Saturday, August 1, 2015

Federal judge dismisses Abrahamson lawsuit

Erika Strebel reports at Wisconsin Law Journal,
"'The court concludes that Wisconsin’s new method of selecting its chief justice was effective on April 29, 2015, when the referendum was certified, and that the Wisconsin Supreme Court was authorized to implement that method and to elect a new chief justice on that day,' wrote Judge James Peterson in Friday’s decision."
(via Althouse)

Update: Opinion and Order at Wisconsin Watchdog

Wisconsin appellate court week August 3rd-7th 2015

Here are the lists of the Wisconsin Court System's links to any
as they are posted.

Supreme Court pending cases include those scheduled for oral argument September 8th, 17th, 18th and 22nd, and October 5th, 6th and 12th.

The next conference on pending petitions for review is August 5th.

Here are links to final Orders on Supreme Court Rules petitions.

Pending rules petitions include those scheduled for hearing or conference September 21st.

The Court of Appeals has oral argument scheduled for August 18th.

Andy Hamilton on Conservatism

New entry today at the Stanford Encyclopedia of Philosophy

Friday, July 31, 2015

Scott Walker appoints chief legal counsel to appeals court

Jason Stein reports at the Milwaukee Journal Sentinel.
"'Brian Hagedorn is a person of integrity who has a deep commitment to service and a passion for the rule of law,' Walker said. 'Brian has been a great asset during a transformative time in Wisconsin history, as we worked to bring big, bold reform to the state.'"

The John Doe dismissal and 'common sense'

Rick Esenberg at Shark and Shepherd
"Because its definition of 'political purpose' is too broad (and, I would add, because it offers no adequate definition of coordination), Wisconsin's law did not clearly and narrowly apply to coordinated issue advocacy. For that reason, it could not be applied to the activity being investigated by the [John] Doe prosecutors. While [SpeciaL Prosecutor Fran] Schmitz might think that such a result "defies" common sense, every court that has considered the merits of his position has rejected it. The judge presiding over the John Doe proceeding itself rejected it. The United States District Court for the Eastern District of Wisconsin rejected it. (While the result in that decision was reversed on appeal, the reversal was on procedural grounds and not the merits of the prosecutors' theory.) And, now, the Wisconsin Supreme Court has rejected it."

Lego League of Justices

From the Ex Ante feature, 18 Green Bag 2d 240

Case digests, discipline summaries, Bar notices - July/August 2015

In this month's issue of Wisconsin Lawyer:

Thursday, July 30, 2015

Legal experts on right and left seek review of Rindfleisch John Doe conviction

M.D. Kittle at Wisconsin Watchdog

Ralph Cagle: ‘A Perfect Fit’

This month's President's Message is conveyed via Diana Molvig's interview of State Bar president Ralph Cagle in the latest issie of Wisconsin Lawyer.

The Third Branch, spring/summer 2015

The latest issue of its quarterly newsletter has been posted by the Wisconsin Court System.

Tuesday, July 28, 2015

Marquette Sports Law Review, Volume 25, Issue 2 (2015) Spring

Latest issue posted

State Budget Finalized, Focus Turns to Fall Session

Cale Battles, a government relations coordinator with the State Bar of Wisconsin, at Rotunda Report,
"The State Bar will focus on a number of issues, including possible fall legislation on the Second Chance initiative, which would return 17-year-old nonviolent, first time offenders to juvenile court for certain low level offenses. The organization will also concentrate on the Criminal Procedure Code rewrite, a long time project of the Judicial Council, which will also be considered in the fall.

"The Business Law section has a number of legislative proposals that will be introduced this session. The section has been working on codifying two proposed uniform laws on Limited Liability Companies and the Revised Business Partnership Act. ...

"The Elder Law and Children in the Law sections continue to work on guardianship reform. ..."

The Supreme Court’s 2014-15 Term: Some Initial Observations

Alan Ball at SCOWstats,
"Most surprising, given the frequent reports of turmoil that beset the court in 2014-15, is the near elimination of 4-3 decisions and a correspondingly large increase in unanimous decisions."

