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!

Slaughter’s wishful thinking now appears to be reality. A recent Wisconsin Law Journal article reports that bilingual attorneys are carving out a “growing niche” in legal practice in the state.  The WLJ reports, “As the minority populations in the state continue to grow, so too has the opportunity for bilingual attorneys to expand their client base.”   Now it seems, new lawyers will not only wish to market their law school academic achievements, but also their command of a language other than English.

In particular, according to the U.S. Census Bureau, the Hispanic population in Wisconsin has increased by 48.2 percent since 2000, numbering close to 300,000 members of our community.  In Milwaukee alone, the Hispanic population represents twelve percent of the population.  This trend reflects the national population growth of Hispanics, estimated as of July 2008, to be 46.9 million people.  People of Hispanic origin now makes up fifteen percent of the national population, and constitute the largest minority group in the United States.  Not surprisingly, these changing demographics directly impact the legal community both locally and nationally.

Notably, the Hispanic legal community already enjoys solid roots in Wisconsin.  In fact, the Wisconsin Hispanic Lawyers Association celebrated its twenty-fifth anniversary last year, and has helped tackle issues to make the courts more accessible to the Spanish speaking community, such as institutionalizing the practice of providing court interpreters and publishing a directory of Spanish-speaking lawyers for the courts to help people find legal assistance.

Wisconsin lawyers like Gerardo H. Gonzalez, recognized as a one of the 2009 Leaders in Law, can take credit for being pioneers in forging this legal niche. When Gonzalez began his solo practice in 1989, he recognized that the Hispanic community was under-represented.  As a bilingual attorney, he was able to make this constituency an important part of his practice — including his pro bono service to the Hispanic Chamber of Commerce-Wisconsin, which just celebrated its twentieth anniversary.  Eventually, Gonzalez went on to establish the law firm Gonzalez Saggio & Harlan LLP, one of the largest minority-owned law firms in the country, with thirteen offices nationwide.

Lawyers like Gonzalez recognized early on an indisputable fact: In addition to the need of serving local Spanish speaking populations, the globalizing economy puts a new premium on language skills, especially with transnational transactions becoming more common. Bilingual lawyers no longer represent a luxury, but rather a necessity for law firms.  Consider for example that there are approximately 500 million Spanish speakers around the world, and Spanish is the official language of twenty-one countries and is the third most widely spoken language in the world (after English and Mandarin).  With international trade, the need for understanding foreign legal systems, cultures, and languages is now an imperative. Yet, the historical tendency of the United States to be monolingual (as most evidenced by the lack of foreign-language training in elementary and secondary schools) puts us at a disadvantage with our polyglot competitors from other nations.

Responding to this new market trend, a handful of law schools across the country have begun to offer law classes in a foreign language.  A quick survey reveals that Columbia Law School, Michigan Law School, Boalt Hall at the University of California-Berkeley, Georgetown University Law School, and the University of Miami School of Law are among the few who are “jumping into the vanguard” of offering law classes in Spanish.  Yet, these schools are in the minority, and these types of classes are still the cutting edge. 

For that reason, it is exciting news that Marquette Law School is joining the ranks of these innovative law schools by offering for the first time the course “Comparative Criminal Law and Procedure—In Spanish.”  This open-enrollment course comes at the initiative of our own students, who approached Dean Joseph Kearney with the idea for such a class.   After several months of research, a small ad hoc committee of MULS faculty presented a proposed course that was approved by our Curriculum Committee last month.

The class will be taught by Alejandro (Alex) Lockwood, who has served as a public defender in the Office of the Wisconsin State Public Defender in the Milwaukee Trial Office since 1991, when he graduated from University of Minnesota Law School. 

Professor Lockwood was born and grew up in Caracas, Venezuela.  He came to the United States after high school to learn English, and lived with a host family that spoke no Spanish.  With patience and diligence, he was able to gain command of English and eventually enroll in the University of Illinois at Chicago, where he graduated with honors in 1987, and then went on to earn his J.D.   According to Professor Lockwood, “During my second year in law school, I discovered my vocation. I had my first experience defending indigent persons when I was accepted in the law school’s Misdemeanor Clinic working in conjunction with the Hennepin County Public Defender in Minneapolis. My first client was a Marielito Cuban — who did not speak English — charged with domestic violence. I also participated in the Prosecution Clinic with the City of St. Paul City Attorney Criminal Division, where my ability to interact with Spanish-speaking victims was also immensely helpful.”

