion of the goods that it then sells to customers, even if the customers are generally from in-state. Moreover, the size or amount of the actual portion of goods (or its monetary value) is generally not relevant insofar as Congress may aggregate all like activities when tallying or gauging the overall effect on interstate commerce. Nor does it matter whether or not one can plausibly characterize an activity as local rather than national or interstate. As the Court remarked in the 1942 decision of Wickard v. Filburn, “even if . . . [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .”

These are older, pre-Lopez precedents, it is true, but neither Lopez nor Morrison expressly overruled any prior decisions, and the Raich decision approvingly invoked both McClung and Wickard, drawing particular support from the latter. Indeed, in response to the challengers’ heavy reliance on the Court’s more recent cases of Lopez and Morrison, the Raich majority stated that “[i]n their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases” and that “even in the narrow prism of [their] creation, they read those cases far too broadly.”

This could very well be the same response that the Court of Appeals, without much brooding over precedent, will give to most if not all of the appellants in their challenges to the Animal Welfare Act. It may be that the appeals court will find that one or even a few of them have reasonable arguments against the application of the statute, though probably not arguments of sufficient strength to prevail. Insofar as they all contributed to or operated a commercial operation—the interstate effects of which, if aggregated with similar operations nationwide, can plausibly be deemed substantial—the likelihood of an affirmance with regard to their convictions under the Animal Welfare Act would seem to be high. Should such an affirmance occur, one might venture to say that, in the end, the chickens will have indeed come home to roost.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime.

I once represented a corporate client in a government contracting investigation, with dozens of individuals hauled before the grand jury. Eventually, there were multiple guilty pleas and criminal fines that amounted to tens of millions of dollars. However, the only two individuals who ended up doing jail time were two minor players in the scheme who had decided to shred documents after receiving a subpoena. The U.S. Attorney in that case refused to offer them any deal that did not include jail time as a component. In my experience, prosecutors take a very hard line on the destruction of evidence.

Therefore, it appears that one future focus of the John Doe investigation will be to investigate whether anyone took steps to try to hide the traces of the secret wifi network for emails that was apparently run out of the County Executive’s Office. In particular, the investigation will examine whether evidence relating to the wifi network and the emails sent over that network were destroyed after the initial subpoenas were served.

In regards to the felony charges in the criminal complaint, it does appear that in this instance felony charges are warranted for doing campaign work on taxpayer-funded time. In particular, the felony charges are warranted given the extensive amount of campaign activity reflected in the evidence collected thus far, and also given the allegation that the individual involved had received immunity previously for roughly the same offense. In other words, the charges in the complaint fit the seriousness of the facts.

What we see here is a classic situation in white collar crime. The response of some observers to the criminal complaint is to assert that, when it comes to illegal campaign activity, “everyone does it.” First of all, this is hardly a legal defense to the crime. Moreover, it is entirely beside the point to speculate whether some isolated instances might be identified where a democratic staffer has also transgressed the literal language of the statute involved. I freely concede that prosecuting every act that fits the technical definition of doing campaign work on the taxpayer dime would be absurd. Prosecutorial discretion is important in these types of cases, and this discretion is a crucial component of the process.

In general, one would expect a prosecutor to charge felonies where there are substantial violations of the law and where there is evidence of culpability. In contrast, one would expect that a prosecutor would not charge (or else would bring only misdemeanor charges) where the facts suggest relatively minor infractions of the statute.

Thus far, in regards to the illegal campaign activity being investigated, the D.A. has granted immunity to minor players in exchange for their cooperation, and has brought misdemeanor charges against one individual who mostly seems to have been misguided and acting on her own.

The only felony charges relating to illegal campaigning have been filed against someone who was involved in something similar as part of the Caucus Scandal investigation, and thus was most likely aware of the illegality of her conduct in 2010. The criminal complaint also alleges that she engaged in a substantial amount of prohibited campaigning during work hours and that she did so in concert with others. It seems that multiple persons may have violated the same underlying criminal provision, but that one individual currently faces much more serious charges.

Is this fair? For decades, academics have complained about the enormous power that such charging discretion places in the hands of prosecutors, and the potential for differential treatment based upon partisan allegiances. Fortunately, in the time that I have lived in Wisconsin, Milwaukee has been blessed with scrupulously fair prosecutors in Chisholm, McCann and, at the federal level, Steve Biskupic.

In any event, the role of prosecutorial discretion in the charging of white collar crimes is an integral and accepted part of our criminal justice system, and is likely to remain so for the foreseeable future despite its critics. This is because white collar crimes are often “malum prohibitum” crimes, meaning that the underlying conduct may not appear immoral to some members of the public and yet it is nonetheless a crime to engage in such conduct.

