Appellate Opinions Released December 30, 2005

The Wisconsin Supreme Court released its opinion today in Haferman v. St. Clare Healthcare Foundation, Inc., holding that the Legislature has not provided an applicable statute of limitations for a claim against a health care provider alleging injury to a developmentally disabled child.

The Court of Appeals released these opinions today (none were recommended for publication).

Appellate Opinions Released December 29, 2005

The Wisconsin Supreme Court did not release any opinions or dispositional orders today.

Wisconsin Court of Appeals opinions (none were recommended for publication).

Appellate Opinions Released December 28, 2005

No Wisconsin Supreme Court opinions or dispositional orders were released today.


Wisconsin Court of Appeals opinions and dispositional orders, including the following opinions recommended for publication:

State v. David Barton on whether admitting an expert's opinion testimony violates a criminal defendant's confrontation right.

Auto Prep Center of Shawano, Inc. v. R.C. Samanta Roy Institute of Science and Technology, Inc. on whether a gasoline retailer must survey competitors' prices at least every twenty-four hours to avoid violating the Wisconsin Unfair Sales Act, Wis. Stat. section 100.30.

22 Shawano, LLC v. R.C. Samanta Roy Institute of Science and Technology, Inc. also on whether a gasoline retailer must survey competitors' prices at least every twenty-four hours to avoid violating the Wisconsin Unfair Sales Act, Wis. Stat. section 100.30.

Aon Risk Services, Inc. v. Palmer & Cay, Inc. on enforceability of non-compete agreements.

Aon Risk Services, Inc. v. James A. Liebenstein also on enforceability of non-compete agreements.

James Szymczak v. Terrace at St. Francis on whether a medical records custodian, in responding to a request to release records, must seek appointment of a temporary guardian when it believes the patient is not competent to consent to such release.

Taking politics into 21st century

Greg J. Borowski reports in today's Milwaukee Journal Sentinel on the effect of Wisconsin weblogs on politics and campaigns. A sidebar links to Boots and Sabers, Folkbum's rambles and rants, Xoff Files, Sykes Writes, and McBride's Media Matters.

A Wisconsin Telecommunications Policy Primer

Diane Katz gives Twenty Comprehensive Answers to Twenty Basic Questions in a Wisconsin Policy Research Institute report.

Free to Choose

From Hoover Digest. Half a century after he first proposed school vouchers, Milton Friedman, the "Father of School Choice," is still on the case. And William F. Buckley Jr. gives A tribute to Milton Friedman in A Million-Dollar Affair.

Seeking Justices

Ronald Stidham in Political Science reviews Seeking Justices: The Judging of Supreme Court Nominees by Michael Comiskey.

The Top 10 Stories You Missed in 2005

The world will remember 2005 for its natural disasters, the passing of a pope, and the ongoing insurgency in Iraq. But, all the while, Foreign Policy's editors have been keeping an eye out for those stories that fell through the cracks but will have a lasting impact for years to come. In a year-end FP exclusive, here are 10 stories you might have missed.

Prevailing party entitled to GAL fees

David Ziemer reports in the Wisconsin Law Journal on
Bernier v. Bernier.

Rules taking effect January 1st

Amendments of the Rules of Evidence, Wis. Stat. (Rules) 908.03(6), 909.02(12) and 909.02(13) relating to domestic and foreign records of regularly conducted activity

Amendment of Wis. Stat. (Rule) 809.19 on Briefs and appendix, relating to the certification of compliance with Wis. Stat. (Rule) 809.19(2)

Merry Christmas

pursuant to section 895.20 of the Wisconsin Statutes

America Still Beckons

Joel Kotkin in The American Enterprise says The American dream may be a musty old relic in the minds of some American elites. But to thousands of European immigrants each year, the dream still rings true.

Conservatives, Liberals, and Medical Progress

Throughout the developed world, healthcare systems are in crisis--with unsustainable costs, aging populations, and misguided priorities. The usual solutions--more markets, more government--are inadequate to the challenges we will face in the years ahead. Instead, conservatives and liberals alike need to rethink their assumptions about the benefits of medical progress and the struggle against death. Better medical technology, says Daniel Callahan in The New Atlantis, does not always mean better medicine, and a sane medical system needs to face up to the realities of our mortal condition.

Just Association

Norman Geras in The Philosophers' Magazine on the duty of intervention

Plaintiff can add new claims after remand

David Ziemer reports in the Wisconsin Law Journal on Tietsworth v. Harley-Davidson, Inc.

Join a Minnesota Legal Delegation to Cuba, Feb. 21-26

Planning a winter trip but can't decide between a tropical paradise and a workers' paradise?

State Bar of Wisconsin members are invited to join a delegation from the Minnesota Bar from Feb. 21 - 26. This is the delegation’s third trip to Cuba, to meet with lawyers, judges, members of the National Assembly, ambassadors, and observe court appearances. The trip is arranged through the Minnesota Bar Association’s Civil Litigation Governing Council.

The price is only $2,500 single occupancy for four nights, which includes airfare from Cancun to Cuba, hotel, meals, transportation in Cuba, and five hours of meetings and lectures a day.

Update: The Rake had a photo from a recent trip.

Jan 5 comment for Ethics 2000 open administrative conference Jan 19

January 5, 2006 is the deadline for written comment for consideration by the Wisconsin Supreme Court at its January 19, 2006 administrative conference on the following parts of the Wisconsin Ethics 2000 Committee's petition to amend the Rules of Professional Conduct for Attorneys, Chapter 20 of the Supreme Court Rules.
20:3.10 [Proposed] (Threatening criminal prosecution);
20:4.1 [Proposed] (Truthfulness in statements to others);
20:4.2 [Proposed] (Communications with person represented by counsel);
20:4.3 [Proposed] (Dealing with unrepresented person); and
20:7.1 [Proposed] (Communications concerning a lawyer's services)

Employees Take RAC To Court Over Psychological Testing

Keith Ecker reports in Corporate Legal Times on a 7th Circuit appeal involvling Rent-A-Center Inc.

Boss Tweed Arrested--But Is He Really Guilty?

Christine Gibson in American Heritage,

By the time his trial began in January 1873, he had been indicted on seven felony charges of larceny and forgery, although in the end he was never tried on any of them. The prosecution decided its most provable case was a 220-count misdemeanor indictment issued in October 1872 for failing to audit claims against the city. The trial ended in a hung jury, but Tweed was convicted of 204 counts at a retrial in November 1873. Although a misdemeanor carried a maximum penalty of one year in prison, Judge Noah Davis sentenced him to consecutive terms for groups of the charges, adding up to 13 years in prison, plus $12,500 in fines.

The Court of Appeals, ruling this punishment excessive, unanimously ordered Tweed's release after a year in prison. He was immediately rearrested on a $6 million civil suit brought by the state and placed in jail on $3 million bail. Before he could be tried, he escaped, disappearing for ten months until a U.S. State Department official recognized him in Cuba. He then fled to Spain but was captured as soon as he arrived (lacking a photo, U.S. officials sent a Nast cartoon to identify him) and extradited. Convicted on the civil charge in his absence, he died of heart disease in 1878 in debtors' prison.

Letterman subject of restraining order

Judge David A. Sanchez of the Santa Fe (New Mexico) District Court has entered a temporary restraining order against David Letterman on the petition of Colleen Nestler, whose claimed contacts with Letterman have been via television and telepathy.

