The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

Justices Sonia Sotomayor and Samuel Alito each wrote separate concurrences. Justice Alito was less than thrilled about the return to trespass, and Justice Sotomayor questioned how future technologies would be analyzed. She opined that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” I think that’s the question that courts will grapple with in the future.

The idea has long been, if you do in public and we can see it, or if we can see it from a public place, then the Fourth Amendment isn’t implicated. This made me try to think of how I could live and work outside of the public eye.

To start, I would have to get rid of my Lexis account. Using the Internet to access research requires using my Internet provider. Courts have said that I voluntarily give up the websites I visit when I use my Internet provider to visit them. So I’d have to do all my research from books. Fine. I’ll go to the library. But how will I get there? Any mode of transportation — vehicle, public, bike, foot — requires me to use public roadways and sidewalks. I’ll have to build my own in-home library.

Next, the challenge is communicating with others. E-mail is out for the same reason using the Internet is out. I could write letters. But wouldn’t who I address my letters to be fair game? I trust the postman to deliver my letters, and he has to examine the envelopes in order to get them to the right place. I can’t call clients for the same reason e-mail and the Internet is out. I have to give my phone provider the telephone number in order to place the call, so every number I dial is up for grabs.

Forget about eating. I’d have to grow all of my own food in my backyard that is somehow concealed from the public eye. Heat lamps maybe?

When you start to think about your average day, you realize that you voluntarily disclose an enormous amount of information. More so now with the advent of social media where people are constantly reporting what they’re doing, where they’re doing it and posting photos and videos of them actually doing it. So I think Justice Sotomayor is right: at some point, the courts will have to reconsider the premise about what a “reasonable expectation of privacy” really is. How that will change the law is anyone’s guess.

Given this apparent superiority of Socratic legal education, I have often wondered whether European law students feel they are at somewhat of a disadvantage. After all, they are not being challenged in class on a daily basis to make arguments and defend positions. I was surprised to learn that many European law students do not believe they are left behind in this respect. Many European students I have met say that classes are meant simply to teach about the law. If students wish to develop their litigation skills, they take a litigation class or join a moot court team, but there is generally no cross-over between developing one’s ability to argue and learning about the law. That is, up until the final exam. Interestingly, many law courses here in Copenhagen administer an oral final, where the professor challenges each student’s ability to argue about the law. Effectively, such an exam tests the students’ skills in taking a position on an issue and defending it. The way European law students view it is that they spend the semester learning about the law, and they then argue the law in the exams. Generally, they seem to feel this provides enough practice of argumentative skills.

The difference in legal education systems likely stems, in part, from the differences in the legal systems themselves. As we are taught in law school, law is indeterminate. This is in part due to our common law system: In many instances, the facts of a case do not fit perfectly with the existing case law and arguments can be made on both sides on how the law applies to a set of facts, and even about the rules themselves. As a result, lawyers are forced to make arguments and defend positions. This is less true for the civil law systems in continental Europe. In the civil law system used in many E.U. member states, the legal processes are not as adversarially driven as our own due to the fact that common law rules and exceptions do not exist. Courts do not need to be convinced of which rule should apply and whether an exception exists, and the absence of binding precedent in many civil law systems means that lawyers don’t need to persuade courts that their client’s position is in keeping with the existing case law. This less adversarial nature of the litigation process appears to be reflected in the legal education methods in Europe and more emphasis is placed on learning what the law is, rather than on developing argumentation and litigation skills.

Personally, I never felt as though I was learning the law itself less effectively than at Marquette. The stronger emphasis on regulations, EU directives, and treaties makes sense in light of the characteristics of the civil law system. Similarly, it makes sense to focus less on cases in class discussion, as in many civil law systems these are not considered to be primary sources of law. It is true that this way of teaching makes for a classroom atmosphere that is less rigorous and personally engaging than classes in American law schools. However, I still feel as though the actual law itself is being conveyed to me in an effective manner and I feel comfortable in my understanding of E.U. law that I have obtained while studying in Copenhagen. In sum, while the Socratic method may be well-suited for education in a common law system, civil law systems appear to call for a different approach to teaching and learning.

The one millionth article downloaded was Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues, by Professor Carolyn Edwards. Professor Edwards has been a member of the law faculty since 1974. She was a Woodrow Wilson Fellow in philosophy at the University of California – Berkeley and is a member of Phi Beta Kappa. She is a graduate of the University of Toledo College of Law. Professor Edwards teaches contracts, sales, secured transactions, and negotiable instruments.

Please join us in celebrating this milestone by visiting the Marquette Law Scholarly Commons and browsing our collections.

“I consider you and [Jefferson] as the North and South Poles of the American Revolution. Some talked, some rewrote, and some fought to promote and establish it, but you and Mr. Jefferson thought for us all.”

—Benjamin Rush to John Adams, February 17, 1812

Every law student has a responsibly to enhance the American Conversation—the eternal dialogue that is the American experiment. While it would be conceited and with reproach that I suggest we think like Messrs. Adams and Jefferson, we should, however, seek to become more thoughtful and attempt to engage in lively, educated discourse. Our national dialogue has increasingly been filled with a self-destructive, dysfunctional, do-nothing mentality that lacks reasoned thought. This trend is at best unproductive—at worst, destructive—to the American Conversation. As law students, we have the skills and responsibility to change this trend.

It is quite gratifying to obtain a deep understanding of a topic and then learn that you lacked a full appreciation for some of the more nuanced issues within that particular topic. Part of the legal learning process encapsulates this type of learning, where you learn a new approach or different perspective and it can—and should—be learned outside the classroom. It should go without saying that one the best places to learn is outside the classroom. But as law students, in the ultra-competitive school environment, we tend to focus on grades (and the job hunt) and lose focus of the big picture—developing the skills necessary to fulfill our duty to serve the public. As such, we would do well to be reminded of the importance of using the skills we have learned outside the classroom. While Dean Kearney reminds us to continue learning outside the classroom (e.g., in the many guest lectures, at On The Issues, and during social and award events at the Law School), the one place for learning that should continually reside in a predominant place in our minds is the Zilber Forum, a social area for discussion and contemplation. The Zilber Forum, or the idea of the Forum, does not and should not stay within the confines of the four walls (although the shape of the building may suggest three). This idea is already bursting at the seams of Eckstein Hall and with a little help from students will reach the community around us.

In the age of social media, our conversations and dialogue are increasingly viewed through Facebook posts, Tweets, blogs, and other emerging mediums. While these mediums can be used to increase participation, they often lack active and engaged thought. The age of anything-can-be-posted continues to increase individuals’ access to information (e.g., Wikipedia) but decreases incentive to actively participate and engage with the material. As younger generations continue to expand the use of social media, I am fearful that lively discourse will continue to dwindle.

But, there is hope. If we want a higher level of discourse, we must start with ourselves and then radiate that discourse outward. As students, we can start by picking up a newspaper, taking an interest in a different subject, giving back to the community, and engaging in thoughtful dialogue with other students (not to mention the myriad of professors who welcome a break from their research). From there, we can begin to create “mini-Forums” or circles of engagement: small groups of students who seek to discuss issues with well-informed and researched opinions. No doubt, passions will and should run high.

I am reminded of a recent discussion I had with a number of students about the reading of Miranda warnings to the Boston Marathon bombing suspect, Dzhokhar Tsarnaev. The discussion focused on when the warning should be given, whether an amnesty period should be instituted for public safety exceptions, and whether it is constitutionally permissible, as suggested by the Department of Justice and Federal Bureau of Investigations, that there is a national security exception to the Fifth and Sixth Amendments, or whether this type of issue should be taken up under the public safety exception. This well reasoned and thoughtful debate allowed participants to push the limits of their different theories, get immediate feedback on potential problems with their logic, and, more importantly, gain an appreciation for others diverse views. The added advantage of this debate was that each member was forced to confront the sometimes unobvious, but well-placed counterarguments, and reply. No doubt, this discussion will be remembered long after I have graduated.

