For the post-1908 period, when the Milwaukee Law School became part of Marquette University, Eugene W. Scott appears to be a likely candidate for the institution’s first African-American student.  Scott was one of the 46 first year students enrolled in the law school’s day program in the fall of 1911.  (One of his classmates was future dean Francis X. Swietlik.)  He is also one of 35 students listed as “Day Juniors” in the following year’s College of Law bulletin.  His photograph also appears as “E. W. Scott” in the Class of 1914 group picture which currently hangs in the hallway outside the Dean’s Office on the first floor of Sensenbrenner Hall.

There is also evidence that Scott did well as a student at Marquette.  His picture appeared in the July 1913 edition of The Crisis, the magazine of the National Association of Colored People with the note that he was competing for the senior oratorical prize.   However, in spite of his photograph appearing in the above-mentioned class picture, he is not listed among the 18 individuals who received law degrees at the 1914 commencement.    It was not necessary to graduate from law school to practice law in Wisconsin in 1914, and Scott, like many of the law students of that era, may have left without graduating.  However, his appearance in the class photograph suggests that his decision must have been a last minute one.  It is, of course, possible that he failed his final law school exams.

We actually know very little about Scott, either before or after he attended Marquette.  Entries in the 1912 and 1913 Marquette Law School bulletins list him as a resident of Milwaukee, but a search of the 1910 United States Census shows that there were only three Eugene Scott’s in Wisconsin that year, and none of the three were black or of an age that would match Scott’s photographs in The Crisis or at the law school.  However, the 1910 Census does list an African American named Eugene W. Scott living in Chicago.  That Eugene Scott was born in 1883, and was then working as a waiter in a hotel while living in a boarding house.  If this is the Eugene Scott who enrolled at Marquette in 1911, he would have been 27 or 28 years old at that time. 

Scott apparently moved to Janesville, Wisconsin after leaving Marquette, and in January 15, 1915, he corresponded with Mary Childs Nerney, the secretary of the NAACP regarding efforts to protest the recently released film, “Birth of a Nation” which cast African-Americans in a bad light.  Later that year, the Chicago Defender, a leading black newspaper, published a letter from Scott regarding his efforts to protest the showing of the film in Janesville which included an appearance before the Janesville City Council.

What happened to Scott after 1915 is not known.  He does not show up in Wisconsin in the 1920 Census, but a Eugene W. Scott does show up as living in Buffalo, New York.  This Eugene Scott was also born in 1883 in Mississippi, as was the Eugene Scott listed as living in Chicago in 1910.  This Eugene Scott was elected president of the Buffalo chapter of the Colored American Workmen’s League in 1919.  Following his election Scott delivered a eulogy for the recently deceased Theodore Roosevelt whom Scott described as “the greatest friend of the Negro in American public life since Abraham Lincoln.” 

After 1920, the record goes blank.  There is also no mention of a Eugene W. Scott, born in 1883 in Mississippi, in the 1930 United States Census.  More evidence may be forthcoming, but for now Eugene Scott, likely the first black student to enroll in the Marquette Law School, remains a man of mystery.

While Scott may have been the first black student to enroll at the Marquette College of Law, there was at least one black student at the Milwaukee Law School, its predecessor institution.  The career of Horace Scurry will be the subject of the next entry in this series.

Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s.  The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy.  In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.

The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant.  As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron).  A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009).  I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”

In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums.  Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.” 

The argument appeared in Breyer’s dissenting opinion in Dean v. United States, 129 S. Ct. 1849 (2009).  The gist of his position is that an overly aggressive application of lenity is less harmful in the mandatory minimum context than elsewhere.  Here is the argument:

[A]n interpretation that errs on the side of exclusion (an interpretive error on the side of leniency) still permits the sentencing judge to impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence (because of the court’s interpretation of the statute) is not legislatively required. . . .

On the other hand, an interpretation [of the statute at issue in Dean] that errs on the side of inclusion requires imposing 10 years of additional imprisonment on individuals whom Congress would not have intended to punish so harshly. . . [S]uch an interpretation, by erroneously taking discretion away from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended.

Breyer’s point seems to me a good one.  And, although it appears in a dissent, the argument was not addressed, much less rejected, by the majority.  This should, in other words, be a viable argument for advocates to advance in other mandatory minimum cases.

Earlier posts in this series:

• Do the Justices Play Nicely Together?
• Ambiguity Is Ambiguous

But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

She said he is charming, gracious, tough, bullying, arrogant, a lot of fun, and prickly, at different times. She quoted Justice Ruth Bader Ginsburg saying, “Sometimes I’d like to strangle Nino, but I love him.” Ginsburg and Scalia are philosophical opposites on many legal matters, but are close personal friends. On the other hand, Biskupic said, as much as Scalia and Justice Clarence Thomas are close on the court, they are not close socially because, in the words of Thomas, Thomas likes to go home and watch college football while Scalia likes to go home and listen to opera.

Biskupic interviewed Scalia on the record a dozen times for her book, even after he initially said he wouldn’t agree to talk to her. He changed his mind after she saw him at a social event and began describing what she had found during visits to Trenton, N.J., where Scalia was born.

Biskupic, who covers the Supreme Court for USA Today, said that, at 73, Scalia is at the apex of his career because his influence has grown and he can attract support from other justices, including Chief Justice John Roberts and Justice Samuel Alito Jr., to put together majorities in some cases. In some prior periods, when his views were in a clear minority, Scalia found being on the court so frustrating that he considered resigning, she said.

Scalia is “an amazing stylist” when it comes to his written opinions, she said, which is one reason his opinions are so widely read. “He’s so clever, so engaging in his writing,” she said.

Biskupic noted a little-known Milwaukee touch to Scalia’s life – he spent a summer as a clerk at Foley and Lardner between his second and third years of Harvard Law School. But he did not want to come back to Milwaukee to practice after he graduated.

Biskupic’s book, “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” was published by Sarah Crichton Books. Biskupic received a bachelor’s degree from Marquette and covered the Supreme Court for the Washington Post before joining USA Today. She previously authored a biography of Justice Sandra Day O’Connor.

When Heller was decided, I was reminded of United States v. Lopez, 514 U.S. 549 (1995), in which the Court seemed to overturn a half-century of precedent on the scope of Congress’s Commerce Clause power.  A revolution (or, perhaps more accurately, a counter-revolution) seemed afoot.  I was a law student then, and I vividly recall — just hours after Lopez was handed down – one of my professors announcing in class, only half facetiously, that the Supreme Court had just overturned the New Deal.  Then, when I clerked for a federal judge after law school, I recall several defendants raising Lopez challenges to federal criminal statutes.  But it all came to nought.  The lower federal courts never really bought into the Lopez revolution — if you keycite Lopez today, you will see 267 cases listed as either declining to extend or distinguishing Lopez – and the Supreme Court itself effectively threw in the towel with its decision in Gonzales v. Raich, 545 U.S. 1 (2005).