Nestler's application for a restraining order was accompanied by a six-page typed letter in which she said Letterman used code words, gestures and "eye expressions" to convey his desires for her.

She wrote that she began sending Letterman "thoughts of love" after his "Late Show" began in 1993, and that he responded in code words and gestures, asking her to come East.

She said he asked her to be his wife during a televised "teaser" for his show by saying, "Marry me, Oprah." Her letter said Oprah was the first of many code names for her and that the coded vocabulary increased and changed with time.

You can view the docket for Nestler v. Letterman, case no. D-101-CV-200502772, at the New Mexico Courts Information Center Case Look-up. After the disclaimer page, on the Case Lookup page enter "Letterman David".

Appellate opinions released December 22

Wisconsin Supreme Court opinions and dispositional orders

Wisconsin Court of Appeals opinions
including recommended for publication:
Waite v. Easton-White Creek Lions, Inc. on whether typed initials constitute subscription (signing) by a party's attorney on a settlement agreement
Marotz v. Hallman on reducing underinsured motorists coverage by amounts received from an additional driver who is not underinsured
Switzer v. Switzer on extension of a domestic abuse injunction

Alito Project

Tim Shuman at Originalisms notes Yale Law School's quick rewrite of its published summary of the results of a project analyzing the opinions of Judge Samuel Alito, an alumnus.

Kitzmiller v. Dover Area School District

Most people will rely on news accounts, but if you want to read if for yourself, here is Tuesday's 139 page opinion of Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania.

Low Pay or No Pay? Economics of the Minimum Wage

Philip Lewis in Policy says The minimum wage hits the least skilled the hardest.

Chirac's Last Stand?

Patrick Chamorel in Hoover Digest says This past spring voters in France and the Netherlands rejected the new constitution for the European Union--and dealt a stinging rebuff to French president Jacques Chirac. Can Chirac recover?

The Right Stuff

Michael M. Uhlmann in the Claremont Review of Books on William F. Buckley, Jr., and the American Conservative Movement

Mexico's Undiplomatic Diplomats

Heather Mac Donald in City Journal says It's time for Mexican consulates to stop aiding and abetting illegal immigration.

Arch-Important Witness

Vyacheslav Belash in Kommersant says The Mitrokhin Archive, the most scandalous book about the KGB, was published six years ago. The continuation of the story of the KGB's secret operations has been just released, after the author's death, to bring more sensations.
(via Arts & Letters Daily)

Tate: Voters' Sense of Fairness will Help Defeat "Defense of Marriage" Amendment

Jeff Mayers of WisPolitics interviews Mike Tate. Mr. Tate had

been state director of Howard Dean's Wisconsin campaign and a top official in America Coming Together in the state. He also recently ran Joe Wineke's winning campaign for Democratic Party chairman.

He now manages the campaign against the Wisconsin "Defense of Marriage" amendment.

Mayers: Do you have an alternative amendment or proposal or do you think the law should just stay the way things are?

Tate: I don't think that Wisconsin voters think that we should ban civil unions, domestic partnership benefits ...

Mayers: But there's not civil unions ...

Tate: No there's not. But this amendment would prevent that from ever happening. ...

Mayers: Is this about instituting civil unions like in Vermont?

Tate: No.

Mayers: But you’re sort of holding out that as a possibility, right?

Tate: We're not campaigning for civil unions with this effort. But what we're campaigning for is equality and fairness. ...

Appellate opinions released December 21

Wisconsin Court of Appeals opinions
including recommended for publication:
State v. Russ, deaf defendant's claim that being shackled during sentencing made it difficult to use sign language
State v. Searcy, CCAP search by a juror, police officer's testimony of another's statements about defendant's residence and ownership of contents
Schimmels v. Noordover, use of deed language rather than recorded plat to establish right to use a private road

Taxes set a record in 2005

Mike Johnson reports in today's Milwaukee Journal Sentinel on a Wisconsin Taxpayers Alliance study which showed Wisconsin residents paid a record total in local, state and federal taxes, 10% more than last year.

"Our government is growing faster than our economy and our incomes. The percentage of take from us is ever-increasing," said Rep. Frank Lasee (R-Bellevue), a sponsor of the legislation, known as TABOR [for Taxpayer Bill of Rights]. "That's why I believe so strongly in TABOR. Limiting growth allows the private sector to have a little more money in our pocket."

The previous record amount was paid in 2000.

"In some ways it's easy to play this sensationally, but there's not much surprising here," said Andrew Reschovsky, professor of public affairs and applied economics at UW-Madison. "Taxes are by their very nature cyclical. We had a recession and that led to big reductions in state tax revenues. It's taken four years almost to come out of that."

An accompanying graphic shows a trough in taxes paid between 2000 and 2005 but not an obvious cyclical pattern back to 1980. It does not relate the growth in taxes to a measure of ability to pay.

The report states that total taxes claimed 32% of personal income in 2005, up from 30.6% the prior year. Nonetheless, taxes as a share of income in 2005 were the fifth-lowest in a ranking of all the years in the 1980-2005 period, the study says. The lowest was 30.5% in 2003, and "taxes relative to personal income remained well below their 2000 peak of 36.7%," according to the study.

"It's not that we shouldn't be concerned about it. At 32%, we're still among highest-taxed in the country," Knapp [Dale Knapp, research director of the Wisconsin Taxpayers Alliance] said.

Alito Speeches Reveal a Warmer, Wittier Nominee

Tony Mauro reports in Legal Times

Relaunching NASA

The New Atlantis on going Back to the Moon by 2018--Or Sooner

Labor Divided

Jim McNeill in Dissent

Democratic Greatness in the American Founding

Harvey C. Mansfield's contribution to a Symposium: America in Theory and Practice in Intercollegiate Review

Rescuing the Doha Round

C. Fred Bergsten in Foreign Affairs says The Doha Round could become the first major multilateral trade talks to fail since the 1930s. To prevent a collapse, policymakers in the G-8 and key developing countries must resolve global monetary and current account imbalances, counter the backlash against globalization, and find a way to jolt the talks back to life.

Great Expectations

Wisconsin Lawyer on our State Bar of Wisconsin's Annual Report for Fiscal 2005

Legal Analysis of the NSA Domestic Surveillance Program

Orin Kerr at Volokh Conspiracy

Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. ...

Wikipedia and the courts

Evan D. Brown at Internet Cases reports on courts citing Wikipedia as factual authority.
(via Ernie the Attorney)

Appellate opinions released December 20

Wisconsin Supreme Court opinions and dispositional orders

Wisconsin Court of Appeals opinions
(none recommended for publication)

Administrative Register December 15

Number 600 [pdf 33 pp.]

Why the KGB went on a shopping spree

Alan Judd in the Telegraph reviews The Mitrokhin Archive II by Christopher Andrew and Vasili Mitrokhin.
(via Arts & Letters Daily)

Flexibility Is Not What Is Needed

John E. Chubb in Hoover Digest says Three years after the passage of the No Child Left Behind Act, the Bush administration is being pressed by school administrators, teachers unions, and politicians to ease up on enforcement. With this many critics, NCLB must be doing something right.

