Book Reviews

Barak's Rule by Robert H. Bork, review of The Judge in a Democracy by Aharon Barak, Azure, Winter 2007
(via First Things)

Additional reviews at Wisconsin Lawyer

Appellate Opinions Released February 28, 2007

The Wisconsin Supreme Court did not release any opinions today.

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

Repetti v. Sysco Corp. (employee allegedly discharged wrongfully for whistleblowing has an adequate remedy under Sarbanes-Oxley, so a complaint relying on a proposed exception to Wisconsin's at-will employment doctrine failed to state a claim for which relief could be granted).


The Wisconsin Court of Appeals certified a question in Walworth County DH&HS v. Andrea L.O. today. The question relates to the right to a jury trial in a termination of parental rights hearing.

Appellate Opinions Released February 27, 2007

The Wisconsin Supreme Court did not release any opinions on this day.

The Wisconsin Court of Appeals released these opinions on this day, recommending the following for publication:

Brown County v. OHIC Ins. Co. ("self-insured retention" is not "other insurance" excluded from coverage by a policy's "other insurance" clause).

The Wisconsin Court of Appeals did not certify any questions on this day.

Inside the Bar, March 2007

Our State Bar has posted the latest issue of its monthly newsletter.

Case of the month, February 2007

The case of the month project provides high school teachers with some of the necessary tools to educate their students about the Wisconsin Supreme Court. Each month, during the Supreme Court's session, a "teachable" case will be highlighted.

This month's case is State v. Robert E. Post, 05AP2778.

This case examines the legality of a traffic stop, and whether there was reasonable suspicion to investigate when an officer observed a vehicle weaving within its own lane.

The Circuit Court denied the defense motion to suppress evidence and the Court of Appeals reversed.

Texas-Sized Transformation:

The Conservative Counterrevolution on the Texas Supreme Court
by Meredith B. Parenti & Susanna Dokupil

A white paper [20 pp. pdf] in the Federalist Society's series on the state of a state's judiciary

Appellate Opinions Released February 26, 2007

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

The Wisconsin Court of Appeals did not certify any questions today.

No do-overs in other jurisdictions

If a federal case should be dismissed because the statute of limitations has run, the plaintiff can't voluntarily dismiss the case and re-file in another state with a longer limitation period.

Jury fees can be imposed against state

Section 814.51 only permits imposition of jury fees on a party who cancels a trial less than two days before it was scheduled, if that party demanded and then withdrew the demand for a jury.

The court of appeals has held that fees can be imposed against the State, even though the State never demanded the jury trial. Go figure.

Where the rubber meets the road:

the intersection of law and morality at the FedSoc student symposium

Simon recaps at Stubborn Facts.

(via Althouse)

Congressional Oversight vs. Executive Privilege

Audio and video of this panel discussion presented by the Federalist Society's Separation of Powers Practice Group February 22, 2007 at the National Press Club

March 8th Ed Whelan, "Judicial Confirmations in the New Senate"

On March 8, 2007, Edward Whelan, president of the Ethics and Public Policy Center, will speak at a Noon luncheon at The University Club, 924 East Wells Street, presented by the Milwaukee Lawyers Chapter.

To attend, print and mail the registration [pdf]

IRR Section opposes AJR 17 - Photo ID for Voting

Our State Bar's Individual Rights and Responsibilities Section has announced it opposes AJR 17, a constitutional amendment

requiring a photographic identification to vote, or register to vote, at the polls on election day (second consideration).

This Week in Liberal Judicial Activism: Week of February 26, 2007

Ed Whelan at Bench Memos.

Mr. Whelan will be the featured speaker at our chapter's March 8th luncheon.

Court candidates to debate at MU

The Milwaukee Journal Sentinel reported yesterday

The two candidates for state Supreme Court will debate at 7 p.m. March 19 at Marquette University Law School. ...

The debate will be broadcast on Time Warner's Wisconsin on Demand Channel 1111.

Seating is limited. If you want to attend, call the Journal Sentinel at (414) 224-2400 or send an e-mail to editor@journalsentinel.com.