I have been wondering if the Heller revolution would go the way of the Lopez revolution.  And, indeed, it has seemed generally to be business as usual in the circuit courts post-Heller, with little sense that the intermediate appellate judges have any inclination to read Heller for all it is worth.

But the Seventh Circuit’s decision last week in United States v. Skoien (No. 08-3770) (Sykes, J.) suggests that Heller may have more life than Lopez. 

In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and sentenced to two years of probation.  In 2007, probation agents learned that Skoien had purchased a deer-hunting license.  A search of his home and truck uncovered a shotgun, an orange hunting jacket, a deer carcass, and similar evidence.  Skoien admitted that he had used the shotgun to go hunting earlier that day.  A federal grand jury then indicted Skoien for possessing a firearm after having been convicted of a domestic-violence misdemeanor in violation of 18 U.S.C. § 922(g)(9).  Skoien entered a conditional guilty plea, reserving his right to litigate whether the application of § 922(g) to him violated his Second Amendment rights.

On appeal, the Seventh Circuit could have rejected Skoien’s claim with little effort, for the Heller Court itself stated that ”nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”  128 S. Ct. at 2816.  Indeed, the Court went so far as to characterize such prohibitions as “presumptively lawful regulatory measures.”  Id. at 2817 n.26.  The government’s argument in Skoien rested almost entirely on this language.  Under a minimalist, but still plausible, reading of Heller, the government should have needed to say little more.

Remarkably, though, the Seventh Circuit used Skoien as an opportunity to develop a new test for Second Amendment claims and to signal the government that it could not necessarily rely on the Heller presumption to defeat such claims.

More specifically, the court adopted a two-part test:

First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified.  If the government can establish this, then the analysis need go no further.  If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right.  (Op. at 10.)

Applying the first part of the test to Skoien’s claim, the fact that his gun was “a shotgun used primarily for deer hunting” seemed enough to bring his asserted right within “the terms of the right as publicly understood when the Bill of Rights was ratified”:

[I]t would be odd to argue that a conventional hunting gun is wholly unprotected by the Second Amendment.  Heller referred to the founding-era importance of the right to bear arms “for self-defense and hunting,” and a long gun used primarily for hunting is obviously useful for defensive purposes as well.  (12)

The court did question, though, whether “a person convicted of a domsestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions.”  (13)  In this regard, the court noted scholarly debate over whether felons lost the right to bear arms duing the founding era.  The court did not have to resolve the debate, however, because the government was not pressing historical arguments.

It is unfortunate, then, that much remains uncertain about the first, history-oriented part of the new Second Amendment test.  I, for one, hope that the court will not lay much emphasis on this part of the test.  Gun technology, the social role of guns, and legal culture generally have changed so much since the 1790’s that the historical analysis is bound to turn on strained and uncertain analogies to practices from long ago.  Why not just keep things at a high level of generality (e.g., it was generally accepted that citizens had a right to own long guns useful for hunting) and move on?  The fact that there is or is not a long tradition of excluding a particular class of people from gun ownership can be taken into account in the second part of the test, without fetishizing the legal understandings of one particular, long-ago period of our history.

In any event, the Skoien court moved on to the second part of its new test.  This inquiry required the court to decide whether to apply the strict or intermediate standard of review to Second Amendment claims.  The court suggested that the answer to this question would depend on the nature of the conduct being regulated.  On the one hand, “gun laws that severely restrict the core Second Amendment right identified in Heller — that of ‘law-abiding, responsible citizens to use arms in defense of hearth and home’ — should receive exacting scrutiny.”  (15)  On the other hand, “applying strict scrutiny to all restrictions on gun rights is obviously incompatible with Heller’s dicta about ‘presumptively lawful’ firearms laws.”  (16)  In the end, the court decided to employ intermediate scrutiny because the “Second Amendment challenge in this case is several steps removed from the core constitutional right identified in Heller.”  (17)  Specifically, Skoien’s prior conviction meant that he was not a “law-abiding, responsible citizen” and Skoien did not “key[] his constitutional challenge to the right of self-defense.” 

Query whether any type of prior conviction (no matter the age or nature of the offense) would be enough to remove a defendant from the protection of strict scrutiny.  Query also whether the standard of review would have been different if Skoien had said at the time the gun was discovered, “Yes, I just used the gun for hunting, but the real reason I got the gun was to protect my home.”  (Until the analysis is clarified, defense counsel would do well to frame their Second Amendment claims as far as possible along self-defense lines, as opposed to hunting rights.)

The court elaborated on the intermediate scrutiny analysis this way:

What this means more specifically is that for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a “reasonable fit” between an important governmental end and the regulatory measure chosen by the government to serve that end.  (22)

Skoien did not dispute that there was an “important government end” behind § 922(g)(9): the reduction of domestic gun violence.  Thus,

The disputed question here is the relationship between the government’s means and its end — whether there is a “reasonable fit” between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates.

Because the record on “fit” had not been adequately developed, the court remanded to give the government another opportunity to carry its intermediate-scrutiny burden.

Some closing obervations by the court in Skoien invite speculation about how demanding the court intends for intermediate scrutiny to be.  The catch-phrase “reasonable fit” has little meaningful content on its own; it will be up to the court to develop the standard in common-law style.  And Skoien provides no real assurance that the Heller revolution will indeed have a lasting impact in the Seventh Circuit.  In addition to rejecting strict scrutiny in all but a (not clearly defined) “core” of Second Amendment cases, the court also made clear that intermediate scrutiny “tolerates laws that are somewhat overinclusive.”  (25) 

With respect to § 922(g)(9) more specifically, the court noted approvingly that it “targets a specific class of violent offender.”  (26)  On the other hand, the court was also appropriately concerned that the statute is overinclusive in several respects:

The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense.  (26)

Given this expression of concern, the tea leaves are difficult to read.  Assuming that Skoien (or a similar § 922(g)(9) case) returns to the Seventh Circuit with a more developed record, we should get a much clearer indication of how serious the court is about protecting gun rights in a post-Heller world.

The point of the paper is that the economic crisis – or really any crisis – presents a danger for the makers of law and policy. They may overreact both in terms of “fighting the last war,” i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.

My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.

This can have implications for both “liberal” and “conservative” positions. If we are to have George W. Bush’s Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.

Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.

The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, “immanentize the eschaton” are almost certain to fail and likely to bring unforseen danger.

Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.

On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a “Policy President.” He is in the tradition of early twentieth century Progressives who believed that “everything is related to everything” and that, as a consequence,”there are no social interests about which the national government does not have some policy or other.”

Just as importantly, the policy approach eschews the notions of divided government and limited powers – as well as the rough and tumble of politics – because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:

Echoing Moynihan’s understanding of the implications of the policy approach, Obama suggests that tackling only isolated pieces of the problem, or trying to solve only one problem at a time, will merely introduce further distortions into what should be treated as a unified and coordinated system. A comprehensive policy approach will enable us to take maximum advantage of natural- and social-science expertise, displacing expensive or ineffective local practices by spreading system-wide those programs that have proven to be more effective and less expensive, as documented by thorough research and experimentation.