Supreme Court: Accepts 7 New Cases

(via Alec Loftus at Courtwatch)

Return of child to abuser reversed

David Ziemer reports in the Wisconsin Law Journal on a Seventh Circuit decision on the International Child Abduction Remedies Act (ICARA), Van de Sande v. Van de Sande.

Roberts Adheres to Precedent on High Court Revelry

Tony Mauro reports in Legal Times

In 1988, as revealed by a file in the papers of the late Justice Thurgood Marshall, a group of law clerks petitioned Rehnquist citing their "concern about the Court's celebration of Christmas."

The clerks objected to the Christmas tree itself, as well as the Christmas party where Christmas carols are sung. Noting that "some of us do not object at all to these observances," the clerks said that "all of us are concerned that members of the public, as well as Court employees, may be offended by them." The clerks requested a meeting with Rehnquist to discuss the matter.

Marshall's papers indicated no reply from Rehnquist, but the party proceeded as it has every year since. As he apparently did every year, Marshall sent a note to Rehnquist declining the invitation: "As usual, I will not participate. I still prefer to keep church and state apart."

But Rehnquist died in September, and there was some suspense about whether his successor, John Roberts Jr., would tinker with the tone or content of the party. As far as could be determined in advance, Roberts has apparently taken the "stare decisis" approach, following the precedent set by his predecessor.

(via Originalisms)

Globalization Aids Plaintiffs In Cross-Border Litigation

Julius Melnitzer in Corporate Legal Times on U.S. And Canadian Lawyers Fight To Bring [Conrad] Black To Justice

The Author of Liberty: Religion and U.S. Foreign Policy

John B. Judis in Dissent

Reinhold Niebuhr, who described himself as a "Christian realist," makes a similar point in analyzing America's entry into World War I. Rejecting critics who charged that "making the world safe for democracy" was "moral cant," Niebuhr wrote: "For the fact is that every nation is caught in the moral paradox of refusing to go to war unless it can be proved that the national interest is imperiled, and of continuing in the war only by proving that something much more than national interest is at stake."

Threading the Labyrinth

Thomas F. Bertonneau in the Intercollegiate Review

The Lincoln Bedroom

Seven scholars, Michael Burlingame, Joan L. Flinspach, Lucas E. Morel, John Y. Simon, Edward Steers, Jr., and Daniel W. Stowel, with an introduction by Allen C. Guelzo, in the Claremont Review of Books assess C.A. Tripp's The Intimate World of Abraham Lincoln.

The Tsunami Report Card

Karl F. Inderfurth, David Fabrycky, Stephen P. Cohen in Foreign Policy say All too often, world leaders rush to make aid pledges in the aftermath of disasters, only to leave them unfulfilled as interest and attention wanes. But last year’s devastating Asian tsunami spurred a response that may be a model for future disaster relief. A look at the numbers shows us why.

Friendly Competition

George M. Holmes, Jeff DeSimone and Nicholas G. Rupp in Education Next ask Does the presence of charters spur public schools to improve?

WCC Capitol Update December 16

The Wisconsin Catholic Conference publishes this periodic review.

Its representive was among those testifying against the proposed advisory referendum on reinstating the death penalty.

It does not appear that SJR 5 will move forward at this time.

Keeping PAC Money Legal

Nicholas G. Karambelas in Washington Lawyer reviews the regulatory obligations of political action committees.

Private Schools for the Poor

James Tooley in Education Next on Education where no one expects

The Image Culture

Over four decades ago, Daniel Boorstin warned of the dangers of an image-saturated society--the rise of phony celebrity, the transformation of politics into charade, the triumph of sentiment over reason. Today, the dominance of the image is unquestionable, as picture-editing software like Photoshop gives ordinary people the power to remake reality and moving pictures seem to be supplanting the written word as the prevalent means of expressing ideas and transmitting culture. Christine Rosen in The New Atlantis examines the impact of these new technologies on our perception of reality, and wonders where the image culture will head next.

Cowboys and Indians

Niall Ferguson in Hoover Digest says Want the American troops out of Iraq now? Be careful what you wish for.

Roman Holiday

Graydon Carter in Vanity Fair on Roman Polanski's libel suit against the magazine, venued in the United Kingdom.

Prior to the trial, Polanski had gotten around a major obstacle. If he sued in the U.S. and showed up in person, he would likely be arrested for a crime committed more than a quarter of a century before. If he sued in the U.K. and showed up in person, he would run the risk of extradition back to the United States. Polanski's lawyers argued that for him to get a fair hearing he should be allowed to fight his case in the U.K. from the safety of France. The House of Lords, in a landmark decision, by a majority of three to two, overruled the Court of Appeal, which had unanimously ruled against Polanski's being allowed to give his evidence from France.

(via Arts & Letters Daily)

The Conspiracy Against the Taxpayers

Steven Malanga in City Journal tells Why public servants live better than the public.

The Size of Nations

David D. Friedman in The Independent Review reviews The Size of Nations by Alberto Alesina and Enrico Spolaore.

Diamonds in the Rough

With Christmas coming, are you still searching for socially responsible, multicultural children's literature? Janine Macbeth in ColorLines has some suggestions, but she pans others, including House That Crack Built by Clark Taylor.

This story, based on the rhythms of the familiar House That Jack Built, traces the creation and uses of crack cocaine from its beginnings on the plantation to its consumption in the inner city.

Rethinking Equality

Jonathan Wolff and Avner de-Shalit in The Philosophers' Magazine

Political Tidbits December 16

This week's report by The Hamilton Consulting Group

Milwaukee's Generation Gap

George Lightbourn in Wisconsin Interest says In successful, thriving cities across the country the economic engine is the presence of the so-called "creative class" - a young, educated workforce. Milwaukee struggles to decide whether to cling to its working class roots or reach out to this emerging group. [PDF]

One Man's Arabia

Geoffrey Wheatcroft in The New York Times reviews The Great War for Civilisation by Robert Fisk.

Without doubt Fisk is an honest man by his lights, but then plain dishonesty is not the only danger for journalism. Another correspondent on Fisk's own paper who had reported from the Balkans in the 1990's looked back with distaste at "the angry partisanship" with which that conflict was covered. The phrase could almost be Fisk's heraldic motto.

"First, Let's Sell All the Lawyers": A Personal View of Legal Marketing's Long, Strange Journey

Ross Fishman in Law Practice says Its been quite a ride--from poor John Bates, to bulldogs, to Lettuce Lawyers and the rise of the full-out differentiation campaign. This insightful and witty look at law firm marketing's evolution gives an insider's scoop on the past, present and future.

Gulliver Unbound

Ronald R. Krebs in Political Science reviews Gulliver Unbound: America's Imperial Temptation and the War in Iraq by Stanley Hoffmann with Frederic Bozo.

They're Taking Away Your Property for What?

Nicole Gelinas in City Journal says The Court's eminent-domain ruling is useless as well as unjust.

Rx for Medicare

Thomas J. Healey and Robert Steel in Hoover Digest on How to fix one of the worst problems facing the nation. If you think the Social Security system is in bad shape, take a look at Medicare.

Backward, Christian Soldiers!

Kurt Anderson in the "Imperial City" column in New York

For several decades the philosophical ground has been softened up by the relativism and political correctness of the secular left, which succeeded in undermining the very idea of objective reality and of calling a spade a spade--so now, in the resulting marsh, fantasies like intelligent design (or Scientology or feng shui or 9/11 as a CIA plot) take root and spread like weeds. Liberals pioneered squishy-minded indulgence of their key constituencies' unfortunate new ideas, like reparations and criminalized hate speech; now it's the right's turn.

