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Marquette Lawyer Summer 2021 from the Dean SUMMER 2021 LOOKING AT JUDGING FROM A DIFFERENT ANGLE Problem-Solving Courts and Other Newer Thinking ALSO INSIDE: The Politics, Law, and History of Political Redistricting • Sociological Legitimacy and the U.S. Supreme Court Out-of-State Investors and Home Ownership in Milwaukee • Law Students Take Pro Bono Virtual 1 MARQUETTE LAWYER SUMMER 2021 FROM THE DEAN What Does—and Should—a Judge Do Today? A few years ago, after one of our distinguished This issue’s cover story inquires whether the role lectures, which draw to Eckstein Hall so many of the state trial judge (if the term is still apt) has engaged members of the profession, one attendee, been changing and, if so, what one might make of not an alumnus, said to me, “Eckstein Hall is the any trends. Our focus is not traditional civil litigation, center of the legal profession in this region.” This where at least since Professor Judith Resnik’s famous was a high compliment, but I largely demurred. For 1982 article in the Harvard Law Review, “Managerial me, the nearest state courthouse will always be the Judges,” there has been considerable discussion of heart of the legal profession anywhere. It is the place the changing role of judges. Rather, in this instance that symbolizes justice, and to which, as a society, we we consider, in particular, “problem-solving courts” want our fellow citizens to resort, whether via the and the interest on the part of many Wisconsin trial criminal law or through civil litigation. judges in what they term “better outcomes.” And at the center of the courthouse, and of the Better outcomes would not, historically, have profession, are judges. Their work is, accordingly, been considered the focus of judges, whose great an important focus of legal education. Not simply traditional office has been to deliver judgments. The in procedural courses, such as various of my own mundane details of satisfaction of a judgment, or its upper-level offerings, but also in first-year courses execution, let alone its down-the-road effects, have in Contracts, Criminal Law, and Torts, we study what not been thought to make up the essential work of judges do. All familiar with law the judge entering the decree. Indeed, in a broad school require no elaboration sense, we have even suggested that judges should on how this is true throughout be indifferent to some such things: Fiat justitia, the curriculum. The centrality of ruat caelum, you know. judges figures in other aspects of So our cover story proceeds critically but our work at Marquette Law School, uncritically. We seek to identify and help explain helping explain, for example, our a phenomenon, even as we claim no great insight, annual Hallows Lecture, which certainly at this institutional level, into whether a faculty colleague (Professor the phenomenon is, overall, a good thing or a Michael O’Hear) some years ago bad one. And we invite your own observations, characterized to me “as one of the as alumni, other members of the Wisconsin bench many things the Law School does to validate public and bar, judges and academics across the country, service in the eyes of our students, as well as to and others. On occasion, we have even run in the promote respect for the office of judge.” magazine a letter to the editor, reacting to a story. It is thus natural that the Marquette Lawyer Without doubt, the changing role of the judge is, magazine often features and examines the work of in important basic respects, an empirical question. judges. Sometimes we present it (or them) almost So we will welcome your own experiences and unmediated, as at the end of this issue, which boasts a observations ([email protected] or conversation between one of my colleagues, Professor [email protected]). Nadelle Grossman, and the Hon. J. Travis Laster, an In all events, we offer you herewith the latest especially thoughtful jurist (and, more concretely, Marquette Lawyer, with its glimpses of our students, vice-chancellor in Delaware). Other times we offer the profession, and the larger society. Thank you for an analysis: Examples include, several years ago, our spending some time with it and us. featuring a symposium convened by my colleague, Professor Chad Oldfather, concerning the role of Joseph D. Kearney judicial law clerks, and, more recently, our engaging Dean and Professor of Law with the state’s bench and bar concerning the remarkable decline in the incidence of civil jury trials across the country, including Wisconsin. 