The starting point for increasing the educated level of national discourse begins with self-development. Then a slow outward reach to those around us can start to transform the micro-debates and gain traction outside our individual groups. To be sure, this will be a long and slow process, but what other choice do we have than sit on our hands and do nothing? If I have not convinced you that we should dial up our national conversation, or if you are reluctant to start to reach outward, perhaps I can leave you with words of wisdom from multiple professors (including Professors Mazzie and Oldfather) about achieving inner dialogue: write a haiku. If I have failed a second time, perhaps thinking about the human experience through poetry can gain additional credibility by quoting John Adams: “You will never be alone with a poet in your pocket.” Law students have both the ability and the responsibility to enhance our national discourse; let’s not disappoint.

Charles Franklin, director of the poll and newly-named professor of law and public policy at the Law School, said the purpose of the presidential questions at this point wasn’t to try to predict what will happen in 2016 in Wisconsin. Rather, he said, it is to begin building a picture of how the race will evolve.

That said, the poll found that 27% of those who said they were Republican or lean Republican named Ryan as their preferred candidate. Florida Sen. Marco Rubio was the choice of 21%, Wisconsin Gov. Scott Walker drew 16%, and New Jersey Gov. Chris Christie was picked by 11%. Those under 10% included Kentucky Sen. Rand Paul (7%); former Florida Gov. Jeb Bush (5%); and Louisiana Gov. Bobby Jindal (1%).

Clinton was the preference of 62% of Democrats and those who said they lean Democratic. Vice President Joe Biden was the choice of 13%. Drawing less than 10% were Massachusetts Sen. Elizabeth Warren (5%); New York Gov. Andrew Cuomo (4%); Massachusetts Gov. Deval Patrick (2%); Maryland Gov. Martin O’Malley (1%); and Virginia Sen. Mark Warner (1%).

In other matters, 76% of those polled said they favored a two-year freeze in tuition at University of Wisconsin system campuses. Gov. Walker originally proposed increasing the state allocation to the system by $118 million, and 50% favored sticking with that figure, while 44% favored reducing it.

The poll found little major change from the Law School’s poll in March in opinion statewide on several other issues that will come to a head in coming weeks as the state budget is set for 2013-15. Overall, 48% of those polled favored expanding the private school voucher program beyond Milwaukee and Racine, where vouchers are now available. Those opposed to expanding vouchers or saying they want vouchers eliminated altogether totaled 44%. In March, the figures were 51% for expansion and 42% against.

Two-third of those polled (67%) favored one of several possibilities for increasing public school funding, with 29% saying public school funding should be held flat or cut. That compared to 72% and 25% in March.

But asked which they gave higher priority, increased school funding or property tax reductions, the overall sentiment was 49% for holding down property taxes and 46% for school spending.

Opposition to use of borrowing, gas taxes, or increased vehicle registration fees to pay for highway improvements was strong – more than 70% in each case. Delaying road projects was favored by 52% of those polled.

Support for expanding background checks for people who want to purchase guns remains high – 72% — but is down from March, when it was 81%. In the intervening time, a move to expand background checks was stopped in Congress.

The poll of 717 registered Wisconsin voters was conducted between May 6 and 9. Even in the several days since then, major stories have broken, including the IRS admitting it focused extra attention on groups such as Tea Party organizations and the Justice Department saying it had examined telephone records of many editors and reporters working for the Associated Press. Franklin said he expected that issues of trust in government would be part of upcoming polls.

Full results of the poll can be found by clicking here.

Conflict over Clarke’s administration of the CCF-S seems connected to a wider ideological conflict between Clarke and other County leaders over the incarceration of relatively low-risk criminal offenders, with Clarke taking a very critical position regarding various criminal-justice initiatives that might be grouped under the heading “evidence-based decision making.”  (Background on the conflict is here; my critique of some of Clarke’s views is here.)  Clarke has been unsupportive of treatment programs and alternatives to incarceration, and his administration of the CCF-S has apparently reflected this perspective.  Finally, through its 2013 budget, the County Board decided to transfer control of the CCF-S back to a superintendent.  Clarke’s control over the downtown jail, which has been his all along, remains unaffected.

Clarke sued the County in order to block the transfer.  

His chief argument seems to be that, under the Wisconsin Constitution, each county’s sheriff has exclusive responsibility for all jails in the county.  Although the CCF-S had operated for decades outside the Sheriff’s control as a “house of corrections,” Clarke maintains that the CCF-S became a “jail” under his watch.  He concedes that the Board can run a house of corrections, but not a jail.  So, the case really seems to boil down to the question of whether the CCF-S is now a jail.

I can’t say I had ever given much thought to “sheriff law” before I began to follow this litigation, so I decided to do a little digging.

Interestingly, this is not the first lawsuit over the relationship of Milwaukee’s sheriff with the House of Corrections.  In fact, this was the subject of what may have been the seminal decision by the Wisconsin Supreme Court on the constitutional prerogatives of sheriffs.  The case was State ex. rel. Kennedy v. Brunst, 26 Wis. 412 (1870).  Here’s what happened: The state legislature adopted a law requiring Milwaukee’s sheriff to turn over all of his prisoners to the House of Corrections and formally designating the head of the HOC as the official jailer for the County.  (It would be interesting to know the backstory to that statute!)  When the sheriff refused to surrender his inmates, the head of the HOC sued to enforce the state law.  The Supreme Court, however, ruled in favor of the sheriff.  Here’s the key language from the court’s opinion:

The office of sheriff, in a certain sense, is a constitutional office; that is, the constitution provides that sheriffs shall be chosen by the electors of the respective counties, once in every two years and as often as vacancies shall happen. Sec. 4, art. 6. Now, it is quite true that the constitution nowhere defines what powers, rights and duties shall attach or belong to the office of sheriff. But there can be no doubt that the framers of the constitution had reference to the office with those generally recognized legal duties and functions belonging to it in this country, and in the territory, when the constitution was adopted. Among those duties, one of the most characteristic and well acknowledged was the custody of the common jail and of the prisoners therein. This is apparent from the statutes and authorities cited by the counsel for the respondent. And it seems to us unreasonable to hold, under a constitution which carefully provides for the election of sheriffs, fixes the term of the office, etc., that the legislature may detach from the office its duties and functions, and transfer those duties to another officer. In this case it is said that the legislature has attempted to take the largest share of the duties of sheriff, in point of responsibility and emolument, and to commit it to an officer selected by the county board of supervisors. If the legislature can do this, why may it not deprive the sheriff of all the duties and powers appertaining to his office, and transfer them to some officer not chosen by the electors? It would certainly be a very idle provision of the constitution, to secure to the electors the right to choose their sheriffs, and at the same time leave to the legislature the power to detach from the office of sheriff all the duties and functions by law belonging *415 to that office when the constitution was adopted, and commit those duties to some officer not elected by the people. For this would be to secure to the electors the right to choose a sheriff in name merely, while all the duties and substance of the office might be exercised by and belong to an officer appointed by some other authority. We therefore conclude that it was not competent for the legislature to take from the constitutional office of sheriff a part of the office itself, and transfer it to an officer appointed in a different manner, and holding the office by a different tenure from that which was provided for in the constitution.

Thus, in Kennedy, the fact that the constitution establishes the sheriff’s office as an elected one seems the basis for ascribing to the sheriff a set of powers (nowhere spelled out in the constitution) that lie beyond legislative interference.