Professor Lockwood is currently an attorney supervisor and represents indigent persons accused of felony offenses.  During his early years of working for the Public Defender, he was assigned mostly cases involving individuals charged with misdemeanor offenses.  As he gained more experience, he began to accept the challenge of representing those accused of very serious crimes.  Notably, many of his clients are Spanish-speaking.  As Professor Lockwood observes, “I make every possible effort to humanize them in their ordeal. I feel that my ability to speak in Spanish with my clients strengthens our bond and my commitment to them.”

Learned societies have already called upon Lockwood to share his knowledge of criminal law, including the Public Defender’s Conference where he has shared his experience challenging the admissibility of confessions illegally extracted by the Milwaukee Police in a first-degree intentional homicide case, as well as talked about the immigration consequences of criminal convictions.   Although he will be a new member of MULS adjunct faculty, Professor Lockwood has already enjoyed many years working with MULS students as interns, an experience that made him discover that “teaching is one of the most fulfilling aspects of my career.” 

Professor Lockwood has shown great enthusiasm for MULS’s initiative to offer a course in Spanish, finding it a smart response to the demographic changes in our country and a way to celebrate our diversity.  Also important is that our students will gain not only language skills but also a comparative look at Latin American legal systems, which are currently undergoing significant legal reforms.  As Professor Lockwood comments, “A comparative analysis will allow the students to explore not only the changes taking place, but will also help them understand the fascinating cultural context that makes our jurisprudence different from Latin America’s.  Regardless of the type of law practiced, understanding cultural differences enables you to relate on a personal level with clients and peers who have only experienced law through a Latin American perspective.”

Marquette Law School is thus helping to make Slaughter’s “dream world” come true.

It is amazing in retrospect that the Wall came down without violence – this is not to say that there was not plenty of violence keeping it up all those years – but, when it finally came down, it was ordinary people with pickaxes.  And perhaps that is why this anniversary is celebrated with such joy – and a really cool artist’s exhibition of dominos placed on the original site of the wall.  It did not take an invasion, it did not involve a shoot-out or tanks or civilians being hurt – the government finally acknowledged that the divide could not, and should not, be sustained.

Berlin Wall Dominos 

Cross posted at Indisputably.

The involvement of high school students as presenters at the sixth annual Restorative Justice Conference at the Marquette Alumni Memorial Union Tuesday was one of the reasons the day-long event, attended by a capacity crowd of about 350, was a success. The conference was sponsored by the Marquette Law School Restorative Justice Initiative.

Three students from Milwaukee’s Custer High School, two girls and a boy, didn’t offer research evidence or a PowerPoint presentation. They just described incidents they have been involved in as bullies and as victims, gave their thoughts on why students act the way they do — and held the rapt attention of the audience.

All three are part of the Violence Free Zone project at Custer, run by Running Rebels, a local organization that aims to direct teens away from violent behavior. 

“I feel people are bullies because they have nothing better to do,” said Kenyonna Glass, an eleventh grader. Shanique Harvey, a senior, said kids act like bullies because they think it helps get them in with the popular crowd. Lavonte King, a freshman, said he had been both a bully and a victim. “When I get bullied, I usually go bully someone else, take my anger out on someone else,” he said.

Asked by moderator India McCanse, executive director of Literacy Services of Wisconsin, what advice they would have for parents who want to reduce the chance of their children being either bullies or victims, Shanique said, “I would have to tell a parent to get more involved.” She suggested parents take some days off work and spend the time with their children.

But Kenyonna said, “Depends on who the parents are.” For many children, the problems of their parents are a major source of their own problems, she said. At another point, she said that often, “The person who is doing the bullying is probably going through things at home.”