A prosecutor should exercise discretion when filing charges in such cases: A person who has knowledge of (or is recklessly indifferent to) the existence of a malum prohibitum offense, and who chooses to violate the law anyway, is morally culpable as a result of that choice and should be prosecuted. A person who is not on notice of the existence of the malum prohibitum offense is less morally culpable, and any charges that are brought for an unknowing violation should reflect this fact (although society at large has a countervailing interest in some minimal punishment in order to preserve the principle that “ignorance of the law is no defense”).

In general, a prosecutor’s charging decisions will reflect these principles. If they do not (i.e., the case of an “overzealous prosecutor”) then oftentimes judges in white collar cases will respond by attempting to construe the statutory language in a way that will not permit convictions where the underlying conduct is “innocent” from a moral point of view. Consider Justice Thomas’ opinion for the Supreme Court in Staples v. United States, or the Supreme Court’s Liparota v. United States decision.

Mr. Chisholm is proceeding cautiously and appropriately in this John Doe investigation because he knows that his decisions are being closely watched by the public. In his charging decisions thus far, he has been the complete opposite of “overzealous.” Perhaps that is why the only real criticism that he has received about this investigation to date is that that he is being very slow and very careful. At the end of the day, if that remains the only criticism of this investigation, the D.A.’s office will have done a very good job indeed.

A big thumbs up for Walker across most of the state of Wisconsin. A big thumbs down in Madison.

The two half-states of Wisconsin—one with clear Democratic majorities, one with clear Republican majorities—can be seen in the results of the Marquette Law School Poll released this week. Political contests in either of the half-states alone would be bring few surprises and little drama because they would be one-sided. But combine the two halves into the one Wisconsin we actually have, and you get a polarized, evenly split state that has become a center of passionate partisanship, attracting high levels of national attention.

You can see the two half-Wisconsins in the demographic breakdowns of many of the questions in the new Law School poll. (The results are all on the Law School Poll’s webpage. To go to them, click on “Results & Data” and then on the line referring to “crosstabs.”)

There were some matters where the divide was more visible. On issues such as reducing state aid to education (results generally unfavorable to Walker’s position) or requiring people to show photo identification in order to vote (results generally favorable to Walker’s position), the variations by sections of the state were not as substantial.

Also, caution is in order: While the margin of error for the poll results as a whole was 3.8 percentage points, the margins of effort for results involving subgroups such as people in a specific media market are larger because the samples are smaller.

But there is no mistaking the overall picture. Some examples:

Asked if they approved or disapproved of the way President Barack Obama is handling his job, the poll sample as a whole was evenly split, 47% on each side. But in the highly Democratic Madison media market, 58% approved and 34% disapproved. For the city of Milwaukee, 63% approved and 34% disapproved. The reverse was true in the rest of the Milwaukee media market, which includes Waukesha, Ozaukee, and Washington Counties, areas that vote heavily Republican. The figures for that area were 37% approve and 57% disapprove. The Green Bay/Appleton media market was closely split, 46% approve, 48% disapprove. Results for the state outside those four areas were 42% approve and 50% disapprove.

For Walker, the job approval/disapproval figures were:

City of Milwaukee: 33% approve, 62% disapprove.

The rest of the Milwaukee media market: 61% approve, 36% disapprove.

Madison media market: 35% approve, 62% disapprove.

Green Bay–Appleton: 56% approve, 43% disapprove.

All other media markets: 59% approve, 38% disapprove.

Put that all together and you get 51% saying they approve of Walker’s job performance, 46% saying they disapprove.

You could see the political leanings of each part of the state clearly in the results when people were asked which of these two statements they agreed with more: “I’d rather pay higher taxes and have a state government that provides more services” or “I’d rather pay lower taxes and have a state government that provides fewer services.”

In the city of Milwaukee, 49% of those polled chose the higher taxes/more services side, while 38% took the lower/fewer side. In Madison, the figures were 53% higher/more and 42% lower/fewer.

On the other side of the geo-political divide, 36% of those polled in the rest of the Milwaukee media market said higher/more and 54% said lower/fewer. In the Green Bay-Appleton area, it was 38% higher/more and 52% lower/fewer. For the remainder of the state, the figures were 36% higher/more, 55% lower/fewer.

In his remarks at an “On the Issues” session at the Law School following release of the poll results, Charles Franklin, visiting professor of law and public policy at the Law School this year, suggested that the results of a possible governor’s race between Walker and Democratic State Sen. Tim Cullen were interesting. Franklin, who is directing the Marquette Law School Poll, said that only 18% of those polled knew enough about Cullen to express a favorable or unfavorable opinion about him. Therefore, Franklin suggested, Cullen’s results against Walker might be taken as an indicator of baseline support at this point of any Democratic challenger to Walker.

With that in mind, look at the Walker/Cullen results by region:

City of Milwaukee: Walker 35%, Cullen 52%.

Rest of the Milwaukee media market: Walker 61%, Cullen 31%.

Madison area: Walker 36%, Cullen 55%.