(As an aside, I’ve often wondered about the history and wisdom of fracturing county-level executive authority in the way that we do, with multiple elected executive officers.  In the federal government, of course, we have a unitary executive, and it is hard to imagine how the system would work if, say, the Attorney General or the FBI director were elected independently of the President.  Are there good reasons for our county to operate differently?  Why not consolidate all executive functions in the County Executive?)

The Supreme Court has repeatedly reaffirmed and elaborated on Kennedy‘s basic ideas about the sheriff’s constitutionally protected powers.  There is an extensive treatment of the topic, for instance, in Kocken v. Wisconsin Council 40, AFSCME, AFL-CIO, 301 Wis.2d 266 (2007).  This passage provides some sense of the tensions that have emerged in the post-Kennedy cases:

¶ 39 Cases addressing the constitutional dimensions of the office of sheriff establish the following criteria for identifying a sheriff’s constitutional powers, rights, and duties: certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office are constitutionally protected from legislative interference.

¶ 40 Nevertheless, the constitution does not prohibit all legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law. “[I]internal management and administrative duties … [that] neither gave ‘character’ nor ‘distinction’ to the office of sheriff … fall within the mundane and common administrative duties of a sheriff which may be regulated by the legislature.”

¶ 41 The court has carefully explained its reasoning for allowing legislative change to certain powers, rights, and duties of a sheriff as follows: If the legislature could not act, “a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree, and in this respect ‘the state would be stretched on a bed of Procrustes.’”

In the absence of any guidance on sheriffs’ powers in the text of the constitution itself, the court has looked to historical practice in order to fill the void.  Yet, the court has also been very wary about rigidly constitutionalizing all aspects of what sheriffs did in the nineteenth century.  The result has been an unpredictable balancing act, with cases turning on the hazy line between “distinctive” and “mundane” administrative duties.  As the Kocken court itself observed, “The traditional constitutional analysis is not, however, easy to apply.”  Reflecting the difficulty, the court divided 4-3 in Kocken over the power of the Brown County Sheriff to outsource food preparation for his inmates.

But the Kocken court did affirm at least one clear principle that is relevant to the current dispute in Milwaukee: ”We begin our analysis of the case law by stating that the operation of the jail and the custody and care of jail inmates are part and parcel of the duties from time immemorial belonging to the office of sheriff and are distinctive to the office.”  Thus, it does indeed appear that responsibility for the CCF-S depends, as a legal matter, on whether the CCF-S is a jail.

How does one know whether a given detention facility is a jail?

One possibility, roughly consistent with the historical approach described in Kocken, would be to ask whether the facility would have been regarded as a jail in the nineteenth century.  But what are we to do if the facility has some attributes of a nineteenth-century jail and not others?  The difficulty implicates the very sort of philosophical divide so apparent now in Milwaukee County.  The less a facility is viewed as a mere warehouse — and the more as a center for the administration of rehabilitative services and monitoring for offenders circulating regularly into the community for jobs, counseling, classes, and so forth — the harder it is to figure out how to classify it relative to historical norms.

Under the historical approach, there may even be perverse incentives for sheriffs to resist promising innovations in jail management for fear that some constitutional power over the facility will be lost.

A more conceptually straightforward dividing line might be between facilities that house pre-sentencing inmates (the classic jail population) and those that house post-sentencing inmates.  But what to do about those facilities that house both?

Maybe we should just say that the primary (largest?) facility in each county for housing unsentenced criminal defendants is the jail; any other facilities lie beyond the sheriff’s constitutional power.  (Of course, one imagines that counties would generally want to turn over secondary facilities to the sheriff as a matter of convenience, even if not as a matter of constitutional mandate.)  This approach would respect the basic sensibility of Kennedy and Kocken that sheriffs must be given some significant, legislatively untouchable sphere of discretionary authority, without unduly stifling the capacity of other stakeholders to develop and implement innovative approaches to managing offender populations.

There are doubtlessly many other approaches that could be devised for the “what is a jail” problem.

In the event, the CCF-S litigation seemed to turn on whether the County Board intended to change the character of the HOC through the 2009 transfer to Clarke.  Here is what seems to me the key portion of the Circuit Court’s opinion:

The 2009 Adopted Budget which effectuated the transfer stated: “In 2009 the Sheriff assumes the management of the House of Corrections (HOC) and all associated facilities.”  Additionally, in that same section of the Budget (Section 4300) the language states: “The functions of the House of Corrections (HOC) are defined in Chapters 302, 303, 304, and 973.”  This language used by the County indicates that Clarke is to take over management of the statutory HOC. . . . [T]here is nothing in the language of the 2009 budget which indicates that the intent of the County was to discontinue the statutory HOC.  The document must be interpreted by the language on its face and that language unambiguously continues the current statutory HOC.”  (5)

The Circuit Court was not swayed by Clarke’s argument that the inmate composition of the CCF-S, including both pre- and post-sentencing defendants, was largely the same as that of the downtown jail.  There is some appeal, I think, to determining the status of a facility by reference to who is housed in it.  On the other hand, it is far from clear what percentage of what type of inmate must be present so as to constitute a jail.  Moreover, there may also be concerns about the sheriff’s ability to manipulate the constitutional status of a facility by simply shifting inmates around.  (Indeed, reports surfaced at the end of last week of mass inmate transfers between the CCF-S and the downtown jail in the wake of the Circuit Court’s ruling.)

Should Sheriff Clarke appeal the Circuit Court’s decision?  It would be interesting and potentially useful for the Supreme Court  to weigh in on the “what is a jail” question.  However, another year or more of uncertainty surrounding control of the CCF-S would be a steep price for the County’s criminal-justice system to pay.

Cross posted at Life Sentences.

The idea behind the public safety exception makes sense: gathering information from a suspect to ward off an immediate threat. The exception was originally created nearly 20 years ago, but in the past 10 years or so, has become stretched (some say past recognition) to deal with terrorist threats. But that’s neither here nor there — the public safety exception and the suppression of evidence obtained from it is a trial lawyer’s concern.

First, told or not told, Tsarnaev has all of the same rights every American citizen has, including the right to remain silent and the right to an attorney. In this era of cop and robbers television (“Law & Order” in all its various forms has been on the air for 23 years), it seems self-evident that a person has those rights. But still, whether he knows he has those rights or not, the government has an obligation to inform a suspect he has them. But what happens when the defense persuades a court that law enforcement interrogated a person in violation of Miranda? That evidence is suppressed and so are the fruits of it. This is the part that really interests the appellate lawyer in me, because the question I keep coming back to here, is: so what?

If any of the news reports are to be believed, and obviously those outside of the parties won’t know until the trial, if there is one, the government has built a relatively strong case against Tsarnaev without his help. So even if some of his statements are suppressed, it doesn’t really matter because the government will still have plenty of evidence to go around. Presumably, the people who did the interrogating had a really good sense of what evidence they already had against him. Perhaps, sure in its case (even though the investigation was in the infancy), the government opted to question Tsarnaev and ask him everything it could think of. Worst case scenario, some cumulative evidence gets suppressed.

This kind of approach is particularly worrisome because it gives the government a free pass to do whatever it wants. Here, the risks didn’t outweigh the rewards; they couldn’t possibly. And so the “extraordinary remedy” of suppression was no threat at all. Does that really matter? I don’t know if that’s a valid concern or not. Cases like Tsarnaev’s are thankfully few and far between. In the everyday run-of-the-mill drug-conspiracy case, for example, it would seem rare that the government would not have this kind of free pass. The worry, I suppose, is if the free pass given in extraordinary terrorism cases keeps getting broadened and broadened so that it does start coming into play in run-of-the-mill cases. That seems to be precisely what has happened to the public safety exception since its inception in the mid-‘80s.

