Marquette University Law School Magazine Fall 2013

PAUL CLEMENT ON THE RECORD A leading Supreme Court lawyer on national security cases, preparing for arguments, and his Wisconsin hometown

Also Inside: The complex legacy of the landmark MPS special education lawsuit Arti Rai on DNA patenting Phoebe Williams on change Don Layden on Marquette An Old Medium in the Midst of the New

The opening page of the Marquette Law Review Yet even today the role of print media in 1916 observed that “the institution which would remains important. Consider, again, the FROM THE DEAN expand and fulfill its mission must make known its development of the Marquette Law Review. ideals and communicate its spirit,” and it suggested Its citation by Wisconsin courts countless that “[t]he most effective way of doing both is by times in just the past three decades should means of a suitable magazine.” In the ensuing make plain that the publication continues to century, the media available to institutions and help the Law School “fulfill its mission.” At individuals have multiplied. the same time, over the decades, the journal Much of this multiplication has occurred within has ceased to be a “magazine” in the precise my time in the legal profession, and some of it sense originally envisioned. even during the 10-plus years of my deanship. In these circumstances, we have great The Internet has been the primary driver, of confidence in the importance of this magazine, course, and blogs, Facebook, and Twitter have Marquette Lawyer. It is a rich, substantive T supplemented publication, which the Law School uses to means such as “make known its ideals and communicate its home pages spirit” not just to Marquette lawyers but also to and email. federal judges, legal academics, and thousands of The Law School members of the practicing bar. To take just that is no stranger last group, non-Marquette alumni hire our students to any of these and graduates and send their children to school technologies or at Marquette; surely we wish such friends and applications. If consumers to know our ideals and feel our spirit. email were a Yet these individuals are not likely to receive form of currency, emails from me, sign up as Facebook friends of the I would be Law School, or follow us on Twitter (I do not know wealthy, indeed. what verbs go along with Instagram or Tumblr). For another Thus we can send them “a suitable magazine,” example, we maintain what I believe to be the and I believe that a number of folks otherwise most consistently updated law faculty blog in without connection to the Law School welcome the country: Professor Michael O’Hear recently this publication twice a year. Indeed, one retired completed his fifth year of leading us in that dean of another law school wrote me (by email) important initiative. after the last issue, saying that Marquette Lawyer is Various of my colleagues are entirely comfortable an exception to his unsolicited mail: “Let it be said with newer media. The Marquette Law School that there is one [publication] I not only enjoy but Poll has benefited from tweets by faculty and anticipate enjoying. It is Marquette Lawyer.” staff colleagues. While Twitter and I thus far are We believe it to be a suitable magazine, perhaps strangers to one another, it is important to the Law to understate our view, and we invite you once School that others step up to expand our media again to take a measure of the ideals and spirit competency. For example, Associate Dean Matt expressed herein. Thank you. Parlow is leading an initiative to ensure that we deploy social media in ways that help us connect Joseph D. Kearney with alumni, students, and prospective students. Dean and Professor of Law

2 Fall 2013 An Old Medium in the Midst of the New MARQUETTE LAWYER FALL 2013

FEATURES 8 Prepare. Prepare. Prepare: Paul Clement’s Insights After Dozens of Supreme Court Arguments 18 How Special Education Advocates Lost in Court but Won Some Changes in MPS

26 Changing Things for the Better, Step by Step A profile of Professor Phoebe Williams

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FROM THE PODIUM 30 Diagnostic Patents at the Supreme Court Nies Lecture by Duke Law Professor Arti K. Rai 34 Investiture of Judge G. Michael Halfenger Dean Joseph D. Kearney’s remarks 37 Nike’s Gary Way Receives NSLI’s Joseph E. O’Neill Award Nike attorney honored at Sports Law Banquet 39 Seventh Circuit Memorial Ceremony for Judge John L. Coffey Dean Joseph D. Kearney’s remembrance 41 Marquette University Alumnus of the Year Donald W. Layden’s remarks upon receiving award 18 OTHER INSIGHTS

44 The Marquette Law School Faculty Blog at Five Years Old

Editor: Alan J. Borsuk 2 From the Dean Design: Douglas Frohmader, Andy Haas Schneider 4 Marquette Law School News Production: Jane Eddy Casper, Charles Franklin joins faculty, 4 Christine Wilczynski-Vogel Bradley Center conference, 4 Please send address Summer Youth Institute, 5 changes to: 5 Marquette University Sensenbrenner Hall gets update, 6 Law School Doug Frohmader honored, 6 Office of Alumni Relations Eckstein Hall Judge Carolyn Dineen King addresses graduates, 6 P.O. Box 1881 Soliciting study and critiques of Wisconsin law, 7 Milwaukee, WI 53201-1881 Conference on constitution making, 7 Phone: (414) 288-7090 Fax: (414) 288-6403 58 Class Notes law.marquette.edu Tracey L. Klein, 58 Copyright 2013 Marquette University. Daniel L. Abelson, 61 All rights reserved. Carol I-Ping Tsao, 62

Marquette Lawyer 3

Marquette Law School > Shedding Light on Hot Issues MARQUETTEMARQUETTE LAW SCHOOL Shedding LAW SCHOOLLight on Hot IssuesNEWS

Charles Franklin Joins Marquette Law Faculty Charles Franklin, director of the groundbreaking School. “He is both a nationally renowned polling expert Marquette Law School Poll, which since its launch at the and a first-rate scholar of government and public opinion; beginning of 2012 has become the definitive source for an he is thus able to communicate helpful information to accurate read on public opinion in Wisconsin, has joined the media and to engage in the academy on a high level.” the law faculty on a permanent basis, Marquette University Kearney added that he anticipates “the continued success announced this past May. and even expansion of the Marquette Law School Poll Franklin, a nationally recognized under Professor Franklin’s direction.” C government scholar and pollster, was Franklin has eagerly embraced the new position. a visiting professor at Marquette in “Marquette Law School has created a unique opportunity 2012. With his full-time appointment to contribute to the public conversation about issues at Marquette, he continues in his facing our state and nation through both the polling and role as poll director and becomes a policy discussions it convenes,” he said. The Marquette professor of law and public policy. Law School Poll accurately captured voter attitudes before Franklin had been a political science every major election in 2012, including the gubernatorial professor at the University of recall, U.S. Senate, and presidential races. Wisconsin–Madison since 1992. “I look forward to collaborating with colleagues across “Professor Franklin brings a the university to educate the next generation of leaders unique set of skills,” said Joseph and to ensure that Marquette is a resource for the region,” D. Kearney, dean of Marquette Law said Franklin.

Conference Focuses on Looming Question of New Arena in Milwaukee

hile most people seem to agree that the Association of Commerce, touted similar big-league benefits National Basketball Association (NBA) for Milwaukee. WBucks are a significant asset to Milwaukee, Meanwhile, Andrew Zimbalist, a Smith College consensus on the wisdom of building a new arena to economics professor, gave a somewhat more skeptical keep the team in town—and how to pay for it—was in view of new sports facilities’ economic benefits. And a short supply during a recent conference at Marquette panel of local politicians that included Milwaukee County Law School. Executive Chris Abele, Milwaukee Common Council The future of the BMO Harris Bradley Center, President Willie Hines, Wisconsin Assembly Speaker Robin Milwaukee’s indoor arena, was the central theme of Vos, Milwaukee County Board of Supervisors Chair Marina the conference, which was sponsored by Marquette Dimitrijevic, and Milwaukee Alderman Michael Murphy Law School and the Milwaukee Journal Sentinel and noted that public funding would be a tough sell—a supported by the Law School’s Lubar Fund for Public showing of bipartisan agreement that ultimately could be Policy Research. The Bucks owner (and former U.S. discouraging for fans. senator) Herb Kohl has deemed the Bradley Center Other speakers included Marquette Law School’s outdated and is working with local business leaders Professor Matthew J. Parlow and Adjunct Professor Martin on a public-private partnership to replace it before J. Greenberg, both of whom have written the team’s lease expires in 2017. on the financing of sports facilities. Conference presenter Roy Williams, president and Mike Gousha, distinguished fellow CEO of the Greater Oklahoma City Chamber, cited the in law and public policy, led the NBA’s Thunder as a cornerstone of his city’s renaissance. work on the conference for the Tim Sheehy, president of the Metropolitan Milwaukee Law School.

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Summer Youth Institute Takes Students a Step Forward

hree judges listened carefully to argu- ments on whether a strip search of a Tstudent entering a school was justified. Advocates debated whether an anonymous tip to the principal justified heightened security and whether the nervous conduct of a student provided enough reason for the strip search even after the student had passed through a metal detector without problem. The two pairs of advocates were composed and articulate as they cited comparable cases and reasons for and against considering the search reasonable. Yes, a viewer could pick up signals that the advocates were not as well versed as most who present such arguments. But they were impressive—especially considering they were eighth-, ninth-, and tenth-grade students from about a dozen Milwaukee-area schools, taking part in a weeklong program offering them School Pro Bono Director Angela F. Schultz; Melissa knowledge, experience, and mentoring that might interest L. Greipp, associate professor of legal writing; Anne them in careers in the law. On Monday morning of this Berleman Kearney, adjunct professor of law and week in July, most of the students probably had little or principal in Appellate Consulting Group; and Katy no idea what an appellate argument involved. Now it was Borowski, executive director of the EDWBA. Friday morning. With Eckstein Hall as their base, they Sessions stressed the commitment that students had attended a wide range of sessions, including visits to need to make to education and to improving courts and law firms. The arguments were the capstone themselves in both the short and long term. At lunch of the week. The teens had worked with lawyers and one day, Milwaukee attorney Cory Nettles told them Marquette Law School students to get ready. that one of the best pieces of advice he ever received Twenty-two students from a wide range of was to be “helpable”—someone who benefits from backgrounds took part in the Summer Youth Institute, coaching. Jerome Okarma, general counsel for Johnson the first of what sponsors hope will be an annual Controls, Inc., told the students, “If you don’t like program. The sponsors were Marquette Law School reading, you don’t want to be lawyer.” The week and the Eastern District of Wisconsin Bar Association included a session for parents with tips for getting (EDWBA). Collaboration and support came from the children into and through college. Just the Beginning Foundation; Johnson Controls, “I think the kids got a chance to be pushed out of Inc. (through the work of one of its in-house their comfort zones,” said Max Wright, a teacher at counsel, Gil Cubia); Kids, Courts, and Citizenship; Hmong American Peace Academy who was one of the and the Association of Corporate Counsel Wisconsin institute’s instructors along with Barbara J. Janaszek, Chapter (through Atheneé Lucas, in-house with a Milwaukee attorney and former teacher. “Their ManpowerGroup). The steering committee included horizons have been broadened.” U.S. Magistrate Judge Nancy Joseph, who had One of the students said as the week concluded, suggested this program a year earlier; Marquette Law “I took a step forward in my life.”

Marquette Lawyer 5 Sensenbrenner Hall Gets Update Doug Frohmader Receives T he rendering below of in the rendering will be added 2013 Excellence in Marquette’s Sensenbrenner Hall and contain mechanicals and University Service Award projects the east side of the facilities for the upper floors of building as it will look in 2015. the refurbished Sensenbrenner Doug Frohmader, The brick-clad area to the right, the Hall. It will also ensure that any creative director former home of the Law School, future construction to the south in Marquette was designed by Alexander of Sensenbrenner Hall will not University’s Office of TC. Eschweiler and dedicated in crowd the original building. Marketing and 1924. The former legal research Sensenbrenner Hall has been vacant Communication, center (opened in 1967) and the since 2010, when the Law School was one of office and classroom area (opened moved to its new home, Ray and four Marquette in 1984) connecting these newer Kay Eckstein Hall. The refurbished employees segments with the 1924 building Sensenbrenner is expected to house recently honored were demolished this past summer. departments of the Klingler College with the 2013 Excellence in University The glass-fronted area to the left of Arts and Sciences. Service Awards. Frohmader’s work extends throughout the university and includes a leading role in the planning, design, and production of Marquette Lawyer. Frohmader, a Marquette employee since 1985, has been honored for his work multiple times by the Council for Advancement and Support of Education, the country’s leading education organization for professionals who work in alumni relations, communication, development, and marketing. Multiple nominators wrote about Frohmader’s professionalism, patience, work ethic, and commitment to cura personalis.

Judge Carolyn Dineen King Addresses Graduates

Judge Carolyn Dineen King, of the U.S. Court of Appeals for the Fifth Circuit, is flanked by Provost John J. Pauly (left) and Dean Joseph D. Kearney (right) and other faculty as she addresses graduating students at Marquette Law School’s Hooding Ceremony at the Milwaukee Theatre on May 18, 2013. King’s remarks included an exhortation to the 215 graduates “to participate in the public life of our communities”; she termed this “a special responsibility of lawyers.”

6 Fall 2013 MARQUETTE LAW SCHOOL NEWS

Soliciting Study and Critiques of Wisconsin Law arquette University Law School invites proposals for research by faculty, students, and proposals for research and publication to be members of the bench and bar.” M supported by the Adrian P. Schoone Fund Schoone received his undergraduate degree for the Study of Wisconsin Law and Legal Institutions. from Marquette University’s College of Business The Law School created the fund this past academic Administration and went on to graduate first year to recognize a gift by Adrian P. Schoone, L’59, of in the Law School’s class of 1959. The Law more than $500,000. School recognized him last year with its Lifetime With the Schoone Fund, the Law School hopes Achievement Award. “We are proud to call Mr. to engender greater dispassionate research and Schoone a Marquette lawyer,” said Kearney, “and we study of Wisconsin law and legal institutions. “We are most grateful for this innovative gift.” have expanded our geographic footprint over the Schoone practices personal injury and business past several decades, increasing our recruitment litigation with Schoone, Leuck, Kelley & Pitts, in the of students from different regions, establishing the Village of Mount Pleasant in Racine County, Wis. National Sports Law Institute in 1990, and, most He has tried more than 250 cases to verdict over recently, launching the Marquette Law School Poll,” his career in 10 different Wisconsin counties and in said Dean Joseph D. Kearney. “At the same time, other states. Wisconsin is our home, and we have an intense Proposals may be directed to Christine interest in the teaching and learning of Wisconsin Wilczynski-Vogel, associate dean for external law. We will use the Schoone Fund to support relations ([email protected]).

Exploring Constitution Making Past, Present, and Future

On June 6, 2014, Marquette Law School will host a full-day event exploring the past, present, and future of constitution making in occupied states in the aftermath of war—be it “civil” war or “external” war. Central to this event will be consideration of the lessons experience has imparted concerning this seemingly timeless endeavor. Through the anticipated contributions of distinguished speakers with expertise and publications ranging across disciplines as diverse as linguistics, history, cultural studies, the military, and law, the event will probe efforts from that of General Douglas MacArthur in immediately postwar Japan to those unfolding around the globe at the dawn of the twenty-first century, including in Iraq, Afghanistan, Egypt, Tunisia, and, looking ahead, Syria. The Law School’s event is part of a week in and around the Milwaukee community that will feature programs and activities that also concern the impact of General MacArthur on Australia, the Philippines, and South Korea, including an assessment of that impact against the backdrop of the current international community. Photo by Carl Mydans//Time Images Life Pictures/Getty Consider joining us for this provocative event, which is being organized Gen. Douglas MacArthur, January 1961, revisiting by Peter K. Rofes, professor of law, and Charles C. Mulcahy, L’62. For the island of Corregidor, from which he had been additional information, contact Christine Wilczynski-Vogel, associate dean evacuated in 1942 before it was overrun by Japanese for external relations, at [email protected] or (414) 288-3167. troops during World War II.

Marquette Lawyer 7 Prepare. prepare. prepare. Paul Clement offers his perspective after dozens of Supreme Court arguments, including cases on the Affordable Care Act, Guantánamo, and gay marriage. N National Public Radio Supreme Court reporter Nina Totenberg calls Paul Clement “a walking superlative.” Former U.S. Attorney General John Ashcroft compares him to Michael Jordan. Tom Goldstein, publisher of the widely read Scotusblog, says, “My opinion remains unqualified that he is the best.” So, as a matter of opinion, Clement is to many the leading member of the Supreme Court bar. In all events, as a matter of fact, since 2000, Clement has argued some 65 cases before the U.S. Supreme Court—more than anyone else throughout this time.

Clement, 47, is a native of Cedarburg, Wisconsin, and a graduate of the Cedarburg public schools. He received a bachelor’s degree from Georgetown University’s School of Foreign Service and a master’s in economics from Cambridge University before graduating from Harvard Law School. He clerked for Judge Laurence H. Silberman of the U.S. Court of NAppeals for the District of Columbia Circuit and Justice Antonin Scalia at the U.S. Supreme Court. He was deputy solicitor general before becoming solicitor general of the United States. He now is in private practice with Bancroft PLLC in Washington. Clement delivered the annual E. Harold Hallows Lecture at Marquette University Law School on March 4, 2013, a talk titled “The Affordable Care Act in the Supreme Court: Looking Back, a Year After.” Earlier that day, he took part in an “On the Issues with Mike Gousha” session for Marquette law students. The following are individual excerpts from his remarks at those two events, with minor editorial changes.

Paul Clement National security legal issues in the that was focused like a laser beam on these problems, aftermath of the September 11, 2001, but instead you have very general guarantees and you terrorist attacks have this recurring problem, which is basically, under our system, if we’re not on a war footing on these was at the Justice Department on 9/11 as a deputy, legal issues, almost everything the executive’s doing and my boss, Solicitor General Ted Olson, lost his is completely wrong—right? Generally, if you hold a wife on one of the planes. We learned that while I suspect, you have 72 hours to charge or release, and we were in the office. To say that all of this impacted that’s not what we are doing down in Guantánamo, us personally is an understatement. The attacks had obviously. That has required both administrations to a really transformative effect professionally because, make the argument that, well, this is an exercise in the in addition to a broader stewardship over the whole war power. . . . process, on a number of the 9/11-specific issues, it was so clear to everybody that these issues were going to eventually find their way to the Supreme Court. . . . We had some World War II-era precedents that were the closest thing even on point. Yet World War II was obviously such a different situation, of formal, declared war and all that, that it was really trying to construct legal positions and defend the president’s prerogative based on some legal materials that didn’t fit 9/11 and the post-9/11 world very directly. If you look at the trajectory of these 9/11 cases, the administration tended to do very well in the lower courts, in part because these World War II-era cases, maybe reflecting the nature of World War II, were pretty deferential to the executive branch. Then, when they got to the Supreme Court, the Bush administration lawyers, myself included, tended not to be as successful. I mean, usually not losing outright—more like, okay, you need to remand for more process or a little more of this. I think all of that was a healthy process that’s still playing out.

How the Bush and Obama administrations have handled national security cases It’s been a healthy development that you now have Paul Clement was welcomed to Marquette Law School for the E. Harold a Democratic administration that’s wrestling with the Hallows Lecture on March 4, 2013, by an overflowing crowd that included same basic problems, because in the Bush administration, students, faculty, alumni, and other practicing lawyers and judges. we got a lot of criticism for some of our policies in the war on terror. I think if you would have looked only at It continues to be very interesting and really the campaign rhetoric from the 2008 election, boy, you historic. I think when we look back on this period, would have thought that things would be fundamentally we will see these judicial decisions and executive different now. Guantánamo would be closed within a decisions as really being fundamentally important year and all that. You look around and, boy, things about how we constitute ourselves as a society and haven’t changed that much. The legal positions have how we deal with these situations. I think it’s been not really changed that much. Both political parties a little bit of a frustration for the justices and, to a have had an opportunity to wrestle with these issues, certain extent, for the executive branch as well that, and I think they recognize that they’re fundamentally under both parties, Congress is not addressing these difficult issues. It’s one thing if you had a constitution problems very specifically.

10 Fall 2013 On the claim that the rulings of know how [that judge] will rule, that’s a dangerous judges in the Affordable Care Act thing for people to have in mind. cases matched the politics of the Fortunately, there was a tonic for this line of presidents who appointed them description of these cases. And the tonic was the courts of appeals. . . . The Eleventh Circuit’s was a Commentators drew one conclusion from the case that I was involved in. And, importantly, there various district court rulings: That you needed to a two-judge majority that involved both a President know one thing about the district court judge to know Bush 41 appointee and a President Clinton appointee how the district court ruled. If the district court was struck down the law’s individual mandate as appointed by a Republican president, they held that unconstitutional. Conversely, in the Sixth Circuit and the act was unconstitutional. If the district court judge D.C. Circuit cases, you had very distinguished, very well-respected court of appeals judges appointed by Republican presidents, such as Jeff Sutton, last year’s Hallows lecturer, and Judge Laurence Silberman, for whom I clerked on the D.C. Circuit, voting to uphold the law’s constitutionality. So this sort of simple narrative, that all you need to know is the president that appointed the judge, did break down. And I think that was every bit as healthy as the prior sort of explanation was pernicious.