Green Bay–Appleton media market: Walker 52%, Cullen 35%.

The rest of the state: Walker 56%, Cullen 34%.

Getting a big turn out on the turf where you’re strong and doing better than expected on the turf where you’re weak are the standard underlying priorities for any statewide campaign by either party. You can count on that being true in all three of the major races expected this year: for governor, U.S. senator, and president. Regional strategizing will be a factor in the advertising campaigns of candidates—and the air waves are going to be awash with commercials all year—but it also is a consideration in the often under-publicized “ground game” of campaigns. Networking with supporters, targeted mailings, phone banking, and knocking on doors while distributing campaign literature will all be high priorities for candidates who want to maximize the voting among residents in their half of Wisconsin’s political map.

The full poll results can be found here.

At noon today (Jan. 25), Charles Franklin, visiting professor of law and public policy and director of the poll, will discuss the poll results with Mike Gousha, distinguished fellow in law and public policy, in Eckstein Hall. The session is free and open to the public. Video of the session will be posted on the Web page for the poll shortly after the session ends.

A brief look at the results: With the spotlight on the almost-certain recall election for governor, more people said at this point that they would vote for Gov. Scott Walker, the Republican who has been in office for a year, than for any of four possible Democratic challengers. The margins in favor of Walker ranged from five to ten percentage points.

Asked if they approved or disapproved of the way Walker is handling his job as governor, 51% said they approved and 46% said they disapproved.

The poll results also included information on how Wisconsinites rate candidates for the U.S. Senate seat that is open this year, what they think of some of the proposals that have stirred controversy in the state in the last year, and the standing of President Barack Obama and some of the Republican candidates for president. 

The Law School polling project will continue throughout 2012, with fresh rounds of polling generally monthly. All poll results, along with analysis of what the poll shows, links to media coverage of the poll, and announcement of upcoming events, will be posted on the Web page for the poll.

It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln.

First of all, let us consider Theodore Roosevelt’s defense of an active federal government. In his “New Nationalism” speech in 1910, Roosevelt argued:

The absence of effective State, and, especially, national, restraint upon unfair money-getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power. The prime need to[day] is to change the conditions which enable these men to accumulate power which it is not for the general welfare that they should hold or exercise. We grudge no man a fortune which represents his own power and sagacity, when exercised with entire regard to the welfare of his fellows. . . . We grudge no man a fortune in civil life if it is honorably obtained and well used. It is not even enough that it should have been gained without doing damage to the community. We should permit it to be gained only so long as the gaining represents benefit to the community. This, I know, implies a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had, but I think we have got to face the fact that such an increase in governmental control is now necessary.

In Roosevelt’s view, the great industrialization of the America economy following the end of the Civil War had created an unprecedented degree of economic inequality. This economic inequality created a threat to democratic self-government:

At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth.

The solution, according to Roosevelt, was for the federal government to police the private markets on behalf of the “have-nots,” in order to ensure that the “haves” do not use their concentrated economic power for objectives that are destructive to the common good. Theodore Roosevelt returned to this theme of the federal government as a counterpoint to the economic elite in his “Autobiography.” In that book, he summarized the evolution in his thinking that led to the “New Nationalism” speech:

[A] few men recognized that corporations and combinations had become indispensable in the business world, that it was folly to try to prohibit them, but that it was folly to leave them without thorough-going control . . . They realized that the government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud . . .

The more active federal government that Roosevelt envisioned did, in fact, come into being. The combination of two World Wars, and the response to the Great Depression, led to a more powerful federal government and the subordination of corporate power to government control. However, in recent decades the overarching trend has been towards deregulation and a reduction of government power. The result has been a reduced government role in policing the economy, and an increased anxiety on the part of workers and retirees who feel that they are at the mercy of market forces. It makes sense, therefore, that President Obama would return to progressive themes that speak to similar anxieties that existed during the Roosevelt era.

However, historian Heather Cox Richardson of the University of Massachusetts, Amherst has traced Roosevelt’s idea of an active federal government back to an even earlier Republican: Abraham Lincoln. In a 2010 article published in the Marquette University Law Review, entitled “Abraham Lincoln and the Politics of Principle,” Professor Richardson argued that Lincoln created a new idea of an activist federal government that focused on promoting economic progress for individuals. She points to Lincoln’s policies in support of homestead legislation, the creation of the Department of Agriculture, and the Land-Grant College Act.

Professor Richardson considers Lincoln’s speech in Milwaukee on September 30, 1859 as the first time that Lincoln publicly espoused his vision for an active federal government. He spoke of a federal government that did not leave poor laborers to their own devices, but rather that provided those born into the lower economic strata with the land and the education that these economically disadvantaged Americans could use as tools in order to better their condition. She summarizes:

Lincoln’s concern about the growing power of Southern slave owners in the 1850s convinced him that the government must not privilege an economic elite. Rather, it must leave the economic playing field free for hard-working individuals to rise. By 1859, the idea of government support for individuals had combined with his conception of a “nonpolitical” politics to suggest that ‘equality’ might mean something more active than simply staying out of the way of the man on the make. For decades, men had called for government promotion of individual economic advancement, an idea that Republicans like Lincoln were ready to adopt.