Lavonte said he didn’t feel he could talk to anyone in his family about problems he is having with bullying. He said sometimes he talks to his younger brother. The brother doesn’t understand, he said, but it helps Lavonte to talk to him.

Shanique said if adults in the family can’t help, there are other adults. “Every child has someone they can look up to,” she said. She said high school life is hard for many teens, adding, “They have so many opportunities, and they don’t know they have them.”

In the keynote speech of the conference, Brenda Morrison, co-director of the Centre for Restorative Justice and an assistant professor in the School of Criminology at Simon Fraser University in British Columbia, outlined the attributes of approaches that lead to justice being done with people and not to people, as she put it.

Restorative justice efforts that aim to solve problems, heal wounds and direct those who have caused problems onto better paths are underway at many Milwaukee schools and in some criminal justice settings in Milwaukee. Morrison said, “Milwaukee, you have a lot to be proud of.” She said people elsewhere should learn from Milwaukee how to develop a comprehensive citywide strategy for restorative justice. She singled out for praise Justice Janine P. Geske, a distinguished professor on the law school faculty and head of the school’s initiative.

Morrison offered the three R’s of a restorative justice program – respect for the person, responsibility for behavior, and repair for harm done . She said, “We have to be willing to get involved in each other’s lives and stand up against behavior such as bullying.” As for lawyers, she said, “There are lots of really good lawyers doing amazing work within a system that needs to move to the next level of justice.”

The conference concluded with presentation of Starfish Awards to eight Milwaukeeans for their contributions to the community. They are:

Like many Wisconsin lawyers of his generation, Jenkins was a native New Yorker who had moved to Milwaukee prior to the Civil War.  He was born in Saratoga Springs on July 18, 1834, the son of New York City merchant Edgar Jenkins and Mary Elizabeth (Walworth) Jenkins. His maternal grandfather was Reuben Hyde Walworth, a former United States congressman and New York chancellor who in 1844 was nominated, unsuccessfully as it turned out, to the United States Supreme Court by President John Tyler. 

Jenkins did not attend college or law school but instead studied law in the office of the New York City firm of Ellis, Burrill, and Davison for five years. He was admitted to the bar at age 21 and worked as “head clerk” for a New York law office for two years.  In 1857, he relocated to Milwaukee.  

Over the next 31 years he engaged in the practice of law in Milwaukee. According to Jenkins, his first position in the city was in the law office of Jason Downer who paid him $3 per week.  However, within in six months he had become a partner with Downer, who in 1864 became a justice on the state Supreme Court.  Jenkins later formed a partnership with Edward Ryan and Matthew Carpenter, both legendary figures in the legal history of Wisconsin, and he was later a partner with the less-well remembered James Hickox.  

An active Democrat, Jenkins did not serve in the Civil War.  However, he was one of the speakers at a mass rally on behalf of the Union war effort held in Wisconsin on July 31, 1862, and in 1863, he was elected Milwaukee City Attorney, a position that he would hold until 1867.  After leaving office, he formed his own law firm which was known at various times as Jenkins & Elliott; Jenkins, Winkler, & Smith; and Jenkins, Winkler, Fish & Smith.  In 1877, he chaired the state Democratic convention that nominated James S Mallory of Milwaukee for the state’s highest office.  

In 1879, Jenkins himself was the Wisconsin Democratic Party’s nominee for Governor of Wisconsin, but he was beaten fairly soundly by Republican William E. Smith who received over 50% of the votes in a three-man race.  (There was also a Greenback Party candidate who received approximately 7% of the vote.)  In 1881, he was the Democrat candidate for the United States Senate, but the Republican majority in the Wisconsin legislature not surprisingly chose one of their own.  

Jenkins’ services to his party did not go unappreciated.  In 1885, newly elected Democratic president Grover Cleveland offered Jenkins a position on the Supreme Court of the District of Columbia, but Jenkins declined the appointment.  However, on June 18, 1888, he was appointed United States district judge for the eastern district of Wisconsin by President Grover Cleveland and his appointment was confirmed by the Senate on July 2.  Although Cleveland was defeated for reelection in 1888, he was again elected president in 1892.  For his second term, he selected Judge Walter Q. Gresham, a former Republican turned Democrat, as his Secretary of State, and in 1893, Jenkins was appointed Gresham’s replacement as United States Circuit Judge for the Seventh Judicial Circuit.  His nomination was confirmed by the Senate and he sat on the Circuit Court until he retired in 1905 at the age of 71.  