Moot court work before the Affordable Care Act a rguments In one of my moot courts, I was berated by one of the justices. At the time, you never like your moot justices berating you. But you always thank them after the fact. I was berated by one of the justices about why wasn’t this Necessary and Proper Clause issue decided in McCulloch, the case involving the Bank of the United States? . . . I thought long and hard about that series of questions. And it occurred to me in part of the discussion after the moot that the best answer to that line of questions was to remind the Court that, you know, there has to be a limit on the necessary and proper power, just like there has to be a limit on all of the powers granted to Congress in Article I, Section 8. And no matter how broad the power was was appointed by a Democratic president, they upheld in the McCulloch case, that maybe the Supreme Court the law as constitutional. This was a particularly sort-of- would have had a different perspective if people had pernicious conclusion, if you ask me, for people to actually been forced to put deposits in the Bank of the draw. It’s accurate but pernicious. Because in many United States—which would be far more comparable ways, the health care case, for a variety of reasons, to the individual mandate. And, sure enough, at the was a case that was unusually closely watched not actual argument, Justice Breyer asked me a question just by legal commentators, but by the general public. that only Justice Breyer could ask, which is to say it And so for the general public to be told that had many parts. And one of the parts focused on the constitutional law is really just politics by other McCulloch case and the Bank of the United States. means and all you need to know is the party of And thanks to that moot court, I was able to give the president who appointed a district court judge to exactly that answer.

Marquette Lawyer 11 “I think it is a very fair statement and a very fair summary of the health care case that the individual mandate was struck down as unconstitutional. Now, you may say that is delusional thinking from a lawyer who argued the case unsuccessfully.”

The challenge of trying to win the mandate was struck down as unconstitutional. Now, Affordable Care Act case you may say that is delusional thinking from a lawyer who argued the case unsuccessfully. But, in reality, the here were four separate cases, essentially, Court’s decision on this point and, particularly, the chief before the Court. But even that understates it a justice’s opinion, which was the decisive opinion on little bit because there were really six separate T this, really does support the proposition that the statute issues. There were the four I mentioned: jurisdiction, that Congress actually passed, which put a mandate or the Anti-Injunction Act; constitutionality, or the on individuals to purchase health care insurance, was, individual mandate; severability; and Medicaid. But on in fact, struck down as in excess of Congress’s power the individual mandate, there really were three separate under the commerce power and the necessary and issues, because the government had sort of three strings proper power. And only by, essentially, reinterpreting to its bow, if you will. They had three arguments about the provision not as a mandate on individuals to what constitutional power supported the individual buy insurance but as a tax on those who do not buy mandate. They said it was a valid exercise of the insurance, was the Court able to save the statute. commerce power. They said it was a valid exercise of the necessary and proper power. And, at the very back of their brief, they mentioned the taxing power as an On Chief Justice John Roberts’s additional authority that would support the statute. unanticipated holding that the So one way of thinking about the challengers’ burden mandate could be upheld as a tax in this case was they really had to run the table on How remarkable is that? The Supreme Court had six those three issues because any one of those powers hours of argument on this case. And the taxing power would be sufficient to sustain the constitutionality of argument got maybe, generously, three minutes of the the individual mandate. And to make the challenge even six hours. . . . I guess another takeaway from today’s more daunting, four justices had made pretty clear in lecture is, six hours was not enough. They needed more prior cases that they were not going to be receptive to time to talk about the taxing power argument. . . . an argument that limited Congress’s power in this area. Obviously, knowing what I know now, would I do So there were really five justices who might be receptive things differently? Sure. I’d start with the taxing power. to arguments for limiting the commerce power and the And, you know, every time somebody tried to ask me necessary and proper power. And so with five justices about the commerce power, I’d say “No, that’s easy. and three issues, the challenge for the challengers was, Don’t worry about that. But let me tell you about the essentially, to run the table to the tune of going 15 for taxing power. . . .” But, I have to say, if I would have told 15. The good news is the challengers went 14 for 15. my clients, not knowing what I know now, that, “Guys, The bad news, from the perspective of my clients, is I think, you know, this case is all going to turn on the 14 out of 15 isn’t good enough. taxing power, and we’ve got to sort of stop focusing on the commerce power and just flip the order of the brief Winning on the individual mandate issue around,” I think I would have been fired. ’Cause, you I think it is a very fair statement and a very fair know, you have to remember . . . , none of the lower summary of the health care case that the individual court decisions went off on the taxing power.

12 Fall 2013

The spending power aspect of the the taxing power rationale. But in the process, the chief Court’s ruling justice, joined by the four dissenting justices, imposed substantial limits on the commerce power and the his was sort of the silent part of this case, the necessary and proper power. . . . If they’d gone the other part nobody really focused on that much, which way and basically said, as four justices were willing to may turn out to be the single most important T and a lot of commentators thought the Court would part of this case. On that, seven justices—not five, not be willing to, and said basically, but for a few unusual four—seven justices said that the statute exceeded circumstances like the Lopez case and maybe the Printz Congress’s power under its spending power because case, there are really no limits on federalism, then I think it was too coercive of the states. The states effectively that would have really been the constitutional moment had no realistic choice but to accept the Medicaid and the momentous holding of the Court. . . . funds because of the way that Congress structured the Although the health care case, in the end, was not program—particularly, the fact that Congress tied the decided exactly the way the challengers had hoped, new expanded Medicaid program to the old program. I do think, in some respects, the single most important So even states that wanted nothing to do with the new takeaway from the decision was there were not five votes program and the new money, but were perfectly happy to say that there really is no meaningful judicial review of with the program they had and had had for 35 years, federalism constraints on Congress. There are constraints. they faced a choice of losing all their Medicaid funds if Again, the power is very substantial, very broad in they didn’t take the new money. And seven justices said the wake of the New Deal precedents of the Court. that was a bridge too far. But it remains a limited power. And the challenge for the Now, the reason I think this is so significant is federal government in future cases will remain putting a because, for small “p” political reasons, I rather doubt limiting principle on an assertion of Congress’s power. we’re going to have a lot of new individual mandates. I mean, whatever you think about the constitutional His reaction to descriptions of him as issue, I don’t think politically that played that well in “the go-to guy” for Republicans or the long run. But spending power legislation permeates the federal statute books. The United States Code is full conservatives for big cases of spending power legislation. And if you care about My aspirations would be to be the go-to guy for federalism, spending power issues are very important people who have Supreme Court cases or important because the basic doctrine of the Court is that the very court of appeals cases, without respect to the political few things you can’t do through the commerce power aspects of the case or whether you think this is a and the necessary and proper power, you can still get Republican position or a Democratic position. My states to do if you make it a condition of receiving interest in the law is very broad. I say that appellate federal funds. . . . If you can, basically, without limit, law is a great profession for people with short attention put conditions on the states and say if you want this spans. I mean, last week, I was arguing a case about bucket of federal funds, you must agree to the following arbitration. The week before, I was arguing a case about conditions, then there’s no practical limit on federalism taxes. There are plenty of people who are tax lawyers, at all. The Court, by saying that there is a step that spend their whole life in the tax code, and that’s great Congress can go that’s too far, has, I think, breathed for them. But for me, I wouldn’t want to do that. . . . some life into federalism and the spending power. It really is my aspiration to have a much broader spectrum of cases and clients than would be suggested by this The impact of the Affordable “go-to guy” for the Republicans. The good news from Care Act decision my standpoint is I think my practice does bear that out. Given the amount of attention paid to the case, there’s an argument that it was a real constitutional moment. Winning and losing Supreme Court cases But I think, in some respects, it was a constitutional As an appellate lawyer, you tend over time to get less moment averted because the Court, in a decision and less focused on wins and losses. You can’t not be that is five to four on virtually all aspects, except the focused on them, especially because you have clients and spending power, ultimately upheld the statute under clients are excessively focused on wins and losses, and

14 Fall 2013 you can’t lose sight of that. But there are certain cases to do before you go in front of the Supreme Court is where you could write your brief in crayon, and you are to prepare and prepare and prepare and prepare. still going to win—I mean, somebody came to you with What keeps you going that final mile is the nerves. a winning case. There are other cases where somebody I mean, if you got to the point where you’re like, came to you with the case that most lawyers would just “I can do this. I’m not going to embarrass myself,” get crushed on and you put every bit of your skill and you’d eventually embarrass yourself. trade into it. Another lawyer might have a 10 percent chance of success, and you get it up to the point where Preparing for a Supreme Court argument it’s got a 40 percent chance of success, and then, I’m a big believer in the moot courts. It’s like the old percentages being what they are, you still lose. I don’t American Express commercial: I wouldn’t leave home at the end of that say, “Well, that was all wasted effort.” without them. I wouldn’t go into the Supreme Court I sort of feel like, no, it was great effort and, in some of the United States without having done at least two ways, I feel that’s a much greater contribution than if moot courts, where you get a group of individuals, I have a case that starts with an 80 percent chance of colleagues who are really smart, and you try to success and I get it to 85 percent. . . . If I can take a case basically simulate the kind of questions the justices that might look kind of one-sided and get it to the point are going to ask. Even if you’ve heard the question where it seems like a much closer call, maybe that before, it’s hard to answer a question coherently from manifests itself in the decision they write, maybe it’s a a Supreme Court justice. If you’ve never heard the more nuanced decision, maybe it leaves open something question or a question like it before of that type, that would otherwise be closed off. I feel like that’s it’s well-nigh impossible. . . . where I’m really adding some value. The other thing that I’ve learned over time is you can’t really be over-prepared for a Supreme Court Whether he still gets nervous before argument, so you really have to acknowledge the fact Supreme Court appearances that you’re not going to have quite as much time as I’ve always said if I ever get to the point where I’m you’d like. You’re not going to be able to turn over no longer nervous, I’m going to find something else to every stone in the process of preparing. So what I’ve do. . . . One of the things that you just absolutely have found over time is that you want to figure out, “All right, what kind of case is this, and what kind of preparation is going to be rewarded?” Some cases are very record intensive, so you really have to bear down in the record. Some cases are precedent intensive, so what you need to do is really read every Fourth Amendment

Eckstein Hall’s Appellate Courtroom on the occasion of the 2013 Hallows Lecture presented Paul Clement with more than his usual group of nine people asking questions.

Marquette Lawyer 15 case the Supreme Court has decided in the last 20 years or something. Sometimes, it’s the administrative regulations that you really have to understand inside and out, so you can see how this whole seemingly complicated web of regulations fits together.

Whether he focuses on specific justices in arguments before the Supreme Court One way to define a Supreme Court advocate’s job is to get to five for your client. It can be very satisfying to have four justices give a ringing endorsement to your position, but it’s still called a loss, last time I checked. . . . In most cases, you have a theory as U.S. District Judge Charles N. Clevert, Jr., Milwaukee Mayor Tom Barrett, to how you’re going to get to five, and sometimes it and Paul D. Clement talk after the Hallows Lecture. involves one justice playing a critical role. Very often, it’s building a coalition where you were going to have some If you were to do that, and the justices weren’t asking justices adopting one position and another justice or questions, I mean, you might as well just be talking to a two adopting a different position. Those are the hardest wall, right? Even though it makes your job harder, you cases because, any time you are building a coalition, you want lots of questions. have to figure out how to get these additional people on board without losing the people you started with. In some ways, that can be the most challenging. One The effect of public and news thing that’s a little bit different about arguing cases in the media attention to a case Supreme Court relative to the courts of appeals is that in ou can’t just block it out and ignore it because the Supreme Court, all nine justices are free to have their it’s a part of the overall system in which your own view of a particular area of the law. In the lower Y cases are being litigated. I don’t think the courts, if there’s a Supreme Court case on point, even if justices are terribly swayed by what’s in the press, but, they don’t like it much, they might grouse about it a little on the other hand, would you want your client to just bit, but they’re going to follow the Supreme Court case. get beaten up in the press completely and there to be no counter response? Of course you wouldn’t want that. Why he doesn’t use notes while And would you want to make an argument on behalf of appearing before the Supreme Court your client that’s just going to be low-hanging fruit for somebody to pick on in another forum? No, you want to Most people bring notes to the podium, but they’re try to make your arguments in a way principally directed there more as a security blanket. At the Supreme Court at the court, but you don’t want to ignore everything of the United States, if they ask you a question and you that’s going on entirely. . . . I don’t think I’d do what I do are standing there paging through some notes trying to if I thought it was just politics by other means. So you see what you wrote down, you are not serving your client don’t ignore it, but you don’t get caught up in everything well. I’m probably one of a handful that goes up there that’s going on around you. without any notes, but most of the lawyers, certainly the good lawyers there, they’re not looking at what they brought up there. That’s just something that kind of On leaving a major law firm, King & helpsthem sleep a little better the night before. . . . Spalding, over a matter of principle The questions are so important, and you really don’t Probably the most difficult and challenging want anything to distract you from trying to pick up professional decision I had to make came in private on the nuance. practice. I was retained by the House of Representatives Sometimes people have this idea that the ideal to represent them in the challenges to the Defense argument would be: you get up there and you say of Marriage Act, which occurred after the Obama everything you wanted to. You use some lofty rhetoric. administration decided they were no longer going to

16 Fall 2013 defend the statute. At that point, the House was thrust school, I thought that it would be a great way to engage into the role of defending the statute and in many in public service in kind of an active way. But I really respects, it struck me as a very familiar role because, as didn’t know quite what to expect. When I first went to the solicitor general, you are responsible for defending law school, I probably assumed I would be some kind the constitutionality of acts of Congress without regard of corporate lawyer, not quite knowing what that meant. to whether you think they’re good policy or not. . . . I went to Harvard Law School, and the vast majority of my I undertook that representation, and there was a big classmates seemed very down on corporations, and I was outcry because, in certain quarters, it’s a very unpopular sort of a Republican, and I kind of liked corporations, so position to be defending that statute. Ultimately, the firm I figured this would be good—go be a corporate lawyer. made a decision that it wanted to drop the representation But as I got more and more into understanding the and, at that point, I really had a fork in the road. I could profession and the way that it worked, I was more and either stick with my firm, where I had been even before more drawn to the litigation side of the house. my government service and had a lot of friends and had been building up an appellate practice for a couple of His experiences as a law clerk for years. Or I could stick with my client. Judge Silberman and then for I [had] told them I will represent them and made Justice Scalia the commitment to represent them and, as much as on I would recommend a judicial clerkship to anyone a personal level it probably would have been easier who has any interest in the litigation side of the to stick with the firm and steady paycheck and all of profession. But if you decide to have a clerkship, the that, my conception of what the lawyer’s role is is that single most important variable as to whether it’s going you don’t walk away from a representation because it’s to be a merely good experience or just an unbelievably proven unpopular in a particular quarter. I mean, you great experience is for whom you clerk. You often don’t make a commitment to a client and, absent some sort have a lot of control over that. You put your applications of ethical reason that you have to withdraw, you should out and see if anybody’s interested. I was very fortunate stick by your client, and that’s what I did. because both of the individuals for whom I clerked were I was really heartened by the response out there in not only tremendous people, not only great intellects, the profession. It really was, I think, a great moment for but they had a lot of Washington experience, a lot of the profession. At some level, you can’t expect non- different service in the executive branch as well as the lawyers to fully get it because I think non-lawyers always judicial branch. They were also people who were really have a little bit of trouble understanding the idea that interested in engaging orally. . . . Not much else is that the lawyer represents the client. That doesn’t mean the intimidating when you’ve mixed it up with Justice Scalia lawyer thinks the client is awesome. It doesn’t mean that and been told, “That’s absolutely wrong. What are you the lawyer even thinks that the client is, say, not guilty. thinking?” and you actually push back a little bit and say, It just means that you are honor-bound to represent that “Well, then, boss, think about it this way.” person zealously and to the best of your ability and to try to discharge your responsibilities to the client. . . . This whole system doesn’t work if people don’t defend Getting back to Wisconsin clients who are unpopular for whatever reason, for My wife and I have three boys, and we make a point one reason or another. I like to say that people who of getting back to Wisconsin every summer because are popular in all corners generally don’t need legal we think it’s important for them to understand that representation. . . . Washington is not entirely normal.

What drew him to the law On the state of Marquette Law School One thing is I have a brother who is 12 years older It is unfortunate to have a White Sox fan at the helm. who went to law school when I was all of about nine [Interruption noting that Dean Kearney’s predecessor years old or something. So the idea of going to law was a Cubs fan.] Right, there is that—moving in the right school was something that was presented at a pretty direction, right. . . . But it is a shame. I mean, with this early age as a distinct possibility. Then, as I got to the beautiful view of Miller Park, you really ought to have a point of really deciding whether I wanted to go to law Brewers fan at the helm.

Marquette Lawyer 17

The complex legacy of Jamie S. Special education in Milwaukee schools has improved, even as plaintiffs lost a landmark class action case launched in 2001.

by Alan J. Borsuk

n the face of the matter, no one can doubt that the plaintiffs lost the Jamie S. case. More than a decade after a class action suit was filed challenging many aspects of how the Milwaukee Public Schools (MPS) system handled its obligations related to special education, Jamie S. et al. v. Milwaukee Public Schools et al. effectively ended in January 2012.O That was when a decision by the U.S. Court of Appeals for the Seventh Circuit wiped out a string of victories for the plaintiffs before Magistrate Judge Aaron Goodstein in the federal district court in Milwaukee. Even more generally, the Seventh Circuit opinion, combined with a June 2011 Supreme Court decision (Wal-Mart Stores, Inc. v. Dukes), means it is likely that Jamie S. already has played a significant role in ending a period in which class action challenges to special education systems in school districts around the United States were relatively frequent. At the same time, the legacy of the Jamie S. case appears more complex. The litigation brought what can be called practical victories for the plaintiffs. In particular, improvements they sought in the systems and practices of the Milwaukee Public Schools came to pass. Indeed, every party involved in the issue agrees that MPS is doing better now than in 2001, when the case was launched, in complying with special education requirements. For more than a decade, the suit was a factor in shaping MPS policy. It continues to touch daily life for thousands of Milwaukee children. This may be one of those situations in which the impact of a lawsuit even on the parties cannot fully be measured by the final decision in court. These various effects of Jamie S. are worth exploring. This requires, first, a look back.

Illustrations by Robert Neubecker

Marquette Lawyer 19 Defining the Class in kindergarten. Her teacher at that point told Jamie’s mother to see what happened as time passed. By age erhaps the filing of the case—then known as nine, Jamie was unable to multitask and needed help Lamont A. et al. v. Milwaukee Public Schools with hygiene and dressing. Her mother’s further requests Pet al.—was a sign of how much effort it for testing Jamie weren’t acted on. Finally, Jamie was would take to move the case forward. Lawyers for a given an IEP evaluation, but her mother was not present, nonprofit organization called the Wisconsin Coalition a violation of the law. It was determined Jamie had a low for Advocacy (which later became Disability Rights IQ and was eligible for special education. Wisconsin) decided to file the suit in federal court in Goodstein set a schedule in which the case would be Milwaukee on September 11, 2001. They found the tried in phases. The first, in fall 2005, involved testimony courthouse closed—that was, of course, the day of by several expert witnesses for each side and focused terrorist attacks on the east coast. The suit was filed on MPS’s overall record in handling special education September 13. determinations. The second phase, in April 2006, The suit was a broad challenge to how MPS dealt with focused on the specifics such as the histories of the students who had or might have special education needs. named plaintiffs. The complaint portrayed a system that, in a nutshell, was Even as the case was unfolding, it began to have failing to provide what a large number of children were an impact. MPS officials were determined to fight the entitled to under the federal Individuals with Disabilities plaintiffs all out. For one thing, both administrators and Education Act (IDEA). It sought to include thousands Milwaukee school board members argued that MPS did of children in a class represented by the plaintiffs. not have the money to do all that the plaintiffs wanted It named as defendants not only MPS but also the and was already financially pressed by the high cost of Wisconsin Department of Public Instruction, which, special education. That was especially so, officials said, the suit said, had not adequately used its authority to because the federal government had never lived up to assure that Milwaukee was implementing IDEA. The suggestions made when the first version of the IDEA parties consented to allow Goodstein, a magistrate passed in the 1970s that it would pay 40 percent of the judge (not a district judge), to handle the case. cost of special education nationwide. In November 2003, after several rounds of But, at the same time, MPS began changing in proceedings and more than two years after the case directions that the plaintiffs sought. MPS leaders was filed, Goodstein issued a decision granting the felt under pressure to show that they were complying plaintiffs’ request to make the case a class action and with requirements, and several say that, from defining the class. His ruling narrowed the class to top to bottom, orders were to meet all the rules. focus on an aspect of the IDEA called Child Find— The Jamie S. case “was the biggest thing on my mind, basically, the process for identifying children who are all day, every day,” Patricia Yahle, MPS special education entitled to special education help and getting them chief from 2002 until her retirement in 2011, said in on course to receive such help. Goodstein defined the a recent interview. Jeff Moulter, a special education class as “[t]hose students eligible for special education administrator throughout the period (he now holds services from the Milwaukee Public School System the title of “equitable educational opportunities who are, have been or will be either denied or delayed coordinator”), said that meeting deadlines and entry or participation in the processes which result in a paperwork requirements became very important. properly constituted meeting between the IEP team and “I think we got pretty good at that,” Moulter said. the parents or guardians of the student.” An IEP is an Goodstein issued a decision on September 11, 2007, “individualized educational plan.” Developing an IEP is that came down strongly on the side of the plaintiffs. He a crucial process in special education. found liability on the part of MPS and DPI for not meeting Goodstein’s decision was crucial to the course of the the requirements of Child Find. For MPS, that included too- case. It also made a young girl, identified only as Jamie often missing deadlines for conducting IEPs; for DPI, that S., the lead plaintiff, since other children who were included not putting enough teeth into orders to MPS to initially among the named plaintiffs didn’t fit within the improve its record. “It is the opinion of the court that the class. Goodstein described Jamie S. in a later opinion plaintiffs have satisfied their burden to establish a systemic as a girl with cognitive problems that were spotted problem with the MPS program,” Goodstein wrote.