Of course, the “top down” nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.

This doesn’t mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare – or something like it – can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.

Cross posted at Shark and Shepherd.

The open access debate goes well beyond the world of academia, and what follows is only a brief summary.  Many open access advocates support both free online access to works as well as the granting of a license that permits copying and redistribution of the work.  They underscore the broad societal benefits that would flow from broad public access to such information.  Opponents of the movement have argued that true open access is impossible because publishers could not then recover the costs of their work, and that all but a few scholarly journals would cease to exist.  The usual response to this criticism is that the journals could simply charge the authors fees to cover their costs in publishing such works (and, in turn, that the fees would likely be paid by the authors’ university employers).  Perhaps this counterargument is less attractive given the current global economic downturn.

I think the fundamental question is the following: what motivates academic authors to write and publish journal articles? 

My sense is that they do so primarily in order to garner scholarly acclaim and, at least at first, to secure tenure.  It therefore seems to me that such authors would obtain the maximum benefit from the broadest possible distribution of their articles.  Professor Shavell applies these conclusions to all academic works.  However, I understand why the arguments may not hold with respect to other academic publications such as textbooks, given the more predominantly economic reasons for which academic authors might undertake such projects. 

I am, of course, curious as to whether the abolition of copyright in either form (for academic journal articles, or for all academic works) would be of concern to this blog’s readers.

A more user-friendly search is one of the many ways Google beats out alternative free and pay legal research options. While the search engine is far from perfect, queries can be focused by either state or federal court, and searches can be further refined by “author” and date constraints. This can be a great help when starting a new research project on an unfamiliar topic. For example, if staring research on an ADA question regarding “reasonable accommodation,” a simple query of “ reasonable accommodation” and “Posner” (if you wanted a 7th Circuit decision) in the author field yields useful results. The results are organized by which decisions have been cited most, rather than which decisions are most recent. In contrast to Google, both West and Lexis give search results by the date of the decision, and require further investigation in order to differentiate which cases have significance. Because Google doesn’t make money on content directly, Google has no incentive to locate this information behind an additional pay walls whereas pay sites make money by obfuscating information behind additional clicks—the more one clicks the more they make.

In addition to search functionality, Google also improves online case research by improving readability. Rather than try and reproduce the experience of reading a physical page like Justia, Google makes good use of the online medium. Gone are the bold “***” that denote pagination that clutter Lexis and West cases. Rather than impeded readability with an asterisk, Google puts the pagination on the left margin. Google also improves readability by placing footnotes at the bottom of the decision and denotes the footnote with a hyperlink. By clicking on the hyperlinked footnote, the reader has easy access to the text of the footnote. Once at the note text, the reader can return to reading the decision by clicking the hyperlinked number again. The experience is similar to the behavior of footnotes in MS Word.

Not only is the case more readable in Google than in other formats, but Google also organizes how other courts have cited the decision in the “how cited” tab. This feature functions as a very rudimentary Headnotes or Keycite that addresses the holding of the case.

I suspect that this is just the beginning for legal research and Google. It wouldn’t surprise me if, in the future, the offerings will improve. Not only will quality improve, but so will the scope of information offered. Take the administration’s announcement that the Federal Register will be published in XML as a sign of what’s to come.

A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:

Big Brother is watching. That is the message corporations routinely send their employees about using email.

But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.

Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn’t be read.

To be honest, I don’t think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.

Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.

Hat Tip: Joe Seiner

Over the past 15 years in particular, as I have led an “adult” life — marriage, kids, career — I also started to view my grandmother as a three-dimensional adult and not just the relatively limited view that grandchildren tend to have of their grandparents, particularly when we are children. 

This is not to say that she failed in any classic grandmother category — her unwavering support of all of us was amazing — and my brother rather hilariously eulogized my grandmother last week by noting that she was convinced that each job he ever had was filled after a nationwide search for the smartest and most talented person in which he was selected above all others.  But she also had a life beyond us — at least before us — and the stories of her life were lessons for me.  She was a high school accounting teacher — yes, she excelled at math — facing a law which stated that all teachers had to quit the moment they got pregnant but had to return to work immediately — the kind of law that was clearly not drafted by anyone who had ever been pregnant.  I loved the story of how when she got pregnant with my uncle she lied about when she got pregnant so that she could work longer—she had two “seventh month babies” in fact.  And then, after he was born, she connived with the doctor to write a note that the baby was sickly so that she could stay home to nurse him. 

Of course, that is only part of the story — and my grandmother made sure that I knew all of the stories of strong women in my family.  The doctor in this case was my great, great Aunt Rayah — who had been a doctor with the White Army in the Russian Revolution before coming to this country and restarting her medical practice.  Another set of stories focused on my namesake, my great-grandmother Anna, who had come to the U.S. in 1904 at the age of 17 all by herself.  She later sent for her parents, brothers, sisters, cousins, etc. as she earned enough money to send passage for each of them.   And, although she never attended college, she made sure that all four of her children, including my grandmother and my aunt, went to college and had professions.  One last story about Anna – when my grandmother and grandfather were married, in 1933 at the height of the Depression, they bought a new bedroom set at a furniture store that went bankrupt in between payment and delivery.  My great-grandmother apparently went to the store and physically sat on the furniture until they delivered it.  She had a rather persuasive negotiation approach. 

So, Mama, thank you for all of your stories.  I hope not to have to negotiate by sitting on my purchased goods until they are delivered — but because of you, I know that I would be more than capable of doing so if the situation warranted.

The thematic week prompts me to explore the role of international law in the American law school setting. Although the curriculum of law schools in the United States has traditionally offered a narrow focus on domestic law, it has slowly expanded over the last century to include an international focus, albeit a limited one.   While this development can be seen most readily with the proliferation of foreign exchange programs such as Marquette Law School’s own summer program in Giessen, Germany, it also appears through the positioning of international law classes in the curriculum of traditional legal education.

Since the mid-century, it has become common for law schools to sprinkle course listings with upper-level and elective classes in international law. 

More recently, some law schools have gone as far as requiring students to take international law as part of the standard core curriculum.  Michigan Law School took the lead in this direction by requiring students to take a full course that incorporates aspects of private, public, and comparative international law.  A handful of law schools, such as Columbia Law School and the University of Wisconsin School of Law are making international law an elective available to first-year students, thus providing them with a foundation for gaining a more profound mastery of the subject in upper class courses.

Yet, at the turn of the last century, few law schools even taught international law classes.   Responding to this exclusion, Columbia Law Professor James B. Scott is credited for taking the lead in pushing for the inclusion of international law in the law school curriculum, becoming “well-known among his contemporaries as a leading spokesman for a new and important discipline.”