Even more broadly, this is the challenge for everyone in the criminal justice system: to treat the “fraction of a fraction of a fraction of a percent of the population on this planet,” who commit horrible acts against humanity as we would treat our beloved heroes. Because when we move the line, or erase it, to deal with one person who acted in one specific way, we don’t just punish the one person, we risk our way of life and the core values our country was founded on.

This tension between getting the bad guy and enjoying freedom is on full display as technology continues to advance. Fourth Amendment law regarding search and seizure is evolving as we speak. I’ll address this in my next post, after I present a webinar on the topic, Eyes in the Sky: the 4th Amendment & 21st Century Technology on May 9 at noon.

The megacity that stretches along Lake Michigan, from north of Milwaukee down through Chicago to northwestern Indiana, was the focus of a July 2012 conference at Marquette Law School, “Milwaukee’s Future in the Chicago Megacity.” The magazine includes two essays building on presentations at that conference: “Rivalry, Resignation, and Regionalization,” by historian John Gurda, and “Flying Too Close to the Sun?” by urban blogger and expert Aaron Renn. My own contribution is an overview of efforts to build cooperation in economic development in the tri-state region.

The magazine also presents “The Civil War, Reconstruction, and the Origins of Birthright Citizenship,” an essay by Columbia University historian Eric Foner based on his Boden Lecture at Marquette Law School last fall, and “The Accidental Crime Commission: Its Legacies and Lessons,” by Franklin E. Zimring, of the University of California, Berkeley’s law school, based on his Fall 2012 Barrock Lecture here.

Marquette Law Professor David Ray Papke gave a lecture in Uganda on the connection between the law and social power. “Exploring Socio-Legal Dominance in Context: An Approach to American Legal History,” based on his talk, is included in the new magazine.

The magazine also contains news of the Law School and of some of its students and alumni. The printed magazine is being sent to Law School students and alumni across the country and to many others. You can get a jump on reading this issue on the Law School’s website.

To read the interactive version of the magazine, click here.

To read specific articles and sections, click on any of these:

For all three pieces on the Chicago megacity, click here.

The individual pieces are available by clicking on each of these:

Emerging Megacity: Perspectives on the Future of Chicago and Milwaukee

Thinking and Acting (and Flourishing?) as a Region

Rivalry, Resignation, and Regionalization

Flying Too Close to the Sun? 

And you can click on each of these:

The Civil War, Reconstruction, and the Origins of Birthright Citizenship

The Accidental Crime Commission: Its Legacies and Lessons

Exploring Socio-Legal Dominance in Context: An Approach to American Legal History

Law School News

Remarks of Dean Joseph D. Kearney at the Investiture of Circuit Judge Lindsey Grady

From the Dean

Alumni Class Notes

Alumni Awards

Nine judges of the United States Court of Appeals for the Seventh Circuit were on the bench at the ceremonial session in memory of Coffey, who died last November at 90. Chief Judge Frank H. Easterbrook said the location was appropriate because Coffey “thought the world of this school—this is where Jack Coffey would have wanted this celebration.” Coffey graduated from Marquette University in 1943 and from Marquette Law School in 1948 and was well known for his loyalty to Marquette.

Beginning in 1954, Coffey served as a judge in Milwaukee County, until he became a member of the Wisconsin Supreme Court in 1978. He joined the federal appeals court in 1982. In 2012, he announced he would not take part in cases—although, as was noted during the session, he didn’t really say he was retiring either.

“Jack did not see much ambiguity,” Easterbrook said. He described Coffey as a passionate advocate who once emphasized a written point he was making by underlining, bold-facing, and italicizing the passage. “He missed only the opportunity to put it in a larger font,” Easterbrook said.

Coffey was “a rock when it came to defending his principles,” Judge Rudolph T. Randa of the United States District Court for the Eastern District of Wisconsin told the audience of about 200.

Marquette Law School Dean Joseph D. Kearney said, “Jack Coffey focused relentlessly on the future,” including the future of the Law School. Coffey was one of the first alumni to encourage Kearney to consider leading the Law School out of Sensenbrenner Hall.

Francis Schmitz, who was a law clerk for Coffey in 1983-84, said that working for Coffey “was not unlike the parental concept known as tough love.” The judge was a demanding, no-excuses, no- cutting-corners boss who cared greatly and compassionately about those who worked for him, Schmitz said.

Peter Robbins, a grandson of the judge, said Coffey asked for divine guidance every day because he sat in judgment of others. He believed in hard work—“he always endeavored to know more”—but his family meant everything to him, Robbins said.

Coffey’s son, Peter Coffey, recounted how his father was one of ten children, all of whom graduated from Marquette.

Easterbrook said that Coffey had a reputation of being a dissenter, but during Coffey’s time on the federal appeals bench, there were 93 cases heard en banc and Coffey was in the majority in 78. He wrote the opinions in 11, which, Easterbrook said, was more than his share. “We miss his presence in our circles,” Easterbrook said.

My fellow law students and I will enter a legal world that is more globalized than ever before.  American clients are increasingly becoming subject to jurisdictions beyond United States borders, as corporations are diversifying their business throughout the world in response to the world-wide economic turmoil in recent years.  Now, it would not be uncommon for a business to be incorporated in Delaware, and have affiliated companies in Brazil and France.  This same company may well hold bank accounts in Switzerland, have assets in South Africa, invest in Saudi Arabia, and conduct business transactions in Japan.  As a result, lawyers may be asked to provide advice on how a French subsidiary of an American parent company would be taxed and whether any international tax conventions apply; what happens if an American financial institution enters into a contract with a Saudi lender and the contract fails to meet the strict requirements of Islamic finance law; or what if an American car dealer enters into a sales contract with a German car manufacturer and the contract fails to meet EU sales directives?  Questions such as these are becoming more and more relevant and American attorneys need to be able to provide answers to clients who wish to do business abroad. 

Although American clients become involved in cross-boarder legal issues on a daily basis, the American legal education system does not adequately equip its graduates to advise clients about crucial issues such as foreign tax laws, international shipping law, telecommunications law or international business transactions.  Granted, students at American law schools must study American law; that is obvious.  And it is equally obvious that American law schools cannot offer education in every legal system where American clients may venture.  But at the very least, law schools should provide their students with the opportunity to obtain a basic understanding of relevant laws in key jurisdictions.  Currently, the largest foreign markets are the European Union, the Middle East, and Southeast Asia.  The EU member states are cooperating to develop and implement more uniform transactional and commercial laws across Europe through the implementation of harmonization directives.  The Middle East has made similar harmonization efforts with the establishment of the Gulf Cooperation Council and has become a major global financial center due to—among other reasons—restrictions on loan interest charges under Islamic financial law.  In Southeast Asia, the New Silk Road is becoming the center for international shipping and the transportation of goods from China to both Europe and the United States.  American law students who wish to practice transactional law would greatly benefit from obtaining a basic understanding of the commercial laws and practices in these regions.  Although American lawyers may not become licensed to practice in each of these regions, it would still do us well to obtain a basic understanding of the law in these areas so we are able to effectively communicate with foreign attorneys when our future clients inquire about doing business abroad.

In sum, I strongly encourage American law students to study abroad and learn about the legal cultures of other jurisdictions.  In addition, I believe that American law schools should provide more robust course offerings in international law, comparative law, and foreign transactional law.  Both are critical in helping students prepare to serve their future clients’ needs, if and when these needs extend beyond the borders of the United States.