20 Fall 2013 A partial settlement, a lot of change Coulter stepped into the action as other circumstances surrounding MPS were changing. The federal No Child oodstein decided the case would move to the Left Behind education law was bringing escalating third stage of trial, focusing on remedies— sanctions against schools and school districts that Gunless, as he urged in his decision, the parties hadn’t met expectations. For MPS, that meant the state settled out of court. He got half of that. In a dramatic was gaining more power to order sometimes-sweeping turn, DPI and Disability Rights announced in July 2008 “corrective actions” in Milwaukee. Much of what the that they had agreed on a settlement that included DPI–Disability Rights settlement called for became part imposing on MPS expectations of close to 100 percent of these corrective actions, which gave the specific ideas compliance with IDEA requirements in each school in force even against the non-settling defendant, MPS—and a the system. Jodi Searl, a lawyer employed by MPS who source of authority independent of the partial settlement. worked extensively on the case, said MPS officials were In addition, the Council of the Great City Schools, a waiting for a fax from DPI when they got word of the peer organization of leaders of urban school districts, settlement. “It was a difficult blow,” she said. conducted analyses of several aspects of MPS’s work,

The partial settlement changed the dynamics and delivering strong criticisms. One report pointed to course of the case. DPI was now on the other side from decentralization of academic decision making in MPS, MPS. As part of the settlement, DPI agreed to pay for an which allowed 18 or more reading programs to be outside “special expert” to be appointed by the court to in use in the schools, as a big reason that reading oversee MPS’s work on carrying out the settlement. education was ineffective. In short order, control of Goodstein approved the settlement and the naming what was going on in the schools began to shift from of W. Alan Coulter, a professor at Louisiana State individual buildings to the MPS central administration. University Health Sciences Center in New Orleans, as an The centralization process accelerated after Gregory independent expert, with broad powers to shape what Thornton became MPS superintendent in 2010. the partial settlement meant. Coulter had a long record Another Great City Schools report criticized the of involvement in monitoring special education programs heavy use of student suspensions. MPS may have had for the U.S. Department of Education and others. He the highest suspension rates in the country, the report quickly emerged as a key figure in determining the suggested, while steps short of suspension were rarely long-term impact of Jamie S. His vision for what needed used and could be more constructive. Subsequently, to be done in Milwaukee went well beyond special central administrators directed principals to reduce use education, and he would view his role under Goodstein’s of suspensions—a step also accelerated under Thornton. order as putting him nearly on a par with both MPS Excessive suspensions were one of the original concerns Superintendent William Andrekopoulos and Wisconsin of the plaintiffs in Jamie S., and Coulter was also a critic Superintendent of Public Instruction Tony Evers. of them.

Marquette Lawyer 21 With the class determination thrown out, all the rest of the action fell with it. MPS, which had pretty much lost every round of the case for a decade in the district court, was suddenly the full winner.

MPS also was making an internal change that Going beyond special education advocates on all sides agree was important: a big push to improve data collection and use. This change y this point (2008 or so), Jamie S. had become occurred partly because it was important in the part of changes that went well beyond special Jamie S. proceedings to demonstrate progress in Beducation issues to address the way MPS served meeting IDEA requirements. To be sure, there were all its students—and one of the biggest boosters of this other reasons as well that good data became a priority was the court-appointed expert, Coulter. He viewed the in MPS, including that there was so much need for way reading and math were taught and the way behavior good data to meet other accountability demands and and discipline were handled for all students as areas (most generally) that such data collection had come to where he should express himself—and he did, with effect. be regarded nationwide as such a valuable element of But everything was not clear sailing. MPS was still efforts to improve education. fighting Goodstein’s decisions, and the opposition There was, in addition, growing nationwide support escalated in 2009 when Goodstein ordered the for education practices such as Response to Intervention development of a plan for MPS to search out people (RTI), a strategy that includes screening children at early who as students between 2000 and 2005 might not have ages and when there are early signs of a child’s getting received special education services they were entitled off a good academic track. Coulter was a big advocate to. Many of them were now adults. They were to receive of RTI, DPI leaders also liked the approach, and soon “compensatory education” to make up for what they it was high on the agenda for use in Milwaukee and, hadn’t gotten back then. What that meant was not subsequently, throughout Wisconsin. specified, but angry MPS leaders argued that this could The change in MPS leadership from Andrekopoulos, cost them large amounts of money that they did not have. superintendent from 2002 to 2010, to Thornton, who With Goodstein’s approval of the DPI–Disability was new to Milwaukee, was also important. Whereas Rights settlement and the order to create a MPS leaders until then largely had fought the plaintiffs compensatory education plan, the case seemed, for the and then DPI, Thornton wanted to cooperate, at least first time, appealable to the Seventh Circuit. The case on many fronts. Whereas Andrekopoulos and Coulter was argued before Judges Joel Flaum, Ilana Rovner, and butted heads, Thornton and Coulter hit it off. Coulter Diane Sykes on September 7, 2010. It was 16 months said, “It just completely changed the chemistry.” until the panel issued its decision—a period during Thornton, Coulter, and DPI chief Tony Evers met in which the Supreme Court issued a decision that strongly person every month for about two years; while they influenced the final ruling. didn’t agree on everything, the atmosphere improved Wal-Mart v. Dukes was a case alleging violations and the pace of change increased. by Wal-Mart of Title VII of the Civil Rights Act of 1964 The total effect: MPS has launched a wide array of through the discretion exercised by the company’s local changes since 2008, with accelerating change since 2010. supervisors over pay and promotion matters. In a 5 to The changes have not yet borne notable fruit in terms 4 decision, the high court ruled in 2011 that as many of improved student achievement, including for special as 1.5 million women who worked for Wal-Mart did education students, but there are signs of progress. They not constitute an appropriate group for a class action also continue to address key concerns that prompted the because their claims did not meet the requirement Jamie S. suit in the first place. of depending on “a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”

22 Fall 2013 The appeals court’s decision on Jamie S. was premised The big-picture influence ofJamie S. firmly on the Wal-Mart ruling. The opinion, written by Sykes, rejected Goodstein’s definition of the class involved earl, the long-time MPS lawyer and administrator, in the suit, as well as his acceptance of conclusions now works for Harley-Davidson. In 2012, she reached by expert witnesses for the plaintiffs. Scompleted a dissertation about the Jamie S. case “Like the Title VII claims in Wal-Mart Stores, Inc. v. and other special education class action cases from Dukes, 131 S. Ct. 2541 (2011), the IDEA claims in this case around the country, as part of completing a Ph.D. are highly individualized and vastly diverse, making this from the University of Wisconsin–Madison in case unsuitable for class-action treatment under Rule 23 of educational leadership and policy analysis. She the Federal Rules of Civil Procedure,” the decision said. downplayed any sense that the suit helped “In short, a class of unidentified but potentially accomplish the plaintiffs’ goals. IDEA-eligible students is inherently too indefinite to be “The plaintiffs’ use of class action litigation was certified,” it continued. “To bring individual IDEA claims not successful to advance resolution on the issues together to litigate as a class, the plaintiffs must show that originally caused them to turn to the court system that they share some question of law or fact that can be for relief. Based upon the Seventh Circuit’s ruling, answered all at once and that the single answer to that the plaintiffs were returned back to their pre-class question will resolve a central issue in all class members’ certification status,” Searl concluded. “After almost claims.” That was not the case for Jamie S. 11 years of litigating through the federal court system, Flaum joined Sykes in the opinion. Rovner wrote the plaintiffs ultimately lost the case in its entirety.” separately that she agreed that Goodstein had not On the other hand, she wrote, “there was a certified defined the class in an acceptable fashion, but that she class of plaintiff students for almost nine years, a liability was not sure there was no valid way to define a class in decision that stood for over four years before being cases such as this. overturned, and a settlement agreement between the With the class determination thrown out, all the rest plaintiffs and the state department of education that was of the action fell with it. MPS, which had pretty much in effect for almost four years of the litigation. All of this lost every round of the case for a decade in the district required the ongoing attention and resources of the DPI court, was suddenly the full winner. The DPI–Disability and the school district.” Rights settlement was erased. Coulter’s role ended almost In an interview, Searl maintained that the practical immediately. The “compensatory education” dispute was effects of the case did not play much of a role in dead. Years of what looked to some like futile resistance making things better for MPS students. In fact, she by the school board and MPS administration in court were thought the case may have slowed down MPS’s own suddenly vindicated. efforts to improve.

Marquette Lawyer 23 The changes have not yet borne notable fruit in terms of improved student achievement, including for special education students, but there are signs of progress.

But others differ. Yahle, MPS’s special education chief compliance.” Troy Couillard, a DPI official who worked throughout almost all of the period, said, “The lawsuit with MPS officials, said, “There are a lot of systems in gave us an enormous opportunity” to do more for kids place now that Milwaukee is using more effectively.” both with and without IEPs. The lawsuit emphasized that Sue Endress, an advocacy specialist for Disability Rights, everybody was responsible for every kid, she said, and agrees that the overall special education picture is better it led to the first time she felt all systems in MPS were now than a decade ago. “Are there still struggles? Yes,” she aligning to help all kids. said. “It takes a lot of years to turn a train around.” There Yahle listed three aspects of the Jamie S. legacy: “the are, for example, too many inexperienced teachers, she spit shine that we put on the compliance process”; the said. But the trends have been toward the better. positive impact of cooperation between MPS and DPI Jeff Spitzer-Resnick was a staff attorney for Disability in improving special education work, which offered Rights throughout the course of the case; he is now in DPI lessons it applied statewide; and what she called private practice. Asked whether things have gotten better, the biggest impact, improving the overall education he said, “I would say that both the nature and the number picture through more-effective attention to the needs of violations of the law—there’s no scientific way to count of all students. that—but I think they’re reduced.” Yahle said of the fight’s unfolding, “You never want Monica Murphy, managing attorney of the Milwaukee to say to the other side, ‘Thanks for the lawsuit because office of Disability Rights, said, “I don’t think Jamie S. did we’ve grown.’” But she believes that to be the case. anything for the plaintiffs.” Their lives “continued down “It definitely made us look at early intervention in a the dismal paths” they were on. But the case made some different way, in a practical way.” difference to kids who came after them, she said. Coulter agreed that the impact of Jamie S. on education in Milwaukee was positive. He said that when Lessons from the legal proceedings he first got involved, it was “somewhat disappointing” rom the standpoint of the legal process, to see that Wisconsin, especially Milwaukee, was the legacy of Jamie S. reflects some significant behind other places in implementing ideas such as truths: early screening and intervention. “Jamie S. became an F opportunity to introduce a number of the reforms that • The judge matters. One can never know to which of six had been happening in other places for a much longer active or senior district judges the case would have been time,” he said. At least when his Milwaukee duties ended assigned if the parties had not consented to Goodstein’s in 2012, he said two things required by the IDEA were presiding over the case as a magistrate judge. But there clearly being achieved: Kids were being evaluated in can be no doubt that, rightly or wrongly, at least some of a timely manner, and parents were being invited to them would have been less receptive to a class action of participate in those evaluations and the planning for this sort even before Wal-Mart v. Dukes. It is also likely those children. that the case would come before the Seventh Circuit much Nothing suggests that there has been backsliding more quickly now, as federal law [Rule 23(f) of the Federal since then. DPI data for the 2011–2012 school year Rules of Civil Procedure] changed only a month after show that Milwaukee completed 99.93 percent of Goodstein’s 2003 decision, making it considerably easier special education evaluations in a timely manner, to appeal class certifications from the outset. And Rovner’s compared to 98.91 percent for the state. Jennifer Mims partial dissent—she was open to the possibility that a Howell, director of specialized services for MPS, said, more narrowly defined class could be appropriate in the “Jamie S. has made us hyper-vigilant on timelines and case—suggests that a different panel of the Seventh Circuit

24 Fall 2013 might have gone in that direction. It takes only one vote Spitzer-Resnick said he is troubled by the poor for a 2–1 decision to come out the other way. forecast for class action suits after they had been used well to deal with systemic problems. “You can’t do it one • Court rulings are implemented in the context of at a time,” he said. “You need at least the threat of a class broader realities. To turn from the courts to the larger action to get action.” world, Jamie S. played a part in improving MPS’s work with special education students. But that came in the Looking forward in Milwaukee context of a machine with a lot of moving parts. In the real life of a system as big and complex as MPS, he difference between winning some gains in the change is not simple, a court order doesn’t necessarily schools and losing in court is not a small one for work out the way it was intended (consider the impact TDisability Rights Wisconsin itself. As part of the of desegregation of Milwaukee schools in the late 2008 settlement between the organization and DPI, DPI 1970s and the accelerated white flight in that period), agreed to pay $475,000 for the organization’s attorneys’ and identifying winners and losers requires more than fees and costs. As part of his remedies order, Goodstein reading or knowing direct decisions. Anyone considering required MPS to pay the organization $459,123.96. undertaking a major legal challenge needs to consider But when the appeals court’s decision came, Disability context that goes well beyond the courtroom and is Rights was no longer the “prevailing party.” In August likely to be unpredictable in its development. 2012, Judge Rudolph Randa of the Eastern District of Wisconsin ordered the organization to repay MPS. • Cooperation is a lot better than confrontation (at He ruled that the DPI payment was a matter for state least sometimes)—and it’s often all about people. courts. DPI filed suit in Dane County in March 2013, The changes that seem to be working out well were seeking repayment. Disability Rights has appealed propelled in large part by two events: First, the DPI, Randa’s order to repay MPS to the Seventh Circuit. which was a defendant in the lawsuit, settled with the The organization has reduced its staff and spending. plaintiffs, and, in effect, joined forces with them against But what about the special education students? MPS. Second, the change in MPS superintendents from In Milwaukee and beyond, Jamie S. was part of a Andrekopoulos to Thornton in 2010 improved the way period in which compliance with the Individuals with key players interacted, in a way that bore fruit. The most Disabilities Education Act was the priority. There seems positive results have arisen from positive environments. to be general agreement that compliance has improved, • The forecast for class actions of this kind is not and no one is in favor of going backward on that. rosy. The Supreme Court’s Wal-Mart decision, and Even so, overall achievement for special education its application to special education class actions by children has not improved and remains generally poor. the Seventh Circuit, have slowed, if not halted, such MPS special education leaders say now that the emphasis cases nationwide, according to several people who needs to be put on improving actual achievement for follow the national scene. Coulter said, “Jamie S. has students. They believe all the changes that have been had a national chilling effect on litigation as it relates made in recent years will pay off on that front. to kids with disabilities in public schools because of Stephanie Petska, director of the special the circuit’s decision around definition of a class.” The education team at the state DPI, said case is often mentioned, he said, in discussions of the federal education officials also have advisability of litigation concerning special education. acknowledged that emphasis solely Class actions were a major strategy of special on compliance has not produced education advocates in the last 15 to 20 years. Searl adequate academic gains and that the describes the mixed success of several of those large focus needs to be put on success in cases in her dissertation. But, overall, school systems that learning. She said she is excited for were defendants improved their records on the ground, the potential for steps that are being even if, in some cases, they won in court. With the class taken nowto bring benefits. action route stymied and with few people having the But she added a crucial thought that resources to go to court over individual situations, the goes beyond court orders or formal likelihood that courts will influence special education policies. “There has to be sustained policy is diminished. will,” she said.

Marquette Lawyer 25 FACULTY INSIGHTS

Changing Things for the Better, Step by Step

Phoebe Williams remembers her father coming home from his job as a schoolteacher in an unusually happy mood on May 17, 1954, the day the U.S. Supreme Court issued the historic Brown v. Board of Education decision on school segregation. Williams Pwas eight years old and living in thoroughly segregated Memphis, Tennessee. INSIGHTS FACULTY Changing Things for the Better, Step by Step

“When Dad announced the Supreme Court stated that Chapter 1: Memphis, then and now segregated schools were unlawful, I expected immediate In Law Touched Our Hearts: A Generation Remembers improvements,” she wrote in an essay published 55 years Brown v. Board of Education (2009), a collection of later. She was firmly aware, even at that age, that white essays by law professors born between 1936 and 1954, people were getting privileges and opportunities that Williams’s contribution described the realities of the black people weren’t getting. She asked her father if she segregated city of her childhood. Not only schools and now would be able to go to the white kids’ school or if public buses, but also restaurants, parks, the zoo, public white kids would come to her school. bathrooms, and so on—all treated black people as “I wanted and expected change immediately,” inferior, often in the most demeaning ways. she recalled. But if the schools Williams attended didn’t have She didn’t get it, of course, and neither did Memphis a lot of the things that the white kids’ schools had, or the rest of America. But ultimately, change, at once the emphasis of her parents and grandparents made sweeping yet incomplete, occurred across the United education a dominant factor in Williams’s life. She States. The Brown decision became a landmark for says she knew that she would graduate from college helping identify all that changed and all that didn’t in “because I didn’t think my parents were going to give the following decades. me any other choice.” And change became a pivotal element in the life of Her hopes for change in Memphis while she was Phoebe Williams, a woman who to this day wants and a child were dashed. The white power structure was expects change for the better—and immediately would entrenched, powerful, and strongly opposed to change. be nice. Williams, a Marquette lawyer herself and a By the time Williams graduated from high school in the member of the Marquette Law School faculty since 1985, 1960s, the change she expected to result from the Brown has been an initiator of change, a participant in change, decision had barely happened. a witness to change—and a witness to the frustration of But change did come to Memphis, where Williams’s hopes for change. mother and other family members still live. Now, she says, If you want to understand this gentle yet demanding “it’s a very, very different place.” African Americans hold agent of change, a woman who has become a key a range of powerful positions in the city, and integration figure in the life and character of Marquette Law of public places and services has long been the norm. School, you need to look at a few pages from the But there is still much more change needed. “Some of the chapters of her life story. same issues of poverty, crime, and lack still occur in areas

Marquette Lawyer 27 Realities for African Americans in Milwaukee have changed greatly in the nearly half century since Williams followed family members to Milwaukee. FACULTY INSIGHTS FACULTY

of the city,” she says. “It’s evident that social problems a laugh. Beyond racial issues, she also had to adjust to still fall along racial lines.” winter (“a major challenge”) and the firm rules Marquette had at that time for female students (for example, Chapter 2: From Memphis to Milwaukee slacks were allowed only in extreme weather). But she appreciates not only the quality of the education she As part of an historic tide of African Americans, an received but also the exposure she got to new experiences uncle of Williams moved from Memphis to Chicago and people. and then to Milwaukee in the 1950s. He got a job at The realities of being an African-American student at A. O. Smith, the then-giant manufacturing complex on Marquette have improved substantially since that era, the city’s north side. Other family members joined him, Williams says, although there is “absolutely still room several of them also taking positions at the factory. for improvement.” She has been an advocate for that, In that era, Milwaukee’s black community was small serving on various university task forces and committees and confined to a specific area just north of downtown. over the years. But it was growing quickly. Realities for African Americans in Milwaukee have Tchanged greatly in the nearly half century since Williams Chapter 4: Marquette Law School followed family members to the city. “Those types of jobs In the 1970s, Williams read the best-selling personal- are gone,” she says of the factory work her relatives did. development book Passages by Gail Sheehy. At the time, “Milwaukee now has people who want to be middle class Williams was managing a Social Security branch office but don’t have jobs or education for it. . . . It creates a lot in Milwaukee. The book helped catalyze her desire for of frustration and despair.” something more, for a major change. Williams has been part of efforts to change things for “I decided that law school would be that major change,” the better, including past service on the city’s Fire and she says. She was accepted at Marquette Law School. As Police Commission and involvement in community groups in her undergraduate days, she was one of the few black and causes. students: there were three in her class. And there were no minority faculty members. But Williams’s determination Chapter 3: Marquette University to overcome challenges carried her through. “Mentally, Williams’s destination in Milwaukee was not a factory. I could not embrace the thought of failing,” she says. It was Marquette University. She became one of the few Williams graduated in 1981. African Americans on the campus at that time, and it was She practiced at a Milwaukee firm, representing a big adjustment. A decade ago, a U.S. Supreme Court management in labor and employment matters for four decision on affirmative action referred to the value of years, before making another change—she joined the Law having a “critical mass” of students of different racial and School faculty in 1985. ethnic groups at a university. “I can appreciate what the Both the Law School itself and the situation of minority Supreme Court meant about the value of critical mass,” students in the school have changed for the better over the Williams says. years, Williams says. The school has more diversity both With strong support from family members, she among the students and in the faculty and staff, although, succeeded in adjusting to the academic demands of she says, plenty of room for improvement remains. Marquette and in getting to know people from much As for the Law School more broadly, Williams says that different backgrounds. “I got to Marquette and found that teaching techniques have changed substantially, with less there were ethnicities among white people,” she says with emphasis now on putting students on the spot in a class to