Monday, July 27, 2015

John Doe targets go on the record to slam Scott Walker probe

Steven Verburg reported at The Chippewa Herald.

(via The Wheeler Report)

Call for Papers on Private International Law, Economics, and Development

Posted last week at The Federalist Society Faculty Division, and due "no later than 5:00pm Eastern Time on Friday July 31, 2015."

Crime and Politics: Wisconsin Supreme Court Rules in "John Doe" Investigation - Podcast

Criminal Law & Procedure Practice Group Podcast at the Federalist Society, featuring Allen Dickerson, Edward D. Greim, Tara Malloy, and moderator Jason Torchinsky.

Hamilton Political Tidbits - July 24, 2015

Prepared by Hamilton Consulting Group, Madison

Wisconsin Legislative Spotlight - The Week of July 27, 2015

Prepared by the Legislative Reference Bureau

Rewind - Week of July 20th-24th 2015

Video at WisconsinEye
"senior producer Steve Walters and Wispolitics.com editor JR Ross discussed the week in politics... ."

Wisconsin appellate court week July 27th-31st 2015

Here are the lists of the Wisconsin Court System's links to any
as they are posted.

Supreme Court pending cases include those scheduled for oral argument September 8th, 17th, 18th and 22nd, and October 5th, 6th and 12th.

The next conference on pending petitions for review is August 5th.

Here are links to final Orders on Supreme Court Rules petitions.

Pending rules petitions include those scheduled for hearing or conference September 21st.

The Court of Appeals has oral argument scheduled for August 18th.

Friday, July 24, 2015

Engage, Volume 16, Issue 1

This latest issue of Engage: The Journal of the Federalist Society Practice Groups is now available at the Federalist Society.

Thursday, July 23, 2015

The Great Refusal: Liberals and Grand Constitutional Narrative

This paper by Ken Kersch is the seventh from the first-ever WLR Online Symposium. It comes out of the conference November 7-8, 2014 at the UW Law School on "Is it Time to Rewrite the Constitution?" presented by the Wisconsin Center for the Study of Liberal Democracy.
"Is it time to rewrite the Constitution? Unlike the more delimited question of whether amendments are in order, this one suggests systemic failure, foundational mal/misadjustment to core purposes or objectives, or perhaps, less desperately, a simple conviction that, under a different framework of fundamental law, we could do better. It also suggests that the Constitution as currently written is the chief barrier to achieving our most important objectives—what Larry Solum calls 'constitutional fatalism.' I question this fatalism. [. . .] In a recent article in the BU Law Review, without taking the position against either the desirability or potential effectiveness of Article V amendments to remedy current constitutional deficiencies, I argued that the Constitution, as currently written, provides much greater opportunities for liberals to achieve their political objectives than many of them seem to realize—that, using Solum’s terminology, the 'actual' (i.e., currently existing) and 'possible' constitutions are not identical. I argued, moreover, that many of the successes of the conservatives in contemporary politics have stemmed from their enthusiasm for and talents in mobilizing constitutional arguments in the service contemporary political agendas and causes—in a concerted bid for instituting a 'gestalt shift' or 'constitutional reinscription.' While liberals certainly are forced to make constitutional arguments in courts, and make them on an ad hoc basis in politics, they seem uncomfortable with constitutional argument in the public sphere. Before fatalistically hoisting the banner for rewriting the Constitution, they might reflect on their singular debilities/ineptitude in this area. In this short Essay, I’d like to go beyond my BU Law Review article, which detailed the mechanisms of conservative successes in marshaling constitutional arguments in the public sphere, to reflect upon the wellsprings of liberal failures. I emphasized in the BU Law Review that conservatives have been energetic and creative not simply in advancing theories of constitutional interpretation—most famously, originalism—but in embedding those theories within compelling narrative or stories about the nature and trajectory of U.S. constitutional development, and, indeed, of the history of the country itself. Liberals have, in recent years, failed miserably in this regard, and it is worth asking why.
Ken Kersch is a Professor in the Department of Political Science at Boston College.