One important policy initiative of Lincoln’s was the promotion of higher education for all, not just for the wealthy. In 1862, Congress passed the Land-Grant College Act, using public land to fund state universities. A second important policy initiative was the establishment of a federal Bureau of Refugees, Freedmen, and Abandoned Lands in 1866 to create homesteads for freed slaves and poor whites in the aftermath of the Civil War. The purpose of this law was to break the hold of the Southern elite on the Southern economy, by promoting self-sufficiency for small farmers.

The fate of the so-called Freedman’s Bureau is telling. After President Lincoln’s death, President Andrew Johnson repudiated the idea that the federal government had any legitimate role to play in promoting economic advancement for the average worker. He attacked the Freedman’s Bureau as a giveaway of tax dollars to the “indigent.” Johnson also attacked the Freedman’s Bureau as a federal program that spent tax dollars exclusively for the benefit of blacks, when the reality was that the legislation was intended to foster farm ownership for poor whites in the South as well as poor blacks. As Professor Richardson summarizes: “Johnson’s equation – that government activism equaled special help for blacks paid for by hard-working taxpayers – became the equation that opponents of government activism have used ever since.”

Tomorrow morning, leaders of the current Republican Party will undoubtedly assail President Obama’s State of the Union address on the grounds that it engages in “class warfare” and divisiveness. However, it is worth recalling that the idea that the federal government should take the lead in reducing economic inequality in our society is an idea that has deep Republican roots.

Perhaps Hu is exaggerating the dangers, especially with regard to the fundamental aspects of Chinese culture. It’s hard to imagine Transformers 3 doing much damage to Confucian ethics or the Chinese sense of community and solidarity. However, Hu is correct when he suggests popular culture can and routinely does promote certain values and modes of behavior. It is highly normative. Popular culture – films, television shows, cheap literature – have the potential to function ideologically, and consumers of popular culture in China as well as in the United States are encouraged to “get on board” with the social world popular culture imagines and promotes.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. Because the D.C. Circuit’s decision gave rise to a circuit split, the Supreme Court granted certiorari to resolve the conflict, and will thus decide one of the most important Fourth Amendment cases since 1983. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and shifting societal notions of privacy. The Note urges the Supreme Court to incorporate an approach similar to Maynard within its Fourth Amendment jurisprudence. The Note concludes that failure to do so will contract already-cramped notions of privacy in the digital age, and facilitate a normative shift in conceptions of privacy that may be detrimental and irreversible.

But sometimes, timing is everything. So that’s why there were a gaggle of television cameras, a cluster of reporters, and about 200 others in the room when Kennedy joined Mike Gousha for an “On the Issues” session at Eckstein Hall on Thursday.

Kennedy is director and general counsel of the Wisconsin Governmental Accountability Board. Now in possession of petitions with about 1.9 million signatures calling for recall elections for governor, lieutenant governor, and for four state Senate seats currently held by Republicans, the board is at center stage for one of America’s hottest political scenes. What the GAB decides in handling the petitions and setting the course for the elections that are almost sure to result will have a major bearing on Wisconsin’s future and become a vivid part of Wisconsin’s history.

“It’s an honor to be part this process,” Kennedy told Gousha, the Law School’s distinguished fellow in law and public policy. ”And it’s definitely energizing. You can’t help but get juiced when you’re working on something this challenging.”

Kennedy compared the role he and the board are playing to being an umpire or referee in a sports event. Asked by Gousha about contentions from partisans on both sides of the political spectrum that the board is biased, Kennedy said, “Ultimately, it’s just how you do the job. Someone has to play this role, whether it’s wrestling or soccer or football. . . . Someone has to make the calls.”

“People are going to try to work the ref,” he said.

For part of the session, large screens in the Appellate courtroom showed live images of the scene in an undisclosed location in the Madison area where GAB employees were scanning the recall petitions to create an electronic record that will be open to all. Kennedy said both tight security and an effort to be open to the public were necessary given the stakes at hand. He said 450,000 pieces of paper were submitted to the GAB on Tuesday, the deadline for the recall petitions, and each one of them needed to be scrutinized. They are also sure to be scrutinized by others. The GAB is planning to create a data base of the signers.

Under orders from Waukesha County Circuit Judge Mac Davis to give the petitions careful checks for proper signatures and possible duplication of signers, Kennedy said he was unable so far to set a timetable for when elections might be held. The GAB is expected to go to court next week to ask for more time than the 30 days for making decisions called for in state law. “We’ll probably be in this process for a while before things start to coalesce,” Kennedy said.