28 Fall 2013 present material and more emphasis on legal theory and That’s why, beyond her role as a lawyer, Williams is an the application of legal concepts to practical situations. advocate for efforts that build relationships across racial, The Law School has, of course, moved into Eckstein ethnic, and class lines and efforts to expose people to Hall and taken on a much-expanded role in the life of other cultures. “There’s a role for religion,” she adds—and Milwaukee and Wisconsin with its public policy efforts. that is an area where change has also been a part of Williams has been a strong supporter of those efforts. Williams’s life. Her childhood included Lutheran schools, FACULTY INSIGHTS FACULTY She says that Eckstein Hall has become a place where she has been a practicing Catholic and Methodist, and she civil discourse addressing major issues is promoted and currently is a member of a Baptist church. She says that practiced. The public comes to the Law School in a way faith has been a source of strength when she has needed that never happened before. to meet challenges and obstacles. “There’s an energy here that to me is exciting and inspiring,” Williams says, adding that Marquette Chapter 6: Change accomplished Law School “has evolved into the place I hoped it by great humanitarians would become.” Williams was the Law School’s representative in planning Marquette’s Mission Week in February 2013. “It was an Chapter 5: Change and the law awesome experience,” she says. Marquette brought to the Williams has an unusual legal distinction: Her maternal campus most of the winners of the Opus Prize, a $1 million grandfather was a named party in a Supreme Court case, annual award launched in 2004 and presented for faith- Brotherhood of Railroad Trainmen v. Howard, a 1952 based humanitarian work around the world. decision that barred an all-white union from taking action Mission Week brought Williams into contact with under its contract to keep African Americans from doing people of extraordinary accomplishment, people the same work. whose work is benefiting tens of thousands of other “As a young child, I was always fascinated by the people in some of the world’s most impoverished law and what the law could do,” Williams says. “I was places. Williams’s work included arranging “On also made to appreciate the role law could play in the the Issues with Mike Gousha” sessions in Eckstein operation of racial discrimination.” Hall with Father Rick Frechette, C.P., who leads The segregation that shaped Williams’s life as a child efforts to help large numbers of children in Haiti, was sanctioned by the law at the time. Yet much of the and Marguerite “Maggy” Barankitse, whose Maison change for the better that has occurred in her lifetime Shalom in Burundi (Africa) assists families; both are was propelled by the law. And at the root of some of the previous winners of the Opus Prize. biggest factors behind America’s racial problems lie things “Just to have that type of courage—you don’t see that that the law cannot control. type of courage very often,” Williams said. “They were Put those three facts together, and you can see how inspiring beyond measure.” Her involvement with the Williams has come to have a deep involvement with the Opus Prize winners led Williams to consider what more law as a career and passion, even as she has a strong she can do. She doesn’t know yet where that will lead her, sense of its limits. but she says she knows she needs to do more. She recalls a white doctor in Memphis during her Williams wanted change immediately as a child. She childhood years who went against social convention and has learned how to be part of pushing productively to started serving black people on the same basis as white make things better but not to expect problems to be people. Within a short time, his patients were all black— solved so fast. “When I reflect on how long I waited for white people fled his practice. That was something the the 1954 Brown decision to make a difference in my life, law could not stop. Similar forces today, on a larger I can appreciate the frustration of those who still wait and scale, shape realities in places such as Milwaukee, where hope,” Williams says. discrimination in housing is illegal, of course, but housing She still waits and hopes. She still has frustrations. patterns remain largely segregated. “No law can stop But as a professor, as a lawyer, as an advocate, and as an certain social processes from occurring,” she says. “The African-American woman, she also still pushes for change inequality continues.” for the better.

Marquette Lawyer 29 FROM THE PODIUM

Nies Lecture | Arti K. Rai Diagnostic Patents at the Supreme Court Arti K. Rai is the Elvin R. Latty Professor of Law at Duke Law School and a faculty affiliate of the Duke Institute for Genome Sciences & Policy. On April 10, 2013, Professor Rai delivered “Patents, Markets, and Medicine in a Just Society” as Marquette Law School’s annual Helen Wilson Nies Lecture in Intellectual Property. Her lecture anticipated the arguments the next week before the U.S. Supreme Court in Association for Molecular Pathology v. Myriad Genetics, Inc. This essay looks forward now that Myriad has been decided. A version of this essay with footnotes will appear in the forthcoming issue of the Marquette Intellectual Property Law Review.

his past June, the United States Supreme Court activity to the law of nature that individuals metabolize handed down a highly anticipated decision thiopurine drugs differently. Ton DNA patenting, Association for Molecular The Court’s recent interest in diagnostic patents Pathology v. Myriad Genetics, Inc. Overturning the comes after years of heated public controversy over determination reached by the U.S. Court of Appeals whether such patents pose an impediment to patient for the Federal Circuit, but in line with the position access and control of medical decision making. This of the U.S. solicitor general, the Court distinguished controversy encompasses, but is also broader than, the between DNA that has merely been isolated (genomic controversy over DNA patenting. DNA, or “gDNA”) and DNA that has non-protein-coding Some critics of the Myriad and Mayo decisions fear regions excised (complementary DNA, or “cDNA”). that the Court was improperly swayed by concerns over The Court held that, while gDNA is a patent-ineligible access and patient control. In this view, conventional “product of nature,” cDNA is patent eligible. The among patent lawyers, validity doctrine exists to upshot of the Court’s decision is that certain patents promote innovation—and only innovation. The Myriad (gDNA) generally associated with diagnostic medicine case, involving patents on BRCA1 and BRCA2 genes are invalid, but patents typically associated with associated with breast cancer, is particularly troubling, therapeutics (cDNA) are valid. as the momentum behind the case was clearly driven in The Court’s decision in Myriad came on the heels part by concerns unrelated to innovation. of its unanimous decision a year earlier in Mayo At least some critics of the decisions might concede Collaborative Services v. Prometheus Laboratories, Inc. that patents were not essential for innovation in the In Mayo, the Court similarly overturned the Federal specific factual scenarios raised by those cases. Even Circuit’s approach to deciding whether subject matter so, they would argue that the Court’s decisions are associated with diagnostic medical practice should likely to have unintended consequences in areas where be eligible for patenting. There the Court struck patents are more necessary. These include not only down method claims on measuring a thiopurine drug therapeutics but also diagnostic research that is more metabolite to adjust doses of a thiopurine drug, stating complex, or less enmeshed in federal funding, than the that the claims in question merely added routine research in Myriad and Mayo.

As a functional matter, patent validity is a blunt and over-inclusive mechanism for policing concerns about access. In many cases where access concerns are raised, problems could be alleviated by the patent owner’s being forced to adopt a different enforcement strategy.

30 Fall 2013 enforcement strategy. In the Myriad case, for example, PODIUM one very significant complaint was Myriad’s alleged use of its patent to deny women the option of a second opinion after having received Myriad’s test. In that situation, principles of patent exhaustion drawing upon

antitrust law suggest that patients who have already FROM THE given Myriad a monopoly profit by using its services should have the option of using another provider to get a second opinion. Conversely, providers who offer those second opinions shouldn’t be liable for patent infringement. Efforts to create a safe harbor from infringement liability for second-opinion testing reflect Arti K. Rai these exhaustion principles. In line with the conventional frame, this essay Additionally, in many diagnostic-testing cases, agrees that interpretation of patentable subject including Myriad, flows of public funding from the matter and other validity doctrines should be guided National Institutes of Health (“NIH”) to universities by innovation goals. Although innovation and were heavily involved in the research that led to access cannot be entirely separated in the case of patenting. In Myriad itself, the relevant university physician-researchers who also provide clinical care, was the University of Utah. Unlike the University of the conceptual emphasis should be on innovation. Utah, most universities have endorsed, and tend to Promoting access should rely not on validity doctrine follow, norms for licensing diagnostic patents similar but rather on the carefully calibrated tools of to those suggested by NIH. These norms include infringement exemptions that borrow from antitrust using exclusive licensing of diagnostic patents only principles, from agency use of background government in the subset of cases where substantial additional rights to persuade those who receive federal funding development is needed and exclusivity will provide the to engage in appropriate licensing practices, and from economic motivation for such development. insurer bargaining over price. In cases like Myriad, where testing is relatively Myriad and Mayo need not, however, be interpreted straightforward and does not need to be approved by in a manner that is antithetical to innovation. This the Food and Drug Administration (FDA), the rationale essay lays out a path forward from these cases that is for exclusive licensing is much less clear. Moreover, compatible with innovation goals. even in cases of exclusive licensing, university norms endorse preserving the option of second-opinion Innovation, Access, and Validity testing and shielding physician-researchers from the As an historical matter, U.S. patent validity doctrine threat of infringement liability. In this regard, the has focused on innovation. The Constitution’s University of Utah and its exclusive licensee Myriad intellectual property provision, which discusses have been outliers. Outlier cases are not a reason to patents as promoting the “Progress of the . . . Useful revise validity doctrine. Arts,” puts the spotlight squarely on innovation. In addition, insurance carriers, private and public, Moreover, although the Supreme Court has given can and should bargain with patent owners over Congress broad leeway to interpret this constitutional conditions of access. The current reimbursement provision, U.S. patent legislation, unlike legislation regime for diagnostics, in which insurers require in other jurisdictions (e.g., Europe), rarely imposes proof of clinical efficacy before they provide coverage, nonutilitarian limits on patent eligibility. may have limitations, but it gives insurers bargaining This historical focus is reinforced by functional leverage. Notably, in other countries, purchasers have considerations. As a functional matter, patent validity exercised bargaining power to promote access to is a blunt and over-inclusive mechanism for policing diagnostic testing. concerns about access. In many cases where access After the Supreme Court’s decision, Myriad pledged concerns are raised, problems could be alleviated by formally for the first time that it would not assert its the patent owner’s being forced to adopt a different patents against noncommercial academic research. It

Marquette Lawyer 31 FROM THE PODIUM 32 Fall 2013 economic, innovation-oriented framework. some extent, triedtoshapethispastprecedentintoan wrong, theCourt’s recentdecisionshave, atleastto the Court’s todeclarepriordecisions reluctance general narrowly limitpastprecedent. Instead, inkeeping with precedent asitgoesforward. for Court, the current itmustcontendwiththisold first codified the obviousness requirement. Unfortunately acute for casesdecidedbefore the1952Patent Act, which of preciselyparsingtheCourt’s discussionsisparticularly referring tosomeothervalidity requirement. The problem matterorisinstead addressingeligiblesubject actually Inoculant Co. is (1948)failtoclarifywhethertheCourt Indeed, SeedCo.v. decisionssuchasFunkBrothers Kalo decisions have beenquiteunhelpfulinthisregard. often and why limits. they are off Unfortunately, theCourt’s whatthecategoriesmean the responsibilitytoarticulate applications oflaws ofnature, orproducts has theCourt However, sincemany inventions couldbeseenasobvious nature” categoricallyfalloutsidetherealmofpatentability. that ideas,”“abstract “laws ofnature,” and of “products interpreted throughaninnovation-focused lens. Mayo suggestshow thedecisionscanbe andMyriad innovation substantially. The following discussionof decisions mustbereadinamannerthathampers on innovation, they mistakenly suggestthattherecent mattershouldfocusdecisions onpatentablesubject Although criticsarerighttoargue thattheCourt’s Subject MatterDecisions Innovation andtheCourt’s Recent make thispledgeearlier. pressure earlier, Myriadmighthave beenforced to such asNIH, otheruniversities, andinsurersapplied of patientstosecureasecondopinion. Hadinstitutions also pledgedthatitwould withtheability notinterfere One obvious optionwould betooverrule or For many decades, hasrepeatedlystated theCourt theissueofinnovation.Let usconsidernext oriented approach. Mayo’s reasoning isintensionwithaneconomically development ofrelevant evidence. Onitsface, then, those cases, toinduce patentsmay benecessary tofindandbe quitedifficult validateclinically. In Mayo, however, someoftheseassociationsmay narrow laws ofnature. Unlike theassociationin personalized medicineassociationstypicallycover response. Like theassociationatissueinMayo, as DNAvariations andpatientprognosisordrug “natural” associationsbetween biomarkers such medicine. Personalized medicinerevolves around that relatetotheburgeoning field ofpersonalized to draw suchpolicy-ladendistinctions. mindful oftherealitythatpriorcaselaw hadfailed broad andnarrow laws ofnature, itwas likely todistinguishbetweenthe inabilityofjudiciary institutional-competence considerations, specifically no matterhow narrow. invokedAlthough theCourt striking down allpatentscovering laws ofnature, that itneededtoenunciatea “bright-line prohibition” on thepromiseofitsreasoning. Instead, itinsisted was quitenarrow. infact differently— metabolize thiopurine-containingdrugs the law ofnatureitwas addressing—thatindividuals these arguments, acknowledged that further theCourt innovation fromnarrower laws. recognizing After withlargeof naturethatinterfere areasoffuture approachshoulddistinguishbroadlawsa pragmatic made by thepatenteeandby various academicsthat “preempt” futureresearch. Italsorecognizedarguments of patentabilityother matter—could thansubject nature—even claimsthatsatisfied allrequirements most notablythepossibilitythatclaimsonlaws of repeatedlyfocused consequences, onpragmatic Court limitations oftheCourt’s efforts. Intheopinion, the The patents affected byThe patentsaffected Mayo couldincludemany Unfortunately, didnotfollow through theCourt The 2012Mayo caseshows boththepromiseand

In addition, insurance carriers, private and public, can and should bargain with patent owners over conditions of access. The current reimbursement PODIUM regime for diagnostics, in which insurers require proof of clinical efficacy before they provide coverage, may have limitations, but it gives insurers bargaining leverage. FROM THE

From the standpoint of those who care about gDNA claims could interfere with a broad range of innovation policy, all is not lost, however. In the context downstream uses, cDNA claims had narrower application of conceding that the law of nature in question was specific to therapeutic development and could be narrow, the Mayo Court did emphasize the relatively worked around for other purposes. trivial contribution made by the patentee. Studies With gDNA patents now out of the picture, concerns had already indicated that measurement of thiopurine that the platform technology of whole genome metabolite level was important for predictions of sequencing could be impeded by such patents are now efficacy. The patentee had simply quantified the precise gone. Some have argued that these patents would not correlation between metabolite levels and effectiveness. have posed a major obstacle. But dissipating the shadow In contrast, certain advances in personalized medicine— of infringement liability to the greatest extent possible for example, the development of tests that analyze the was important for officials at NIH and the U.S. Office expression of multiple genes in a tumor sample as a of Science and Technology Policy. They successfully guide to prognosis and future treatment—could be convinced the solicitor general to reject the U.S. Patent distinguished as much more complex than the simple and Trademark Office’s position, which allowed claims test in Mayo. In other words, all diagnostic associations on “isolated” DNA molecules. are not alike, and perhaps the reasoning in Mayo can be As it happens, NIH has a long history of helping restricted to the simple category. to shape validity requirements in the context of DNA The Court’s reasoning and ultimate result in Myriad patents. Befitting its role as a research funder, its in 2013 can also be interpreted as tracking relevant concerns have been innovation, not access. NIH played economic considerations. Yet, as with Mayo, one’s that role again in the Myriad case. reading of the case has to be oriented in that direction. To be sure, the Court’s decision may also weaken In Myriad, the Court began by observing that under the diagnostic service monopoly model of firms such as the “well-established” balance that patent law tries to Myriad, at least to the degree that this model relies on strike between creating incentives for innovation and patents. The day the opinion was announced, Ambry blocking future innovation, gDNA claims covering broad Genetics, GeneDx, DNA Traits, Quest Diagnostics, and categories of information, rather than “the specific Pathway Genomics, as well as a number of academic chemical composition of a particular molecule,” are institutions, stated that they would begin testing for suspect. Informational content is, however, only one BRCA1 and BRCA2 mutations. That said, the opinion factor in the calculus. Although the Court indicated leaves Myriad room to sue on a variety of claims, that cDNA claims also cover information, it ultimately particularly method claims, not at issue in the Supreme held that the removal of noncoding DNA makes cDNA Court case. And Myriad has in fact sued several firms, molecules patent eligible. including Ambry Genetics and Gene by Gene. The Court’s analysis failed to enunciate why claims NIH, which appears to have funded research that to information in the form of cDNA are less problematic led to at least some of the patents in the suits against than claims to information in the form of gDNA. This Ambry and Gene by Gene, would be well-advised to failure is significant and renders the opinion less useful track these lawsuits closely. Under the Bayh-Dole Act of as a stand-alone document. Nonetheless, lower courts 1980, agencies can force additional licensing of federally could certainly read the Court’s distinction through the funded patents where such “action is necessary to economic lens invoked by the two amicus briefs that alleviate health or safety needs which are not reasonably called the distinction to the Court’s attention—those satisfied” by the federal grantee or its licensee. In its of the solicitor general and of the prominent geneticist briefing seeking a preliminary injunction, Myriad is Eric Lander. Both of these briefs emphasized that while making the perhaps counterintuitive argument that

Marquette Lawyer 33 FROM THE PODIUM 34 Fall 2013 because Iexpect Mr. Shriner, inourusual classroom School. So if, at any moment, Ipauseorflinch, itis we teachtogethereachsemesteratMarquette Law couple oftimesaweek inthevarious coursesthat T and antibodypatentsnow claimmoleculesthatare proteins andantibodies. Although many protein claims typicallyassociatedwiththerapeutics. and EricLandercalledspecifically for upholdingcDNA approval. by thesolicitorgeneral The amicusbriefsfiled tosecuresuch for expending theresourcesnecessary incentivesanalysts agreethatpatentsprovide important molecules requireapproval by theFDA, andmost molecules.associated withtherapeutic All therapeutic patents butinsteadunintendedconsequencesfor patents isnotinvalidation byofgDNA Myriad raised concern Beyond Diagnostics some leverage. being asserted, even anincompletestake mightprovide background rightsinonlysomeofthepatentsthatare health andsafety. Even thoughNIHappearstohave would promote Bayh-Dole’s objectives to withrespect NIH mightevaluate whetherlicensingtootherfirms claims.firm Ifthesearguments appearmeritorious, recordisnotasunequivocallytrack superiorasthe NIH shouldconsidercounterarguments thattheMyriad are likely tobevalid, alsoacontestedproposition), course agreewithMyriad’s argument thatitsclaims were toagreewiththeseargumentscourt (andof have recordininterpretingmutations. itstrack Ifa thatdon’t patients fromusingdiagnosticlaboratories publichealthbysuch reliefwould prohibiting promote the oath of office, which Dean Joseph D. Kearney seconded. Here arethe oathofoffice,whichDeanJosephD.Kearney DeanKearney’s remarks. Halfenger’s formerlawpartner, ThomasL.Shriner, Jr., ofFoley&Lardner, madethemotiontoadminister C.Griesbach,L’79, ChiefJudgeWilliam Frank H.Easterbrook. DistrictofWisconsin Eastern presided. Judge as aU.S.bankruptcyjudge,withvariousfederaljudges onthebench,includingSeventhCircuit ChiefJudge On April12,2013,inthefederalcourthouseMilwaukee, G.MichaelHalfengertooktheoathofoffice Remarks attheInvestitureofJudge G.MichaelHalfenger Joseph D.Kearney Therapeutic products that could be affected include include thatcouldbeaffected products Therapeutic For industry, many inthebiopharmaceutical the hank you, ChiefJudgeGriesbach, andMay accustomed tosharingapodium: we dosoa It PleasetheCourt. Mr. ShrinerandIare

were toofew, herelatedthat thoughtthatChief when Iasked Mr. Halfenger whethertwo speakers discretion, I mightwander toofarafield. Indeed, thantocorrect. rather will betoelaborate do so—andIwillhope, asalways, thathispurpose style, whenever simplytointerject itpleaseshimto provide apathforward for lower courts. is friendlytoinnovation. This essay hasattemptedto choose toreadtheCourt’s opinionsinamannerthat extent, the anxietyisjustified. Butlower could courts anxiety foraboutinnovation. thoseconcerned To some the areaofdiagnosticpatentinghascausedconsiderable Conclusion with someothermaterial, suchasavector. “merely isolated.” Ratherthey willhave beencombined products,therapeutic they willlikely notbeclaimedas However, ifDNAmoleculesdoprove usefulas directly basedonsequencesfoundDNA products innature. DNA,prokaryotic whichlacksnoncodingregions, or aboutaninabilitytopatent expressed concern typically claim “specific chemicalcompositions.” couldfocus thatthese patents onthefact courts usesthathavetherapeutic beenisolatedfromnature, covering smallmoleculechemicalswithimportant upholding suchclaims. Similarly, inaddressingpatents could focus oftheMyriad onthisaspect compositions” thantoinformation. Lower courts be claimedassomethingcloserto “specific chemical proteins would, inthewords Court, oftheMyriad necessarily beinvalid. Presumablytheantibodiesand Even inthese cases, however, theclaimswouldn’t molecules. occurring as encompassingnaturally clearly synthetic, claimscouldbeseen certain I amgladfor my specificrolehere: to my left own Without adoubt, theCourt’s in recent spateofactivity In thewake someanalystshave ofMyriad, also opinion in