Nonetheless, to accomplish his mission, Professor Scott first had to prove that international law was really “law” at all, and not just morality.  Certainly, legal positivists and proponents of the Austinian theory of law argued that the international system had no identifiable sovereign law-maker who could also guarantee enforcement.  Interestingly, Professor Scott’s first line of defense relied on our very own United States Constitution, which gives Congress through Article 1(8) the power to define “offenses against the law of nations” and recognizes “treaties” in the Supremacy Clause of Article 6.  Scott then discussed the new line of cases (that is, new at the time Professor Scott wrote his appeal in 1903) in which the U.S. Supreme Court gave deference to international law, like the Charming Betsey (1804), Paquete Habana (1899) and Smith (1820) cases.  He then declared:  “It is submitted that this case settles the question for an American lawyer . . . that international law is law; that it is part of our municipal law; that our courts take judicial notice of it as such.  It should, therefore, find a place in a lawyer’s education.”

Professor Brunson MacChesney of Northwestern University Law School, writing in 1965 about the school’s required class in international law — a novelty for its time — remarked in his article “International Law: the Utility of its Study as Preparation for Law Practice”: 

Although international law was part of the stock in the trade of those founding fathers of our country, who were lawyers, it seemed to get lost in the expanding growth of the continent in the nineteenth century.  It did not get lost literally, but the average common lawyer tended to consider it as a somewhat esoteric specialty not related to his daily concerns. (36 Miss. L.J. 171 1965)

Fast forwarding, today advocates of international law no longer need to prove it is “real” law.  Instead, they benefit from the argument of necessity.  For example, Michigan Law School’s rationale for making it a required course rests on the belief that “every lawyer should know about law beyond the domestic ( American) orbit in order to be qualified for practice in an age in which virtually every area of law is being affected by international aspects.”

Indeed, a quick survey of law review articles dealing with the mainstreaming of international law in legal education base their case primarily on how globalization has “internationalized” almost every area of life.  The movement of goods, people, and service and changes in technology and communication make transnational interdependence, contact, and cooperation a commonplace occurrence.   To stay competitive, trade and business must go global.  Since all these matters touch some aspect of law, we then, by necessity, must prepare new lawyers for today’s reality.

This impetus to reorient legal education has encouraged conferences and meetings to grapple with how to adapt the “parochial” American law school to grow into the shoes of this new worldly “cosmopolitism.”  For example, in 2007 the University of Helsinki Faculty of Law and the Academy of Finland Centre of Excellence in Global Governance Research convened a meeting of the European-American Consortium for Legal Education (EACLE).  An array of European and American academics contributed to a thematic volume of the journal Ius Gentium aptly titled “The Internationalization of Law and Legal Education.”  One of the volume’s editors Mortimer Sellers, Professor at the University of Baltimore School of Law and Director of the Center for International & Comparative Law, explains that EACLE arose in response to the “world-wide phenomena” of the “internationalization of law.”

In attendance at the EACLE conference, Professor Larry Catá Backer of Penn State Dickinson School of Law warns in a foreboding tone:

Law schools that fail to conform their educational mission to the realities of law and the practices of the great global legal actors — merchants, immigrants, communities, nongovernmental organizations, economic entities, banks and other users of legal services — will find themselves playing a limited role in the future of the development of law and the production of law and lawyers for the global marketplace.

The late Mary C. Daly, former dean of St. John’s University School of Law, took a more direct tactic and scolded the law academy:

Given the inescapable march of globalization and the pervasiveness with which the law permeates the U.S. society, law schools have a unique obligation to prepare their graduates to practice in a global environment.  It is unfortunate for the students and disastrous for the country that most law schools have failed so miserably. (“Law Schools’ Shameful Neglect of the Transformative Effect on Globalization on the Practice of Law”, Paper for the ABA Section on Legal Education: Out of the Box Committee, 2001).

This “shameful failure” points, in part, towards a still-existing debate on whether international law really figures as an essential part of a lawyer’s education (despite of or perhaps because of its slow evolution in that direction). 

This debate came to a head (not surprisingly) on cyberspace.  

In September 2009, Professor Duncan Hollis of Temple University’s Beasley School of Law posed the question on the blog Opinio Juris of whether 1Ls should be required to take international law.   University of Chicago Law School Professor Eric Posner, who both teaches international law (as an elective first-year course) and serves as one of its biggest critics, responded with a resounding “NO!” 

Posner explains that only a handful of students would ever need international law, but “the chance that [a law student] will encounter the type of issue taught in a public international law course over the course of your career is close to zero.”  He then takes the dagger and plunges deeper, contending that the recent trend to mainstream international law does not

rest on any coherent theory of pedagogic priorities. They are marketing gimmicks that play off buzzwords like globalization. They do little more than reflect transitory intellectual fashions. They are patronizing efforts to turn you into citizens-of-the-world. If you have time on your hands and want to learn something that might increase your value to future employers, take statistics! 

Is international law just a passing fashion (even though introduced by Professor Scott at the turn of the century), or do advocates for mainstreaming international education have their finger on the pulse of legal education’s “tipping point” of transformation? (By the way, this same debate occurred on prawfsblawg in 2006.)

Hollis questions the “utility” approach to legal education proposed by Posner. As one commenter to the post remarked, “The same could be said of most of what’s mandatory in 1L year. I’m still waiting for my rule against perpetuities litigation.”  But that rebuttal aside, Hollis poses to the world (cyberspace world, that is) the question of whether international law really has “as small a footprint” as Posner suggests.  Do people in “more traditional domestic practices” find they really do not deal with international legal issues EVER?  Moreover, is it really true that “types of public international law concepts that might come in handy for a law firm lawyer — such as treaty interpretation — are easily picked up,” as argued by Posner?

Having myself always practiced in the international arena, I cannot fairly answer this question.  So I recently asked a recent MULS graduate working at a large Milwaukee firm if international law is relevant to private firm practice. She gave me a resounding “yes”.

So perhaps we go back to the beginning.  As one earnest commentator posted in response to Posner: “B-b-b-but isn’t international law on equal footing with the Constitution??”  So, I suppose only time will tell whether the forefathers had it right after all.

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

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

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

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

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

Judge Fine concedes that demonstrably false statements are not constitutionally protected. But suggests, however, that the truth and falsity of political speech as nonjusticiable, i.e., not for judges to decide. (Indeed, he also seems to believe that the legislature could not pass upon the question either, saying that the election is the only forum in which truth and falsity can be assessed.)

I suppose that, in some metaphysical sense, there may be a distinction between constitutional protection of speech and the constitutional proscription of the examination of such speech by any arm of government, but, if there is, it is passingly small.  Constitutional protection of speech is some measure of freedom from state interference.

Indeed, Judge Fine seems to be saying that the problem is with the rule and not necessarily the idea of sanctioning the speech at issue here. Thus, he emphasizes that he is holding the rule prohibiting knowingly false statments to be facially unconstitutional.