(via Arts & Letters Daily)

There Should Be No Price Tag on Justice, Mr. Chief Justice

Jonathan M. Smith in the "Taking the Stand" column in Washington Lawyer advocates for the right to counsel in civil cases (see this earlier post).

Price v. Philip Morris, Inc. (IL)

In an opinion released today, the Illinois Supreme Court reversed a damage award of $10.1 billion in a class action suit against Philip Morris. The court held that U.S. Federal Trade Commission expressly authorized tobacco companies to characterize their products as "light" or "low tar" and so Philip Morris could not be liable under sec. 10b(1) of the Illinois Consumer Fraud Act for the use of those terms.

(via DRI)

MX race track not liable to girl who ran into cable, judge rules

DRI's The Verdict reports a judge in Marion County, Florida, dismissed a case against a motocross track because of a release and waiver of liability and an indemnity agreement for any injury "whether caused by the negligence of the releasees or otherwise." It had been signed by the father of the five year old plaintiff who claimed she was injured when her motocross bike struck a cable suspended over the track.

Simultaneous 'Chapter 20' filings barred

David Ziemer reports in the Wisconsin Law Journal on a bankruptcy decision by the Seventh Circuit, In re Sidebottom.

The court held that a simultaneous “Chapter 20” filing -- a Chapter 13 proceeding filed while a Chapter 7 proceeding involving the same debts is still pending -- must be dismissed, irrespective of the filer's good faith.

Former Senate maverick William Proxmire dies

Dave Umhoefer reports in the Milwaukee Journal Sentinel

He died early this morning at a long-term care facility in Copper Ridge, Md., at the age of 90, after struggling for years with Alzheimer's disease.

I once shook his hand, but who in Wisconsin hadn't.

Appellate opinions released December 15

Wisconsin Court of Appeals opinions
including recommended for publication:
Madison Metropolitan School District v. Burmaster on a school board's authority to overrule a hearing officer's decision against expelling a student
Bernier v. Bernier on division of GAL fees and awarding attorney's fees in a physical placement enforcement action

McCann decides to call it a career

Derrick Nunnally reports in the Milwaukee Journal Sentinel that E. Michael McCann, Milwaukee County District Attorney since 1968, announced at an afternoon news conference that he will not run for re-election.

Why We Steal: An Interview with Yomango

Adbusters interviews "Paul Bannister" on Yomango

a sophisticated "lifestyle project" he helped launch in 2002 to promote shoplifting as a form of civil disobedience and survival technique. ... Yomango offers workshops on theatrical theft, stolen-goods fashion shows, and fabric Yomango labels for stitching into lifted clothing.

Bush-League Science

The New Atlantis asks Are Republicans Conducting a "War on Science"?

Faith and Politics: Separation or Synergy?

Darryn Jensen in Policy says Religious beliefs can guide politicians while preserving the separation of church and state.

Activist Judge Cancels Christmas

The Onion reports

In a sudden and unexpected blow to the Americans working to protect the holiday, liberal U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt ruled the private celebration of Christmas unconstitutional Monday. ...

(via Daily Kos)

Update: Why Judge Reinhardt?

Appellate opinions released December 14

Wisconsin Court of Appeals opinions
including recommended for publication:
Factory Mutual Ins. Co. v. Citizens Insurance Co. of America on contractual waiver of subrogation
State v. Johnson on probable cause for a vehicle search
Santana v. Endicott on the proper forum for a habeas corpus petition
Currier v. Wisconsin Department of Revenue on the time for a petition for rehearing before the Wisconsin Tax Appeals Commission

Faculty Division Conference

In addition to its Student and Lawyers Divisions, the Federalist Society also has a Faculty Division, which will hold its Eighth Annual National Conference on January 5-6, 2005 in Washington, DC.

No Lawsuit Left Behind

Michael Heise in Education Next on Chief Justice Roberts, the schoolmaster?

The Wrong War

David R. Henderson in Hoover Digest on A sensible approach to the drug problem.

The New Philanthropists

Richard Lee Colvin in Education Next asks Can their millions enhance learning?

The Rise of Illiterate Democracy

Sean Wilentz in The New York Times on the separation of literature and state.

In 1837, a new monthly, The United States Magazine and Democratic Review, appeared, financially backed by Democratic Party leaders. (Former President Andrew Jackson took out the first subscription himself.) Alongside articles on partisan machinations, the first issue presented poems by John Greenleaf Whittier and William Cullen Bryant, and a fictional sketch by Nathaniel Hawthorne. ...

The Whigs, who commanded the high-toned periodicals like The North American Review, also had some impressive literary names in their own stable, including Longfellow and, later, Harriet Beecher Stowe. ...

A 2005 Rollick

James Lileks reviews the passing year for The American Enterprise.

October. ...
Harriet Miers is nominated for the Fairfax school board. No, wait--the Supreme Court. Half of the conservative base decides this is the opportune time to freak out and toss pitchforks of smoldering tinder to the opposition. Hey, not all the wheels are coming off the Administration--let us help you with that balky bolt! More innovative conservatives drop their opposition to human cloning and urge the President to start an NIH program for growing fresh new Scalias in petri dishes. Miers’s nomination is withdrawn after it is revealed she was actually a cyborg, sent from the future by Karl Rove’s son to revitalize the conservative base. She is disassembled and put in storage. Her replacement, Sam Alito, makes everyone happy, except some on the Left who insist he will take a backhoe to Martin Luther King, Jr.’s grave while humming the theme from The Godfather. But they are a slight minority of senators.

(via Just One Minute)

USA PATRIOT Act

A compilation of material published by the Federalist Society.

Capitol Update For the Week Of December 5, 2005

Our State Bar reports on legislative developments.

On SJR 53, the definition of marriage amendment,

The second sentence in this proposed amendment has caused the most consternation amongst opposition groups. This sentence prohibits the state from recognizing a legal status of marriage for ummarried individuals whose relationship can be categorized as "identical or substantially" similar to marriage.

Opponents of the amendment, including the State Bar of Wisconsin's Public Interest Law Section and Individual Rights and Responsibilities Section, contend that this second sentence could be made to challenge legal protections that already exist for both gay and unmarried heterosexual couples.

Passage of SB 331 got this headline.

Senators Gas about Automatic Indexing of Fuel Taxes

On reinstating capital punishment

The Senate Judiciary Committee held a hearing on SJR 5 on December 8th. The measure, sponsored by Senator Alan Lasee, would put this all-important question on the ballot so Wisconsin citizens can have their say: "Should the death penalty be enacted in the State of Wisconsin for cases involving a person who is convicted of multiple first−degree intentional homicides, if the homicides are vicious and the convictions are supported by DNA evidence?"

... The State Bar of Wisconsin, along with the Wisconsin Coalition Against the Death Penalty, opposes the death penalty and testified against the proposed referendum. ...

Opponents contend that such emotional questions should not be left up to the public to decide, but should be debated by our elected representatives. The opponents argue that questions of such import often bring with them impassioned debate and high emotions, and any decisions that are made should not be subject to the whims of these passions.

At least they aren't quoted as using the word "animus."