John Keats (1795-1821) was an English Romantic poet. Keats wrote for six years before he died of tuberculosis in Rome at age 25. During that short time, he created some of the most beautiful verse, such as his sonnet, “On First Looking into Chapman’s Homer” (1816):

Much have I travell’d in the realms of gold,
And many goodly states and kingdoms seen;
Round many western islands have I been
Which bards in fealty to Apollo hold.
Oft of one wide expanse had I been told
That deep-brow’d Homer ruled as his demesne;
Yet did I never breathe its pure serene
Till I heard Chapman speak out loud and bold:
Then felt I like some watcher of the skies
When a new planet swims into his ken;
Or like stout Cortez when with eagle eyes
He star’d at the Pacific–and all his men
Look’d at each other with a wild surmise–
Silent, upon a peak in Darien.

Richard Woodhouse was an English barrister who represented Keats’ publisher, Taylor and Hessey. Keats and Woodhouse became friends, and Woodhouse encouraged Keats in his writing. Keats was to receive an inheritance when he turned 21, but he did not know of the inheritance. As such, Keats struggled for want of money, and his publisher gave him an advance on his second book. To me, Woodhouse had a unique view of Keats that came in part from Woodhouse’s work as a lawyer: Woodhouse, as a lawyer, was able to evaluate Keats both professionally and personally, and he recognized Keats’ talent.

The Norton Anthology (1968 ed. at 716) includes the following passage, in which Woodhouse noted Keats’ thoughts on writing. This passage provides insights into how a serious writer approaches his or her craft:

Richard Woodhouse: Keats on Composing, From Notes on Keats

“My judgment,” [Keats] says, “is as active while I am actually writing as my imagination. In fact all my faculties are strongly excited, and in their full play.—And shall I afterwards, when my imagination is idle, and the heat in which I wrote has gone off, sit down coldly to criticize when in possession of only one faculty what I have written when almost inspired.”—This fact explains the reason of the perfectness, fullness, richness, and completion of most that comes from him. He has said that he has often not been aware of the beauty of some thought or expression until after he had composed and written it down.—It has then struck him with astonishment, and seemed rather the production of another person than his own.—He has wondered how he came to hit upon it. This was the case with the description of Apollo in the 3rd book of Hyperion, “white melodious throat.” . . . It seemed to come by chance or magic—to be as it were something given to him.

And, here is a letter from Keats to Woodhouse (October 27th, 1818, original spelling), which shows Keats’ candor in addressing Woodhouse.  The letter also reminds me in some ways of the structure of an argument:

My dear Woodhouse,

Your Letter gave me a great satisfaction; more on account of its friendliness, than any relish of that matter in it which is accounted so acceptable in the ‘genus irritabile’. The best answer I can give you is in a clerk-like manner to make some observations on two princple points, which seem to point like indices into the midst of the whole pro and con, about genius, and views and achievements and ambition and cetera. 1st. As to the poetical Character itself (I mean that sort of which, if I am any thing, I am a Member; that sort distinguished from the wordsworthian or egotistical sublime; which is a thing per se and stands alone) it is not itself – it has no self – it is every thing and nothing – It has no character – it enjoys light and shade; it lives in gusto, be it foul or fair, high or low, rich or poor, mean or elevated – It has as much delight in conceiving an Iago as an Imogen. What shocks the virtuous philosopher, delights the camelion Poet. It does no harm from its relish of the dark side of things any more than from its taste for the bright one; because they both end in speculation. A Poet is the most unpoetical of any thing in existence; because he has no Identity – he is continually in for – and filling some other Body – The Sun, the Moon, the Sea and Men and Women who are creatures of impulse are poetical and have about them an unchangeable attribute – the poet has none; no identity – he is certainly the most unpoetical of all God’s Creatures. If then he has no self, and if I am a Poet, where is the Wonder that I should say I would write no more? Might I not at that very instant have been cogitating on the Characters of Saturn and Ops? It is a wretched thing to confess; but is a very fact that not one word I ever utter can be taken for granted as an opinion growing out of my identical nature – how can it, when I have no nature? When I am in a room with People if I ever am free from speculating on creations of my own brain, then not myself goes home to myself: but the identity of every one in the room begins so to press upon me that I am in a very little time annihilated – not only among Men; it would be the same in a Nursery of children: I know not whether I make myself wholly understood: I hope enough so to let you see that no despondence is to be placed on what I said that day.

In the second place I will speak of my views, and of the life I purpose to myself. I am ambitious of doing the world some good: if I should be spared that may be the work of maturer years – in the interval I will assay to reach to as high a summit in Poetry as the nerve bestowed upon me will suffer. The faint conceptions I have of Poems to come brings the blood frequently into my forehead. All I hope is that I may not lose all interest in human affairs – that the solitary indifference I feel for applause even from the finest Spirits, will not blunt any acuteness of vision I may have. I do not think it will – I feel assured I should write from the mere yearning and fondness I have for the Beautiful even if my night’s labours should be burnt every morning, and no eye ever shine upon them. But even now I am perhaps not speaking from myself: but from some character in whose soul I now live. I am sure however that this next sentence is from myself. I feel your anxiety, good opinion and friendliness in the highest degree, . . . .

At this 11th hour of National Poetry month, earlier celebrated by Professor Lisa Mazzie in her blog, let’s remember Keats and his lawyer and friend.

Last June, a Turkish F-4 Phantom jet accidently (although it may not have been an accident) entered Syrian air space and after notification by Turkish air traffic control, exited to international airspace where it was subsequently shot down by a Syrian air defense system. This action and after Syrian troops fired on refugee camps in Turkey prompted Recep Tayyip Erdoğan, the Turkish Prime Minister, to threaten to invoke Article V in an effort to force the United States and North Atlantic Treaty Organization (NATO) members into action. Although Article V is typically used as a last resort—with its first invocation occurring on September 12, 2001, in response to Al Qaeda’s attack on the United States—there is no definition of “armed attack” or criteria to determine how or when NATO countries are required to assist. A member country can merely call for Article V protection. In full, Article V spans 146 words to bind member states:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the (U.N.) Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article V is similar in nature to the alliance system that helped drag most Western powers into World War I. The potential for a small-scale conflict between Turkey—Syria, like the Austria-Hungary–Serbia conflict that kicked off World War I, to result in regional and then global conflict is not that far fetched. Indeed, many world leaders thought the Triple Entente would balance the Triple Alliance and ensure deterrence. Similarly, the purpose of Article V and the North Atlantic Treaty was created to check the rising threat of Soviet power. Although Article V does not require a military response, unlike the Treaty of Brussels that the North Atlantic Treaty was based on, commentators consider it possible that Article V can trigger entanglement in Syria.

It is entirely clear that the reasons for invocating Article V and its requirements on member states to act is not clear. The fact that Article V has only been invoked once seems informative, but this does not reduce the possibility of a member state, like Turkey, invoking Article V when Syrian forces shoot down one of their planes in international waters or launch mortars across their border. Certainly, this type of attack against the United States has prompted immediate and aggressive action. Even if other alternatives to punish Syria were used, say United Nations sanctions, this would not rule out the possibility that Turkey could use direct action or invoke Article V, resulting in entanglement beyond country-to-country to conflicts among international organizations.

Even if Turkey invokes Article V, there is a strong possibility that member states, including the United States, would refuse action or sell short the action it “deems necessary,” rendering the North Atlantic Treaty somewhere between symbolic and hollow. The North Atlantic Treaty is a paradox: it seeks to deter conflicts by requiring member states to act when one of their own invokes Article V. To be sure, the system is based on the concept of self-defense, but it is in deterring attacks that the treaty system relies. Without the support of each member the system falls apart. With the support of each member the system perpetuates entanglements or encourages, rather then deters conflict. The treaty system deters until one domino falls, then the trajectory becomes increasingly difficult to plot and can transform a conflict between states into a regional and then intercontinental conflict.