He clearly regards the prohibiton of “false” statements to be vague, i.e., he wants more guidance for courts than a simple admonition against knowing falsity before permitting sanctions on political speech.

But what would that be? There is certainly no blanket First Amendment protection against the judicial assessment of the truth and falsity of political speech. In the defamation context, the Supreme Court has permitted the imposition of liability for false speech that is defamatory if it is made with knowledge, or in reckless disregard, of its truth and falsity. There are those who argue – and with good reason – that the assessment of the veracity of political speech should not go past the defamation context, but that’s not what Judge Fine says – at least not in so many words.

It may be that Judge Fine wants a more objective standard of truth and falsity than one in which a tribunal may interpret a statement to identify the false implication of a collection of literally true statements. If that’s so, then  doesn’t his his view elide into that of the majority? They read the rule strictly to require finding an explicit and literally false statement. Perhaps he would uphold a rule that required a finding that a discrete claim is literally false.

The book was the most thorough examination of the results of efforts to give mayors control – or at least strong roles – in schools in dozens of cities across the United States. And there was something in it for pretty much everybody – supporters of mayoral control focused on conclusions about greater administrative effectiveness in such systems, critics pointed to conclusions that the impact on academic achievement had been generally small in most cities.

But Wong was in Milwaukee this week and, in a presentation to about 25 people at the Milwaukee Athletic Club, came down firmly on the side of mayoral control, including in Milwaukee. In his talk and in an interview following his talk, Wong said data that have come in since the book was written has been increasingly encouraging for mayoral control advocates.  He cited New York City as a good example of a place where mayoral control correlates with improving academic results overall and a shrinking gap in achievement between have and have-not students.

Wong said traditional systems, such as the one in Milwaukee, create fragmented decision-making, and that creates blockages to taking steps that improve academic outcomes.

“This is not a silver bullet,” he said about giving control over pivotal decisions to a mayor. “But these are the necessary conditions that would allow large, complex urban school districts to move away from the status quo.”

Mayoral control increases accountability by focusing it in the mayor’s office, while systems with multiple points of control, such as the current situation in Milwaukee, lead to playing “the blame game” and avoiding necessary steps. “If we keep doing the status quo, we know for sure it’s not going to improve much,” Wong said.

What about a proposal unveiled this week from several lawmakers and education organizations to give Milwaukee’s mayor a voice in major decisions about Milwaukee Public Schools while keeping most of the control in the hands of an elected School Board? “It will not work,” Wong said. “It continues the institutional fragmentation. It is an incremental arrangement . . . The incentives for governing remain the same.”

Wong said the concerns of critics, especially those in minority communities, need to be considered and whatever system prevails in Milwaukee needs to be one where people’s voices are heard. But that can be done effectively within a mayoral control system, he said, pointing to cities that use such steps as community boards to help make decisions about schools and to pick members of school boards.

With a governor who is a lame duck and a mayor who is running for governor , is this the best time for overhauling school governance in Milwaukee? “There is never a good time in urban school districts,” Wong said. “Nothing is easy.” But the results make it worth the struggle.

What about the fact that a choice needs to be made soon for a new superintendent of schools, given the pending retirement of William Andrekopoulos? All the more reason for the Legislature to approve mayoral control proposals, Wong said. “It has to happen fast,” he said. “They should make it effective Jan. 1.”

Wong, chair of the Education Department of Brown, was in Madison and Milwaukee for three days as a guest scholar of the Wisconsin Center for Education Research and the Robert M. LaFollette School of Public Affairs, both part of the University of Wisconsin-Madison.

In 1992, Native-American activist Suzan Harjo, on behalf of herself and six others, petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six trademark registrations granted to the Redskins beginning in 1967. (Although team had used the name “Redskins” since 1933, it did not attempt to register the trademark until 1967.)

The gist of Harjo’s argument was that the TTAB had erred in registering the trademark because it violated section 2(b) of the federal Lanham Trademark Act, which prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  The Redskins (who do business as Pro-Football, Inc.) defended on grounds that the trademark was not offensive and that such an interpretation of the Lanham Act unconstitutionally violated the team’s rights under the First and Fifth Amendments to the United States Constitution.

In 1999, seven years after the initial claim, the TTAB ruled in favor of Harjo, finding that the trademarks “may be disparaging of Native Americans to a substantial composite of this group of people,” and “may bring Native Americans into contempt or disrepute.”  Consequently, it scheduled the cancellation of the offending marks.  The ruling was appealed to the United States District Court for the District of Columbia, which in 2003 ruled that the complainants had failed to establish that the marks were in fact disparaging and that in any event their failure to bring the claim in a timely fashion—25 years passed between the first registration and the initial complaint—resulted in it being barred by the equitable doctrine of laches.

On the appeal of that decision, the Court of Appeals for the District of Columbia ruled in 2005 that the laches defense was valid for six of the seven petitioners, but remanded the action to the District Court for a determination whether or not the defense was valid as applied to petitioner Mateo Romero who was only one year old when the mark was first registered in 1967.  It retained jurisdiction over the “disparagement” claim without ruling whether the TTAB or the District Court were correct.

Upon reconsideration the District Court concluded that the laches defense applied to Romero as well, given his understanding of the issues involved prior to reaching the age of majority and his failure to object to the registration until almost eight years after reaching the age of majority.  This conclusion was upheld by the Court of Appeals in May of 2009, and it was this decision that the Supreme Court decided today not to review.

There are apparently plans, however, to re-file the challenge to the registration but this time using Native American challengers who have just reached the age of majority.  The earlier Circuit Court of Appeals decision suggested that such plaintiffs would not be barred by the laches defense.  Such a case will presumably reopen the question of the propriety of the Redskins trademark.

Of course a reprisal of the original TTAB ruling would not prevent the Washington team from continuing to use the name “Redskins.”  It would, however, prevent the team (and the NFL) from excluding others from making use of the name.

A subsequent post will examine the historical background of the team name, Washington Redskins.

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

Stirring prose, no?  One would hardly guess that two years of a man’s life were riding on this characterization of an obscure grammatical norm.  Whatever else might be said for or against textualism, it does lead to opinions in which there is sometimes a disconcerting disconnect between the Court’s dry rhetoric and the human realities of crime and punishment.

In keeping with the Court’s current textualism, comparatively little attention is paid in the six opinions to legislative history, which is either ignored altogether or wheeled out as an apparent afterthought.

Of course, even textualists like Scalia acknowledge that texts are sometimes ambiguous.  In such circumstances, rather than resort to legislative history or policy considerations, textualists will look to the traditional canons of statutory construction.  One of these is the rule of lenity, which indicates that ambiguous criminal statutes should be interpreted in favor of the defendant. 

For instance, in the previous term, the Court (through a plurality opinion authored by Scalia) invoked the rule of lenity as a basis to interpret the federal money-laundering statute narrowly.  (I posted on the case, United States v. Santos, 128 S. Ct. 2020 (2008), here.) 