Appellate opinions released December 13

Wisconsin Supreme Court opinions and dispositional orders

Wisconsin Court of Appeals opinions
including recommended for publication:
Tietsworth v. Harley-Davidson, Inc. on reopening and amending after remand

SmartDraw for Your Case Exhibit Needs

Simon Chester in Law Practice asks Do you need help producing graphic exhibits? If so, there's a new program to consider.

The Excluded Middle

Matt Bai in The New York Times reviews Off Center by Jacob S. Hacker and Paul Pierson.

In the end, for all its talk about the political center, there is a radical current that runs through "Off Center" -- an insinuation that American democracy no longer works simply because Democrats haven't been winning.

A Hedgehog and a Fox

Thomas Albert Howard reviews Remembered Past by John Lukacs in the Intercollegiate Review

The Suicide Bombers Among Us

Theodore Dalrymple in City Journal on The 7/7 solution to an insoluble conflict

Multitude

Joss Hands in The Philosophers' Magazine reviews Multitude: War and Democracy in the Age of Empire by Michael Hardt and Antonio Negri.

Crips Founder Williams Denied Clemency

David Kravets of the Associated Press reports that California Gov. Arnold Schwarzenegger declined to grant clemency to Stanley "Tookie" Williams, who is scheduled to be executed by lethal injection just after midnight. Williams was founder of the Crips street gang. He had been convicted of committing four murders in the course of two 1979 holdups.

Less than 12 hours before the execution was set to take place, the 9th U.S. Circuit of Appeals said it would not intervene because, among other things, there was no "clear and convincing evidence of actual innocence."

(via Drudge Report)

Here is the Ninth Circuit's order.

South Dakota Judicial Accountability

This group recently submitted what appears to be sufficient signatures for a referendum on a proposed amendment to the South Dakota Constitution abrogating judicial immunity.

The proposal has come in for criticism, including from the Executive Director of the State Bar of South Dakota.

Supreme Court to Review Texas Redistricting

Gina Holland of the Associated Press reports in today's Washington Post

The legal battle at the Supreme Court was over the unusual timing of the Texas redistricting, among other things. Under the Constitution, states must adjust their congressional district lines every 10 years to account for population shifts.

But in Texas the boundaries were redrawn twice after the 2000 census, first by a court, then by state lawmakers in a second round promoted by [then-U.S. House Majority Leader Tom] DeLay.

(via Originalisms)

Change in accounting standards to cost government millions

Lawrence Silver reports in Greater Milwaukee Today that the change by the Government Accounting Standards Board (GASB) is intended to reduce unfunded liabilities.

Until now, government entities have been on the pay-as-you-go program for postemployment benefits other than pensions. ...

But new rules call for government entities to account for postemployment benefits on an accrual basis over a 30-year period.

(via WisPolitics)

The Conservative Farm System

As seen by The Week
(via Helvidius at Ex post)

Oral argument week of December 11

Wisconsin Supreme Court
Tuesday, December 13th
09:45 a.m.
Raschein v. Frey 05AP239-AC
Landwehr v. Landwehr 03AP2555
01:30 p.m.
Northwest Airlines, Inc. v. Wisconsin Department of Revenue 04AP319
Synopses of these cases and live audio

Eugene J. McCarthy, Senate Dove Who Jolted '68 Race, Dies at 89

Francis X. Clines reports in today's New York Times. McCarthy opposed President Lyndon Johnson, voted for Ronald Reagan in 1980, and favored the strategic defense initiative for missle defense, yet was controversial.

Why We Lacked Resilience

Henry I. Miller in Hoover Digest asks How could one storm score a hit on every wallet in the country?

If the Problem Is Muslim Terror, Then What?

Victor Davis Hanson in City Journal says We need to get serious about keeping our enemies out.

Against the "Academic Intifada"

David Hirsh in Dissent

The Struggle Against Sultanism

Akbar Ganji in the Journal of Democracy says Given the unaccountable authority of the supreme leader, the Islamic Republic should be classified as a sultanistic regime. In such regimes, democratic change is more likely to come from nonviolent resistance than from internal reform. A more complete version of his essay is posted at Free Ganji. Azar Nafisi profiles the author in The Voice of Akbar Ganji.

Buggy Software and Missile Defense

Since the 1980s, one of the main objections to pursuing an anti-ballistic missile system has been the software problem. Any system tasked with "hitting a bullet with a bullet," or so the argument goes, would be paralyzed by buggy code, impossible to test thoroughly, and certain to be overwhelmed by any distractions an attacker could throw at it. Mark Halpern in The New Atlantis explains why the software objection shouldn't be taken seriously and makes the case for proceeding with missile defense.

State insurance plan hangs on

Avrum D. Lank in today's Milwaukee Journal Sentinel on the often-forgotten fact that the State of Wisconsin sells life insurance

All Deliberate Speed?

Clint Bolick in Hoover Digest says The Supreme Court's Brown v. Board of Education ruling in 1954 was supposed to have improved educational opportunities for minorities. Yet in many ways the educational chasm between minority and non-minority schoolchildren is as great now as it was then.

The glue that holds us together

Jan Uebelherr in today's Milwaukee Journal Sentinel marks the 25th anniversary of Post-it notes.

Earthly Powers

Edward Skidelsky in New Statesman reviews Earthly Powers: religion and politics in Europe from the French revolution to the Great War by Michael Burleigh.
(via Arts & Letters Daily)

UW regents consider income-based tuition

Megan Twohey reports in today's Milwaukee Journal Sentinel that the University of Wisconsin System Board of Regents is concerned that higher prices reduce demand among those least able to pay.

Between 1994 and 2004, the percentage of incoming freshmen from low-income families dropped from 15.8% to 12.3%.

Free-market types might suggest the UW charge full tuition to state residents but provide subsidies based on ability to pay. It just might be headed in that direction; the staff's list of options include

- A new, tuition-funded financial aid program that would be funded through tuition increases for all students. This approach might require changes to state law.

-Charging tuition rates based on a student's ability to pay and possibly freezing current tuition rates for low-income students.

Are fat-fighters flabby thinkers?

Wendy Grossman in "The Skeptic" column in The Philosophers' Magazine

From Seattle to Hong Kong

Jagdish Bhagwati in Foreign Affairs says There have been eight rounds of multilateral trade negotiations prior to Doha. Although they all ended well, it is important to remember that few went smoothly. Negotiators in Hong Kong now face real obstacles, but there is reason for hope -- if, that is, they have the will and courage to do what is necessary to succeed.

Diversity: The Impossible Dream?

John H. Bunzel in Hoover Digest Creating diversity on America's college campuses is a noble goal. Achieving diversity is another matter.

Communist Wastelands

Balbir K. Punj in The Asian Age India
(via Arts & Letters Daily)

Science in the Service of the Nation State

Tom Quirk in Policy says Universities are the wrong place to look for sources of business innovation.

Inside the Madrasas

William Dalrymple's review essay in The New York Review of Books

The Formation of National Party Systems

Joseph LaPalombara in Political Science reviews The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India, and the United States by Pradeep K. Chhibber and Ken Kollman.

Homeless on "Paradise Drive": Two Views of Americanization

Peter Augustine Lawler's contribution to a Symposium: America in Theory and Practice in Intercollegiate Review

Local Knowledge in the Age of Information

Wendell Berry in The Hudson Review

Diary from Paris

Jeremy Harding in the London Review of Books reports from among the arsonists.