The ability of NATO allies to invoke Article V and trigger the United States automatic involvement in another struggle, without the debate required of our elected officials is a frightening proposition. The current paradoxical state of NATO and the treaty system should be reevaluated in light of current regional security risks posed throughout the globe and seek to create a balanced system that will decrease, rather than increase, the prospect of multi-state conflict.

My objections to the Dutch monarchy stem in no small part from the undemocratic nature of an unelected head of state. The notion that my fellow Dutch citizens and I are “subjects” of our queen or king seems not only outdated, but also fundamentally at odds with self-government. Even those who defend the monarchy tend to emphasize its ceremonial character–which, ironically, makes it harder to justify the significant expenses associated with the institution.

Moreover, there is something troubling about inherited titles generally, and this is even more the case when titles are attached to positions of power or even influence. At least until the Netherlands abolishes its monarchy, Dutch citizens get stuck with whichever member of the royal family is destined to take the throne (although I have no doubt that a solution will be found if a presumptive heir turns out to be truly unacceptable). The lack of choice, however, cuts both ways, and heirs apparent don’t have much say in the matter either. Sure, Willem-Alexander’s oldest daughter Princess Amalia could relinquish her entitlement to the throne. But that would involve defying the expectations pinned on her by an entire country from the time her mother’s pregnancy was announced. Moreover, her presumptive vocation has already cast a tremendous shadow over her childhood. Imagine always knowing what you will do with your life; not as a result of a strong inner calling, but because your future is laid down in your country’s Constitution. Who would want to trade places with her?

At times, members of the Dutch royal family provide a glimpse of the burdens that come with an inherited destiny. When Queen Beatrix ascended the throne in 1980, she said: “This is not an office that one acquires. No human being would ask for this vocation.” And Prince Willem-Alexander’s younger brother Friso (who, sadly, is in a coma as a result of a skiing accident) once remarked as a child: “If you want to beat up Willem-Alexander, fine, go ahead. But please don’t kill him, because then I have to become king.”

It is hard to muster sympathy for ultra-wealthy monarchs and their families when millions of people are struggling in conditions of extreme poverty and violence. Yet constitutional monarchies impose substantial restrictions on royalty members, especially those who are in line to succeed to the throne. In the Netherlands, the prime minister and his or her cabinet are accountable for statements made by members of the royal family. In practice, this means that members of the royal family cannot speak freely. Partner choice, births and funerals become state affairs. In an op-ed in the New York Times, Dutch author Arnon Grunberg argued (in jest, although his underlying points are serious indeed) that since the function of royalty is now essentially a form of public theater, the Dutch may as well hire actors at a fraction of the cost. But the appeal of kings and queens is precisely that they did not apply for the job. That is the pact between paid royalty and their subjects, and I think it is ultimately an inhumane one.

Despite—or maybe because of—all these things, I will engage in a modest and solitary celebration of this last Queen’s Day. My Facebook profile features tulips and lots of orange, and I plan to watch at least some of the news coverage about the investiture. And I will raise a glass to Queen Beatrix’s formidable performance in this strange job for which she never applied.

These developments strike me as interesting for a couple of reasons. First, they form half of a two-dimensional assault on a classical model of international relations, which identifies heads of state and their agents as the critical channels for official communication. Diplomacity amounts to a vertical assault on that model because it reflects a dispersion of diplomatic activity among national and local authorities. Communication by national officials other than heads of state—such as legislators—forms the other half: a horizontal assault in the form of a dispersion of diplomatic acts among component parts of national governments. Neither of these is new, but both have intensified under globalization. The result is an entirely different picture of international relations. If diplomacy under the classical model was centralized and tidy, the contemporary counterpart is decentralized and cluttered with a broad range of actors. This has both benefits and disadvantages. States and localities, for example, will often possess unique perspectives on international problems and unique capacity to develop solutions, but the proliferation of voices may also complicate the management of inter-state relations.

Second, the assault on the classical model in turn places pressure on American constitutional doctrines that are premised on that model, such as doctrines regarding “dormant foreign affairs preemption” and the diplomacy powers of the President. In its most robust form, dormant foreign affairs preemption holds that the Constitution’s allocation of foreign affairs powers to the federal government implicitly bars states and localities from taking any actions with adverse foreign policy implications that are more than “incidental.” The growing volume of diplomacity means that states and localities are increasingly likely to run afoul of this limit. Similarly, the horizontal proliferation of diplomatic acts has resulted in legislative incursions on the traditional diplomacy powers of the President. These tensions call for scrutiny of both non-classical forms of diplomacy and the justifications for the traditional legal restrictions that they encounter. There have been several good academic critiques of dormant foreign affairs preemption, and I have previously written on the issue of horizontal dispersion (here). Viewing diplomacity and legislative diplomacy as related phenomena is important because these practices implicate the same concerns about centralization and unity of message in U.S. foreign relations. If one accepts diplomacity even where it complicates the President’s job of establishing a single, coherent position on any given policy matter, it is harder to oppose legislative diplomacy for having a similar effect. And the same holds true in the other direction. Likewise, if one favors diplomacity as a democratizing force that incorporates a broader array of actors into international relations, the same consideration should encourage support for legislative diplomacy.

The time-keeping exercise is designed to provide students practice with billing their time, learning, for example, how to convert, say, twenty minutes of reading cases to .3 of research.  It’s also an exercise designed to give them practice on what kinds of activities to bill. The time spent online looking for case law? Yes.  The writing of the brief?  Of course.  But what about that one-hour meeting with the professor?  Sure.  I’d call that an office conference and lawyers have those all the time. 

After students have finished their first briefs and have turned in their time sheets, I have them reflect on keeping time and ask them what they learned from the exercise. Most students aren’t fond of the exercise, but do recognize its value. One student once asked why I couldn’t ask them to keep track of their time in “normal” increments, like .25, .50, .75, and 1.00. This year, one student responded that keeping time was, for him, incredibly painful.  You see, he said, he has Attention-Deficit, Hyperactivity Disorder (ADHD).

According to the Center for Disease Control and Prevention (CDC), ADHD is “one of the most common neurobehavioral disorders of children . . . and often lasts into adulthood.”  This being so, then, many of our newer lawyers likely have been diagnosed with ADHD. Among the symptoms commonly associated with children with ADHD, is lack of sustained attention, daydreaming, distractibility, and forgetfulness. Many of these same symptoms show up in adult ADHD, but may manifest themselves somewhat differently.  Two prevalent symptoms the adult with ADHD experiences, as he has likely experienced his whole life, are trouble concentrating and disorganization.  These two symptoms alone suggest that a rote and highly particularized task such as time keeping in practice is likely difficult for lawyers with ADHD.     

The point of this post is not to debate the existence of ADHD or whether it is over-diagnosed. The point here is to begin a discussion about how lawyers with ADHD manage one of the most important aspects of day-to-day law practice.  A query to the legal writing listserv on that topic returned some useful comments and tips. One person suggested using a stopwatch or a timer to keep track of every short span of time spent and adding up that time later. Others listed a number of timekeeping programs, including Toggl, StayFocusd, and an app called Harvest, to name a few.  One person suggested the Pomodoro Technique. 

Time keeping programs and apps are certainly useful, but they all require the lawyer to train herself to actually remember to use them.  If being forgetful and disorganized are hallmarks of ADHD, then no organizational tool will be worthwhile if the person can’t remember to use it and use it regularly. What other helpful tips are out there for keeping time?

