It takes many hands

Our State Bar, in Wisconsin Lawyer, provides its Annual Report Fiscal Year 2006: July 1, 2005 - June 30, 2006

The Year In Review

Keith Ecker, Julie Miller, Adele Nicholas and Rob Vosper, in Inside Counsel

20 Stories That Shook the In-house Bar [9 pp. pdf]

Foundation inducts 2006 Class of Fellows;

Guest speaker cites importance of symbiotic relationship with China

Our State Bar reports in Inside the Bar

Thirteen lawyers were inducted into the 2006 Class of Fellows of the Wisconsin Law Foundation on Nov. 14 in Madison. More than 75 guests attended the annual black tie event with featured speaker Charles Irish, U.W. Law School Sherwood R. Volkman-Bascom Distinguished Teaching Professor and founding director of the East Asian Legal Studies Center.

Promises, Promises

In Corporate Counsel

Did our select group of chief legal officers live up to their 2006 New Year's resolutions? Here’s what we found.

Judicial Boxscore, as of December 1, 2006

From Third Branch, monthly newsletter of the Federal Courts

Wisconsin Law Review, Volume 2006 Number 3

Not on line, but here's what's in the print edition.

Articles

Bad Legislative Intent, by Richard L. Hasen

The Unifying Role of Harm in Environmental Law, by Albert C. Lin


Comments

Giving a Voice to Intersex Individuals Through Hospital Ethics Committees, by Christine Muckle

The Case Against Adopting BIT Law in the FTAA Framework, by Victor R. Salgado


Note

Stealing Beauty: Pivot Point International v. Charlene Products and the Unfought Battle Between the Merger Doctrine and Conceptual Separability, by Jacob Bishop

Advising on Lawful Investigations

Dean R. Dietrich in Wisconsin Lawyer

New SCR 20:4.1(b) guides lawyers in advising clients about lawful investigations

Constitution Day 2006

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Breaking Up is Hard to Do

Thomas J. Watson in Wisconsin Lawyer

Before your law firm breaks up, protect your clients' interests and protect yourself from potential malpractice claims by establishing some practical procedures.

The 2006 Blawggies:

Dennis Kennedy's Best Law-related Blogging Awards

(via WisBlawg)

A Bullish Outlook

Poll results in The American Lawyer

Firm leaders predict slight expansion for the economy as a whole but strong growth for their own firms.

Remarks by Gerald R. Ford at memorial service for Edward H. Levi

at Law Blog [5 pp. pdf]

Blawg Review Awards 2006

It's a new tradition on the last Monday of each year for an anonymous editor to announce the Blawg Review Awards for the best law blogs in numerous categories.

(via WisBlawg)

The Problem of Moral Dirigisme:

A New Argument Against Moralistic Legislation
by Mario J. Rizzo, in the NYU Journal of Law & Liberty, Vol. 1, No. 2 [55 pp. pdf]

‘Top Ten Junk Science Moments for 2006’ announced by JunkScience.com

(via Human Events)

Judiciary Appeals for Resources as Congress Prepares Final Funding Bills

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Are lawyers intellectuals?

Joseph Bottum at On the Square

Back to the constitution

The Economiist reports

European Union leaders want to move on from arguing about enlargement to arguing about a revived constitution

State's circuit judges piling up sick leave

Patrick Marley reports in today's Milwaukee Journal Sentinel

A Journal Sentinel analysis of state records found that 207 of 235 judges, or 88.1%, recorded no sick leave last year. By comparison, 16.9% of employees at large state agencies claimed no sick leave last year, according to an October report by the Legislative Audit Bureau. ...

Kanavas [Sen. Ted Kanavas (R-Brookfield)] and other legislators have written bills to end the benefit for themselves, judges and other elected officials in response to Journal Sentinel articles that show politicians rarely use their sick leave. In the past four years, only two legislators used sick leave and only one of six constitutional officers did so.

Massachusetts court won't force legislators to vote on same-sex marriage

Jay Lindsay of the Associated Press in the Advocate

In its ruling the supreme judicial court wrote, "Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the legislature's indifference to, or defiance of, its constitutional duties." The same court had ruled in 2003 that the state constitution guaranteed gays the right to marry.

What’s That Suck? Harvard Law School Raids Noah Feldman

Anna Schneider-Mayerson in the New York Observer

On Dec. 7, the school announced that it had successfully extracted Noah Feldman from a comfortable post at New York University Law School. A jovial and popular teacher, a New York Times Magazine contributor, and a scholar of Islamic and American constitutional law, Mr. Feldman is as close as lawyers get to celebrity without being Johnnie Cochran.