The conversation with Kennedy, which can be viewed by clicking here, was the first of what are sure to be numerous sessions at the Law School this year aimed at shedding light on the epic political developments in Wisconsin.

Coming up Wednesday will be the release of results from the first round of the Marquette Law School Poll. You can learn more about the poll by clicking here and you can click here to sign up for an “On the Issues with Mike Gousha” conversation with Prof. Charles Franklin, director of the poll, at noon Wednesday at Eckstein Hall. The session will be free and open to the public.

Here’s what happened.  Maples was convicted of murder and sentenced to death by an Alabama state court.  His direct appeals were unsuccessful.  He then launched a collateral attack in state trial court.  The Supreme Court recounted what happened next: 

His petition, filed in August 2001, was written by two New York attorneys serving pro bono, both associated with the same New York-based large law firm. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no substantive involvement in the case.

In the summer of 2002, while Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm; their new employment disabled them from continuing to represent Maples.They did not inform Maples of their departure and consequent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.

In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were returned, unopened, to the trial court clerk, who attempted no further mailing. With no attorney of record in fact acting on Maples’ behalf, the time to appeal ran out.

Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denying him postconviction relief. Maples, it is uncontested, was blameless for the default.

In order to overcome a procedural default, a habeas petitioner must normally show cause to excuse the default and resulting prejudice.  The Supreme Court granted cert. in Maples’ case to decide whether he satisfied the “cause” prong.  (Thus, although Maples won in the Supreme Court, the Court seems to have left open the possibility that he might still lose on “prejudice” on remand.)

In trying to establish “cause,” Maples’ big problem was Coleman v. Thompson, 501 U.S. 722 (1991), which held that the ineffectiveness of postconviction counsel does not qualify as cause:

That is so, we reasoned in Coleman, because the attorney is the prisoner’s agent, and under “well-settled principles of agency law,” the principal bears the risk of negligent conduct on the part of his agent.  (12)

So, was there something in the conduct of Maples’ lawyers that went beyond mere negligence?  Yes, ruled the Court:

A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principal agent relationship, an attorney no longer acts, or fails to act, as the client’s representative.  His acts or omissions therefore “cannot fairly be attributed to [the client].” (12-13 (citations omitted))

The Court thus drew a “distinction between attorney negligence and attorney abandonment.” (14 n.7)  And, reviewing the whole course of conduct of Maples’ pro bono attorneys, the Court seemingly had little difficulty concluding that they crossed the line from negligence into abandonment.

One interesting question that all of this raises is whether Maples will provide any benefit to any other habeas petitioners.  The Court’s decision rested on a lengthy analysis of the facts specific to Maples’ situation, and those facts were indeed quite extraordinary.  Certainly, if the Court were so inclined, it would have a ready basis for distinguishing Maples from just about any other case that is likely to arise in the future.  Recall Alito’s remark, in his concurring opinion, that Maples was a “perfect storm.”

Yet, if there is one thing we have learned from more than a quarter century of litigation under the Strickland test for ineffective assistance of counsel, it is that the seemingly stark difference between not having a lawyer and having an ineffective lawyer is illusory.  As a practical matter, the failure to appoint a lawyer at all stands merely as the endpoint in a continuum of failures of representation.  We’ve seen cases of drunk lawyers, sleeping lawyers, depressed and despondent lawyers, lawyers who do absolutely no pretrial preparation, and on and on.  In many of these cases, it seems that the client might actually have been better off not having a lawyer at all — at least that way, the client would have been on notice that he had to look out after his interests.

Similarly, attorney abandonment is not a simple either/or proposition, but is instead a question of degree.  Again, think of a continuum, with simple negligence at one end and the Maples facts at the other.  In between, one may find any number of fact patterns that go beyond mere carelessness and suggest a more thoroughgoing disregard for the client’s interests — even if not quite at the level of Maples’ attorneys.  It seems possible that the Court’s endorsement of a negligence/abandonment distinction may open the door for habeas petitioners in some of these other factual scenarios, too.

Put differently, there seems nothing intrinsic to the concept of “abandonment” that would necessarily limit its reach to the most extreme cases.

This brings us to the most mysterious aspect of the Maples majority opinion: the lengthy discussion of the manifest deficiencies in Alabama’s system for providing indigent defense.  Reading the first few pages of the opinion, one might get the mistaken impression that this was a class-action lawsuit seeking structural reform, rather than a single petitioner litigating over the application of a narrow, technical aspect of habeas law.  So why do we get all of this structural stuff, which seemingly ends up not playing into the Court’s resolution of Maples’ appeal?