From Amber Ragonese:

Almost everything the average (non-Jewish) American hears about Israel is in some way related to the Israeli-Palestinian conflict.  Almost everything the average (non-Middle Eastern) American hears about the Middle East is in some way related to war.  Until participating in the Conflict Resolution course, I was no exception.  We hear of suicide bombers attacking crowded markets and public transit.  We hear of rockets crossing over the southern borders and of Palestinians  being targeted by Israeli military forces.  Given this background, I was a bit surprised to find myself around day three of our eight-day escapade suddenly realizing that not a moment had passed in which I felt unsafe or worried about my  security or overall well-being.  

In fact, when I came to this realization I found that I felt safer in Israel than I do walking back to the Wells Street parking structure after night classes.

The first moment I gained a better sense of my location in the world was while overlooking Syria from the Golan Heights.   Even then, had I not been told of the position, I could have easily been viewing a pasture in any Mediterranean climate.  It wasn’t until three UN peacekeepers stopped their patrol to speak to us and pointed out the loud noise we just heard was in fact a Syrian bomb, that reality began to creep back.  And yet – the environment was still oddly not odd.  Normal.   Serene. Beautiful, even.  I knew the sound was a bomb and logically understood the potential devastation it could have caused, but it was still difficult to grasp: there were no screams, there was no blood, there were no crumbling buildings in sight.

The Israeli-Palestinian conflict exists as do other pockets of violence in the region, and while there’s little doubt numerous families have been devastated by the clashes, it is entirely  possible to visit the region in a blissful and naïve ignorance of it all.  With the exception of the daily sight of the Israeli Defense Force and their assault weapons attached at the hip, one may actually have to force oneself to remember the conflict exists in order to experience any sign of it.  And so the question arises: is it possible that daily media reminders of how dangerous and destructive a place is can actually make it safer?

From Aneet Kaur:

Ever since returning from Israel I’ve been asked again and again about how the trip went and have even gotten many “good to see your back in one piece” comments. These statements made me realize how little we really know what is going in the Middle East. Quite honestly, prior to going on the trip I had the same general idea of Israel as well. However, reflecting back I can’t think of one time in Israel when I felt unsafe. Going to Israel has been a life changing experience for me.  That’s not a statement you can make after many trips. I’ve tried to explain it to my family and friends but somehow I feel my words and pictures won’t do justice to my experience. Besides the country itself and the amazing sights, the experience was so much greater because of the people we got to hear speak. In a matter of a week, the number of different people and different perspectives we were introduced to is not something you can accomplish on many trips. Even though I knew how emotionally charged the conflict in Israel is, being able to hear from so many different people who are personally affected and connected to the conflict gave me a different outlook on it.

Last year, on this blog, several of us wrote about poetry, sharing our favorites, composing new poetry in both traditional and different ways, or exploring poetry in and about the law.  As student Gabe Houghton noted this post, there are some judges who compose opinions in verse.

As April closes, I just wanted to remind everyone that poetry should be celebrated all months and remember that there are many kinds of poetry.  Songs can be considered poetry set to music. There are also poetry slams.   My favorite in this last genre is Taylor Mali, teacher and poet.  You can see him perform his poem “Totally like whatever, you know?” here.  It’s a nice reminder for those of us who love language that what we say, as well as how we say it, matters.

Mayor Barrett says the Governor’s proposal doesn’t belong in the budget, since it’s not a fiscal item. But Barrett’s concerns go much deeper. In a recent e-mail to supporters, Barrett said an end to the city’s 75-year-old residency requirement could “destabilize” Milwaukee. I pressed the Mayor on that claim in a recent television interview. He said philosophically he agrees with the notion that people should be able to live where they want, but that local municipalities should be able to determine the conditions of employment for the people they hire. In Barrett’s world, that translates into a simple reality. If you don’t want to live in Milwaukee, don’t apply for a job with the city. He said there’s been no shortage of applicants.

Perhaps more important, Barrett said the value of assessed property in Milwaukee had fallen five billion dollars because of the economic downturn. He argued that based on experiences in other cities, such as Detroit, Minneapolis, Baltimore, and Cleveland, significant numbers of city employees were likely to leave the city should the residency requirement be lifted. Barrett was making the case that there was great risk to his city, and he wanted to show me a map he carried with him into the television studio. You can see it here. Because of the amount of data in the file, it takes about 10-15 seconds to present itself.

The map shows the gravity of Milwaukee’s foreclosure crisis. Foreclosed properties are in red. As of last week, there were nearly 2600. Blue represents where the more than 7,000 city employees live. Besides helping stabilize struggling sections of Milwaukee, city employees are the backbone of a number of healthy, middle-class neighborhoods, including Bay View and the southwest, far south, and far west sides. These neighborhoods are home to hundreds of police officers and firefighters. But what happens if, as the Mayor believes, 40 to 50 per cent of those blue dots—city employees—move outside the city? Will there be a dramatic downward pressure on property values?

The Mayor contends the end of residency was a promise Governor Walker made to the Milwaukee police and firefighters unions in an effort to gain their support during his bid for Governor. Walker argues that personal freedom should trump conditions of employment, and that at the end of the day, it’s up to the city to become a more attractive place to live. Neither man knows exactly what will happen should the requirement be eliminated. Nor do they know what Mayor Barrett’s map will look like 10 years from now. But if Barrett is right, it will be a lot less blue, and Milwaukee could be a very different city.

“Dad, you guys are in Wisconsin correct?”

“Yes, we are in Wisconsin.”

“Excellent. Dad, Mom, as an aspiring law student, and in order to adhere to the heightened Ethical Code that comes with being a lawyer, please understand I cannot provide any legal advice… but I think you should read the contract and ski away!”

As many of you know or have faced in the past, my poor parents (who are both lay persons i.e. nonlawyers) were face-to-face with one of the most daunting and difficult features of contract law—the exculpatory clause. Although I wanted to tell my parents as bluntly as possible, “sign the contract,” I had to refrain in order to abide by the high ethical standards of my future profession. Nonetheless, we have all had experience with an exculpatory clause (contract of adhesion) before: rock climbing, skiing, roller blading or playing in the “ball pit” at Chucky Cheese. These contracts are usually long, usually time consuming, and usually full of dauntingly unfamiliar (for the layperson) boilerplate legal terms. Additionally, do these contracts not always come up at the worst times? You’re sitting around, sweating in your winter coat, buzzing to get on the hill, when an overworked ski instructor waltzes around the corner saying “before you can go out, please sign this stupid form.” In reality, us lawyers know these forms are not “stupid” but in fact, extremely important. Consequently, the nature and validity of these exculpatory clauses has been debated throughout the legal world for quite some time.

As I asked my father, it was important to know if he was signing the exculpatory clause in Wisconsin because the Wisconsin Supreme Court has yet to uphold the validity of an exculpatory clause. Said differently, every exculpatory clause brought before the Wisconsin Supreme Court has been voided as against public policy. This begs the question, is there any way a Wisconsin company/corporation can protect themselves from being sued? It appears not.

Pursuant to Wisconsin case law, exculpatory clauses are not favored because these clauses usually allow conduct below the acceptable standard of care afforded under tort law. Richards v. Richards (Wis. 1994). However, not all exculpatory clauses are automatically invalided against public policy. Many other states have enforced exculpatory clauses despite the factual situations around the covenant.

Accordingly, the Wisconsin Supreme Court has laid out 3 factors that must be present to uphold an exculpatory clause: (1) the language must not be overly broad or all-inclusive, (2) the clause must give the signer adequate notice of the waiver’s nature and significance, and (3) the clause must provide an opportunity to bargain over terms. (Richards). Consequently, one would assume a gifted Wisconsin lawyer could draft a valid exculpatory clause, adhering to these elements. However, this is not the case. Consistently, the Wisconsin Supreme Court has voided these clauses even when the three elements appear to be present.