Screening and Selecting Nursing Home Cases

by Jason T. Studinski, The Verdict (Vol. 29:4, Fall 2006) [4 pp. pdf], Wisconsin Academy of Trial Lawyers

Sound the Death Knell of Forced Consumer Arbitration

Briane F. Pagel Jr. in Wisconsin Lawyer

The Wisconsin Supreme Court's recent decision in Wisconsin Auto Title Loans Inc. v. Jones may have sounded the death knell of forced arbitration of consumer debt disputes in Wisconsin. The ruling eliminates evidentiary hearings to invalidate arbitration clauses, relies on facts that will be present in most consumer creditor situations, and reasserts consumers' rights to access the courts in contract disputes.

Duty: Does It Matter?

by Catherine M. Rottier and Tess O'Brien-Heinzen, Wisconsin Civil Trial Journal

The Awkward Age

Alison Frankel in The American Lawyer

Even as litigation becomes more globalized, it also remains stubbornly local.

Best letter to the editor ever

Bono is following up on his hug of German Prime Minister Angela Merkel at Davos last January and with a visit to Germany to launch “a series of debates with German thinkers on African development and the role of the west.” (“Geldorf and Bono take G8 campaign to Germany,” Dec. 27). What is to debate? Only entertainers and politicians could be unaware of the straightforward starting points for solving Africa's many problems: free trade and governments that neither murder their citizens nor steal their property. The role of the west in implementing these solutions is equally clear: cut tariffs and other barriers to trade with Africa and eliminate official toleration (including foreign aid, official recognition, arms sales, etc.) of murderous regimes like Sudan's and kleptocratic ones like Zimbabwe’s.

Andrew P. Morriss
H. Ross & Helen Workman Professor of Law
University of Illinois, College of Law

DOC recommendation not entitled to deference

A judge sentencing a defendant after revocation of his extended supervision need not give any deference to the recommendation of the Department of Corrections.

Insiders Poll 2008

James A. Barnes reported in National Journal

Democratic insiders predict that Hillary Rodham Clinton will be their party's presidential nominee, but they're not convinced she'll be the strongest candidate the party could field. GOP insiders are looking to John McCain.

Judicial Milestones, November 2006

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Separate But Equal in Wisconsin

Our State Bar's President Steve Levine in Wisconsin Lawyer

It's time to end the discriminatory diploma privilege. Here's why.

Farewell, Ford

At Democracy in America

Without the political hunger of the presidents who came before and after him, he was perceived by Americans as an ordinary guy--outmatched by his office, perhaps, occasionally, but modest and sincere. Many of us would be happy to be remembered so well.

Gerald Ford's Remarks on the Impeachment of Supreme Court Justice William Douglas, April 15, 1970

From the collection of the Presidential Library of Gerald Ford, who died yesterday.

In this speech, House Minority Leader Ford reviewed the Constitutional background on impeachment, the distinction between impeachment and criminal prosecution, and impeachment standards as they might apply differently to appointed judges and elected officials. ...

Powell At The Supreme Court

Wil Haygood in APF Reporter on Powell v. McCormick, 395 U.S. 486 (1969)

In perhaps his most revealing passage, [Chief Justice Earl] Warren said, "Our system of government requires that Federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch."

Powell’s legal team flew to Bimini. There was champagne and corks popped. ...

Republican Gerald Ford, of Michigan, was appalled at the decision. "This is an unfortunate transgression of the court on another branch of the Federal government." ...

Ford kept close contacts with state

Alan J. Borsuk in today's Milwaukee Journal Sentinel

During a visit to the Green Bay Packers complex on April 3, 1976, then-President Ford told players that in 1935, he played in the East-West Shrine Game after finishing his career as a center on the University of Michigan football team.

After the game, Packers founder and coach Curly Lambeau offered him a contract with the team for $200 a game for a 14-game season.

Ford turned him down, choosing a different career path: He headed to law school at Yale University and a place in American history.