2 MARQUETTE LAWYER SUMMER 2021 Contents SUMMER 2021 COVER STORIES 2 From the Dean LOOKING AT JUDGING FROM A DIFFERENT ANGLE 4 Law School News by Alan J. Borsuk Four Honored with Marquette In more than 100 courtrooms across Wisconsin, the work Law School Alumni Awards of judges has shifted from simply a focus on entering orders and presiding at trials to one of helping defendants Portraits Unveiled of Emeritae in a process to get on better life paths. In five stories, we Professors Carolyn Edwards examine the rise of “problem-solving” courts. and Phoebe Williams Leading Figures Agree Police 52 8 Accountability Needs to Improve Can Judges Become Helpers? Provocative Thoughts from Proponents of treatment courts want to reduce recidivism the (Virtual) Lubar Center by helping people rebound from traumas in their lives. 52 Others doubt that courts are well suited to the effort. Chicago Lakefront’s Complex Who Owns the House Next Door? Legal History Told in New by Mike Gousha and John D. Johnson Book by Dean Joseph D. While efforts to help 13 Kearney and Columbia Law Milwaukeeans become Moving from Convicting to Connecting Professor Thomas W. Merrill homeowners are bearing some Judge Laura Crivello and Judge Cynthia Davis fruit, the bigger picture shows a spent years as prosecutors dealing with some of the rapid rise in local home purchases toughest offenders. Now each is a judge currently 26 by out-of-state investors. leading a treatment court. Big Need, Big Change, Big Help Marquette Law School’s pro bono efforts shifted gears 17 successfully in helping people 60 Across Wisconsin, Trying Different Approaches amid the COVID-19 pandemic. Of LLCs, ESGs, Diversity, and Judges such as James Morrison in Marinette County, Virtual Annual Meetings Wis., want to find more effective ways of dealing with The Hon. J. Travis Laster, vice people who come before them. 32 Still Winning in the Court chancellor of the Delaware Court of Public Opinion of Chancery, is interviewed 21 by Nadelle Grossman, A Marquette Law School Poll professor of law and associate Building a Better Framework of adults nationwide finds What concern drove Milwaukee County Circuit Court dean for academic affairs at majorities satisfied with the work Chief Judge Mary Triggiano to become a leader in Marquette Law School. of the U.S. Supreme Court. emphasizing help for defendants coming before judges? “Outcomes,” she says. 36 65 Between the Lines Class Notes 24 by Larry Sandler A Judge’s Journey in Search of Positive Results In Memoriam R. L. McNeely A “primer” examines the Judge Joe Donald, now on the Wisconsin Court of upcoming redrawing of Appeals, began his involvement in treatment courts political boundaries, which because of what he saw as the legal system’s not will shape every level of helping the community. Wisconsin’s political life. Marquette University EDITOR: COVER: Copyright 2021 Law School Alan J. Borsuk Robert Neubecker Marquette University. Eckstein Hall DESIGN: PHOTOGRAPHY: All rights reserved. P.O. Box 1881 Douglas Frohmader John Nienhuis Milwaukee, WI 53201-1881 Andy Haas Schneider Phone: (414) 288-7090 Fax: (414) 288-6403 COPY EDITOR: law.marquette.edu Amy Bauman SUMMER 2021 MARQUETTE LAWYER 3 LAW SCHOOL NEWS Honoring Alumni Known for Helping Others Creating opportunities for themselves and others. Pursuing worthy goals and satisfying careers. Helping students and people in need. Building on the examples of their parents. Those characterizations help describe the four Marquette lawyers who are receiving alumni recognition honors from Marquette Law School this year in virtual ceremonies. They are: James T. Murray, Jr., L’74 Sarah Padove, L’12 Lifetime Achievement Award Charles W. Mentkowski Sports Law Jim Murray has always loved working Alumna of the Year Award as a litigator. The native of Racine, Wis., In high school, Sarah Padove knew is a shareholder at von Briesen & Roper that she wanted a career in baseball. And in Milwaukee and has tried more than she has achieved that. She played softball 150 cases to verdict. His father was a as an undergraduate at Indiana University Marquette lawyer, and his mother had an and chose Marquette Law School because undergraduate degree from Marquette. of its sports law program. She is now Murray has mentored law students who senior coordinator of baseball and softball interned at his firm and hired many upon graduation, development for Major League Baseball, and he has been extensively active in Law School alumni based in New York City. Her work focuses on nationwide efforts, including a term as president of the Law Alumni initiatives to get kids involved in playing ball—and involved Association Board. in helping their communities. Raphael F. Ramos, L’08 Deborah McKeithan-Gebhardt, L’87 Howard B. Eisenberg Service Award Alumna of the Year Award As director of Legal Action of A lot about Deb McKeithan-Gebhardt’s Wisconsin’s Eviction Defense Project, professional work can be learned from her Raphael F. Ramos does all he can to description of the qualities that she says see that people in “moments of utter she aims to model for her six daughters: desperation and turmoil” have good “Excellence, faith, leadership, service, representation in legal proceedings.
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