But the rule of lenity did not fare so well last term.  In its pro-government decisions, the Court’s majorities summarily rejected defendants’ (and dissenters’) arguments that statutes were ambiguous, while the authors of its pro-defendant decisions apparently felt it unnecessary to invoke lenity.  This pattern is odd, for each case featured colorable textual arguments on both sides — this would seem good prima facie evidence of ambiguity.  However, as the Court explained in Dean v. United States, 129 S. Ct. 1849, 1856 (2009):

The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.  To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.

One wonders where exactly the line is between simple ambiguity and “grievous ambiguity.”  The Court’s opinions provide no clue.  Simply put, the ambiguity standard itself suffers from ambiguity.  This is, of course, in considerable tension with the whole textualist project, which aimed to bring greater objectivity and determinacy to statutory interpretation than could be provided by intentionalism.

Confounded, I asked:  “What if you really want to express your gratitude?”

Fr. Prakash patiently reminded me, “Lisa, gratitude is an attitude.”

Despite this cross-cultural teaching, I now find myself writing about Fr. Prakash unable to refrain from using the word “thank you” to express how grateful I feel when contemplating his selfless dedication to defending the human rights of minorities in his home state of Gujarat, India.

Fr. Prakash heads one of Gujarat’s most vibrant human rights organizations, aptly called ‘Prashant’ which means “all pervasive peace.”   Its mission includes promoting human rights, justice ,and peace to ensure the mandate of the Society of Jesus.    In particular, he crusades for the protection of religious minorities in Gujarat, where among 58 million inhabitants the majority are Hindus, and only 9.1% are Muslim,  .56% are Christian, and 1% are Jain (an ancient Dharmic religion).

MU Students and faculty gathered in Eisenberg Hall last Wednesday, November 10, 2009, to learn more about Fr. Prakash’s work and the issues he confronts.  For example, we learned about a state “conversion law” which requires government permission to change religions; a practice of “encounter killings” where police extrajudicially kill young Muslim detainees while pretending to re-enact a fabricated crime; and state indoctrination in public elementary schools that use textbooks with Nazi propaganda.

Yet, one horrid event symbolizes most potently the grave danger that religious minorities face in India.   The “Gujarat Carnage of 2002” occurred when, according to Human Rights Watch, a mob of Hindus “undertook a three-day retaliatory killing spree leaving hundreds of Muslims dead and tens of thousands homeless and dispossessed, marking the country’s worst religious bloodletting in a decade.”  The attack came as a reaction to rumors that Muslims had bombed a train of Hindu activists, a claim later refuted by a government investigatory commission.  While the state government blamed the event on “spontaneous violence,” human rights groups unearthed evidence that local political leaders played a role in planning and facilitating the event.

As history shows, the truth eventually pervades and the Gujarat government’s ongoing efforts to conceal the truth has met with fierce resistance.   When it tried to ban the prize winning film Parzania, a fictional depiction of the 2002 massacre, the state confronted protests at home and abroad.

Not surprisingly, as a leader in unveiling the truth about religious persecution in Gujarat, Fr. Prakash has become one of the local government’s primary targets.  The government currently seeks to seize his passport, as well as initiate fabricated criminal investigations against him. Yet, Fr. Prakash cannot be dissuaded from his dedication to the most vulnerable people of his state, to educate the world about their plights, and to bring the government to account.

For example, he recently testified before the U.S. Commission on International Religious Freedom, which in August 2009 issued its report on India declaring that “during the 2002 communal riots in Gujarat, India’s National Human Rights Commission found that the Indian government not only failed to prevent the attacks against religious minorities, but that state and local officials aided and participated in the violence.”   Significantly, the United States denied Gujarat Chief Minister Narendra Modi a visa to the United States in 2008 based on his complicity in the religious persecutions.

Justice can be slow, but it always arrives eventually.  Criminal investigations are now underway to clarify the criminal liability of the Gujarat Carnage.  In one ruling regarding bail for a suspected participant in the mob violence, the Gujarat high court found the massacre to be “almost unparalleled in modern history” of India, and crimes that undermine the very foundation of the rule of law. Witnesses also reveal that calls to the government for help, including to Chief Minister Modi, went unheeded.

In light of the horrendous violence against religious minorities in Gujarat, it comes as a sad irony to realize that Mahatma Gandhi spearheaded his non violent movement “Satyagraha” (the force of truth) in Pujarat, which led to the Dandi Salt March and eventually the freedom of India.  It reminds us that human rights protections require constant vigilance from all of us.  As Ghandi himself remarked, “An error does not become truth by reason of multiplied propagation, nor does the truth become an error because nobody sees it.”

Indeed, Fr. Prakash ended his presentation calling upon us to be aware of these human rights violations, and to confront those who use resources to propagate hate in India.  And then, he unceremoniously nodded his head in a gesture of deep gratitude.

Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

“That’s the way to go,” said Feingold, who has been highly critical of the long confinement, without trial, of the suspects at the military prison in Guantanamo Bay, Cuba.

At the same time, US Attorney General Eric Holder Jr. announced that several other suspected terrorists will be tried in military courts. That group includes Ad Al-Rahim al-Nashiri, who allegedly planned another major attack, the bombing of the Navy destroyer Cole in 2000 in Yemen.

The decisions to go the two different routes in the cases will provide an interesting opportunity to compare civil and military handling of cases of this kind, Feingold told Mike Gousha, who moderated the session and who is a distinguished fellow in law and public policy at the Law School.

Feingold said bringing the Sept. 11 suspects, including Khalid Shaikh Muhammed, who has claimed he masterminded the attacks, into civil courts and allowing the justice system to proceed to a verdict on their cases is the appropriate course, said Feingold, a member of the Senate’s Judiciary Committee. “This advances not only our legal system, but our credibility in the world,” he said.

Feingold said that he is an opponent of the death penalty, but, “If there is a place where the death penalty should be administered, it is probably this case.” The bombings of the World Trade Center and the Pentagon and lethal crash of a commercial flight in Pennsylvania killed almost 3,000 people.

Feingold praised President Barack Obama for the way he is handling decisions about the future of military involvement in Afghanistan. Feingold said Obama was right to take his time and to consider all options, including a plan for phased withdrawal that Feingold has advocated. Several months ago, Feingold became the first senator to back such a plan. But he said Obama appears to be taking the possibility seriously.

“Why is it we are continuing this huge land war in Afghanistan?” he asked. “It doesn’t add up.” He said al-Qaeda has moved its bases out of Afghanistan and he does not think an end to American military involvement would mean a return of al-Qaeda power in the country.