The Senior Lawyer Public Interest Project

In the "In Focus" interview in Washington Lawyer,

H. Guy Collier talks about a promising initiative of the D.C. Bar Pro Bono Program

Revisiting The Ambiguity Of "And" and "Or" In Legal Drafting

by Kenneth A. Adams and Alan S. Kaye, St. John's Law Review, Volume 80, Number 4, Winter 2006 [29 pp. pdf]

Pay Attention to Experts’ Professional Affiliations

Patrick J. Kenny in DRI's Daubert Online

F.R.Civ.P. amendments effective January 1, 2007

Rules 25(a)(2)(D) and 32.1 [3 pp. pdf] on electronic filing and citation of unpublished opinions

(via WisBlawg)

Backlash Against Sarbanes-Oxley

David Raths in CRO

Is the cost of compliance too high? Lobbyists and business associations are pressuring the SEC and Congress to help ease the cost of complying with SOX.

A Distant Vista

Alan Cohen in The American Lawyer

Microsoft's new operating system is due out next month, but don't look for big firms among the early adopters.

Foundation honors Curran for lifetime of distinguished service

Our State Bar reports in Inside the Bar

The Fellows of the Wisconsin Law Foundation (WLF) honored retired U.S. District Court Judge Thomas Curran, Mauston, with the Truman Q. McNulty Service Award in Madison on Nov. 14.

Sidebar and blogroll changes

We removed from the sidebar the Wisconsin Law and Public Policy links listed below, some of which are now in our blogroll. (And, we suspect, we'll want a few more added back, so we didn't just delete them.)

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The curtain closes (on Southern Appeal)

Steve Dillard announced

...for professional and personal reasons I have decided it is time for Southern Appeal to call it quits.

Judicial Boxscore as of November 1, 2006

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

The Geneva Conventions and New Wars

In Political Science Quarterly [28 pp. pdf]

Renee de Nevers explores how "new" wars—ranging from civil wars to asymmetric war--and new warriors, including warlords, private security companies, and children, fit within the Geneva Conventions. Although the nature of warfare and warriors has changed from the time the Conventions were adopted in 1949, she challenges the view that the Conventions should be abandoned. Rather, she argues, the Conventions should be revitalized to address a broader spectrum of war, because this will generate greater international support for U.S. efforts to combat terrorism.

Warming Trend

Adele Nicholas in Inside Counsel

Government and private plaintiffs get creative with climate change litigation.

What Went Wrong?

Matthew Brodsky in Risk & Insurance

At the beginning of the 2006 hurricane season, forecasters predicted an “active” season. It turned out to be a dud.

Risk managers weren't much surprised.

Free to choose?

The Economist on the ramifications of developments in neuroscience.

Science is not yet threatening free will's existence: for the moment there seems little prospect of anybody being able to answer definitively the question of whether it really exists or not. But science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making.

At that point, the old French proverb “to understand all is to forgive all” will start to have a new resonance, though forgiveness may not always be the consequence. Indeed, that may already be happening. At the moment, the criminal law—in the West, at least—is based on the idea that the criminal exercised a choice: no choice, no criminal. The British government, though, is seeking to change the law in order to lock up people with personality disorders that are thought to make them likely to commit crimes, before any crime is committed.

Administrative Register effective December 15, 2006

The Revisor of Statutes Bureau has issued the first half of No. 612 [28 pp. pdf] which includes

Emergency rules now in effect.
Scope statements.
Submittal of rules to legislative council clearinghouse.
Rule-making notices.
Rule orders filed with the revisor of statutes bureau.
Public notices.

Luncheon Address

Fair and Independent Courts: A Conference on the State of the Judiciary

Introduction: T. Alexander Aleinikoff, Dean, Georgetown University Law Center

Speaker: Stephen Breyer, Associate Justice, Supreme Court of the United States

transcript [14 pp. pdf] and webcast from this September 28-29, 2006 event presented by Georgetown Law School and the American Law Institute

(via The Third Branch)

Government's Sentencing Memorandum, 'United States v. Cunningham'

35 pp. pdf

(via The Green Bag)

Forecast: Mostly Sunny

Vivia Chen in The American Lawyer

Firm leaders say they expect great things in 2007-but a touch of anxiety lurks beneath the surface.

Handling Complaints Against Judges:

Good, But Can Be Improved

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Board supports petitions: defining practice of law, earning on-demand CLE, comity for nonresidents, and more

Our State Bar reports on the December 8, 2006 meeting of its Board of Governors.

The board approved the UPL Policy Committee's proposed changes to SCR Chapter 23, Regulation of the Unauthorized Practice of Law. The new rule defines the practice of law and places the investigation of and enforcement to prohibit UPL with the Office of Lawyer Regulation (OLR). ...