Alito deserves appointment, attorney says

Butch Mabin in the Lincoln Journal Star reports on a presentation by Wendy Long to the Nebraska Chapter of the Federalist Society.

Partisan War Syndrome

David Sirota for In These Times

The disease is simple to understand: It leads the supposedly "ideological" grassroots left to increasingly subvert its overarching ideology on issues in favor of pure partisan concerns.

(via Arts & Letters Daily)

Feeling At Home In An In-House Career

Roger Marks in the Inside Perspective column of Corporate Legal Times

Chief Justice at the Bedside

The New Atlantis on John Roberts and the End of Life

Holiday Inn or bust

Scott Johnson's comment and background at Power Line on F.A.I.R. v. Rumsfeld includes this.

... I recommend the transcript of the forum on the FAIR case convened by the Federalist Society Civil Rights Practice Group and moderated by Chapman University Law School Professor John Eastman at the Georgetown Law Center this past October.

Here is that transcript [pdf 101 pp.]

(via Volokh Conspiracy)

Five Wisconsin Supreme Court Justices to attend CTCW Luncheon

This morning the Civil Trial Counsel of Wisconsin announced it confirmed that five justices of the Wisconsin Supreme Court will attend the noon luncheon at CTCW's Winter Conference, tomorrow, December 9th, at the Hilton Milwaukee City Center (see our earlier post). Expected to attend are Justices David Prosser, Patrick Crooks, Patience Roggensack, Jon Wilcox and Louis Butler. The luncheon speaker is former justice, now U.S. Court of Appeals judge, Diane Sykes.

You may still reserve a place at the luncheon via the CTCW web site or calling 414-276-1881. The cost is $30 for CTCW members, $40 for non-members. They ask that you contact them by 2:00 p.m. today, December 8th, if possible.

Appellate opinions released December 8

Wisconsin Court of Appeals opinions
including recommended for publication:
Zehner v. Village of Marshall on mobile home renters' objection to municipal water and sewer fees

Senate passes marriage amendment

Stacy Forster at the Milwaukee Journal Sentinel reports

The vote broke down along party lines, with the Senate's 19 Republicans voting for the amendment and 14 Democrats opposing it.

Sen. Dave Hansen (D-Green Bay) and Sen. Roger Breske (D-Town of Eland) who had voted for the amendment last session voted against it this time.

UIM limits not reduced by tortfeasor payments

David Ziemer reports in the Wisconsin Law Journal on the Court of Appeals decision in State Farm Mutual Automobile Ins. Co. v. Bailey (see our earlier post).

Court rules attorneys exempt from Gramm-Leach-Bliley

Our State Bar reports today on a case in which it had joined in an amicus brief.

On Dec. 6, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the privacy provisions of Title V of the Gramm-Leach-Bliley Act (GLBA) do not apply to lawyers.

GOP wins on Senate gas tax and gun bills

Phil Brinkman and Jason Stein in today's Wisconsin State Journal report not on God, but on gas, guns, and gays, though with a hint of the religious.

After a last-minute conversion by the body's Republican leadership, the state Senate on Tuesday approved ending the automatic annual increase in the state's gas tax.

The Senate also adopted a bill to lift Wisconsin's 133-year-old ban on carrying concealed weapons but put off until today debate on a proposed change to the state constitution to ban gay marriage and state-sanctioned civil unions.

For symmetry, they might have also said it was a "ban" on automatic tax increases.

Museum woes are a warning for other volunteer boards

Today's Racine Journal Times on the financial crisis at the Milwaukee Public Museum.

From the audit report it appears that the museum's volunteer board members did nothing illegal, unethical or untoward - they were simply gulled into complacency by rosy (but misleading) financial reports and trusted the administration.

They just didn't do their job - which is to question administrators, doubt projections and demand answers and hard figures when things don't add up.

Lobbying in Wisconsin: What Do Lobbyists Do and How Are They Regulated in Wisconsin?

From the Wisconsin Legislative Reference Bureau's Governing Wisconsin series.
(via WisBlawg)

Fortress Journalism Failed. The Transparent Newsroom Works.

Steven A. Smith, Editor of the Spokane Spokesman-Review, guest blogging at PressThink, on his paper's new approach.

- All of our daily news meetings are open to the public and we promote that opportunity on Page One several times each week. Those participating in morning critiques often remain afterward to talk with editors about issues that concern them. Invariably, we learn something worth knowing or get a tip on a story worth pursuing.

- Eight citizen bloggers representing a cross-section of political and social views critique the paper daily in an online feature called "News is a Conversation." Staffers can respond to the citizen posts; so can other readers. This generates an ongoing discussion of our news coverage, including our priorities, core beliefs and daily decisions.

- Perhaps the most interesting experiment will come later this year when we begin Webcasting our morning and afternoon news meetings, inviting observers to participate through real-time chat-style interaction.

Appellate opinions released December 7

Wisconsin Court of Appeals opinions
(none recommended for publication)

Identity Crisis

Glen E. Thurow in the Claremont Review of Books reviews Defining Americans: The Presidency and National Identity by Mary E. Stuckey.

Schooling: Repeat After Me

Ken Alexander in The Walrus on teaching English as a second language in Toronto.

What the now twenty-one Punjabi and five Urdu speakers were desperate to learn, I was told, was how "to sound like you."

No mean feat, but to land telemarketing, cab-driving, and restaurant jobs the students deemed some form of accent reform a requirement, and so, for elocution and pronunciation, the pedagogical devices quickly became songs and poetry, more specifically Stompin' Tom Connors (all of him) and Dr. Seuss (nearly all of him).

The American Individual Today

Peter Augustine Lawler's introduction to his book Stuck With Virtue: The American Individual and Our Biotechnological Future, in The New Pantagruel

Justice to Elia Kazan

Harry Stein in City Journal

Appeals court strikes down county's 'labor peace' policy

Dave Umhoefer reports in today's Milwaukee Journal Sentinel that the U.S. Court of Appeals has reversed a judgment by District Judge Lynn Adelman and has held Milwaukee County's "labor peace" ordinance preempted by the National Labor Relations Act. Here's the Court of Appeals opinion.

Board of Governors December 9

Our State Bar's governing body has on its agenda, under D. Reports, 5,

The Individual Rights and Responsibilities Section reports on its request for Board of Governors approval for a State Bar public policy position in support of the American Bar Association's opposition to the elimination of habeas corpus under certain circumstances.

Presumably referring to the position described in this statement by ABA President Michael S. Greco. Mr. Greco and the ABA objected to Sen. Lindsey Graham's (R-SC) legislation.

Appellate opinions released December 6

Wisconsin Supreme Court opinions and dispositional orders:
Shaw v. Leatherberry 2005 WI 163 (burden of proof 42 U.S.C. 1983 excessive force by police)

Wisconsin Court of Appeals opinions (none for publication)

Marquette suspends dental student for blog comments

Megan Twohey reports in today's Milwaukee Journal Sentinel that the student has been notified he was found "guilty of professional misconduct in violation of the dental school's Code of Ethics and Professional Conduct."

Before the student came in front of the review committee, [Dental School Associate Dean for Academic Affairs Denis] Lynch gave him the option of signing an admission of guilt that would have allowed him to forgo a conduct hearing and be placed on probation. The student refused, Taylor said.