Wednesday, July 22, 2015

Green Bag, Spring 2015 (vol. 18, no. 3)

Recently posted

Secretary of state sues over office funding cuts

The Associated Press reported at Wisconsin Law Journal,
"Longtime Wisconsin Secretary of State Doug La Follette is suing Republican Gov. Scott Walker over budget cuts to his office.
[...]
"The lawsuit contends La Follette’s budget was cut by 47 percent, making it 'practically impossible' for him to do his job."
[link fixed -ed.]

Tuesday, July 21, 2015

Marquette Intellectual Property Law Review, Volume 19, Issue 2 (2015)

Just posted

There's more to the 'Obergefell' decison than same sex marriage

Rick Esenberg at Shark and Shepherd,
"In applying principles like 'liberty' and 'equality,' it is essential that courts develop disciplines and limitations that will, as much as is possible, anchor their meaning in some source of authority other than the personal preferences of the judges who happen to be deciding the case. If this isn’t done, then judging becomes indistinguishable from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the 'dead hand of the past' but to recognize that it was the consent of a past generation that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to."

Executive Committee Takes Up Keller Dues Evaluation Aug. 28 for Fiscal Year 2017

At Inside Track,
"On Aug. 28, the State Bar of Wisconsin Executive Committee will conduct its annual Keller dues reduction evaluation of Fiscal Year 2015 (FY15) activity for the Fiscal Year 2017 (FY17) reduction calculation.
[...]
"The Executive Committee invites members to attend the meeting that will determine the optional amount that members can deduct for FY17."

Monday, July 20, 2015

Eisenheim on 'State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson' 2015 WI 85

Student Blogger of the Month Erik Eisenheim posts 'Wisconsin Supreme Court Descends to New Low' at Marquette University Law School Faculty Blog

Court's reasoning in Obamacare case should concern everyone

Matthew Fernholz and C.J. Szafir in the Milwaukee Journal Sentinel,
"The opinion's author, Chief Justice John Roberts, once promised to be an umpire, calling 'balls' and 'strikes' on the court. Yet for the second time in three years, the chief expanded the strike zone in order to save the Affordable Care Act."

Rewind - week of July 13th-17th 2015

Video at WisconsinEye
"...WisconsinEye Program Manager Claudia Looze and Capitol reporter Shawn Johnson reviewed the week in politics... ."

Wisconsin appellate court week July 20th-24th 2015

Here are the lists of the Wisconsin Court System's links to any
as they are posted.

Supreme Court pending cases include those scheduled for oral argument September 8th, 17th, 18th and 22nd, and October 5th, 6th and 12th.

The next conference on pending petitions for review is August 5th.

Here are links to final Orders on Supreme Court Rules petitions.

Pending rules petitions include those scheduled for hearing or conference September 21st.

The Court of Appeals has oral argument scheduled for August 18th.

Friday, July 17, 2015

State Supreme Court Ends Probe on Alleged Illegal Campaign Coordination

Joe Forward reports at WisBar News.

Patrick Morrisey 'Fighting EPA Overreach in Every Form' July 17, 2015

[latest posts follow this event notice]

Patrick Morrisey, Attorney General of West Virginia, will speak on 'Fighting EPA Overreach in Every Form' at a Noon luncheon Friday, July 17, 2015, at the Milwaukee Athletic Club, 758 North Broadway.

The cost to attend, for those who reserve by July 15, 2015, is $20 ($15 for students, teachers, judges and other government employees, clergy, and employees of nonprofits). Reservations may be made in any of the following ways:

  • Visit EventBrite and make your reservation with credit card payment.
  • Print the invitation, complete the response, and mail with your check to: Federalist Society, c/o Robert Driscoll, Reinhart Boerner Van Deuren S.C., Suite 1700, 1000 North Water Street, Milwaukee, Wisconsin 53202.
  • E-mail your response, and pay by check at the door.
There will be a $25.00 charge at the door for those without reservations. Seating islimited. Refunds cannot be given to those who reserve but do not attend.

Presented by the Milwaukee Lawyers Chapter.