Indeed, this is precisely why Alito filed his concurring opinion — to emphasize that “whatever may be said about Alabama’s system, I do not think that Alabama’s system had much if anything to do with petitioner’s misfortune.”  (2)

The motives of Justice Ginsburg, writing for the majority, are not entirely clear in this regard, but perhaps she was trying to suggest that what happened to Maples was not just bad luck, but rather a predicable consequence of systemic failure.  Although the facts of Maples were  particularly extreme, the systemic flaws that produced Maples will also predictably produce many other cases on the abandonment continuum.  And if we keep our eyes on the underlying systemic problems that run through all of these cases, perhaps we will be less inclined to see Maples as so readily distinguishable from the next case of procedural default.

One good answer: You can run a large-scale polling project, adhering to the highest standards of professionalism and non-partisanship. You can poll repeatedly throughout the year, so that you can follow trends. You can make all the results available promptly to anybody. You can go to lengths to give others a chance to see what you’ve found out.

That is what the Marquette Law School Poll is going to do. It will be the most extensive polling project in Wisconsin history, and we are fully committed to making it an independent effort that will have no agenda except to find out as much as we can about public opinion in Wisconsin and share it with all.

In fact, consider this your invitation to tune into the poll’s results. We are launching the first round of polling on Thursday, Jan. 19, and will release the results next Wednesday, Jan. 25.

The results will be posted on a Web page that will go live in advance of that release. In addition, an “On the Issues with Mike Gousha” session will be held at noon on Wednesday at Eckstein Hall. Gousha, the Law School’s distinguished fellow in law and public policy, will interview Charles Franklin, the Law School’s visiting professor of law and public policy who is leading the poll project. The session is free and open to the public – you can sign up by clicking here. A video of the discussion will be posted on the Law School’s Web site and on the poll Web site afterward.

Franklin, a University of Wisconsin-Madison political science professor, will be at the Law School for all of 2012. He is a nationally respected expert on polling and a political analyst who is called on frequently by the news media.

This year is certain to be an epic one for Wisconsin politics, with the likelihood of close elections for U.S. Senate and president and, with the filing this week of petitions with more than a million signatures, an all-but-certain recall election to determine whether Scott Walker should be ousted as governor less than half way through his four-year term. It will be only the third recall election of a governor in American history.

Why is a law school getting into the polling business? Dean Joseph D. Kearney sees it as an important part of a growing effort by Marquette Law School to help inform the public on major issues and to make the Law School a crossroads for serious discussion of such issues. He described the polling project and its context in this paper sent to the Law School community in November. The poll will be paid for not out of tuition money from law students but rather from the dean’s discretionary dollars (donations by alumni and friends in support of the Law School’s priorities).

Franklin has said often in planning the launch of the poll that there will be people who will assume there is partisanship or an agenda behind the effort. His advice has been that that should not change our pursuit of doing things in the best—and most non-partisan—fashion we can. We invite people to judge us by what we actually do as part of the polling project. And, at least as important as that, we invite people to join in, delving into the results along with us and benefitting from having the solid grasp of public opinion that provides an important and level-headed piece of the picture of Wisconsin in a highly-charged and historic time.

Alan J. Borsuk is senior fellow in law and public policy at Marquette University Law School. He has been part of the planning process for the Marquette Law School Poll.

Here are the (quite critical) conclusions of the Sentencing Project:

Results vary somewhat, but when inconsistencies and research errors are adjusted the savings associated with investing in private prisons appear dubious. Even minimal savings are far from guaranteed, and many studies claiming otherwise have been criticized for their methodology. The available data belies the oft-claimed economic benefits of private contracting, and points to the practice being an unreliable approach toward financial stability.

Even if private prisons can manage to hold down costs, this success often comes at the detriment of services provided. Nationwide, public funds for prisons are already limited, leaving little excess spending that can be cut. Therefore, private prisons must make cuts in important high-cost areas such as staff, training, and programming to create savings.  The pressure that companies feel to maintain low overhead costs combined with less direct oversight are likely what led researchers at the University of Utah to conclude that, “quality of services is not improved” in private prisons.

Finally, private prison companies’ dependence on ensuring a large prison population to maintain profits provides inappropriate incentives to lobby government officials for policies that will place more people in prison. This is evidenced by the creation and coordination of model legislation through conservative lobbying groups, as well as in the political contributions and lobbying efforts of individual companies. This effort to increase reliance on incarceration comes at a time where America’s rate of imprisonment is the highest in the world and when the prison population is far beyond the point of diminishing returns in terms of public safety.

The available evidence does not point to any substantial benefits to privatizing prisons. Although there are instances where private prisons result in small savings, the structure and demands of for-profit prisons appear to produce a negative overall impact on services. In order to reconcile this information with the continued claims that private prisons are superior, one must assume that these contentions are couched more in ideology than in facts.

With that backdrop in mind, here’s what happened in Minneci v. Pollard.  The inmate plaintiff, Pollard, alleged that he was injured in a fall and that the injury was mishandled by prison medical staff and other prison employees in ways that amounted to “deliberate indifference” in violation of the Eighth Amendment.  He sued for damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits such lawsuits against federal agents for violations of constitutional rights.  However, the Supreme Court has generally taken a restrictive approach to Bivens actions since about 1980, including its decision in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), which ruled out Bivens actions against the corporations that run private prisons.