Shortly after his appointment to the Seventh Circuit, Jenkins was arrested following an indictment by a Milwaukee grand jury which concluded that he and the other directors of the failed Plankinton Bank had improperly taken money from the bank after it had become insolvent.  The story of Jenkins’ arrest was reported on the first page of the July 13, 1893 New York Times, but Jenkins resisted suggestions that he resign from the bench, and in November, the indictments were declared “null and void” by the Milwaukee Circuit Court. 

Jenkins most famous (or infamous) judicial decision also came in 1893 in the case of Farmers Loan & Trust Co. v. No. Pacific Ry., 60 Fed. 803, in which he enjoined a strike against a railroad under receivership and in doing so coined the phrase “government by injunction” (which he viewed favorably).  Jenkins’ injunction, which was interpreted as barring the workers from quitting their jobs, was highly controversial, and there were efforts in Congress to censure him.  Eventually he survived the attacks, although the broader aspects of his ruling were narrowed on appeal. 

            After retiring from the bench in 1905, Jenkins returned to Milwaukee where he remained at least semi-retired, a status that meant that he was potentially available to fill the newly created position of dean of the Marquette University College of Law.  Although he was 74 years old in the fall of 1908, there were a number of reasons why he was an attractive candidate for the position of dean.  First of all, Jenkins’ prominence as a jurist brought a degree of luster to the law school.  In addition to his status as a federal circuit court judge, he also had been awarded honorary doctor of law degrees from the University of Wisconsin (1893) and Wabash College (1897).  He was also a member of the nine-lawyer committee that drafted the original American Bar Association Canon of Ethics which was formally adopted in the summer of 1908. 

Furthermore, although Jenkins himself had not attended law school, he had been involved with legal education off and on throughout his career.  Early in his law practice, he had trained a number of attorneys in his office, including Milwaukee lawyers Horace Upham and Louis Lecher (once Jenkins’ secretary) both studied law under his direction.  While a judge, he had also lectured at law schools in Milwaukee and Chicago.  

Although the extent of his involvement is not clear, he reportedly lectured at the Milwaukee Law School during its early years, and he was involved with the establishment of the John Marshall Law School.  John Marshall, an evening law school located in the Chicago Loop, had been founded in 1899, while Jenkins was still on the federal bench and based in Chicago.  He was one of the school’s original faculty members and was the featured speaker at its first commencement in 1902.  Apparently his connection to the law school was one that continued until his retirement from the bench in 1905.  In 1906, the Chicago school published several of his lectures delivered at the law school the year before which was his final year in the Windy City. 

While his teaching probably involved little more than showing up a couple of nights a week and delivering lectures on federal court procedure, his experiences did provide him with some exposure to contemporary legal education, albeit of the night school variety.  The Milwaukee Law School and the Milwaukee University Law Schools had provided instruction at night, but the plan for the new Marquette University Law School was to have both a day and an evening program. 

Jenkins was also not a Roman Catholic, but that does not appear to have been a major concern of the priests who ran Marquette University in 1908, as all but one of the original law faculty members were Protestants.  (The University took the same ecumenical approach to the recruitment of members for its Board of Regents which was founded in 1909.  The original regents included Jenkins and a number of other Protestants, and, shortly thereafter, Jews.) Although Jenkins was an Episcopalian, he did have a connection to Roman Catholicism in that his uncle, Clarence Walworth, was a convert to Catholicism and a founder of the Paulist Fathers. 

One of the strategies of the new Marquette Law School was to supplement the instruction of the regular faculty (all of whom also practiced law) with lecturers drawn from the ranks of distinguished lawyers and jurists.  Presumably, Jenkins’ personal connections in Wisconsin and Illinois helped facilitate this, and the law schools’ first catalog lists 24 such lecturers, including Chicago federal judge Kenesaw Mountain Landis, later the first commissioner of Organized Baseball.  Jenkins himself was listed as a lecturer (and not a professor) with the Law of the Sea and Trade Marks listed as his subject areas. 