State Supreme Court: Prison agency immune from foul ball lawsuit

Todd Richmond of the Associated Press reported at Wisconsin Law Journal

Thursday, July 16, 2015

Monday, July 13, 2015

Are the Green Bay Packers Socialists?

Matthew J. Parlow and Anne-Louise Mittal, Marquette University Law School, in the Virginia Sports and Entertainment Law Journal, Vol. 14, No. 2, 2015 (Marquette Law School Legal Studies Paper No. 15-2), available for download at Social Science Research Network
"Abstract:

"The Green Bay Packers are an oft-misunderstood organization — not in the decisions that the Packers make, but in their legal status and structure. Scholars, commentators, and even the general public refer to the Packers as “community-owned.” While this characterization is true — to a degree — the specifics of this unique ownership structure in professional sports have never been comprehensively documented and analyzed. Perhaps this is the reason that some political pundits have termed the Packers “socialists.” However, such commentators also seem to not fully appreciate the historical development, and contemporary understanding, of this social, economic, and political ideology. This confluence of confusion has led to the misapplication of term socialism to the Green Bay Packers. This article seeks to set the record straight."

State Budget Passes Legislature - Political Tidbits - July 9, 2015

Prepared by Hamilton Consulting Group, Madison

Wisconsin Legislative Spotlight - The Week of July 13, 2015

Prepared by the Legislative Reference Bureau

Rewind - week of July 6th-9th 2015

Video at WisconsinEye
"senior producer Steve Walters and Wispolitics.com editor JR Ross reviewed the week in politics... ."

Wisconsin appellate court week July 13th-17th 2015

Here are the lists of the Wisconsin Court System's links to any
as they are posted.

Supreme Court pending cases include those scheduled for oral argument September 8th, 17th, 18th and 22nd

No conference on pending petitions for review is currently scheduled.

Here are links to final Orders on Supreme Court Rules petitions.

Pending rules petitions include those scheduled for hearing or conference September 21st.

The Court of Appeals has oral argument scheduled for August 18th.

Friday, July 10, 2015

Take a Spin on the Antonin Scalia Insult Generator!

Tim Murphy at Mother Jones
"All insults are derived from actual Antonin Scalia quotes, except for 'Your mom.'"
(via Wisconsin Law Journal)

Forms follow function

The Federalist Society National Lawyer’s Convention–2014

Presentations from last November's event now available in the Harvard Journal of Law & Public Policy, Volume 38 – Issue 3

WSLL Recommends: 'Exculpatory Evidence'

Exculpatory Evidence: the accused's constitutional right to introduce favorable evidence, by Edward J. Imwinkelried and Norman M. Garland, reviewed at Library Highlights

How Effective are Fourth-Amendment Arguments in the Wisconsin Supreme Court?

Alan Ball, Marquette University, at SCOWstats

Thursday, July 9, 2015

2014 Annual Report

Now available at The Federalist Society

Kendrick on Content Discrimination

Christopher J. Robinette at TortsProf Blog [link fixed -ed.]

"Frankenstein" Veto Language Interpreted by Federal District Court

Jim Egle, Madison, at Stafford Rosenbaum LLP

Cagle Marches In as 60th President of the State Bar of Wisconsin

Joe Forward reported at WisBar News.
"Wisconsin Supreme Court Chief Justice Patience Roggensack administered the oath of office, and [Ralph] Cagle assumes a one-year term on July 1, succeeding outgoing State Bar President Robert Gagan of Green Bay, who becomes immediate past-president."

Wednesday, July 8, 2015

'Ex Parte Merryman': A Short Reply to Andrew Hyman and Others

Seth Barrett Tillman of the National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law, available for download at Social Science Research Network,
"Abstract:

"I recently posted a short paper taking issue with the standard restatement of Ex parte Merryman. This paper is a short reply to several responses which I have received from Andrew Hyman (posted at the Originalism Blog) and others.

"This paper addresses the myths that make up Merryman scholarship. The first and primary Merryman myth is that Lincoln ignored or defied a judicial order from Taney to release Merryman. The second Merryman myth is that Lincoln ignored Taney’s opinion. The third Merryman myth is that Lincoln could have and should have upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) U.S. Supreme Court. The fourth myth is that General Cadwalader, who was in overall command of Fort McHenry, ignored or defied Taney by not showing up for the first day’s hearing on May 27, 1861, and that he defied Taney by not producing Merryman as he was ordered to do.