When Mr. Halfenger is with you, he is with you: you have his PODIUM attention, his engagement, his patience. He is not hurried, and you know that his purpose is to work through an issue with you—not to comply with your request in some formal but not especially helpful way, so that he may return to ‘his’ case. What a great thing FROM THE this is in a judge: the capacity and the affinity to listen, to converse, to attend.

themselves to be in an ordinary marketplace and had paid only the rates that they had negotiated with the carriers, not the filed rates. Such a discussion was all in front of me. Imagine my disappointment, then, to learn later in my conversation with Mr. Halfenger that the law review article discussed back in 1985 had not been Dean Casper’s own but rather one by the subject of the motion, Judge Easterbrook. This was a problem beyond depriving me of the Interstate Commerce

Photo by Ellen Cook Act: Mr. Halfenger has not been about writing law Joan Halfenger and Melissa Halfenger look on as Mike Halfenger, review articles during the more than 20 years that respectively their son and husband, takes the oath of office as a I have known him. Rather, he has been hard at the U.S. bankruptcy judge. practice of law. Judge Easterbrook had limited the speakers at his And this he has done most impressively and own investiture to one, asking Dean Gerhard Casper well. I know this from having worked with Mr. of the University of Chicago Law School to say a few Halfenger starting in 1992: after clerking for Judge words, perhaps about a law review article. Easterbrook, he arrived to Chicago’s Sidley & Austin I liked it. This suggested that today might be an (before the firm lost the ampersand). Mr. Halfenger opportunity to talk about an essay that I wrote last made his mark quickly: I can demonstrate this year marking the 125th anniversary of the Interstate by a reference to now-Professor Jim Speta of Commerce Act. That was an historical occasion that Northwestern University. The latter graduated it seemed (to me and to a few others) noteworthy. from law school the same year as Mr. Halfenger After all, to talk about the Interstate Commerce but joined the firm a year later. Mr. Speta was Act would have enabled me to talk about the dispatched for his first assignment to help out in filed rate doctrine—the precept that a railway, a pending case. He looked forward to meeting the telephone, or trucking company had to embody its important partner for whom he no doubt would rates in tariffs filed with the federal government be working—only to discover that his task was to and could not depart from the filed rates under review several boxes of documents that the not- any circumstance, lest there be discrimination or much-earlier-arrived Mike Halfenger had in his favoritism. It would not even have been hard for office. So Mr. Halfenger was on his way to success me to tie this into bankruptcy, as the Supreme at the firm: passing off discovery to anyone, let Court’s great modern filed rate doctrine case of alone after only a year and to someone not junior 1990, Maislin Industries, U.S., Inc. v. Primary Steel, to you, hints at greatness. Inc., arose from a bankruptcy case. There, trustees Imagine, then, our surprise at Sidley in 1994, in bankruptcy of failed trucking companies went when Mr. Halfenger moved to Wisconsin, which after shippers that had made the mistake of thinking was where he and his wife, Melissa, had first met

Marquette Lawyer 35 FROM THE PODIUM 36 Fall 2013 especially valued Mr. Halfenger’s approach. that sheandother women lawyers at thefirm solopractice,colleague inherotherwise suggested she now has onlyme(ofcounsel)asaprofessional Anne, atahighlevel whostill practices even though tolisten,and theaffinity toconverse, toattend. case. What agreatthingthisisinjudge: thecapacity especially helpfulway, sothathemay to return “his” to complywithyour butnot requestinsomeformal purpose istowork throughanissuewithyou—not patience. Heisnothurried, andyou know thathis with you: you have hisattention, hisengagement, his ofway.sort When Mr. Halfenger iswithyou, heis they were handling—and notmerelyinsomeoffhand issuesincases thatcolleagues wrestlewithdifficult Mr. Halfenger hasalways beenwillingtohelphis that drove hissuccess asalawyer. Inadditiontothis, has notedtomethatitisnotjustnative intelligence joined himasalawyer atFoley. Counsel’sCorporation oftheCityChicago, Office three years them, after and Anne, having the left we followed Mike andMelissatoMilwaukee some also ofmy wife, Anne BerlemanKearney, when esteem for Mr. Halfenger soonbecamethejudgment the needtoelaborate. Yet Idowishto relatethatthis Mr. Shriner, powerful issufficiently thatIdonot feel testimony inthisregardby law hislongtime partner, withsuccess asajudge.think iscorrelated And the an excellent lawyer—something thatIwould like to described. Imyself alreadyknew Mr. Halfenger tobe then joinedFoley &Lardner, asMr. Shrinerhas was the homeofMelissa’s parents. Mr. Halfenger (as undergraduates atLawrence University), and Anne, whoworked with Mr. Halfenger closely, somethingtodowiththeselection. themorning, finishingabriefwiththem—may have had metositattheirkitchentable, permitted untilthreein dealwithmeasaclient—andthatnootherswould have Mr. Halfenger. That few otherlawyers intown mighthave wishedto thenunderattack), we atMarquetteretainedMr. Shrinerand (amatterofsomerelevance tothediplomaprivilege MarquetteandMadisonespeciallytaughtWisconsin law began, strangely, rather toquestionwhetherthelaw schoolsat ofappealsafew Whenapaneloffederal court years ago someone else mightbehereasdean(I mean, All endedwell—and agood thing, too, for otherwise may have had somethingtodowiththeselection. three inthemorning, finishingabriefwiththem— have metositattheirkitchentable, permitted until deal withmeasaclient—and thatnootherswould That few other lawyers intown mighthave wishedto Marquette retainedMr. ShrinerandMr. Halfenger. to thediplomaprivilegethenunderattack), we at taught Wisconsin law (amatterofsomerelevance law schoolsatMarquetteandMadisonespecially ago began, strangely, rather toquestionwhetherthe ofappealsafew yearsa paneloffederal court both legalrepresentationandothersupport. When University Law SchoolhasreliedonMr. Halfenger for judge especially, Iwillleave toothers. be appropriateinajudge—whetherbankruptcy we canagree, Ishouldhope, thatsomekindnesscan whenIwasget mesomeGatorade sickinbed. But I have nothesitatedtoaskhimgothestore example, ormorelikely myself by recountinghow more unusualones. Mike, Iwillnotembarrass for on Mike for help, fromroutinematterstorather And morethanoncetheKearney familyhascalled to know thelarger Halfenger and Wagner families. Matt andKyleigh Halfenger, andtoallofusget and Thomas Kearney tohave suchreadyaccessto and ithasbeentotheadvantage ofMichael, Stephen, found usourhousewhenwe hadunusualcriteria, eight houses. This isbecauseMelissaHalfenger by somesixor neighbors—separated practically Indeed, as Your Honorhassuggested, we are The relationshipisnotallpersonal. Marquette So theKearney familyknows Mike Halfenger.

Eckstein Hall is nice and all, but it’s not the My confidence in Mr. Halfenger is without limit. PODIUM diploma privilege). Some years back I delegated to him my position Mr. Halfenger had long before invested in on the Wisconsin Supreme Court’s Appointment Marquette Law School. The job of reading the Selection Committee, which Mr. Halfenger went draft case problem in our Jenkins Honors Moot on to chair. And when the Court told me that his

Court Competition became his permanently almost term was up and that under the rules I needed to FROM THE a decade ago, when in this courtroom Judge appoint someone else, I instead suggested to the Easterbrook inquired, from the bench, of the chief justice that such a small matter as the end of hapless student advocate why the defendant named a term or even a term limit should not get in the in the moot court problem was a public school and way of a good idea. Mr. Halfenger was reappointed. not a school district (as would have been the case Let me not continue. I respectfully submit in the real world and as would have avoided the that the Court should consider itself adequately mootness issue in the case). Mr. Halfenger, who informed in the premises of the motion. The was in the courtroom that evening, allowed to me Court has heard representations by members of afterward that that had occurred to him as well. its bar concerning Mr. Halfenger’s intelligence, his I would ask Your Honor, as an alum of Marquette outstanding work habits, his great knowledge of Law School, to consider whether to clarify in ruling the law, his interest in people, his appreciation on the motion that, unlike a defense of the diploma of public service, and many other qualities privilege, this sort of work remains available to and characteristics that commend him for the Mr. Halfenger to do. awesome position of judge. Thus, to appear on Certainly, the evidence that a non-alum in behalf of Marquette Law School (which I get to do Mr. Halfenger’s position should be interested in frequently), to represent the local legal community Marquette Law School is ample. Judge Shapiro (as I do only on occasion), and to speak both for was a friend of the Law School even before I myself and (for the matter where I am perhaps became dean. This is a large robe to fill in many most careful) for my wife, I respectfully second the ways, as both Your Honor and the bar of this motion that the Court administer the oath of office Court well know. to Michael Halfenger. Thank you.

Sports Law Banquet | Gary D. Way Nike’s Gary Way Receives NSLI’s Joseph E. O’Neill Award

On April 26, 2013, at the annual Marquette Law School Sports Law Banquet, Gary D. Way received the National Sports Law Institute’s Joseph E. O’Neill Award from Professor Matt Mitten. The award, remembering a late partner at Davis & Kuelthau, has been given annually over the past 20 years to an individual who has made a significant contribution to the field of sports law while exemplifying the highest ethical standards. Mr. Way is Vice President & Global Counsel, Sports Marketing at Nike, Inc. He used the opportunity to share some advice for Marquette law students interested in sports law.

hank you, Professor Mitten, for that generous introduction. When you describe my work, it sounds much better than the way I think about my job. If I were Tasked at the Pearly Gates about how I have used my law degree to better the world, I would be at a loss—because, in essence, my work is based upon helping to give away money and free shoes to millionaires. Anyway, I’m thankful for this opportunity. I would like to take a few minutes to continue in the thank-you mode. First, I would like to thank the Marquette Law School community for the tremendous hospitality it has shown me throughout the day. Gary D. Way Marquette Lawyer 37 FROM THE PODIUM 38 Fall 2013 stories you reallywant tohear. That leaves mewith privilegepreventsattorney-client mefromtellingthe another day. No. 2, war stories. Unfortunately, hired!” Maybe oneofyou willhearthatfromme students mostwant tohearfromme: No. 1, “You’re law program.at thestudentsinsports that thisoccasioncallsfor atleastafew words targeted last note. However, Professor MattMittencounseledme to bejoinedwithhimthroughthisaward. honored mentioned inthesamebreathasJoeandtruly was a gentleman ofthefirstorder. I’mflatteredtobe importantly, Icansay frompersonalexperience, he national teaminthechampionshipgameby 27points. Bucks, whobeattheSoviet Union Milwaukee hometown totheUnitedStates,tournament anditwas won by the basketballthat broughtthefirstNBAinternational to Milwaukee in1987. Itwas abreakthroughdeal McDonald’sbring theinaugural Opentournament toengagewithJoe,opportunities aswe worked to career, intheNBAleagueoffice, Ihadanumberof sustaining themany legaciesofJoeO’Neill. and Marquette’s Law Institutefor NationalSports the O’Neillfamily, theDavis &Kuelthau law firm, Marquette–Nike partnership. pavedbig successstory theway for this now-signature the bar, Tim isstillthemeasuringstick. And thatinitial Although many whohave followed himhave tapped experiment.extern Tim setthebarincrediblyhigh. Groupbackin2004,Practice whenwethis undertook inthe Marquetteextern the inaugural Nike Sports Law joining ustoday alltheway fromColorado. Tim was It immediatelyhitme—threetopthingsthat tomy ownLeft devices, Iwould take my seatonthat of the firstorder.Joe was apractitioner More Unbeknownst toanyone inthisroom, inmy prior Last, andmostimportantly, Iwould like tothank Next, Iwould like tothankalumnus forTim Kraft traditional-practice lawyer—period. traditional-practice lawyer. becomeasports Focus onbecomingagood withonefundamental. allstarts Don’twaste your to energy trying There arelotsofways togetthetopofajunglegym. But it proposition, wherethereisonlyoneway up. Rather, it’s ajunglegym. isn’taclimbing-the-ladder industry Gettingtoatopjobinthesports Hunter was, ironically, aU.S. attorney. could leadandmanagelitigationagainsttheNFL. the Players Association hadaneedfor someonewho experience,Smith was alitigatorandhadnosports but he couldskate. how tonegotiate deals,TV notbecauseofhow well guy” by saying thathewas hiredbecauseheknew famously repliedtocriticismsthathewasn’t a “hockey lawyer. When hiredastheNHLcommissioner, he who hiredme, describeshimselfasatransactional theNBA’sformerly counsel andtheperson general because ofhislitigationskills. was initially hired(tobetheNBA’s counsel) general partner,firm willtell you thathe was alitigator and issues. the NFLbecauseithadalotofantitrust you thathewas lawyer anantitrust andendedupat practitioner.traditional lawyer.identify asasports Eachwillidentifyasa involving issues, sports noneofthemwillself- lawyer—period.traditional-practice lawyer.become asports Focus onbecomingagood one fundamental. Don’twaste your to energy trying get tothetopofajunglegym. with Butitallstarts Rather, it’s ajunglegym. There arelotsofways to ladder proposition, wherethereisonlyoneway up. isn’taclimbing-the- industry top jobinthesports laser focus ongettingajobinsports. Gettingtoa get fromyour parents—justgetajob!Pleasedon’t to getinto law.”“sports No. 3, my mostreliable “go to”: careeradviceonhow Former NBAPlayers BillyAssociation Director NFL Players Association Executive DeMaurice Director Bettman,NHL CommissionerGary who alsowas NBA CommissionerDavid Stern, law aformer Former NFLCommissionerPaul Tagliabue willtell If you askany lawyer withabonafidepractice My advicetoyou allisthesameyou probably

Gary Gertzog, the general long lunch I had with a recent PODIUM counsel of NFL Properties, was law school grad, named formerly a trademark lawyer Joseph, from a Midwestern at a New York law firm. law school. Joseph was in the I myself am a licensing Portland area for military-

attorney by training. I used to reserves training before being FROM THE license NBA team trademarks; deployed to Afghanistan. He now I license publicity rights; looked me up, and I knew tomorrow I could get a job at that this was a guy I was Disney licensing Mickey Mouse going to make time to see: he and Goofy. I’m a licensing had me at the word deployed. transactional attorney. I first tried to get him to The list goes on and on. focus on his job at hand, The point is this: Sports which was slightly more organizations don’t need important than sports law lawyers who can cite jobs: being a platoon leader Moneyball chapter and in a combat zone. Then I A quilt given as a gift to Gary Way by Margaret Murphy, L’13, verse, or know a sport inside talked through with him what former Marquette–Nike extern. and out, or have encyclopedic I have outlined for you all: knowledge of every player in a league, or even have Don’t seek to be a sports lawyer. Simply aspire to be a passion for sports. a good lawyer, doing things of relevance to a sports They already have people like that. They’re called organization, and trust that a prospective sports general managers, coaches, agents, and fans. industry employer will recognize from your résumé What employers in the sports sector need are how your conventional practice experience can good lawyers who can do the work that is required translate into its world. of these organizations: licensing of trademarks, labor Joseph clearly got it. He wrote, “I will take the best law advice, antitrust counseling, litigation, real estate job I can find and strive to be the best lawyer I can financing, commercial transactions, etc. be.” And he maintained the conviction that he would So my advice to you is summarized in the thank- make it into sports—and the hope that our paths will you email that you’ll find on the back of your cross sometime down the road. program. I received it a few months ago following a I hope that that’s your takeaway, also. Thank you.

Joseph D. Kearney Remarks at Memorial Ceremony for Judge John L. Coffey

The U.S. Court of Appeals for the Seventh Circuit convened in Ray and Kay Eckstein Hall, the home of Marquette Law School, on April 17, 2013. The court’s session included a ceremony remembering the late Judge John “Jack” L. Coffey, L’48. Chief Judge Frank H. Easterbrook presided at the memorial session and was joined by eight of his Seventh Circuit colleagues and more than 200 guests. These are the remarks of Dean Joseph D. Kearney, who was among the speakers.

hank you, Chief Judge Easterbrook, and May It Eckstein Hall does not look terribly different from three Please the Court. Marquette Law School looks years ago, when Judge Diane Sykes helped us dedicate Ta little different since Your Honor stood in a the building, let alone two weeks ago when she was field, on this spot, shovel in hand, almost five years ago, here for our Jenkins Honors Moot Court Competition, helping us break ground for this building. Hopefully, so named after the late James Jenkins who served as

Marquette Lawyer 39 FROM THE PODIUM 40 Fall 2013 more, nodoubtJudgeCoffey would have regarded, appellate judgeatleast, for years tocome. What is his career. Onewill be abletoreadhiswork, asan longer thanthosetwo periodscombined. for somefour years, for andamemberofthisCourt century, amemberofthe Wisconsin SupremeCourt Jack Coffey, whowas atrialjudgefor almostaquarter- variety ofrolesorachieved greaterprominencethan lawyers would become judges, nonehadagreater in 1948: whilemorethan20ofthatyear’s Marquette For JackCoffey fromMarquetteLaw graduated School today. Icannotadequatelydetail JudgeCoffey’s career. than thelateJudgeJackCoffey, whomwe remember of theMilwaukee Law year. Classthenext almost sincetheEvarts Act in1891andtheestablishment School have oneanotherinavariety ofways supported one doubtthattheSeventh CircuitandMarquetteLaw forour studentsandgraduates judicialclerkships, letno sphere, inthatespeciallyimportant applicationsof Court even ifwe mightalways wishfor greatersuccessatthe ofthelateJudge friends inmemory Terry Evans. Inshort, ofthescholarshiprecentlycreated by his beneficiary all we know, one ofthestudentsinthisroomis anniversary oftheInterstateCommerce Act. And, for Law ReviewandMarquette Lawyermagazinethe125th and anumberofothers, inmarkingthe Marquette to hisessay lastyear, joining Tom Merrill, RandyPicker, various contributions, fromhisdays asafacultymember fromJudgeRichardCudahy’sSchool haslongbenefited deanship ofMarquette’sinaugural law school. The Law being appointedto—nonedaresay promotedto—the the firstSeventh Circuitjudgefrom Wisconsin before Nor is it really necessary for me tosummarizeNor isitreallynecessary No oneplayed alarger orlongerroleinthisrespect coulddofor Marquette. ofthejudge’s rather latestideaaboutwhatthatperson couldtellmenotabouthispastwiththatpersonbut recallarelationshiporanacquaintance, butonlysothathe did), whenhecalledmeasdean(asoften itmay have beento JackCoffey focused relentlesslyonthefuture. For example, another law schoolwas doing basedonpromotional of aprofessionalized legalwriting program), orwhat Coffey was and anearlypromoterofjudicialinternships in thejudge’s estimationwe mightimprove it(Judge person, itwas about theLaw School’s program: how Marquette. To thatthecallwas theextent notabouta judge’s latest ideaaboutwhatthatpersoncoulddofor ofthe about hispastwiththatpersonbutrather acquaintance, butonlysothathecouldtellmenot did), itmay have beentorecallarelationshiporan example, whenhecalledmeasdean(asoften Jack Coffey focused relentlesslyonthefuture. For even promote—today: my attribute ofJackCoffey thatIwant toremember— and hopefor thefuturethatimplies. Coffey’s legacyisalivingone, withallthedynamism sense,a mostimportant hisfamily, concerning Judge here, opentoday’s sessionwithaprayer. court So, in of theSocietyJesusandatenuredfacultymember that JudgeCoffey’s nephew, O’Meara Father Gregory mefromsuggesting toCollinsFitzpatrickdeterred (grounded, admittedly, intheEstablishment Clause) senseofthematter,a further onlygoodjudgment kindness tomy familyandmeover theyears. To give law, my student, former Ruidl, Jeff hasshown great with herhusband, StephenRobbins, andson-in- Judge Coffey’s daughter, LisaRobbins, whotogether Marquette lawyer, andfromPeter Robbins, thesonof KrisCleary,the goodjudgmenttomarry another his son, Peter Coffey, aMarquettelawyer, whohad willsoonhearfrom thus appropriatethattheCourt a privilegefor measdeantocomeknow. Itis as hisgreatest legacy, hisfamily, whomithasbeen But thisdoesbringmetotheonecentral JudgeCoffey, ifyou will. and Iamsovery pleased thatmany ofyou chose Thank you very much. would choosetorecognizemeandmy accomplishments. a senseofoverwhelming thatyou humility andgratitude made by over 100,000alumnievery day, by Iamstruck awardees, andasIconsiderthecountlesscontributions As Ilistentothestoriesandcontributionsofmy fellow T Awards Weekend. the award atadinneronApril27,2013,heldin theAlumniMemorialUnionandconcluding his current serviceaschairofthedean’s advisoryboard attheLawSchool.Here are hisremarks inaccepting Award—to DonaldW. Layden,Jr., Arts’79,L’82. Mr. Layden’s manycontributions totheuniversityinclude Marquette Universityrecently presented itshighestalumnihonor—theuniversity’s Alumnusof theYear Marquette UniversityAlumnusoftheYear Remarks Alumni Awards |DonaldW. Layden it.” In fact, reassuredmethat reaction hisparticular a chancetogetthehelloutofthere, you shoulddo the judgesaid, “I don’tknow why not. Ifyou have of SensenbrennerHall. To this to bethedeanwholedusout the phonethatIwas disinclined allowed toJudgeCoffey over an altogethernew facility, I to our1924buildingthan likely tobeathirdaddition facilities problemlooked more or so, whenthesolutiontoour Early inmy deanship, in2003 impressiononme.particular Marquette Law School. likely was ideafor ontohisnext upon.or acted Nomatter: he immediately oreven ever accepted expect eachofhisideastobe as afederal judge. Nordidhe material thathehadreceived Many peoplehave meonthisjourney, encouraged One conversation madea in recognizingmeasthe Alumnus ofthe Year. you grace havethe extraordinary given tome hank you. Iamoverwhelmed andhumbledby Hall’s AppellateCourtroom Portrait ofJudgeJohn(“Jack”)L.Coffey inEckstein my life. My parentswere ofcoursevery proud, andI been aremarkablepartner, friend, andthelove of to take riskshasmadethosechoiceseasy. Shehas confidence in my abilitytomake changehappenand accomplishments make choice. meanatural Her communities inwhichwe live andmy professional surprise, suggestingthatmy contributionstothe insight intoourrelationship. Jo dismissedmy Mary recognition, theirresponses provided aninteresting me. When Itoldthepeopleclosesttomeaboutthis withourfamilyandto beheretonightcelebrate Thank you. him, inany numberofrespects, today andhereafter. counted himamongouralumniandtoremember court, said, simplybutelegantlyof Your Honor, aschiefjudgeofthis groundbreaking inMay 2008, the future. the form. And hisinterestwas in at least, aboutthesubstancenot conservative, butinthisregard, a building. JudgeCoffey was a the law andisnotboundupin of thecontext and Service—in Excellence, Faith, Leadership, about theuniversity’s mission— that MarquetteLaw Schoolis knewour alumnimoregenerally in this. We tohave arefortunate decades, JudgeCoffey concurred things tocome.” For morethansix this law school, “I anticipategreat In concludingremarksatthe Marquette Lawyer 41