John McAdams is following the matter at Marquette Warrior. According to McAdams' account of the hearing,

The student’s lawyer, Scott Taylor, was particularly disturbed by comments from Lynch that showed anger that the student had had the temerity to actually ask for a hearing. Lynch said (again paraphrasing) "if he was truly sorry for what he did he would have signed the letter [admitting guilt]."

Senator Franken

The Capital Times editorializes on a possible run for the U.S. Senate by Al Franken, who reminds them of Ronald Reagan.

Reagan got deeply involved in conservative politics years before he entered the 1966 California gubernatorial race. Reagan was ridiculed by liberals and many in the media but he beat them every time because he actually understood politics and was firm in his beliefs.

John Nichols goes further in a recent review of Franken's latest book, putting it in the patriotic pamphleteering tradition of Tom Paine's The Crisis, though perhaps sold at a bigger mark-up.

No vote fraud plot found

Steve Schultze reports in today's Milwaukee Journal Sentinel that U.S. Attorney Steve Biskupic says his office's investigation found no evidence of conspiracy to commit election fraud.

He predicted that perhaps "a couple of dozen" isolated cases of suspected fraud might be charged, and he said that sloppy recordkeeping by election officials was a key impediment to proving such cases.

The Aging Self

A new report from the President's Council on Bioethics--entitled Taking Care: Ethical Caregiving in Our Aging Society--addresses one of the gravest ethical and social questions now facing us: living well with the burdens of mass aging and extended decline, and caring well for those who suffer debilitating diseases like Alzheimer's. This excerpt in The New Atlantis reflects on what it means to be an aging person in the modern world, for better and for worse.

To Preserve and Protect

Lee Edwards in Hoover Digest. "If Ed Meese is not a good man," Ronald Reagan once said, "there are no good men." A profile of a good man.

Ernie Pyle and War Reportage

Nicolaus Mills in Dissent

But in the years since his death, Pyle's reputation has plummeted. In The First Casualty, his history of war correspondents from Crimea to Vietnam, Phillip Knightley does what nobody from Pyle's generation would have: he dismisses Pyle's concern for the individual soldier as sentimentality.

Making Up the Rules as You Play the Game

Paul E. Peterson in Education Next on A conflict of interest at the very heart of No Child Left Behind

Academic strife: the American University in the slough of despond

Norman Levitt in Spiked Online says A new buzzword has entered the lexicon of academic fashion in the USA, threatening to drown poor professors like me in yet another wave of coy euphemism. The term is 'cultural competence'.
(via Arts & Letters Daily)

A Whole New World

Milton W. Zwicker in Law Practice reviews A Whole New World: Moving from the Information Age to the Conceptual Age by Daniel H. Pink.

Graphic novels catch eyes and minds of students

Katharine Goodloe reports in today's Milwaukee Journal Sentinel that some educators see the graphic novel as meriting greater consideration as a mode of instruction.

Graphic novels are written in comic format, but their subjects include the Bible, reworked versions of classics such as Moby Dick, personal memoirs, and Japanese-style books called Manga, which are read from right to left.

She cited the experience of a Marquette University High School student. Does this mean MUHS might no longer look with disfavor on substituting Classics Illustrated for an assigned text? Will it soon regard "cartoon theology" as mere description? Will students be assigned The Secret Annex weblog of Ann Frank? And what about St. Ignatius Loyola's idea for a video game?

The picture. A great plain, comprising the entire Jerusalem district, where is the supreme Commander-in-Chief of the forces of good, Christ our Lord: another plain near Babylon, where Lucifer is, at the head of the enemy.

Gianna Jessen was aborted at 7½ months. She survived. Astonishingly, she has forgiven her mother for trying to kill her.

Elizabeth Day's report on Gianna Jessen in the Telegraph includes this aside about an oddity in U.S. law.

From the very beginning, Miss Jessen survived in spite of herself. Her mother, Tina, a 17-year-old single woman, decided to have an abortion by saline injection when she was seven-and-a-half months pregnant (there is no legal time limit for abortion in America).

(via Off the Record)

Bible study conflict escalates to national issue

Megan Twohey reports in Sunday's Milwaukee Journal Sentinel.

Within days, word of a UW-Eau Claire policy prohibiting resident assistants from hosting religious and political activities in their dorm had spread off campus, across the state and around the country. Legislators, including U.S. Rep. Mark Green (R-Wis.), joined the national foundation in lambasting the policy as a violation of resident assistants' freedom of speech and religion, while a Madison group called the Freedom from Religion Foundation insisted the policy was necessary and correct.

The conflict heated up Wednesday when a Christian law firm from Arizona filed a federal lawsuit, on behalf of Steiger[resident assistant Lance Steiger], against UW-Eau Claire and the UW Board of Regents and Larson suspended the policy pending further review.

Due Process Pardons

Angus Dwyer at Originalisms notes a recent episode of the television show Commander in Chief in which the President pardons an inmate on death row, convicted by at Texas state court. Dwyer's first reaction is

Now, this is all very silly, as the president's power to issue pardons extends (per Article II, Section 2, Clause 1) ... only to those who have committed "Offenses against the United States" (and not the state of Texas).

But, on second thought, it's not unusual for federal courts to review state convictions under the Fourteenth Amendment. So he wonders,

... could Congress use its Section 5 power give the president a statutory "due process pardon" power?

In a comment, Will Baude goes the next step and asks if a President could do so in the absence of such a statute.

Doyle vetoes caps on malpractice awards

Stacy Forster reported in Saturday's Milwaukee Journal Sentinel that Gov. Doyle vetoed AB 766 which set new maximums on damage awards for pain and suffering in medical malpractice cases.

"Approving a law that would quickly be overturned doesn't do anyone any good," Doyle said in a statement. "Instead, I encourage everyone involved in this issue to come together and figure out a responsible and lasting solution that has a real chance of being upheld by the Wisconsin Supreme Court."

He is alluding to the Wisconsin Supreme Court decision from last July which held the statutory damage caps then in effect violated the Wisconsin Constitution, see this earlier post.

Now, the state faces a crisis if doctors decide to abandon Wisconsin and move to other states where limits are in place, supporters of caps said.

Oral argument week of December 4th

Wisconsin Supreme Court
Tuesday, December 6th
09:45 a.m.
Office of Lawyer Regulation v. Artery 04AP2022-D
State v. Smith 04AP2035-CR
01:30 p.m.
State v. Brown 03AP2662-CR
Synopses of these cases and live audio

Wisconsin Court of Appeals (District I)
Tuesday, December 6th
10:30 a.m.
Aon Risk Services, Inc., et al v. James Liebenstein, et al. and Aon Risk Services, Inc., et al. v. Palmer & Cay 2004AP2163 and 2004AP2164
Wednesday, December 7th
09:30 a.m.
James Szymczak v. Terrace at St. Francis 2004AP2067
11:00 a.m.
State v. Bruce T. Davis 2004AP822-CR
01:30 p.m.
Travelers Indemnity Company of Illinois v. Staff Right, Inc. 2004AP2802

Yellow pages damage clause enforceable

David Ziemer in the Wisconsin Law Journal says A liquidated damages clause in a yellow pages contract is enforceable, the Wisconsin Supreme Court held on November 22. In so holding, the court reaffirmed its holding in Discount Fabric House of Racine, Inc. v. Wisconsin Telephone Co., 117 Wis. 2d 587, 345 N.W.2d 417 (1984), that an exculpatory clause in a yellow pages contract was contrary to public policy, but distinguished the case based on changes in the telecommunications industry, and the contract’s language.