Addressing other subjects, Feingold said:

• He hopes a health care plan can be passed by Congress by the end of January, but it is “impossible” that action will be completed this year. He emphasized his support for a “public option” in a health care plan, a system in which a government-run plan would provide insurance to some people. He said, “It would be very hard for me” to support a bill that did not include such an option.
• If Chief Justice John Roberts comes down strongly in favor of overturning a 1990 decision (Austin v. Michigan Chamber of Commerce), “it will be one of the greatest lawless acts by a chief justice in the past 100 years.” A decision is expected soon in a case (Citizens United v. Federal Election Commission) that has become a broad review by the court of federal election laws, including the Austin decision, in which the court ruled 6-3 that it was constitutional to prevent corporations from spending their own money on political campaigns. Feingold said that during confirmation hearings in 2005, Roberts said he would be an umpire calling balls and strikes and would not make law himself. Feingold voted to confirm Roberts, drawing the ire of many liberals. Asked after his talk whether he would regret supporting Roberts if Roberts votes to overturn Austin, Feingold said such a step might give him “a moment of significant regret.” But he said that would depend not only how Roberts votes, but what he writes in support of his vote.
• A two-year program of tax credits to companies who create jobs or increase employees’ hours could create several million jobs and help the economy nationwide. Feingold said he saw a major part of his role in dealing with economic issues as advocating for such a plan.
• Immigration reform is an urgent issue, but he does not see federal action coming until “maybe late next year.”
• Development of a five- to seven-year plan to bring down the federal deficit is both responsible and necessary for economic recovery. Feingold said the deficit “is almost an obsession of mine in the Senate,” and he sometimes finds himself voting with the most conservative Republicans because of the need to exercise more restraint on federal spending.

Feingold ducked commenting on one major Wisconsin issue. Asked whether he had a position on a proposed transfer of power over Milwaukee Public Schools to Milwaukee’s mayor, he said that it isn’t a federal issue and he isn’t going to get involved.

He also said he wasn’t making an endorsement in a potential Democratic primary for governor in 2010, but “I think the world of Tom” Barrett. Milwaukee’s mayor is expected to announce whether he is running for governor in the next several days. “I would have no hesitation supporting Mayor Barrett for any office he wants to run for, other than running against me in a primary,” Feingold said.

Feingold’s visit to the Law School was part of the “On the Issues” series led by Gousha. About 150 people attended the session.

In the war over hidden and excessive 401(k) fees, investors may have won a battle in Illinois.

Caterpillar, the heavy equipment manufacturer in Peoria, Ill. has agreed to settle a class action alleging that employees and retirees in its 401(k) plans were overcharged by potentially millions of dollars.

If a federal judge and independent fiduciary approve the deal the parties struck, Caterpillar will pay $16.5 million to settle the case. More importantly, it has agreed to make changes to its 401(k) plan that could potentially save employees millions of dollars. More important still, it may set a precedent for other companies to follow . . . .

The Caterpillar plan’s record-keeping fees would be limited, according to the memorandum on file with the court. Record-keeping fees can add substantially to investor costs. The fees are often based on assets under management, so an investor pays more as his or her balance increases. At Caterpillar, such fees will henceforth be calculated on a flat or per-participant basis . . . .

The settlement is a rare victory for investor advocates. In February, in a 401(k) case against Deere & Co., a federal appeals court judge ruled in favor of the employer. Jerome Schlichter, the plaintiffs’ attorney with Schlichter, Bogard & Denton, who handled both the Caterpillar and Deere suits, has sued a dozen other companies over their 401(k) plans, including Exelon, General Dynamics  and International Paper. He says he is appealing the Deere case to the U.S. Supreme Court. The Supreme Court is already hearing a separate case, Jones vs. Harris Associates, which involves the question of whether mutual funds over-charge for their services.

It might be appear to be common sense for companies to engage in these types of disclosures with regard to plan fees, but litigation is proving that such is not the case.

William Birdthistle (Chicago-Kent) and I previously wrote an amicus brief in the Hecker v. Deere case that is referred to above and it discusses some of these very inequities that currently exist in the way participants in 401(k) plans are charged for mutual fund fees.  I have also joined an amicus cert. brief in the Deere case which will be filed this Monday.

It is commonly thought that the Court is bitterly divided along ideological lines.  In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is.  The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to the advocates or to their own colleagues.

How well does the stereotype actually reflect reality?  The answer depends on what type of criminal case you are talking about. 

The point is nicely illustrated by comparing two sets of cases from last term: the statutory interpretation cases and the investigation (that is, search, seizure, and interrogation) cases.  As I have categorized the cases, there were six in each set.  (The cases are listed at the end of this post.)

The statutory interpretation cases do not look anything like the stereotype.  In these cases, the Court was required to interpret either a substantive criminal statute or a statute containing a mandatory minimum sentence.  In these cases, the Court was remarkably cohesive.  Three of the six decisions were unanimous, while the other three were 7-2.  That makes a grand total of six dissenting votes in six cases.  Those six votes were cast by four different Justices from across the ideological spectrum.  None of the conservative Justices voted for the government in all six cases, while none of the liberal Justices voted for the defendant all the time.  Indeed, conservative Justices Scalia and Roberts voted for the defendant more often than not (four of six cases).

The investigation cases conform much more closely to the stereotype.  Four of the six cases were 5-4 decisions.  In all, the six cases produced eighteen dissenting votes, or three times as many as the statutory interpretation cases.  Moreover, the divisions generally (although not always) followed the stereotypical ideological pattern.  In three of the four 5-4 decisions, the conservatives and liberals each voted as block, with Justice Kennedy casting the tie-breaking vote (siding sometimes with the conservatives and sometimes with the liberals).  In the six investigation cases, the four conservative Justices collectively cast exactly one pro-defendant vote.  Put differently, given twenty-four opportunites to vote for a defendant, the conservatives did so only once.  (This compares with fourteen pro-defendant votes by conservative Justices in the statutory interpretation cases.)

Although I haven’t attempted to quantify this, my impression is that the Justices’ rhetoric in the investigation cases was also considerably more heated.  In particular, there seemed to be charges flying from both sides that the other side was not honestly and consistently adhering to the doctrine of stare decisis.  I did not observe similar attacks in any of the statutory interpretation cases.

What accounts for the discrepancy between the two sets of cases?  One possibility is the triumph of Justice Scalia’s preferred methodology in one area: that is, textualism in the statutory interpretation area.  I’ll have more to say about the Court’s textualism in another post, but the key point for now is this: the statutory interpretation cases play out as exercises in determining the meaning of particular words in particular statutory contexts.  There is very little discussion of broader public policy considerations that would cut across specific statutes.  As a result, there does not seem to be a lot at stake in the statutory interpretation cases, and there are few obvious implications for the Justices’ commitments to their various competing visions of the criminal justice system.  When cases are framed this way, it should not be surprising that the Justices find it relatively easy to reach common ground.