FROM THE PODIUM FROM THE PODIUM 42 Fall 2013 instilled inusby ourparents were reinforced. Most live, work, afamily. andraise almost any otherplaceintheworld you mightwant to world allofthemany advantages Milwaukee hasover enthusiastically sharewithcolleaguesaroundthe the difference. Milwaukee isourhome, andI consider Marquette. my fathermet Al Maguire, andthey bothinsistedI to beathousandmilesaway. Almost asimportantly, Jo,dating Mary andIwas notsureIreallywanted plan tostay very long. As providence hasit, Istarted I viewed Milwaukee asaflyover city, andIdidnot promotionfor my father.a resultofanimportant as usacrossthecountry had justtransported all, Igrew upinNew York, andmy parents at oneofthetwo, probablyGeorgetown. After and Brown andwas preparingtomatriculate of colleges. IhadbeenacceptedatGeorgetown be withusvirtually. Marquette. Thank Godfor FaceTime soshecan intelligent enoughtofollow herparentsto reasoned, sheistheonlyoneofourchildren not beabletohereinperson. all,After she she isinLondonstudyingabroadandwould have tobetolddelay my award oneyear, as daughter madeitvery clearthatMarquettewould request withsuchamagnificent event. Andour Thank you, Marquette, for accommodatingtheir agreed thatthiswas anevent worthy ofaparty. Our children, atleasttheboys, unanimously father whoisunaware ofMarquette’s decision. ofmy ofmy motheroragolfpartner partner believe thattherehasprobablynotbeenabridge At Marquette, JoandIfound thatthevalues Mary And soIdid, andthatdecisionhasmade all You know, Marquettewas notmy firstchoice asanagentfor goodandfor change. messagethatour faith callsustobeactive intheworld Mostimportantly, our experience reinforced the values instilledin usby ourparentswere reinforced. AtMarquette, JoandIfound thatthe Mary country; to running businessesinfieldscountry; torunning as varied as law withsomeofthebestlawyerspracticing inthe have looked atthediversity ofmy career—goingfrom adiverseenabled metoundertake setofroles. Some to work withfolks whohave meand encouraged attachments, we have hadagreatride. By working hardtoidentifyandavoid unimportant us toletgoofthosethingsthatwere notessential. taking stock, andfor makingdecisionsthatallowed we found aframework for living, for reflecting and agent for goodandfor change. InIgnatianspirituality, that ourfaithcallsustobeactive intheworld asan importantly, ourexperience reinforced themessage Don andMaryJoLaydenonApril27,2013. In my professional career, Ihave beenblessed modern intervention andtreatmentmethodologiesmodern She hasamaster’s insocialwork andusesallofthe tofight for children.and adoggeddetermination a four-foot bundle ofenergy withaninfectious smile Nida hasbeenafriendfor over adozen years. Sheis the OblateSistersofMost HolyRedeemer. Sister sexually by exploited andabusedstreetchildrenrun Center.her toSerra Centerisahomefor Serra prostitution untilSisterNidasaved herandbrought had beenabusedby familymembers andsoldinto I hadthreesonsandadaughter. Shewas 14and children, andherfacelitupwhenItoldthat one oftheshelters, ayoung girlasked ifIhadany by povertytrapped andescapism. Duringavisitto astheirfamiliesarebeen abusedandneglected day storiesofchildrenwhohave andthehorrible hardships facedby many Filipinos tosurvive each the Philippines. While there, we experienced the accomplishment Iammostproudof. for tonight, Marquetteasked metoreflect onthe opportunities. metoexplore whohasencouraged having apartner time,called tousemy skillsatany particular and door thatopens, askingwhetherthisis where Iam For me, itisaboutbeingopentoexploring every that Iamsimplynotcapableofkeeping ajob. their owners tofindtheirpotential—andconcluded to investing andadvisingearly-stagecompanies banking, financialtechnology, and marketing services; Mary Jo and I recently returned fromvisiting JoandIrecentlyreturned Mary Let meendwithaquickstory. Inpreparing ourchildren. They know they areloved. forproud andgrateful therelationshipIhave witheachof thingwe important candoinourlives. Iammost findinglove, beinginlove, staying inlove isthemost AndthatiswhatIammostproudof. Ibelieve that this toasttoMarquetteanditsalumni: and Ihopeyou willindulgemeby joiningmein are loved. I have witheachofourchildren. They know they forI ammostproudandgrateful therelationship thingwethe mostimportant candoinourlives. that findinglove, beinginlove, staying inlove is potential todogreatthings. our lives whocareaboutusasindividualswiththe parents wholove their children—tohave adultsin she asked afollow-up question: “Does sheknow?” loved my daughter. Uponhearingmy affirmation, surprising tomewhentheyoung girlasked ifI but buildsuponafoundation oflove, soitwas not Thank you againfor thisfantasticrecognition, And thatiswhatIammostproudof. Ibelieve This young itistohave girlknew how important We Are Marquette. alumni! and Service. Toitsand Marquette on Excellence,Faith, Leadership, based on atcommencement:tolive lives yousent uscontinuing the journey the existential,welookforward to in each other—and in agrounding and, mostimportantly, innature, art, foran appreciation the aesthetic—in students togainaglobalperspective, that allows curriculum including acore the educationofthe whole person, For its rigorous commitmentto For itsrigorous

Marquette Lawyer 43

FROM THE PODIUM

THE MARQUETTE LAW SCHOOL Faculty Blog at Five Years Old

Since its establishment on September 1, 2008, the Marquette Law School

Faculty Blog has flourished. It has welcomed more than 2,300 posts touching

on law, the legal profession, public policy, and any number of other matters.

Most posts are by faculty members, but the blog also regularly features an

alumnus and a student blogger of the month. The blog is updated year-round,

usually daily, as the following excerpts from the past spring and summer will give

a sense. They are variously by Daniel D. Blinka, professor of law; Mike Gousha,

distinguished fellow in law and public policy; and Kelli S. Thompson, L’96,

Wisconsin’s state public defender. Visit the blog at law.marquette.edu/facultyblog.

Marquette Lawyer 45 for expert testimony just several weeks earlier. Tort Posts by reform motivated the change. The new rule, which takes Daniel D. Blinka effect in July, replaces the “general acceptance” standard og y B l og acult that governed her ruling on voice identification. Does the F June 28, 2013 standard applied—“general acceptance” or Daubert— Who Screamed? Experts, Rules, and make any difference? Probably not. the Zimmerman Trial Wisconsin also adopted the Daubert standard, as part of tort reform in January 2011. It is remarkable that nearly he Zimmerman homicide trial in Florida is two and one-half years later we have yet to see a published an important bellwether on many levels. My case on this issue, despite the ubiquity of expert testimony Tcolleague David Papke remarked in a previous in civil and criminal cases. Why the dearth? blog post on the jury’s composition and its possible First, evidence law is not algebra. Admissibility rulings effect on the outcome. The evidence, too, is controversial are quintessentially discretionary; the choice of standard and contested. The notorious 911-call recording is is rarely outcome determinative, and appellate courts deemed critical, yet the trial judge excluded expert defer to trial courts. The Zimmerman trial judge would testimony on voice identification as unreliable. Her ruling have almost certainly excluded the evidence under either rippled across the country and may even hold lessons test. And to speculate what a Wisconsin judge would here in Wisconsin. have done is no more revealing than asking what a The 911 call recorded a man’s voice “screaming” different Florida judge might have done. for help. The screamer’s identity is disputed. George Second, since January 2011, Wisconsin lawyers and Zimmerman has claimed self-defense. Prosecution judges have tried cases in the same competent manner experts asserted, however, that the plea came from the as before the switch. Daubert has made little or no victim, Trayvon Martin, moments before he was shot difference here because there was no “junk science” dead. A bevy of defense witnesses, including specialists problem to begin with. Rulings have been restyled to with the FBI and the NSA, attacked the methods used by accord with the new rule’s language, but the end result— the state’s experts. in or out—is likely the same. The judge ruled that those techniques were not Finally, Florida and Wisconsin both exemplify that “generally accepted” by competent experts in the field. Daubert is more about the politics of tort reform than Put differently, she found the state’s expert testimony the imperative of assuring reliable evidence. Florida’s unreliable. The jury thus will be on its own in divining venerable Frye test (general acceptance) worked just fine whether Martin or Zimmerman screamed for help here. Time and money are better spent on improving moments before the shooting. forensic sciences and the quality of expert testimony in By happenstance, the judge’s ruling coincided with court, especially in under-resourced criminal cases, than Florida’s adoption of the Daubert “reliability” standard on bromides masquerading as evidence rules.

“Time and money are better spent on improving forensic sciences and the quality of expert testimony in court, especially in under-resourced criminal cases, than on bromides masquerading as evidence rules.”

46 Fall 2013 July 10, 2013 Put differently, the CGI recreation is the animators’ version of the shooting, resting heavily on the defense Do I Need to Draw You a Picture? version of events. It is tantamount to Zimmerman’s The Zimmerman Trial and CGI Evidence story of what occurred with one crucial difference: y B l og acult F The Zimmerman trial nicely illustrates how messy Zimmerman does not have to take the stand and face trials can be. Witnesses contradict one another on most cross-examination under oath about any of it. My own critical issues. For example, a bevy of witnesses have view is that it should be excluded unless Zimmerman split over whether it was the victim, Trayvon Martin, takes the stand and testifies that it “fairly and accurately” or the defendant, George Zimmerman, screaming for depicts what happened. help on the 911 recording. Moreover, the split among And this underscores a second problem. Trials are witnesses is, predictably, along party lines: friends predicated on testimony: oral statements made under and relatives of each claim the voice for their side. oath in the presence of the trier of fact in the courtroom. To make things messier, some of these witnesses seem Trial lawyers have long used demonstrative evidence to to have contradicted themselves, asserting earlier that illustrate testimony, but diagrams and pictures of a crime they couldn’t recognize the voice but offering trial scene are of a different order from a CGI reconstruction. testimony that now positively identifies it. Adding Trials depend on word pictures: testimony by witnesses to the confusion, some witnesses deny making the and persuasive arguments by lawyers. The jury’s earlier inconsistent statements. deliberation and verdict, we hope, embody its picture So, what’s the jury to make of this morass? The of what happened, assuming any comes into focus. defense solution is to draw a picture—literally. If shown to the jury, the CGI reconstruction Yesterday the parties sparred over the defense’s will resonate. One hopes it doesn’t attempts to introduce a computer-animated displace the testimony that is the trial’s recreation of the fatal struggle between lifeblood. Yes, trials need to change, or Zimmerman and Martin. Computer-graphic they will truly vanish. Evidence must imaging (CGI) technology is being used more be presented in ways understandable and more to recreate events in a myriad of and meaningful to jurors, witnesses, cases. A week of conflicting testimony may be and lawyers, who have become reduced to a 60-second cartoon. ever more reliant on technology and There are two problems here. First, the computer images. Yet we must be accuracy (authentication) of a CGI recreation mindful that the trial’s constitutional and depends on its fidelity to the historical record: does cultural foundations are in a time, now it accurately reflect what occurred? Hard to say in quaint, that valued people this case. Martin is dead. Zimmerman has not coming together, testified. The CGI recreation rests face-to-face, so on the creators’ reconstruction that they could of events based on conflicting publicly answer pretrial statements, including questions. Not a Zimmerman’s, some of which bad idea. have been contradicted by trial testimony, itself no model of clarity.

Daniel D. Blinka MarquetteMarquette Lawyer Lawyer 2147 July 15, 2013 Martin to death. The proof problems relate to the self- defense. Once self-defense is raised, as Zimmerman Lessons from Zimmerman? did through his police-conducted interviews and some og y B l og acult Predictably, the Zimmerman verdict has triggered physical evidence, the burden is on the prosecutor F headlines, sharp controversy, and protests. This was to “rebut” it beyond a reasonable doubt. Like many bound to happen regardless of whether he was jurisdictions, Florida law (apparently) authorizes deadly acquitted or convicted. I leave it for others to tell us force whenever the defendant “reasonably believes” he about the grand lessons this trial teaches about race, is in danger of death or great bodily harm. What was violence, and firearms. I will note, however, that the trial Zimmerman thinking the moment he pulled the trigger, was not about any of these larger themes, and the jury’s taking Martin’s life? Did he “really” believe he was in verdict spoke only about Zimmerman’s conduct when grave danger, or was he enraged by Martin’s defiance? he shot Trayvon Martin to death. It was not, in short, a Self-defense also asks what a “reasonable person” in show trial of any sort. Zimmerman’s shoes would have done—which, of course, The trial’s meaning for me reaches backward and begs the question of whether any reasonable person forward in time. It reaches backward to a moment in would be on such a patrol to begin with. my professional life when I was on the receiving end The difficulty of negating Zimmerman’s asserted of the same verdict as a prosecutor—an acquittal in a beliefs beyond a reasonable doubt cannot be gainsaid. highly publicized murder case in which the defendant The best way is to catch him in a lie. But where the claimed self-defense. As for the forward look, its lessons defendant elects not to testify—which is his constitutional will undoubtedly permeate my One-L Criminal Law right—the state is left with the slim pickings from his class in the fall (students are hereby placed on notice). prior statements or other evidentiary scraps. Perversely, The lesson is not one that dwells on the sensational then, the State’s objective was to prove that Zimmerman publicity the Zimmerman trial garnered or the emotional lied—a heck of a way to prove he murdered Martin. The devastation suffered by the Martin family but, rather, on very difficulty also tempts prosecutors to overcharge its banality as an exemplar of a criminal trial—how it cases in an effort to coax a guilty plea from the illustrates workaday principles relating to the definition defendant or a compromise verdict by the jury. Neither of crimes, the elements of defenses, and, most important, happened here, but the temptation is omnipresent. the burdens of proof. As the nation obsesses about the verdict’s meaning, Zimmerman’s defense lawyer was quoted as saying, perhaps we should think about the banalities of self- “We proved George Zimmerman was not guilty.” defense law along with race and firearms policies. In Assuming a correct quote, the statement is nonsense on insanity cases, for example, most jurisdictions now about every level. The defense proved no such thing and impose the burden of proof on the defense, a procedural was under no duty to do so. innovation sparked by outrage over the John Hinckley In a murder case like this one, where there are no verdict (remember?). In light of the nation’s passion true eyewitnesses and nary a surveillance camera, for firearms permits, perhaps it’s time to talk about only two people know what happened. The state’s restructuring who must prove what in self-defense best witness, the victim, is dead—killed by the only cases. In the end, though, I’m glad the case was tried surviving witness, the defendant. And the latter cannot to a jury. In a system dominated by plea bargaining, it’s be compelled to testify, unless, of course, it is in his institutionally healthy for us to know that the trial is a best interest to do so. Let’s agree that this creates some viable option for both defendants and prosecutors. As serious hurdles for the prosecution. distraught as the Martin family surely is, I can’t imagine Proving the murder charge here is relatively they would have felt better had the prosecutors finagled straightforward: it is undisputed that Zimmerman shot a guilty plea to a “reckless-something” charge.

“As the nation obsesses about the verdict’s meaning, perhaps we should think about the banalities of self-defense law along with race and firearms policies.”

48 Fall 2013 Posts by As part of that current series on the metro area’s economic prospects, the newspaper created an Mike Gousha interactive graphic that allows the reader to compare April 16, 2013 the nation’s top 50 metropolitan areas. It’s easy to use, and educational, too. Metro Milwaukee Is Doing Better Than After hearing so much about the Oklahoma City a Lot of Residents Think success story, I thought it might be interesting to see how metro Milwaukee stacks up against Oklahoma couple of years ago, I was talking with one of City in several key categories. It turns out we do pretty the boosters of the effort to brand the Milwaukee well. We have more college graduates, higher per capita A area as a global water technology hub. income, and a slightly lower poverty rate. I then added He told me the biggest challenge the initiative would the metropolitan Dallas area to the mix, given Dallas’s face would be Milwaukee’s inferiority complex, or at reputation as one of the stars of the Sunbelt. Again, the least our unwillingness to brag about our assets. comparison was favorable. Milwaukee and Dallas had I was reminded of that conversation recently, when remarkably similar numbers in several key indices. the Law School collaborated with the Milwaukee The comparative data are available here. Journal Sentinel on two major projects. On April 8, The major differences came in categories that we hosted a conference in Eckstein Hall exploring the looked at population growth (we’re growing, but pros and cons of building a new downtown sports slowly compared to Oklahoma City and Dallas) and and entertainment facility. Those in attendance heard at residents who were born in the same state (we win the president of the Oklahoma City Chamber of that competition hands down). Does that “born here, Commerce describe how his city had been dramatically stayed here” factor explain our inability to acknowledge transformed by a series of projects that had broad Milwaukee’s virtues? Does it create an insular way of community support. Then, this past Sunday, the thinking, more focused on problems than possibilities? newspaper published the first in a four-part series Metro Milwaukee faces some major challenges. examining the economic future of metropolitan We have a jarring income and education disparity. Milwaukee. Called “A Time to Build,” the series was Our suburbs are prosperous, but our central city is poor. reported by Rick Romell of the Journal Sentinel, And unlike Oklahoma City, we struggle for consensus under a six-month Law School fellowship established on what’s best for the region. Still, the census data through the school’s Sheldon B. Lubar Fund for suggest this area, as a whole, is faring better than some Public Policy Research. observers might think, its residents included.

Marquette Lawyer 49 April 23, 2013 what happens if, as the mayor believes, 40 to 50 percent of those blue dots—city employees—move outside the The Mayor and His Map city? Will there be a dramatic downward pressure on

og y B l og acult property values?