No Fit of Spite

William M. Klimon reviews Scalia Dissents, edited by Kevin A. Ring, in the Intercollegiate Review.

I Became the Defendant

Lynne Stewart as told to Rinku Sen in ColorLines

The press picked up some threatening statements that the Sheik [Omar Abdel Rahman] made during his first year of isolation. The government then imposed special regulations that, except for the legal work, he's not allowed to communicate outside of jail and not allowed to talk to the media. We signed statements affirming that we would abide by that. ...

There was nothing in the special regulations that said, "If you disobey this, you can be indicted."

The Ethical Economist

Joseph E. Stiglitz in Foreign Affairs reviews The Moral Consequences of Economic Growth by Benjamin M. Friedman.

The Bird Man

Martin Filler in The New York Review of Books reviews works on architect Santiago Calatrava.

After the initial spurt of curious visitors that followed the opening of the Quadracci Pavilion, attendance figures -- and revenues from entry fees -- have fallen below the museum's projections, raising further financial concerns. Although the building has become the logotype for a comprehensive marketing strategy to stimulate Milwaukee's flagging economy, the huge deficit run up by Calatrava's scheme casts doubt on the judgment of local patrons.

Blogging With a Wooden Tongue

Momus in Wired says

The French call it la langue de bois, the "wooden tongue." It's the language of officialdom; of politics, power and propaganda.

A Voice for the Dead

Ronald Goldfarb in Washington Lawyer reviews A Voice for the Dead: A Forensic Investigator's Pursuit of the Truth in the Grave by James E. Starrs with Katherine Ramsland.

The Size of Nations

David D. Friedman in The Independent Review reviews The Size of Nations by Alberto Alesina and Enrico Spolaore.

Law Isn't Enough

London Diarist column by Theodore Dalrymple in City Journal

But the correspondent's premise that the legality of an act was the sole criterion by which one could or should judge it chilled me. It is a sinister premise. It makes the legislature the complete arbiter of manners and morals, and thus accords to the state quasi-totalitarian powers without the state's ever having claimed them. The state alone decides what we have or lack permission to do: we have to make no moral decisions for ourselves, for what we have legal permission to do is also, by definition, morally acceptable.

Keeping Public Schools Public: Free-Market Education

Barbara Miner in Rethinking Schools says There's no guarantee of quality in Milwaukee's voucher schools. (As opposed to in Milwaukee's public schools?)

Uncool Cities

Joel Kotkin in Prospect says From London and Berlin to Sydney and San Francisco, civic authorities agree that the key to urban prosperity is appealing to the "hipster set" of gays, twentysomethings and young creatives. But the only evidence for this idea comes from the dot-com boom of the late 1990s--and that time is over.
(via Arts & Letters Daily)

Is Anti-Semitism Generic?

Thomas Sowell in Hoover Digest asks What do Jews have in common with Armenians, Ibos, and Marwaris? An historically similar pattern of economic and social roles--and of persecution.

Working Together with a Difference

One thing was certain: the process of devolution had added to the burden of the public purse, for a new layer of administration had been created and no corresponding savings at the centre had taken place. On the occasion of the tenth anniversary [December 6, 1988] of the Constitution the President of the Madrid Community, Joaquin Leguna, commented that the decentralization process was rather like a typical case of the starfish syndrome - when a tentacle is forcibly removed another grows to replace it - on the grounds that the messy state of affairs resulting from the original transfer necessitates co-ordination and repair work from the central administration. To which the regional agencies responsible for the devolved services responded that the shortcomings were due to insufficient resourcing and centralist restraints.

--Juan Lalaguna, A Traveller's History of Spain p. 230

Tampa lawyer tells of judging Saddam

Jennifer Liberto reports in the St. Petersburg Times of Tampa lawyer Greg Kehoe's presentation to the Tampa Chapter of the Federalist Society. He had worked in Iraq as "regime crime liaison," overseeing building the case for the prosecution of former Iraqi president Saddam Hussein.

Kehoe painted a grisly picture of his work overseeing the collection of evidence, which included analyzing mass graves, digging through death warrants and interviewing survivors of attacks. Kehoe was appointed to the job, because of his experience in the area, having served the International Criminal Tribunal for the former Yugoslavia, which successfully prosecuted a Croatian general for war crimes.

Wisconsin's Activist Court

Charles J. Sykes in Wisconsin Interest says Recent decisions by Wisconsin's newly-liberal Supreme Court give immediate and tangible meaning to concerns about judges legislating from the bench. [PDF]

Good for me, good for my party

The Economist says Social enterprise, touted by Labour and the Conservatives as a big reforming idea, rests on some untested assumptions.

A New Approach on Climate Change?

The New Atlantis was looking ahead.

Appellate opinions released December 1

Wisconsin Supreme Court opinions and dispositional orders:
Pinczkowski v. Milwaukee County 2005 WI 161 (condemnation)
Sauk County v. Aaron J. J. 2005 WI 162 (mental health commitment)

Wisconsin Court of Appeals opinions, including for publication
State Farm Mut. Auto. Ins. Co. v. Bailey (underinsured motorists coverage)

The poisonous consequences of Roe v. Wade

The Daily Press ran this George F. Will column on Judge A. Raymond Randolph's speech to the Federalist Society.

In 1970, [Henry J.] Friendly, then on the Court of Appeals for the 2nd Circuit, was a member of a three-judge panel that heard the first abortion-rights case ever filed in a federal court, alleging the unconstitutionality of New York's abortion laws. Friendly wrote a preliminary opinion that was never issued because, in that pre-Roe era, democracy was allowed to function: New York's Legislature legalized abortion on demand during the first 24 weeks of pregnancy, causing the three-judge panel to dismiss the case as moot.

Judge Randolph's speech is linked from this earlier post.

Who Is Lying About Iraq?

Norman Podhoretz in Commentary
(via Arts & Letters Daily)

The Red and the Green

Johann Hari in The New York Times reviews Power and the Idealists by Paul Berman

Waving his copy of Solzhenitsyn, the French philosopher Andre Glucksmann tossed a dynamite-packed question to his New Left comrades. If we want to resist every variant of Hitlerism and every streak of authoritarianism, he asked, might we not at least recognize it in the empire to our east, where 20 million people have died in gulags and free speech is a cruel joke?

Wrong About the Right

Jean Hardisty and Deepak Bhargava at Public Eye re-present their essay from The Nation. They see the secrets of the Rights success as:
(1) Ideological Diversity.
(2) Ideas, Not Messages.
(3) Active Listening.
(4) The Importance of Recruitment.
(5) Electoral Politics as Means, Not End.
(6) Fearless Politics.
Also at Public Eye, Chip Berlet and Jean Hardisty survey the Right's conspiratorial vastness in What is the Political Right? Public Eye also focuses in on The Christian Right, Dominionism, and Theocracy.

Who Could Have Asked for More?

In Hoover Digest, Sixty years after the end of World War II, Peter Duignan reflects on what arose from the ashes.

Up on the Bench

from the 2000 album "Grilling Me Softly" by the Bar & Grill Singers of the Austin Bar Association. [mp3]