For example, in Atkins v. Swimwest Family Fitness Ctr., (Wis. 2005), a son brought a wrongful death claim against a fitness gym after his mother was found dead in the facility’s three foot deep swimming pool. Prior to using the training pool, Ms. Atkins signed an exculpatory clause entitled “Waiver Release Statement.” (Atkins). Specifically, the exculpatory contract was printed on a 3 x 5 inch note card that used precisely defined language that was not overly broad, provided the signee and opportunity to bargain, and was entitled Waiver and Release. Prima facie, the exculpatory clause seems to possess all 3 elements. However, the Wisconsin Supreme Court voided the contract because the language “I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT” was too restrictive. As such, the word “fault” was deemed to be all-inclusive because it “encompassed too many situations.” (Atkins). One would assume (and maybe hope?) most people understand the word fault, and if for any reason they didn’t, would ask the manager of the fitness center to explain the term. However, maybe I am wrong.

Other exculpatory clauses have been treated similarly by the Wisconsin Supreme Court. See Richards, Atkins, and Yauger v. Skiing Enters (1996). Now I understand that Wisconsin has traditionally been a “pro little guy” state. However, I do think businesses should be given some sort of protection from being sued. I am just unconvinced that the Atkins situation merits the surviving child the ability to sue the Fitness gym for huge $bucks$ after his mother signed what appeared to be a valid exculpatory clause? I guess I can only hope and wait for Wisconsin to join other states and recognize the validity of one of these contracts. Businesses should be able to be protected as well!

Hopefully after this small analysis there is some understanding of the issues behind these clauses. If you are interested in more analysis or want more cases on point, please do not hesitate to contact me and I will provide you my first Memo and a list of Wisconsin cases. Also, I hope my point might be somewhat clear that my roomies were right to sign the contract, and go skiing. Special shout out to Professor Mazzie for providing us with such an interesting and unique topic in our first semester legal writing class!

With that being said, sorry for the delay between posts, apparently Law School has these things called exams? Who knew huh? I digress. Happy studying my friends (and grading for all you Professors). DO WELL!!!

Wisconsin also leads the nation in incarcerating Native-American males, but its white-male incarceration rate (one-tenth of the black rate) closely tracks the national average.  Wisconsin’s Hispanic incarceration rate is actually below the national average.

The Milwaukee County data are particularly striking: more than half of the County’s black males between the ages of 30 and 44 have been or currently are housed in a state correctional institution.

Is this a recent phenomenon?  I’ve taken a look at some historical data on racial disparities for my three-states research.  The following graph indicates that Wisconsin has been above Indiana and Minnesota for some time in black imprisonment (that is, prisoners per 100,000 residents), but that the current wide gap did not really open up until after 1990: 

Black incarceration rates tend to take on added significance when compared to white. The next graph indicates the ratio of black to white imprisonment rates:

This graph, too, indicates that the 1990s were a key decade; although Wisconsin’s imprisonment binge in that era had a big impact on all racial groups, blacks were disproportionately affected, as disparity gains in the 1980′s were wiped away.

The real curiosity, though, is how Minnesota managed to reduce its disparities so markedly after 1998.

In the interest of getting an even longer view on black incarceration rates in Wisconsin, I consulted the U.S. Bureau of Justice Statistics’ compendium Race of Prisoners Admitted to State and Federal Institutions, 1925-86.  Here are Wisconsin’s black and white prison admissions per 100,000 residents at (roughly) ten-year intervals (there are, unfortunately, some gaps in the BJS data):

Racial disparities in prisons admissions are quite pronounced throughout the time period, going back even before the great post-war black migration to Wisconsin, when the state’s black population was comparatively tiny.  But, while the disparities seem always present, the gap has gotten bigger and smaller over the decades.  We do seem to be in a remarkably high period right now, though, with the black imprisonment rate far exceeding the earlier peak in the 1940′s.  Again, there are indications that the 1990′s were a period of extraordinary growth for black incarceration.  With some more recent signs of a leveling off, one wonders if the current peak will also be followed by a trough, as occurred after the 1940′s peak.

[A couple of technical notes on the graph.  I used 1940 census numbers as the denominator to calculate the 1942 admissions rates.  For the 2001 admissions figures, I used one-half of the cumulative 2001-2002 number reported by the Legislative Fiscal Bureau in its 2003 informational paper on adult corrections.  I used an analogous estimate for 2011 based on the 2013 informational paper.]

Hat tip to Rick Romell for bringing the UWM report to my attention.

Cross posted at Life Sentences.

From Alexandra Weiland:

On a recent trip to Israel with Marquette University Law School, our class was fortunate enough to meet with Justice Aharon Barak, former president of the Israeli Supreme Court. Barak’s contributions to the Israeli legal system could be characterized as staggering. 

Barak was born in Kaunas, Lithuania and survived the Kovno ghetto before immigrating to Palestine with his parents in 1947. Barak became Attorney General of Israel in 1975. In 1978, he became the youngest Justice on the Supreme Court of Israel. In 1995 he became the President of the Supreme Court. He served in this position until 2006. In this role, Justice Barak championed a proactive judiciary and established judicial review in Israel. He is cited as being the most influential jurist in the history of the State of Israel.

He was kind enough to meet with our small group of 32 law students and four faculty members and to share his insights into the Israeli legal system. For an hour, he graciously answered our questions about various aspects of Israeli law and his experiences on the court. One story particularly stands out. Justice Barak recounted receiving an award from Justice Scalia. [The Pursuit of Justice Award presented in 2007 by Justice Scalia at the U.S. Supreme Court] As part of his acceptance he said, “when Brown v. Board of Education was decided, I was there.” He was speaking metaphorically, using Brown as an example of a case with international import in which the rights conferred to U.S. citizens were felt by individuals across nations. On a broader level, he was addressing the interconnectedness of international legal communities. He explained that he intended this message as somewhat of a cautionary tale to Justice Scalia; he was warning the Court to stay relevant in the international community by at least being conscious of what other nations are doing, particularly in human rights law. This message was part of a larger discourse between Scalia and Barak on the role of comparative law in a national jurisprudence. Some of Barak’s perspective can be found here: Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia by Aharon Barak.

Aside from the ongoing conversation on comparative law, I think I have isolated why this story stands out for me. One of the great values international travel offers is the chance to contextualize oneself as a small actor in a massive global ommunity. For me, the trip to Israel transferred this perspective to my role as a law student in the international legal community. I think that Justice Barak’s urging for the U.S. Supreme Court to stay relevant implicitly invites law students to stay cognizant of our own situation within the international legal community: one contributor to one legal system operating within a nebulous multitude of interconnected, overlapping, sometimes conflicting legal systems. I don’t know what the implications of this perspective will be but I hope to carry it with me as I continue to develop my understanding of both U.S. and international legal systems.

From Catherine Loew:

I will always remember two paraphrased quotes from Justice Aharon Barak. He said to be true to yourself. I took this comment to heart. To know what is just, we must always look to ourselves to make that decision. The internal compass is vital to leave the world a better place than we found it. We are also responsible to hold our government and courts to what we know to be right. I am criticized for not accepting the world for how it is. I refuse to concede; we must improve the access to justice, safety, and equality.

Additionally, he spoke of the award he received at the U.S. Supreme Court for his life’s work in Israel. In his reflection on the difference between Justice Scalia and himself, he said that he feels that Scalia stops where he would start. Scalia looks at the historical judicial and legislative intent of the decision. Justice Barak stated it would be his first question, but not his last. I took from this story the need to always question the past, present, and future. The respectful expression of his quest for what is right requires an open mind to question. Law is a living, changing thing.

Cross posted at Indisputably.