F The next time you see Milwaukee Mayor Tom Barrett, ask him about his map. It’s the mayor’s latest weapon The mayor contends the end of residency was a in his battle to stop the state from eliminating residency promise Governor Walker made to the Milwaukee police requirements for municipal employees in Wisconsin. and firefighters unions in an effort to gain their support More than 120 municipalities have rules spelling out during his bid for governor. Walker argues that personal where their employees can live. But Governor Walker freedom should trump conditions of employment, and wants to change that. He says residency requirements are that, at the end of the day, it’s up to the city to become a unnecessary and outdated, even counterproductive, and more attractive place to live. Neither man knows exactly he has included language in his state budget that would what will happen should the requirement be eliminated. end them. Nor do they know what Mayor Barrett’s map will look Mayor Barrett says the governor’s proposal doesn’t like 10 years from now. But if Barrett is right, it will be a belong in the budget, since it’s not a fiscal item. But lot less blue, and Milwaukee could be a very different city. Barrett’s concerns go much deeper. In a recent email to supporters, Barrett said an end to the city’s 75-year-old June 4, 2013 residency requirement could “destabilize” Milwaukee. That’s the Way It Was—and Is I pressed the mayor on that claim in a recent television interview. He said that philosophically he agrees with When I was studying journalism at UW-Madison, we the notion that people should be able to live where they would sometimes end our day at Vilas Hall by grabbing want, but that local municipalities should be able to a cold one at a nearby tavern on University Avenue. determine the conditions of employment for the people Bob and Gene’s is no longer there, but a particular they hire. In Barrett’s world, that translates into a simple memory remains. One of the television sets at the bar reality. If you don’t want to live in Milwaukee, don’t was tuned each night to the CBS Evening News, and apply for a job with the city. He said there’s been no when anchorman Walter Cronkite came on the air, the shortage of applicants. place got quiet and remained that way until Cronkite’s Perhaps more important, Barrett said the value of signature sign-off: “And that’s the way it is.” On the assessed property in Milwaukee had fallen $5 billion heels of Watergate and a long war that threatened to because of the economic downturn. He argued that tear the nation apart, there was a sense that we had based on experiences in other cities, such as Detroit, witnessed history. Minneapolis, Baltimore, and Cleveland, significant We witnessed history again in Wisconsin last year, numbers of city employees were likely to leave the city and this time it threatened to tear the state apart. One should the residency requirement be lifted. Barrett was year ago—June 5—Wisconsin went to the polls in the making the case that there was great risk to his city, and recall election for governor. The protests of 2011 had he wanted to show me a map he carried with him into been replaced by a political movement aimed at ousting the television studio. You can see it here. Because of the Governor Scott Walker from office. It was an election amount of data in the file, it takes about 10–15 seconds that divided not just Republicans and Democrats, but to present itself. friends and families, some of whom simply stopped The map shows the gravity of Milwaukee’s foreclosure talking about politics rather than run the risk of a crisis. Foreclosed properties are in red. As of last week, nasty argument. Bitter and contentious, there was little there were nearly 2,600. Blue represents where the more middle ground. In the waning days of the race between than 7,000 city employees live. Besides helping stabilize Governor Scott Walker and Milwaukee Mayor Tom struggling sections of Milwaukee, city employees are Barrett (a rematch of 2010), the Law School found itself the backbone of a number of healthy, middle-class in the middle of the fray. We released our final Marquette neighborhoods, including Bay View and the southwest, Law School Poll of the election cycle, showing Governor far south, and far west sides. These neighborhoods are Walker leading by seven points (ultimately, his margin home to hundreds of police officers and firefighters. But of victory). The Law School also played host to the final

50 Fall 2013 debate of the campaign. As I moderated the event, I the state is quickly moving away from its progressive was struck not only by the sharpness of the exchanges past, plotting a future built on a philosophy of lower between Barrett and Walker, but by how the evening taxes, less government assistance, fewer regulations,

had a certain rhythm to it, each candidate giving as good and more school choice. Election laws are also likely to y B l og acult F as he got. The two men knew each other well. They change in ways that could benefit Republican candidates. had done this several times before, and their familiarity For now, Democrats can do little but watch and wait for along with their fundamentally different visions for the 2014, the next major election cycle. And yet, in many state produced an hour of compelling conversation. But respects, Wisconsin is still a purple state, neither I also remember the overwhelming silence in a packed red nor blue, as evidenced by the Eckstein Hall when both Barrett and Walker would victories of Democrats Barack briefly pause to collect their thoughts. Intense doesn’t Obama and Tammy Baldwin begin to describe it. last November. When Election Day was over, Scott Walker had won. About 18 months ago, Again. And life went on in Wisconsin. So what has Businessweek referred to us happened in the year since the historic recall? In some as the “republic of political ways, the debate seems remarkably familiar. We’re still unhappiness.” We may not be in arguing over jobs numbers and the performance of the the primal scream stage anymore. state’s economy. According to our latest Marquette Law But our deep divisions remain, and School Poll, the governor’s job approval rating remains it’s still probably not a good idea to about the same, slightly more positive than negative. talk politics at a family picnic. But one fact is beyond dispute: Wisconsin continues to And that’s the way it is in undergo a rapid and fundamental transformation, one Wisconsin, one year that could change its future course for not only years, after the recall. but decades. With Republicans in control in Madison,

“About 18 months ago, Businessweek referred to us as the ‘republic of political unhappiness.’ We may not be in the primal scream stage anymore. But our deep divisions remain, and it’s still probably not a good idea to talk politics at a family picnic.”

Mike Gousha June 18, 2013 have created a dynamic arts and entertainment scene. Their arrival is also welcome news to established Milwaukee: The $5,000 House and Fortune 500 companies like Northwestern Mutual, which Other Thoughts og y B l og acult is planning a new skyscraper for its downtown campus, F I was having lunch the other day with someone who along with hundreds of news jobs. works in city government, and we were talking about To be sure, none of this diminishes the enormous the serious foreclosure problem in Milwaukee. He was challenges our city faces. Can a city truly be great when lamenting the fact that in some of the poorest sections some neighborhoods are so undesirable that homes sell of the city, the housing market is fundamentally broken. for $5,000 or less, while others are so prosperous that Homes, now owned by the city, can be purchased for apartments regularly rent for $2,000 a month or more? as little as $5,000, and yet they still aren’t selling. If you It’s hard to make the case for greatness when you have want some sobering evidence of the magnitude of the such jaw-dropping disparity in income and housing. nation’s housing market collapse and the impact of the So what role, if any, should government play in Great Recession, check out the listings here. They’re addressing the challenges facing Milwaukee? During stunning, really. the last gubernatorial race, Governor Walker said Mayor Tom Barrett estimates the foreclosure crisis other towns and cities in Wisconsin “don’t want to be has cost Milwaukee $5 billion in assessed value. The like Milwaukee.” It’s true that you don’t have to travel city has tried to get a handle on the problem, but it far outside the city to hear that sentiment expressed, persists, eating away at once-stable neighborhoods. sometimes a bit more bluntly. It’s also true these In 2008, the mayor helped launch the Milwaukee other places can’t be like Milwaukee. We’re simply Foreclosure Partnership Initiative, which tries to prevent bigger and more diverse, our problems larger and foreclosures and stabilize neighborhoods. There’s a more complex. But no matter how people feel about branch of city government that directly addresses Milwaukee, its future matters. In a recent interview with housing issues. And last week, the mayor announced he the Cap Times, the retiring director of the University would be committing another $2.3 million to address Research Park in Madison, Mark Bugher, said, “The the foreclosure problem. As part of that initiative, scores secret to the Wisconsin economy is still Milwaukee.” of empty homes will be torn down because they’re a Bugher is a Republican, a former member of Governor blight on city neighborhoods. As a longtime Milwaukee Tommy Thompson’s administration. “My advice to resident, I’d be less than honest if I didn’t say the specter elected officials,” he said, “is to do all you can to of Detroit came to mind when I heard the news. help the Milwaukee economy, the school district, the But the next Detroit is hardly the image thousands infrastructure there. That will pay dividends for the of newcomers have of my hometown. After losing 20 balance of the state.” percent of its population from 1960 to 2000, Milwaukee There are no easy answers to Milwaukee’s foreclosure is growing again. It’s not a population explosion, but crisis. But Bugher’s larger observation is worth noting: it’s growth. Recent census numbers show that from Milwaukee, with its chaotic mix of dirt-cheap houses 2010 to 2012, the city added 4,000 residents. What’s and million-dollar condos, its Fortune 500 headquarters most interesting is who’s choosing to live in Milwaukee. and underemployed workforce, offers plenty of Reporting by the Milwaukee Journal Sentinel (part challenges. But it also offers plenty of potential. And it of a collaboration with Marquette Law School) found may offer Wisconsin its best chance for economic that, in the last decade, there has been a migration of success in the future. young people to the city. Many are college graduates. They live downtown, on the city’s east side, and in “hot” July 17, 2013 neighborhoods like the Third Ward, Walker’s Point, The Promise Bay View, Brewers Hill, and Washington Heights. Their presence has brought a new energy and economic The promise. It’s long been a staple of political vitality to parts of Milwaukee, with restaurants and campaigns, and it’s easy to understand why. shops racing to meet the demands of younger Candidates need to find a way to connect with voters, consumers. These newcomers are helping fuel a change to cut through the messaging clutter, and nothing in Milwaukee’s risk-averse entrepreneurial culture and does the trick quite like a simple, direct “This is what

52 Fall 2013 I’m going to do” statement. The promise, after all, is The governor is now more than halfway through his about much more than words. It reflects a candidate’s first term. At the current pace, businesses in the state vision and confidence. I mean, who wants to vote would create about half of the 250,000 jobs he promised for someone who’s not so sure what the future in his first four years. Walker says he’s making progress holds? We want our candidates to be bold, decisive, and still working to achieve the 250,000 goal but has and optimistic. acknowledged it won’t be easy. There’s just one danger. What if a candidate gets So here’s the question. What would be the political elected and fails to deliver on a promise or falls short fallout if the governor fell short of his goal? While he still of it? Is a broken promise fatal, or do voters today see has another 18 months in his term, Democrats are already the promise as a different animal: more a statement of hammering Walker on his jobs record, accusing him of goals and aspirations than a contract with (as we say in backing away from his pledge. To be sure, the state’s job television) no “outs”? performance will play a major role in next year’s race, but They’re questions worth asking, because in will “the promise” be a make-or-break issue? Wisconsin’s 2014 race for governor, a promise will Recent history provides some interesting food for almost certainly be front and center. It’s the one thought. In 1988, Republican presidential nominee Governor Scott Walker made in February of 2010, when George H. W. Bush brought down the house at the he said Wisconsin would create 250,000 new private- GOP national convention by promising, “Read my lips: sector jobs in his first term in office (fewer Wisconsinites no new taxes.” But by 1990, President Bush had been are likely to remember Democratic candidate Tom forced to raise taxes, and by 1992, his opponents in the Barrett’s goal of creating 180,000 new jobs). Then- fall election, Democrat Bill Clinton and independent candidate Walker based his pledge on numbers that had Ross Perot, were questioning Bush’s trustworthiness. been achieved by former Republican Governor Tommy While a slumping economy may have had more to do Thompson in his first four years, and he repeated it with his defeat, the “read my lips” promise dogged again and again to voters and media around the state. Bush throughout the fall campaign, hurting him with When Walker appeared on my UpFront television show conservative and independent voters. late that February, I asked him, “Is this a campaign Breaking a political promise may have kept the promise? Something you want to be held to?” Walker Brewers in Milwaukee, but it cost former Republican didn’t hesitate. “Absolutely,” he replied. “To me, 250,000 state Senator George Petak his job. It was 1995, and is a minimum. Just a base.” Petak had promised his Racine County constituents that

Marquette Lawyer 53 og y B l og acult F

Mike Gousha welcomes Governor Scott Walker and Mayor Tom Barrett to Eckstein Hall’s Appellate Courtroom on May 31, 2012, for the gubernatorial recall election debate.

he would oppose any bill that included their county intense voter reaction? Or have most voters already made in the stadium tax district. But at the last minute, with up their minds about the governor? Polling suggests that the Miller Park funding legislation in jeopardy, Petak Walker supporters are fiercely loyal to the candidate. The had a change of heart. He voted for the legislation. question is whether failure to hit his 250,000 target would Voters were furious, and their punishment was swift. sufficiently motivate enough dissatisfied Democrats and Petak faced a recall election in June of 1996, and his independents to impact an election. Democratic opponent, State Representative Kimberly Second, the broken promise as a campaign weapon Plache, pummeled Petak with his promise. His political is only as effective as its Democratic messenger. In the career was over. Petak would have the distinction of hands of Bill Clinton, George Bush’s “read my lips” being the first Wisconsin legislator to be successfully promise was a gift from the political gods. It’s not clear recalled from office. who Walker’s Democratic challenger will be, but he In contrast, what was perceived as a broken promise or she will have to articulate not only a convincing did not prove fatal in the 2012 presidential election. critique of Walker’s promise, but an appealing economic In January of 2009, Obama administration officials roadmap for the future. projected that because of the $825 billion stimulus Finally, whether some Wisconsin voters are in the spending package, unemployment would not climb mood to overlook an unkept promise will depend on above 8 percent. By October of 2009, unemployment what happens to the state’s jobs numbers in the next 12 stood at 10 percent. It was still above 8 percent as months. If the pace of job growth improves, the 250,000 the 2012 election year began. Republicans claimed pledge may seem less important to voters. The governor the president had broken his “promise.” While the is already beginning to use a “We’re on the right track, report from his administration referred to “significant don’t turn back” theme in interviews and speeches. margins of error” in its projections, and Obama didn’t He makes no apologies for aiming high, and says that specifically use the word promise, it was viewed as such initial job growth was slowed by the recall turmoil. But by millions of voters. But Obama overcame the criticism if Wisconsin continues to trail its Midwestern neighbors to win reelection. He won easily in Wisconsin, by seven in job creation, his explanation could ring hollow with percentage points. voters. Ironically, the governor may have to hope that Which brings us to 2014 and how the Walker promise Wisconsin residents come to the same conclusion of 2010 might play with voters. First, Walker’s promise about him that they did about President Obama: that is somewhat different from the ones made by Bush and enough progress has been made on the jobs issue to Petak. They pledged specifically not to do something, and warrant a second term in office. then did it. For some voters, the flip-flop—no matter what There is a certain peril in the political promise. But the explanation—is unforgiveable. Combine that with a for most candidates, it’s a risk worth taking. The promise red-hot issue (tax hikes or Miller Park), and you have an Governor Walker made three and one-half years ago enraged, engaged electorate. But would Walker’s failure helped lead him to victory. And as any political strategist to deliver on his 250,000-jobs pledge generate the same will tell you, you can’t govern unless you win.

54 Fall 2013 independent, executive-branch state agency. SPD Posts by trial offices started to open across the state, and the Kelli S. Thompson appellate representation, previously overseen by the

Wisconsin Supreme Court, was transferred to the y B l og acult F July 3, 2013 agency. The SPD ensures that our state meets the The Legacy of Gideon v. Wainwright constitutional requirements set forth in Gideon. in Wisconsin Wisconsin’s statewide approach offered through the SPD afforded consistency of operations, equal ’d like to take the opportunity through my posts access to justice throughout the entire state, and this month to talk about some of the trends and economies of scale. Today, Wisconsin is one of about Imilestones that I see in the field of law, particularly 20 states that rely on a statewide public defender as it pertains to our criminal justice system. system, with the remaining states largely relying on Gideon v. Wainwright, the landmark 1963 U.S. a county-by-county system. Supreme Court case, started with a handwritten petition The SPD’s jurisdiction reaches all of Wisconsin’s from Clarence Gideon. The decision in Gideon set the courtrooms. Staff are located in 35 trial offices located country’s criminal justice system on a different course: around the state, in two appellate offices located defendants who could not afford legal counsel have in Milwaukee and Madison, and in one central the right to be provided with such representation. administration office in Madison. In fact, this very month Although the scope of the constitutional we will honor the 35th anniversary of the opening of right to counsel was established with our first trial offices. In addition to SPD staff, over 1,000 the Gideon decision, the responsibility private attorneys represent clients who meet the criteria and the details of its implementation for SPD services. These private attorneys are certified were left to the individual states. to accept public defender appointments in conflict-of- In the early years following the interest and overflow cases. Through the combined decision, Wisconsin complied effort of our staff and our partners in the private bar, with the requirement through the SPD represented clients in almost 140,000 new a county-by-county system. cases in the last fiscal year. This county-based approach The SPD is one component of a very strong criminal changed in 1977 when justice system that also includes judges, prosecutors, law Wisconsin took the strategic enforcement, corrections officials, and court personnel. step of adopting a I am proud to say that Wisconsin has a long tradition statewide model of of supporting all parts of this criminal justice system, indigent defense, in spite of fiscal challenges. In the area of providing establishing the effective defense services to those unable to hire Office of the State an attorney, we recognize the decision in Gideon v. Public Defender Wainwright as an important and historic part of (SPD) as an this tradition.

“Through the combined effort of our staff and our partners in the private bar, the SPD represented clients in almost 140,000 new cases in the last fiscal year.”

Kelli S.Thompson

Marquette Lawyer 55 July 11, 2013 level of expertise and coordination. Both of these elements are reflected in the partnerships NIC has Evidence-Based Decision Making: formed in Eau Claire and Milwaukee, specifically with The Increasing Use of Research in og y B l og acult the respective county criminal justice coordinating F Our Criminal Justice System councils. EBDM has also had an impact on state policy There is a growing trend in the criminal justice field makers, as evidenced by increased resources for to integrate evidence-based decision making, or EBDM, treatment, diversion, and drug courts in the most recent into local justice systems. At its simplest, EBDM can be state budget as well as the formation of Wisconsin’s first described as the practice of using what has been proven Statewide Criminal Justice Coordinating Council. to work. It places the primary reliance upon current and All that is learned through these partnerships will sound research, rather than upon anecdotal information, help serve as a model for other Wisconsin counties and guesswork, or solely the experience of an individual. for other jurisdictions across our country. While the use of evidence-based decision making is relatively new to the field of criminal justice, the health July 19, 2013 care industry has embraced EBDM for some time. The Continued Expansion of Treatment The promise of evidence-based decision making Courts in Wisconsin is that it produces more consistent and better outcomes, as confirmed by the underlying research. Wisconsin was an early adopter of problem-solving, In the criminal justice system, the benefits include the or treatment, courts. Starting with Dane County’s Drug implementation of policies and practices that meet the Court Treatment Program in June 1996, Wisconsin is goals of maximizing public safety, reducing the risk now home to 56 operating treatment courts according of reoffending, more appropriately allocating limited to the Wisconsin Court System website. In addition to resources, and reducing costs. treatment courts that address drug addiction, our state Wisconsin is at the forefront of the trend toward also has treatment courts that focus on alcohol, mental the introduction of EBDM into its criminal justice health, veterans, and tribal wellness. Some are hybrid systems. Substantial efforts are underway to integrate (or co-occurring disorders) courts. While most courts are evidence-based decision making into our local criminal operated by one county for cases arising in that county, justice systems. Both Eau Claire County and Milwaukee we are starting to see regional courts that address County are currently researching and applying the offenders from multiple counties. methodologies and processes of EBDM into their Treatment courts, as the name suggests, treat or solve respective criminal justice systems. The National Institute an issue while still holding the offender accountable for of Corrections (NIC) has provided great support in these his or her criminal activities. Removing an offender’s efforts: NIC honored Eau Claire County and Milwaukee addiction, for instance, decreases the likelihood that County as two of three jurisdictions among a nationwide the person will reoffend in order to “feed” his or her pool of candidates to receive full technical assistance addiction. Successful treatment can lead to a reduction grants focusing on EBDM. As recipients of two of in crime and recidivism while restoring an individual to the three awards, both Eau Claire and Milwaukee are have a greater opportunity to be a valuable member of receiving the highest level of technical assistance offered the community. by NIC. One of the drivers behind the proliferation of Eau Claire and Milwaukee have already seen practical treatment courts is the proven outcomes they are able to impacts from the adoption of risk-assessment screening produce. In fact, according to a UW Population Health after an individual is arrested but before his or her Institute study of treatment alternatives and diversion first court appearance. Assessment tools help guide programs, communities received a $1.93 return on each the court’s decision on issues such as bail amount and $1.00 invested in these programs. conditions. Use of this information appropriately places The treatment court model relies on a team-based defendants on a track that maximizes the benefits approach to oversee and assist the individual to treat his previously listed. or her addictions. Judges, prosecutors, defense attorneys, The integration of evidence-based decision making probation agents, law enforcement, and treatment into our criminal justice systems requires a substantial providers all come together in a nonadversarial model

56 Fall 2013 Public LawFirm The RoleofSpecializedPracticeGroupsina July 26,2013 safety, andfor taxpayers. significant benefits forindividualparticipants, forpublic investment properlyareasmart with these courts energy, toplanandoperate andresourcesnecessary development ofthisnature. ofnew courts The time, makes itlikely that Wisconsin willcontinuetoseethe that couldsustainitoncestarted. but aspecialtycourt that may lacktheresourcestostart tofacilitateimplementationincounties treatment courts Professionals areworking tocreatestatestandardsfor and the Wisconsin Association of Treatment Court reducing recidivism. presiding judge, achieve helpthecourts thegoalof betweenandthe interaction the direct theparticipants of treatmentcourts, suchasthisteamapproachand offender. Nationally, researchshows thatspecificaspects to promoteproblem-solvingresponsestailoredeach to share specialized knowledge and expertise efficiently,to sharespecialized knowledge andexpertise agency perspective, groupsallow us specialtypractice immigration, andsexually violentpersons(Ch. 980). forensics, ofparentalrights, termination disparity, racial areas:practice identified additionalspecific juvenile, areasofpractice,of thesegeneral andwe have trial work. The agencycontinuestomaintainboth ourselves basedonspecializinginappellateand by developingcongruence groups. specialtypractice post, Iamgoingtodiscussanareawherewe achieve to achieve between harmony bothroles. Inthisblog own setofexpectationsandstakeholders, andwe strive agency. Although thereisoverlap, hasits eachfunction responsibilities: we arealarge andastate law firm The documented success of treatment courts The documentedsuccessoftreatmentcourts The Statewide CriminalJusticeCoordinatingCouncil The SPDbenefitsinseveral ways. From astate From thebeginningofSPD, we organized The Wisconsin StatePublicDefender (SPD)hasdual for publicsafety, andfor taxpayers.” withsignificantbenefits forindividualparticipants, properly investment operate[treatment]courts areasmart