The law school appeared to flourish under Jenkins direction.  The enrollment in the fall of 1908 was 127 students, including 77 freshmen, totals that far exceeded those of its two private law school predecessors.  Entry level enrollments leveled off after the first year but overall enrollments remained strong, and the number of students reached 166 in the fall of 1915, Jenkins last semester as dean.  Moreover, after initially holding classes in Johnston Hall, the law school obtained its own building in 1910, the Mackie Mansion, located on the current site of Sensenbrenner Hall.  In 1912, the law school was admitted into the Association of American Law Schools, an organization of law schools committed to higher admissions standards (at least a high school diploma or its equivalent) and an expanded curriculum (a three year law course). 

Although Jenkins was a “full-time” dean and occupied one of the few faculty offices in the law school building (the Mackie Mansion), he taught very little and appears to have been somewhat detached as an administrator.  He was originally assisted by an associate dean—first Lynn Pease and then Edward Spencer, both former faculty of the Milwaukee Law School—but it appears that neither Jenkins nor the associate deans kept any records at all.  In 1911, Arthur Richter was hired as a full-time faculty member and secretary for the law school, but the situation did not appear to significantly improve. 

The final years of Jenkins’ deanship were marked by controversy.  In 1914, Richter published an article in the American Law School Review (the leading publication devoted to legal education in the early 20^th century) that accused the University of Wisconsin Law Department of unfairly lobbying the legislature to defeat a new bar admissions statute that would have eliminated the diploma privilege.  In reply, Professor Howard L. Smith of the University of Wisconsin attacked the character and quality of the Marquette Law School and noted, correctly, that Marquette had supported the diploma privilege until it became clear that the Wisconsin legislature until it became clear that the Wisconsin legislature was not going to extend the privilege to an institution that many Wisconsin lawyers still thought of as a night school.  Marquette, presumably with the approval of Jenkins, then threatened to sue the University of Wisconsin for libel.  This cross-state verbal warfare did little to help the reputation of Marquette and seems not to have harmed its public school neighbor.  It also did not help when it was revealed that during the acrimonious Richter-Smith exchange, Richter was secretly trying to secure an appointment to the Wisconsin faculty. 

A more serious problem arose in 1915 when Marquette underwent a surprise inspection by the Association of American Law Schools to determine if it was in fact complying with AALS guidelines.  Although the 81-year old Jenkins decided somewhat abruptly to step down in the fall of 1915, there seems little doubt that his lax leadership and record keeping had made the investigation more likely.  Marquette was able to survive an effort to expel it from the organization the following year, but its poor record keeping clearly hampered its ability to prove its innocence.  Jenkins was replaced as dean by faculty member Max Schoetz, who began as acting dean but was given the permanent position the following year. 

After stepping down as dean, Jenkins remained a member of the Marquette Board of Regents until his death in Milwaukee on August 6, 1921.  He also continued to be involved in a variety of civic affairs and sat on a number of boards of charitable organizations.  On September 30, 1917, the Milwaukee Old Settlers Club honored him for his 60 years of residence in the city.  After his retirement, he also published an article on the “Admiralty Jurisdiction of Courts” in Volume 4 of the Marquette Law Review. 

Although it was written in 1897 for publication in a highly flattering biographical encyclopedia called Men of Progress: Wisconsin Jenkins would probably have been pleased with the following as his obituary:

He has always been a close student of the law, of general literature and of the arts; and these studies have given him a strength and a grace in all his efforts at the bar which not many of his professional associates have attained. Free from the tricks and cunning which too often disgrace the practice of a noble profession, he came to be recognized as one of the foremost and ablest of the bar of Wisconsin. As a practitioner he had his full share of notable cases in the courts, and conducted as large a percentage of them to successful conclusion as have the most prominent of his contemporaries. 

His bust can be found on the first floor of Sensenbrenner Hall, just outside the elevator.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.