Malesko did not necessarily foreclose Pollard’s claim because Pollard was suing individual employees, not the corporation as a whole.  In the end, however, eight justices saw no reason to recognize the distinction, with only Justice Ginsburg deciding to the contrary.

For the majority, the key to the case was that the defendants could have been sued under state tort law; in their view, it seems that Bivens only provides a stop-gap remedy for constitutional violations that lie beyond the reach of tort law.  This does seem consistent with the thrust of recent Bivens jurisprudence.

But it is important to note that the Court does not insist that plaintiffs must necessarily fare as well under state law as under Bivens:

We note, as Pollard points out, that state tort law may sometimes prove less generous than would a Bivens action, say, by capping damages, see Cal. Civ. Code Ann. §3333.2(b) (West 1997), or by forbidding recovery for emotional suffering unconnected with physical harm, see 629 F. 3d, at 864, or by imposing procedural obstacles, say, initially requiring the use of expert administrative panels in medical malpractice cases, see, e.g., Me. Rev. Stat. Ann., Tit. 24, §2853, (Supp. 2010); Mass. Gen. Laws, ch. 231, §60B (West 2010). But we cannot find in this fact sufficient basis to determine state law inadequate.

. . . .

Rather, in principle, the question is whether, in general, state tort law remedies provide roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations.  (10-11)

This begs the question, of course, of just how robust a state-law remedy must be in order to count as “roughly similar.”  The Court did leave itself a little wiggle room in this regard to handle different sorts of Eighth Amendment claims against private defendants differently in the future:

[W]e concede that we cannot prove a negative or be totally certain that the features of state tort law relevant here will universally prove to be, or remain, as we have described them. Nonetheless, we are certain enough about the shape of present law as applied to the kind of case before us to leave different cases and different state laws to another day. That is to say, we can decide whether to imply a Bivens action in a case where an Eighth Amendment claim or state law differs significantly from those at issue here when and if such a case arises. (11-12)

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.  Stevens sat beside Antonin Scalia for much of his time on the Court and was the “beneficiary of [Scalia’s] wonderfully spontaneous sense of humor.”  The year Scalia was appointed, they heard two cases involving police questioning of rather unsophisticated suspects.  (Stevens does not identify the cases by name, another instance of his tact, but they are readily identifiable from his brief description of the facts as Colorado v. Spring and Connecticut v. Barrett, both decided in 1987).  Scalia apparently leaned over and whispered to Stevens that it must be “dumb defendant day.”  Now, anyone who has read a Scalia opinion knows that this cannot be the apogee of his wit and can be fairly certain that, in their twenty-four years on the bench together, he made sharper comments in the course of their duties.

One gets the sense that Stevens is reluctant to write anything that might reflect poorly on the Court or its Justices.  And it is perfectly understandable that he would be unwilling to besmirch the institution with idle gossip.  The Court is both a vital force and symbol of American democracy and, in the words of his dissent in Texas v. Johnson (1989), where the majority held that burning an American flag at a demonstration was protected by the First Amendment, it is “worthy of protection from unnecessary desecration.”

Nevertheless, Stevens does not shy away from criticizing his colleagues and even President Reagan when their decisions diverge from his closely held principles.  Though he found common ground with Chief Justice Rehnquist on issues involving separation of powers, Stevens was sharply critical of Rehnquist’s stance on state sovereign immunity, particularly in Seminole Tribe of Florida v. Florida (1996).  “Like the gold stripes on his robe, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.”  Invariably, however, Stevens’ criticisms are based on what he considers to be flawed reasoning and not personal animus.  His disapproval of Rehnquist’s decision to adorn his robe with gold stripes does not detract from his admiration for Rehnquist’s other fine qualities: his impartiality in both private conference and open court and his efficient administration of the Court’s business.

Stevens’ evaluation of the current Chief Justice, John Roberts, is very favorable.  He describes him as “a better presiding officer than both of his immediate predecessors” as well as a more skilled representative of the Court in non-judicial settings.  He is particularly appreciative of Roberts’ concurrence in Graham v. Florida (2010) because it represents for him a rejection of the interpretive approach that looks at the “original intent” of the Framers in determining the constitutionality of a given case.  In Graham, Roberts agreed with the majority that imposing a life sentence on a juvenile defendant for a non-homicide offense violated the Eighth Amendment but rejected a categorical bar to such a sentence on the grounds that courts should weigh factors like the offender’s age and criminal conduct on a case-by-case basis.  Roberts recognized a proportionality requirement at variance with Scalia’s dissenting opinion in Harmelin v. Michigan (1991) that would prohibit certain, specific punishments under the Eight Amendment but would not require, in Stevens’ words, “that the punishment fit the crime.”