“Thetime,energy, toplan and andresourcesnecessary and changing field ofcriminaljusticein Wisconsin. will, asnecessary, changeandadapttotheever-evolving the forensic elementsofthecase. trialby focusing on groupisassistinginajury practice fact, asIwritethispost, thecoordinatorfor ourforensics area. ofthispractice others withthetechnicalaspects In elements. Similarly, theforensics coordinator helps inthesemathandstatistical withtraining attorneys In thisexample, theCh. groupassiststhe 980practice neededtoworkto buildtheexpertise withstatistics. occasionally takes suchcases would find itchallenging statistics.arcane actuarial whoonly A practitioner persons typicallyinvolve anumberofvery intricateand respective areas. practice withtheirquestionsrelatedtothebar attorneys hearings andtrials. The coordinatorsalsoassistprivate examinations atmotion orassistwithexpert conduct presenting attheannualconference. Somecoordinators They assistwiththeagency’s efforts, training including for whenrequested. easy disseminationtoattorneys areasandcatalogthem mundane detailsintheirpractice Coordinators keep ofthelegalnuancesand track tosharewithpractitioners. research/articles/studies including motions, briefs, transcripts, caseoutlines, and area ofthelaw. client’s caseorhave aquestioninnew orundeveloped themasneededwhenthey contact arepreparinga Staff assist othersinquicklychangingareasoflegalpractice. asthey Coordinators serve asaclearinghouseofsorts mentor, andeducatortootherSPDpractitioners. asanadvisor, areaandsharesthisexpertise practice person stays abreastofthelatestdevelopments inthe our clientsstatewide. enhance thequalityoflegalrepresentationprovided to From perspective, alaw firm specializationallows usto “reinvent the wheel” areas. inthesecomplex practice lessening theneedfor andprivate to staff attorneys As theagencycontinuestoutilize suchspecialties, we Cases involving clientscharged assexually violent materials,Each coordinatorpullstogetherpractice groupisledby acoordinator.Each practice That Marquette Lawyer 57

Faculty Blog CLASS NOTES

PROFILE: Tracey L. Klein, L’84

Tracey Klein: Leading Through the Art of Governance

What do you get when you cross a lawyer whose It is a skill that comes from her day job. Corporate specialties include corporate governance with an governance is one aspect of Klein’s practice at the arts lover? Milwaukee firm of Reinhart Boerner Van Deuren, where You get Tracey Klein, chair of the governance she is co-chair of the health care practice, chair of the committee of Milwaukee’s Skylight Music Theatre, hospital and health care systems group, and co-chair chair of the governance committee of the Milwaukee of the government relations group. In other words, she Film Festival, and former board member for the Sharon has developed a successful career specializing in clients Lynne Wilson Center for the Arts in Brookfield, Wis. in the health industry. Add to that: cabinet member of United Way of “It’s been a tremendous specialty to be involved Greater Milwaukee, former member of the board of in,” Klein says. What’s good about it? She gives two Wthe Elmbrook Swim Club, past president of TEMPO answers: Almost all of the clients are nonprofits, Milwaukee (a professional women’s organization), “mission-driven clients who are trying to do the right former board member of the American Red Cross- thing.” And she finds a lot of variety in the issues she Milwaukee Chapter, current member of the Wisconsin works on—employee matters, transactions (including First Lady Advisory Council, American Lung Association multimillion-dollar construction projects), contracts, and of the Upper Midwest Volunteer of the Year for 2012 issues around patient treatment. (along with her husband, Rick). The list goes on. It’s also the kind of specialty that has allowed But stick to the arts for the moment: Klein says she her to live what she calls a balanced life—mother loves musicals, she loves film—she loves being in touch of two children (both in their 20s now), committed with “the creative sides of the world.” You’re not going community volunteer, and someone with enthusiasm to find her on stage, but she is committed to using for many interests. her own talent and abilities to help arts organizations Klein’s career and life could have taken a much operate effectively. different direction. She grew up in Delafield, Wis.,

58 Fall 2013 NOTES

1967 1981 CLASS Wayne Brogelman has been elected to Kay Nord Hunt was the board of directors of Historic Fraser, presented with the and graduated from the University Inc., in Fraser, Colo., which hopes to Distinguished Alumni acquire part of a ranch regularly visited by Citation from Gustavus of Wisconsin-Madison with a degree President Dwight D. Eisenhower and to Adolphus College by in political science and a passion for open it as the Eisenhower Western White Barry O’Neil, a fellow politics. She worked as an aide to two House and Heritage Center. Adolphus alum and Republican members of the Wisconsin colleague at the Minneapolis law firm Assembly and, for a year after 1970 Lommen Abdo. Hunt is only the 11th person college, as a staffer for the Wisconsin Brian T. O’Connor received the Arbitrator in the area of law to receive the award in its Republican Party. She wanted to of the Year Award from the Better Business 58-year history. pursue a career in politics and decided Bureau serving Chicago and Northern that a law degree would help. Illinois at the group’s annual meeting. Since being certified in 2011 as a Better 1983 That led Klein to Marquette Law Business Bureau Auto Line Arbitrator, he Paul T. Dacier has been elected president School, where her involvements has arbitrated more than a dozen Auto of the Boston Bar Association for the year included an internship with the Line cases, in addition to other consumer beginning in September. late Judge John Coffey of the U.S. matters. Francis D. Schmitz Court of Appeals for the Seventh has retired from the Circuit. Coffey advised her to be a 1972 U.S. Department of lawyer first and a politician later. Terrence P. Cahill Justice after 29 years. She graduated from the Law School received the M Club During most of that time, he served as an in 1984 and took his advice. Klein Hy Popuch Memorial Service Award from assistant U.S. Attorney is glad she did. She still has strong the Marquette in Milwaukee; he also involvement as a political volunteer, University served for five years in but her legal career is bringing Department of the department’s National Security Division her satisfaction. Intercollegiate in Washington, D.C. He has entered the private practice of law in Waukesha, Wis. Klein says she is fortunate to Athletics in an April ceremony at the Al have clients who want to hear not McGuire Center. only advice on legal aspects of an 1984 issue, but counsel on what is the Michael F. Hupy recently celebrated Philip R. O’Brien more than 40 years of providing legal was recently right thing to do. For example, she services when his firm, Hupy & Abraham, appointed to the alludes to a situation at a hospital in opened offices in Iowa (Des Moines, Professionals another state where one doctor had Cedar Rapids, and the Quad Cities). Committee of the a mixed track record in performing Hupy’s philanthropic interests include International a particular procedure. She explains tuition support at St. Marcus School Foundation of in Milwaukee. Employee Benefit that she was able to help leaders Plans (IFEBP). This of the hospital keep the interests team of 16 professionals across the of the patients at the top of their 1976 United States consists of accountants, priorities in deciding how to deal Mark S. Young has been appointed actuaries, consultants, and attorneys representing the industries and crafts of with the situation. president of After Breast Cancer Diagnosis, a nonprofit organization providing free the IFEBP’s professional members. O’Brien “There are some moments support to Milwaukee women affected by is a shareholder in the Milwaukee office when I think, ‘I’m going to make breast cancer and to their families. Young of Reinhart Boerner Van Deuren and a a difference here,’” Klein says. The is a shareholder in the Milwaukee office member of the Taft-Hartley group in the evidence is considerable that that is of Habush Habush & Rottier, focusing on firm’s employee benefits practice. personal injury cases. an understatement.

Marquette Lawyer 59 NOTES

CLASS 1986 1988 1994 Kathryn A. Keppel was recently Timothy Reardon has been elected Christine E. Woleske, executive vice recognized for her “Outstanding president of the Marquette Law Alumni president of Bellin Health, was featured Community Service” by Centro Legal, Association Board for the 2013–2014 in “20 Women to Know,” a story in an organization that provides affordable academic year. the August edition of You Magazine, legal services to low-income individuals in published by the Green Bay Press-Gazette. Milwaukee. She is a partner with Gimbel, Paul A. Milakovich has been elected She has been with Bellin since 1998, first Reilly, Guerin & Brown in Milwaukee. chairman of the board of the Cream City as a compliance officer and then as vice Foundation in Milwaukee. He is associate president and general counsel before her vice president for University Advancement at current role. 1987 Marquette University. Captain Robert 1995 Blazewick, U.S. 1990 Navy, has been Ivanyla (Vanny) Vargas has been appointed as circuit Kelly Centofanti recently completed her appointed as the director of labor relations trial judge for the term as president of the Marquette Law for Orange and Rockland Utilities, an Navy-Marine Corps Alumni Association Board. affiliate of Con Edison, Inc., serving New Southern Circuit in York, New Jersey, and Pennsylvania. Jacksonville, Fla. He Jeffrey A. Pitman, Pitman, Kyle, Sicula graduated from the & Dentice, has been admitted to the New 56th Military Judges’ Course on May 3 in Mexico Bar. 1998 Charlottesville, Va., and transferred to his Stephen J. Beaver is the new senior vice new service from his position as a 1991 president and general counsel of Aspect professor of international law at the Software, Inc., in Phoenix, Ariz. George C. Marshall European Center for Ruth A. Pivar has Security Studies in Garmisch, Germany. joined the Chicago office of Quarles & 2001 Brady. She is of counsel Barb O’Brien is vice-president/president- Michael Maxwell T to the firm’s trusts and elect of the Marquette Law Alumni was appointed by estates practice group, Association Board for the 2013–2014 Governor Scott where she advises academic year. Walker and clients in the areas of unanimously transfer tax, charitable confirmed by the giving, dependent parent/child planning, Wisconsin Senate insurance, and retirement planning. to serve on the State Public 1993 Defender Board.

Kimberly Kolch and her husband, Juan Robert R. Gagan, Calewarts, Duffy & José Cantarero, welcomed a son, Carlos Gagan, in Green Bay, is the new president- David, on January 24. elect of the State Bar of Wisconsin.

SUGGESTIONS FOR CLASS NOTES may be emailed to [email protected]. We are especially interested in accomplishments that do not recur annually. Personal matters such as wedding and birth or adoption announcements are welcome. We update postings of class notes weekly on the Law School’s website, law.marquette.edu.

60 Fall 2013 PROFILE: Daniel L. Abelson, L’03 NOTES

CLASS

Dan Abelson: A Plot Line of Public Service

Tell a compelling story. Dan Abelson has always wanted Hall of Fame), Abelson joined a midsized private to do that. firm, where the stories mostly involved construction He thought his passion would lead him into matters. The next turn in the plot: Taking a position filmmaking, and he enrolled in a college—Emerson with the Minnesota attorney general’s office for College in Boston—that was famed for its arts some five-plus years, working on civil cases, where programs. He worked on some films, but as a career, (in an amusing twist) people thought he liked the film industry looked unattractive. He decided to math and involved him in cases such as a large channel the storytelling impulse in different directions. consumer protection suit over annuity products for The result: He’s building chapters in a compelling senior citizens. Abelson also specialized in cases of story of public service in the Minneapolis-St. Paul area, accidents involving snowplows. “Let’s just say that, Twhere he grew up. in Minnesota, you won’t win in the physical sense The plot turned first to computer programming. and you won’t win in the legal sense, if you get in an While at Emerson, Abelson learned some computer accident with a snowplow,” he says. programming, and after graduating in 1997, got a full- In 2011, the story took a turn he is finding rewarding: time job in the Milwaukee area. “The work was boring Abelson became associate general counsel at the as all get out,” he recalls. Not such a compelling story. Metropolitan Council, the regional government agency that He could see that it was not a long-term job for him. operates the transit and wastewater systems in the Twin He considered getting a master’s in business Cities and sets policy on matters including transportation, administration, but he regarded that as involving more regional growth, affordable housing, and parks. math than he preferred. A law degree—that would be a The compelling stories he tells now involve a range better turn in the plot, he decided. “You can do a lot of of issues, including environmental protection and things with a law degree,” he says. transit, that Abelson sees as part of a tale of sound And a career in law could fit his core interest. “Whether public policy. you are making a film, writing a brief, or trying a case,” he Dan and Alissa have a son, Zach, 6, and a daughter, says, “you are telling a compelling story.” Georgia, 4. Zach in particular has brought out their The plot took Abelson to Marquette Law School. It had storytelling passion. He was born a month and a half him marrying his girlfriend, Alissa, in 2002. She has both premature at Regions Hospital in St. Paul. Things turned undergraduate and master’s degrees in psychology from out well, and the Abelsons have become supporters of Marquette. Dan graduated from the Law School in 2003 the hospital and have told others of their experiences. and accepted a clerkship with the Minnesota Supreme Does Abelson still do anything with movies? “Not Court, which meant he could return to the Twin Cities. much these days,” he admits. “I rarely even watch “This is where I really wanted to be,” he says. movies because you don’t have time with the kids. But After clerking for two Supreme Court justices I do enjoy photography.” Which, of course, is one more (including Alan Page, a member of the Pro Football way to tell compelling stories.

Marquette Lawyer 61

CLASSCLASS NOTES NOTES I 62

PROFILE: Fall 2013 bipolar disorder, and catatonicsyndrome. useful indealing withsomewhohave majordepression, electroconvulsive therapy, aprocedureshesays is the consultationliaisonservice. Shealsoperforms unit, theunlocked unit, inpatientpsychiatry and hospitalized patientsonthe locked inpatientpsychiatry psychiatric attheschool. educationprogram of Wisconsin. themedical student And shedirects withMedicalCollege a teachinghospitalaffiliated Veterans Administration (VA) hospitalin Milwaukee, an attendingpsychiatrist attheClementJ. Zablocki experience hasbeenvaluable toher. in aconventional sensebutsays thattheeducational College of Wisconsin, Tsao hasnever law practiced andBehavioralPsychiatry MedicineattheMedical years, in2005. shegraduated student atMarquetteLaw School,” shesays. six After atMarquette Lawprogram School. “I loved beinga full-time asaphysician, sheenrolledinthepart-time it wassomethingnew.” time tolearn building asuccessfulcareerinpsychiatry, she “decided attheMedicalCollegeof psychiatry Wisconsin. While Chicago andcametoMilwaukee todoaresidencyin medicineatLoyola ininternal internship University in of IllinoisCollegeMedicine. Shecompletedher University andamedicaldegreefromtheUniversity learning, andshewould have anambitiousanswer. at any stageofherlife, includingnow, whatshewas think ofCarolI-Ping Tsao. You couldhave asked her If you want agoodsenseoftheterm “lifelong learner,” At the VA hospital, Tsao thecareof supervises Tsao hastwo majorprofessional rolesnow. Sheis of A tenuredfullprofessor intheDepartment That somethingwas thelaw. While stillpracticing Tsao hasabachelor’s degreefromNorthwestern Carol I-Ping Tsao:Carol Learning asPleasure Learning Carol I-PingTsao, L’05

of learning and conquering new realms. andconqueringnew realms. of learning adds that “in many ways, sowas law school”—the pleasure piano, shesays, “It’s for purepleasure.” For thatmatter, she ofMusic.Conservatory Oftaekwon do, boating, and daughter arebothtakingpiano lessonsatthe Wisconsin during theweek andboatsduringweekends. Tsao andher tae kwon doatJKLeeBlack Belt Academy, Fox Point, an eight-year-old daughter. Together, thefamilystudies her partner, achildpsychiatrist andpsychoanalyst, have Presbyterian Churchin downtown Milwaukee. Sheand onthegoverning serving boardofImmanuel is currently ordained deaconandelderinthePresbyterian Churchand experiences. andlearning community activities Sheisan Marquette Law School, Tsao isinvolved inother “I would doitagaininaheartbeat.” things together. Bothareusefulinsolvingproblems. while medicaleducationemphasizeshow tobringdisparate education emphasizeshow todistinguishanddifferentiate andwritingabilities.analytic Inaddition, shesays, legal skills.” towritebriefsinlaw Learning schoolimproved her education, sheobserves, “legal educationemphasizesverbal itfor useintheother.”and import Comparedtomedical problems. “One canborrow thebestofoneprofession Tsao says. Itprovides “a different lens” tohelphersolve legal educationfor broaderreasons. claims involving psychiatrists. Butmostlyshevalues her representingthe occasion toassistattorneys VA intort College of Wisconsin’s institutionalreview board, andthe including teachingbioethics, membership ontheMedical that mightnothave presentedthemselves, otherwise Tsao opportunities notesthatithasopeneddoorstocertain Though she maintains a close relationship with Though shemaintainsacloserelationshipwith So was law schoolworthwhile? “Absolutely,” shesays. “My legaleducationhelpsmebeabetterphysician,” Where doesherlaw intohermedical degreefit work?

NOTES

CLASS Mollie Newcomb has joined the legal 2007 2011 department at Milwaukee Electric Tool Corporation in Brookfield, Wis. Steven M. Emily I. Lonergan, Milwaukee, was DeVougas, of recognized by the State Bar of Wisconsin Hinshaw & for her “Exemplary Performance as a 2003 Culbertson, has Mock Trial Coach” with the Professional been named to Learning Institute High School’s mock Kirk L. Deheck has been elected Lawyers of Color’s trial team. She is an attorney at Gimbel, shareholder at Boyle Fredrickson in inaugural “Hot Reilly, Guerin & Brown, practicing in Milwaukee. He focuses his practice on List,” which both civil and criminal litigation. the preparation and prosecution of includes 100 patent and trademark applications. early- to mid-career minority attorneys Amanda Pirt, of Hupy & Abraham, Amalia L. under 40 from the Midwest region. has been appointed Todryk, a partner vice-chair of the in Quarles & 2008 tort, trial and Brady’s Milwaukee insurance practice office, has been Thomas E. Howard has been committee of the designated chair appointed to the standing committee American Bar of the estate & on mental health law of the Illinois State Association’s Young trust section of Bar Association during 2013–2014. He Lawyers Division. the Milwaukee is in the Peoria, Ill., office of Howard Bar Association. & Howard, a full-service firm with a Kristin M. national and international practice Kaminski recently John Schulze has been appointed as providing legal services to businesses was admitted by chief legal counsel for the Wisconsin and business owners. bar examination to Department of Transportation. the practice of law 2010 in California. She joined the Nevada 2005 Alyssa D. Dowse bar in 2011 and Anthony Cotton and his wife, Laurel, has joined the has since practiced announced the birth of their first child, Milwaukee office in trust and estate administration with Dominic Anthony, on May 8. of Quarles & Brady Anderson, Dorn & Rader, in Reno, Nev. as an associate in Jessica Johnson and Nathan the firm’s labor and Michalski welcomed their son, Wesley employment law 2012 William Michalski, on June 14. practice group. She Eric V. C. Jansson has joined Jansson previously was with Munger McKinley & Shape in Racine, von Briesen & Roper. 2006 Wis., as an associate. Before law school, Anthony J. Anzelmo has joined Whyte Jennifer M. he was a journalist covering business Hirschboeck Dudek in Milwaukee as a Jackson has joined and related political affairs in central and member of the litigation practice group. Quarles & Brady’s eastern Europe. His experience includes personal injury, Milwaukee office product liability, construction defect, and as an associate in professional liability defense. the corporate practice services Steven C. McGaver, of Gimbel, Reilly, group. Previously Guerin & Brown, was elected secretary she practiced at of the Milwaukee Young Lawyers Wilson Elser Moskowitz Edelman & Association. Dicker.

Joseph LaDien has joined Davis & Kuelthau’s Milwaukee office, law.marquette.edu focusing his practice on corporate and commercial real estate.

Marquette Lawyer 63 Ray and Kay Eckstein Hall Non-profit Org. P.O. Box 1881 U.S. Postage Milwaukee, Wisconsin 53201-1881 PAID Milwaukee, WI Permit No. 628

The Seventh Circuit Comes to Marquette to Remember a Colleague

On April 17, 2013, nine judges of the U.S. Court of Appeals for the Seventh Circuit came to the Appellate Courtroom in Marquette Law School’s Eckstein Hall, to hold a memorial ceremony for their late colleague, Judge John L. Coffey, L’48. Here, the judge’s son, Peter Coffey, L’84, addresses the court and the audience of more than 200 individuals. After the ceremony, for another rare event, three of the judges—Chief Judge Frank H. Easterbrook, Judge Diane P. Wood, and Judge Diane S. Sykes, L’84—heard oral argument in three appeals from federal district courts in Wisconsin, with an overflowing crowd of law students, lawyers, and interested members of the community looking on.