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)