Stevens’ discussion of Roberts’ opinion in Graham highlights two themes of his own judicial philosophy.  According to Stevens, judges and justices should exercise restraint, and decide only what a case “actually presented” without trying “to craft an all-encompassing rule for the future.”  Kyllo v. United States (2001) (dissenting).  This, of course, stems in part from his understanding of the separation of powers in our system of government.  As he wrote in Kyllo, Congress is the branch that “grapple[s] with. . . emerging issues” and it is counterproductive to “shackle them with prematurely devised constitutional constraints.”

Secondly, Stevens disagrees with an uncompromising insistence on the specific intent of the Framers because it does a disservice to the emerging problems of a changing society.  Which is not to say the principles enshrined in the Constitution are readily susceptible to modification; if they were they would not be principles.  Rather, it is that the strength of the principles lies in their flexibility and not in a code-like rigidity.  Stevens quotes Justice McKenna in Weems v. United States (1910), “[A] principle, to be vital, must be capable of wider application than the mischief which gave it birth.”

These two aspects of Stevens’ jurisprudence help explain what comes across in his memoir: a reticence that displays itself in distaste for superfluous gossip on the one hand, and a generosity of spirit capable of disagreement without rancor on the other.  Towards the end of Five Chiefs, Stevens writes that he has “no memory of any member of the Court raising his or her voice.”  Whether this is strictly true, and as far as it is his memory there is no reason to doubt that it is, it sheds light on how Stevens envisioned the work of the Court as a civil pursuit for justice.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds.

Now consider the text of the Supremacy Clause. Article VI, Section 2 of the U.S. Constitution establishes that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” By referencing treaties that are “made, or which shall be made, under the Authority of the United States,” the Clause establishes supreme status for treaties to which the United States is a party.

The argument for the Sharia Law Amendment’s unconstitutionality is pretty straightforward. Insofar as it refers to treaties without qualification and thus includes those to which the United States is a party, the Amendment bars Oklahoma courts from considering or using treaties that have the status of supreme federal law. To prohibit a ratified treaty’s consideration or use is to deny its legal relevance, in effect even its existence, regardless of how significantly the treaty might otherwise affect the outcome of a case. Even litigation outcomes directly at odds with those dictated by U.S. treaties would seemingly be permissible in Oklahoma.

There’s also a Supremacy Clause argument concerning the Amendment’s language on customary law. International custom binds all states that have not timely objected to its development, and thus as a formal matter generally binds the United States. Although recently a subject of pretty heated debate, the traditional view is that such custom is a form of federal common law and thus backed by the Supremacy Clause. If one accepts that view, then it would be unconstitutional for the Amendment to bar Oklahoma courts from considering or using custom in much the same way that it would be unconstitutional to bar their consideration or use of U.S. treaties.

A court might attempt to avoid these problems in a couple of ways. The first would be to narrowly construe the Amendment. There is a fair argument that the text pertains only to treaties to which the United States is not a party, and to custom not applicable to the United States. Certain language, for example, suggests a general intent to adhere to federal law—a body that obviously includes U.S. treaties and at least arguably includes customary norms. Other language states an opposition only to the application of the “legal precepts of other nations or cultures.” The latter does not implicate ratified treaties or binding custom, which are the law of this country. The narrow interpretation would alleviate the Supremacy Clause problem by ensuring that the Amendment’s prohibition applies only to treaties and custom that are not federal law.

Another potential way to save the Amendment from unconstitutionality would be to conclude that custom is simply not a form of federal common law. This position would be contrary to the traditional view, but it has gained at least some support since Professors Curtis Bradley and Jack Goldsmith first articulated it in the late 1990s. If customary law is not federal common law, then the Supremacy Clause does not encompass it, and Oklahoma courts would not be obliged to consider or use it in their decisions.

Both of these efforts to save the Amendment would encounter difficulties, however. First, the narrow interpretation would render the Amendment’s text on international law essentially irrelevant in practice. I doubt that Oklahoma courts encounter many cases requiring them to resolve disputes concerning U.S. treaties, much less treaties to which the United States is not even a party. I also doubt they encounter many opportunities to resolve disputes over obscure principles of international custom that do not bind the United States. And as long as that is true, the narrow interpretation would essentially tell the courts not to do something that they don’t do anyway.

Second, concluding that international custom lacks the status of federal common law would require a departure from the traditional doctrine on that issue. There are, frankly, pretty intriguing arguments on both sides of the debate that the Bradley and Goldsmith argument has generated, but the U.S. Supreme Court has never squarely held that international custom lacks the status of federal common law.

In short, the constitutionality of the Sharia Law Amendment’s language on international law is, at best, uncertain. Its treatment of treaties is either unconstitutional or essentially irrelevant. And its treatment of custom may require courts to resolve a longstanding debate about custom’s domestic status.