The board unanimously approved in concept the idea of petitioning the supreme court to adopt a comity rule regarding CLE reporting by nonresident Bar members. ...

The board approved a Nonresident Lawyers Division (NRLD) request to petition the supreme court to amend SCR 10.05 to increase the representation of nonresident lawyers on the Board of Governors from three to five. ...

...the board took no position on a petition relating to settlements reached through ADR. The board unanimously supported authorizing interested sections to appear before the supreme court on this matter. ...

Here are the "draft" minutes from the Board's September 29-30, 2006 meeting [20 pp. WordPerfect].

'Borst' Clarifies Arbitration Procedures

Mark A. Frankel in Wisconsin Lawyer

The Wisconsin Supreme Court's opinion in Borst v. Allstate Insurance Co. has clarified several ill-defined aspects of the arbitration process, including the role of party-appointed arbitrators, the right of parties to seek equitable relief due to arbitrator partiality, and the taking of discovery.

Appellate Opinions Released December 21, 2006

The Wisconsin Supreme Court released its opinion in State v. Parent today. The Court held that defendant is entitled to view (but not keep) a copy of his presentence investigation report for the purpose of preparing a no-merit appeal of his judgment of conviction. The Court admonished, however, that the convicted criminal must promise to keep the contents of the report confidential.

The Wisconsin Court of Appeals released these opinions today, recommending the following for publication:

Butcher v. Ameritech Corporation (The Court of Appeals ruled the Circuit Court properly dismissed the case, which sought refund of taxes paid on non-telecommunication services. The Court of Appeals held the voluntary payment doctrine barred the claim as pled, the Circuit Court did not erroneously exercise its discretion in not allowing amendment of the complaint, and the remaining counts should be dismissed based on the primary jurisdiction doctrine.).

State v. Nelson (New definition of "sexually violent person" in which the level of dangerousness was lowered from "substantially probable" to "likely" to engage in an act of sexual violence did not violate the defendant's due process or equal protection rights).

State Court Docket Watch, November 2006

In this issue [24 pp. pdf]

Same-Sex Marriage in the State Courts

FDA Labeling and State Liability

Judicial Speech in Kansas

Ohio Supreme Court Limits Eminent Domain

Michigan Supreme Court Takes Step to Address Asbestos Litigation Problem

Colorado’s Immigration Reform

ELD does not bar malicious injury to business claim

Because malicious injury to business can occur, even in the absence of any contractual relationship, the economic loss doctrine does not bar such claims even when a contract does exist.

No privacy in bank records

People do not have a reasonable expectation of privacy in their bank records. Applying the reasoning of the court to electronic communications, there is no expectation of privacy in them either, notwithstanding the Electronic Communications Privacy Act.

New Approaches to Damages in the Nursing Home Case

by Paul J. Scoptur, The Verdict (Vol. 29:4, Fall 2006) [3 pp. pdf], Wisconsin Academy of Trial Lawyers

The Third Branch, Fall 2006

The latest quarterly newsletter [20 pp. pdf] of the Wisconsin courts.

Portrait of an era

Tim Cuprisin in Sunday's Milwaukee Journal Sentinel reviews The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War, by H. Robert Baker.

The little-known story of Joshua Glover has all the earmarks of a dramatic tale of freedom: a fugitive slave plucked from a safe haven in Racine and then rescued by an abolitionist mob that had besieged the courthouse in Milwaukee.

Here's the Wikipedia entry on Glover, an image of Glover and more on Glover from the Henry E. Legler's 1898 account of his rescue. Here's more from the Wisconsin courts on In re Booth [5 pp. pdf]. The Wisconsin court's Third Branch newsletter reported that Glover monument effort moving forward slowly and recounts the history of the case.

Non-fiduciary’s ERISA Benefits Determination Entitled to Deferential Judicial Review

Aaron E. Pohlmann reports in DRI's The Voice

Sprint Class Action Springs a Leak

Joshua Lipton in The American Lawyer

A plaintiffs lawyer gets into hot water for giving material to reporters.

Exemplary Service to the Courts Recognized

The first Leonidas Ralph Mecham Awards for Exemplary Service to the Courts were presented last month at the Administrative Office.

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Al Gore Caught Warming Globe To Increase Box Office Profits

from The Onion

Duty To Defend Analyses Continue To Provide Treacherous Terrain For Insurance Companies

by Virginia Newcomb and P