By contrast, textualism provides little clear guidance in the investigation cases (what exactly makes a search “unreasonable”?) and plays little discernible role in the Justices’ reasoning.  Indeed, what the investigation cases are really about is the scope of extratextual exclusionary rules, which do implicate core ideological commitments on both sides of the political aisle.  To liberals, the exclusionary rules (closely associated with the Warren Court and the broader civil rights revolution of that era) represent an important symbolic commitment to individual libery and equal rights in the face of a criminal justice system that has all too often wielded its power in discriminatory ways.  To conservatives, the exclusionary rules represent everything that was bad about the 1960’s: collective security sacrificed in the name of individual liberty, elites overriding the will of the “silent majority,” and so forth.  The Justices write about the exclusionary rules in terms of costs and benefits, but in truth the costs and benefits are unknown and probably unknowable.  Given the lack of any objective measure, the cost-benefit balancing necessarily becomes ideological . . . and the Justices don’t play so nicely together.

Statutory Interpretation Cases — includes cases on substantive criminal and mandatory minimum statutes, but excludes cases on the habeas corpus statute and other procedural laws

• U.S. v. Hayes, 129 S. Ct. 1079
• Dean v. U.S., 129 S. Ct. 1849
• Chambers v. U.S., 129 S. Ct. 687
• Abuelhawa v. U.S., 129 S. Ct. 2102
• Boyle v. U.S., 129 S. Ct. 2237
• Flores-Figueroa v. U.S., 129 S. Ct. 1886

Investigation Cases — includes Fourth Amendment and interrogation cases

•  Herring v. U.S., 129 S. Ct. 695
• Arizona v. Gant, 129 S. Ct. 1710
• Montejo v. Louisiana, 129 S. Ct. 2079
• Corley v. U.S., 129 S. Ct. 1558
• Arizona v. Johnson, 129 S. Ct. 781
• Kansas v. Ventris, 129 S. Ct. 1841 

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things. 

Some have argued that environmental resources should not be commoditized because they are nonfungible – or, to extend the argument a bit, that those who assign dollars to nonuse values are improperly comparing apples to oranges.  They argue that the harm of commoditization is not easily quantifiable or verifiable; it is intrinsic, or even has a moral character. 

Most environmentalists would probably argue that nonuse values should be considered in cost-benefit analyses, but they might also believe that commoditization is an intrinsic environmental harm.  Thus, in my view, an unaddressed tension exists between appropriate consideration of environmental nonuse values, and unhealthy commoditization of those same features.  This tension, I believe, cannot easily be resolved.

Hat tip to 1L Timothy Shortess.

How much is at stake? Included in the material was a list of how much each state could potentially receive. For Wisconsin, the figure was $150 million to $250 million.

It is unlikely Wisconsin actually will get that much. It appears there are some points where Wisconsin will score well (atmosphere for creating charter schools), and other points where Wisconsin will not do well (track record on closing achievement gaps, such as the one between white and black students).

Each state’s application will be judged by committees still being formed. The rubric assigns points to each of more than a dozen areas of interest, with a total of 430 possible points. Among the areas carrying high point potential: “Improving teacher and principal effectiveness based on performance,” 58 points; “turning around the lowest-achieving schools,” 40 points; and “ensuring successful conditions for high-performing charter schools and other innovative schools,” 40 points.

Make no mistake — this will be a competition. President Barack Obama made that point in his speech last week in Madison and Secretary of Education Arne Duncan underscored it in interviews accompanying the release of the final rules. Obama said this was much different than the usual federal program that makes sure everyone gets something. Duncan said there will be more losers than winners in the process. Furthermore, the final say on the grants lies with Duncan. Congress does not have to approve, which will reduce the interest in appeasing anybody (or everybody).

States have until mid-January to submit applications for the first of two rounds of awarding grants. That’s a big reason why Gov. Jim Doyle has been pushing for fast action by the Legislature on a range of proposals related to education. Some were approved last week, but the fate of others — the more controversial ones — remains to be seen. Still no word on whether there will be a special session of the Legislature in the next several weeks to consider ideas such as giving Milwaukee’s mayor the dominant power in governing Milwaukee Public Schools.

Is it required that Wisconsin approve mayoral control in Milwaukee to win Race to the Top money? There is nothing in the final rules that says you have to have mayoral control. But Duncan has a lot of latitude to make decisions on his judgment, and he is firmly partial to mayoral control. Doyle and Milwaukee Mayor Tom Barrett say that, as a practical matter, Duncan and the people who will score the grant applications will want to see approval of overhaul of MPS governance as a sign that Wisconsin is serious about change.

Almost two years ago, we convened a group of servicemembers and veterans here at Marquette Law School to explore ways the Law School could support their service.    Spearheaded by a district legal services attorney for the U.S. Coast Guard (which maintains an active base in Milwaukee), this committee grew to include officers and enlisted personnel from the Army, Air Force, Naval Reserve, and Wisconsin National Guard, as well as veterans.   This committee alerted us to some of the legal challenges facing military personnel, their families, and veterans.   For example, Judge Advocates General can provide advice to military personnel regarding civil legal matters, but they do not represent them in civilian courts.   Sometimes a service member is not attached to a unit – either separated or in Individual Ready Reserve – and thus does not have easy access to a Unit JAG.  Other times, JAG offices may be at a headquarters base hundreds of miles from their duty station and unfamiliar with local court rules.   Similarly, while veterans receive a number of benefits through the county, state, and federal veterans administrations, access to legal counsel is not one of them.

Thus, with support from the State Bar of Wisconsin and the ABA,  Marquette Law School launched SAVLAW: Servicemembers and Veterans Legal Assistance for Wisconsin. 

Our website may be found at: www.savlaw.org.  Under the leadership of Marquette Law School’s Pro Bono Coordinator, Adie Olson, we convened a panel of pro bono attorneys and law students in two distinct projects.   The first provides an opportunity for active-duty servicemembers (regular, guard, or reserve) and their families to access legal advice for civil legal matters that affect their ability to serve, or impact their rights under the Servicemembers Civil Relief Act.   The Law School hosted a special CLE training on the SCRA and related laws for lawyers interested in volunteering with the program that was webcast statewide.   In addition to providing general advice and a link to pro bono representation, SAVLAW is gathering information to provide legal outreach to family members left behind by deployed personnel.   For veterans, SAVLAW opened a branch of the Marquette Volunteer Legal Clinic at the Milwaukee County Veterans Services office on the federal VA grounds.   The MVLC at the VA now operates on the first and third Mondays of the month from 4:00 p.m. to 6:00 p.m.   Staffed by pro bono attorneys who are themselves veterans, alongside Marquette law students, the clinic provides much-needed legal counsel to veterans in a wide range of civil legal matters.

In these practical and professional ways, Marquette Law School honors its veterans, as well as those who continue to serve our country in the Armed Forces.   Supporting this important public service is another way we are reaching out to our community, meeting a need, and building a new law school.   Please join me in thanking our veterans, as well as all of our volunteer lawyers and law students who serve them through SAVLAW.   Happy Veterans Day!