"Lest there be any confusion . . . some have argued that the President—in certain circumstances—has an independent power to interpret the Constitution, and a concomitant power to defy court orders if the President comes to a good faith conclusion that the courts have erred. I have not here or elsewhere opined on the correctness of this departmentalist view. This view may be the best or the correct understanding of the original public meaning of the Constitution, and it may not. Instead, I make only the more limited claim that Merryman and what we currently know about Lincoln’s actions in connection with the Merryman litigation and its aftermath is too ambiguous to lend support to a strong departmentalist view of the Constitution. It may be that there is support for a Merryman power, but wherever that support may be, it is not to be had in Merryman."

Understanding what happened

... in Obergefell v. Hodges.

Rick Esenberg at Shark and Shepherd

The Aftermath of 'King v. Burwell' - Madison Chapter event

Video at WisconsinEye

Walker aide sues prosecutor who conducted John Doe probe

The Associated Press reported at Wisconsin Law Journal
"Cindy Archer, a Walker top aide when he served as Milwaukee County executive, claimed the defendants conducted a 'continuous campaign of intimidation and harassment' against her and others. The lawsuit named Milwaukee County District Attorney John Chisholm and four other assistants or investigators."

Minutes of the Meeting of the Wisconsin Judicial Council, May 15, 2015

Approved June 19, 2015

Tuesday, July 7, 2015

Is it possible to reconcile Judge Posner’s take on Holmes and 'Lochner', and Roberts and 'Obergefell'?

David Bernstein at The Volokh Conspiracy
"Posner has written that Holmes’s dissent [in Lochner v. New York] is the greatest Supreme Court opinion in the last 100 years. Lest we think that this praise is just for Holmes’s rhetoric, and that he substantively disagrees with Holmes’s critique of the majority, Posner has added that 'Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.'

"Roberts, meanwhile, cites Holmes’s dissent in support of his opinion in Obergefell, and surely a Holmesian should agree with Roberts.
[...]
"Is Justice Roberts’s opinion nevertheless condemnation-worthy, as Posner suggests in Slate, because it’s 'heartless'?"

In Slate, Judge Posner concludes,
"He [Chief Justice Roberts] deplores the fact that 'a bare majority of Justices can invent a new right and impose that right on the rest of the country.' Would he be content had the vote been 6–3 rather than 5–4? I doubt it. And isn’t the history of constitutional law the history of Supreme Court justices, often by a narrow vote, inventing new rights and imposing them on the rest of the country?"
That last sentence might be a good question for judicial confirmation hearings.

Democrats want to remove marriage definition in constitution

Dana Ferguson, Associated Press, reported at Wisconsin Law Journal

State Bar Board Supports Cy Pres Petition to Fund Civil Legal Services for the Indigent, Takes Other Actions

Joe Forward reported on the latest meeting of the State Bar of Wisconsin's Board of Governors, at WisBar News

Monday, July 6, 2015

Some observations on 'King v. Burwell'

Rick Esenberg at Shark and Shepherd

Newsmakers: Supreme Court Justice Patrick Crooks

Video at WisconsinEye
"senior producer Steve Walters interviewed Wisconsin Supreme Court Justice Patrick Crooks."

Budget Update - Hamilton Political Tidbits - July 2, 2015

Hamilton Consulting Group, Madison

Rewind - Week of 6/29-7/2

Video at WisconsinEye "senior producer Steve Walters and Wispolitics.com editor JR Ross reviewed the week in politics ... ."

Wisconsin appellate court week July 6th-10th 2015

Here are the lists of the Wisconsin Court System's links to any
as they are posted.

Supreme Court pending cases have no argument scheduled.

No conference on pending petitions for review is currently scheduled. .

Here are links to final Orders on Supreme Court Rules petitions.

Pending rules petitions (none currently scheduled for hearing or conference).

The Court of Appeals has no oral argument scheduled.