Supreme Court candidates to debate at Bar Center

Our State Bar announced that it,

WisPolitics.com, the Wisconsin State Journal, the Wisconsin Radio Network, and the Wisconsin Law Journal will co-sponsor a post-primary debate between the final two candidates for Supreme Court on Friday, March 9 at 7:30 p.m. at the State Bar Center, 5302 Eastpark Boulevard in Madison.

The debate will be preceded by a 6:00 p.m. reception. The required admission tickets will be available starting February 26th.

Oral argument week of February 25, 2007

The Wisconsin Supreme Court has scheduled oral argument in the following.

FRIDAY, MARCH 2, 2007

09:45 a.m. Wendy S. DeHart, et al. v. Wisconsin Mut. Ins. Co., et al., 05AP2962-FT

10:45 a.m.(?) Joseph Leitinger, et al. v. Van Buren Management, et al., 05AP2030

01:30 p.m. Thomas Avery, et al. v. Drew Diedrich, et al., 05AP1730

Live audio of arguments is available.

The Wisconsin Court of Appeals [2 pp. pdf] has scheduled oral argument in the following.

02/27/07 at Dist. II, 2727 North Grandview Blvd., Waukesha

9:30 a.m. Racine County v. Int'l Assoc. of Machinists and Aerospace Workers, 2006AP964

Appellate Opinions Released February 23, 2007

The Wisconsin Supreme Court released its opinion in State v. Jensen today. The Court adopted the "forfeiture by wrongdoing" doctrine in which "a defendant is deemed to have lost the right to object on confrontation grounds to the admissibility of out-of-court statements of a declarant whose unavailability the defendant has caused."

The Wisconsin Court of Appeals did not release any opinions today, nor did it certify any questions.

Political Tidbits, February 23, 2007

The latest report

Azar Named to PSC

Jason Helgerson Appointed Medicaid Director

Other Appointments

Senate Democrats Prevent Vote on “Frankenstein Veto” Bill

Joint Finance to Hold Budget Hearings Around the State

Clifford/Ziegler Advance in Supreme Court Race

Doyle Hip Surgery Successful

Legislative Activity

Senate Democrats Announce Legislative Session Agenda

Senate Republicans Unveil 2007-2008 Agenda

from The Hamilton Consulting Group.

Trade deficits are irrelevant

Just a sensible little post to remember when reading the daily idiocy in the MSM about trade deficits.

McCourt's in Session

It's time for hasty, irritable justice!

From the producers of Chad Vader - Day Shift Manager

Appellate Opinions Released February 22, 2007

The Wisconsin Supreme Court released its opinion in State v. Bruski today. The Court ruled that a person who is passed out in another person's car has no expectation of privacy with respect to items in the car, or the contents of a travel case located in the car. Thus, the warrantless search of the travel case, which revealed drug paraphernalia, did not need to be suppressed.

The Wisconsin Court of Appeals neither released any opinions nor certified any questions today.

Supreme Court Ruling: 'Philip Morris USA v. Williams', No. 05-1256.

from Legal News in DRI's The Voice

in a 5-4 opinion by Justice Breyer--held that the Due Process Clause does not "permit[] a jury to base [a punitive damages] award in part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent)."

U.W. Law School students oppose congressional amendment

Our State Bar's Legal News & Trends feature in the Wisconsin Lawyer reports

Last December, the U.W. Law School student body passed a resolution opposing the congressional Solomon Amendment, which requires schools to provide the military with full access to students for recruitment purposes or risk the termination of certain federal funds.

The Wisconsin Lawyer report goes on,

The resolution, passed by three-quarters of the law school's student body...

Presumably meaning the one-third of the student body that voted. The Student Bar Association reported

Law students supported the resolution by a 3 - 1 margin with nearly 300 students casting votes.

Total UW Law School enrollment is usually around 900 [31 pp. pdf].

Appellate Opinions Released February 21, 2007

The Wisconsin Supreme Court released a clarification to its opinion in Metropolitan Ventures, LLC v. GEA Associates today, in which the Court stated that an Assignment Agreement does not create an escrow by implication. Escrow agreements carry with them the "fiduciary" standard of care, rather than the normal "good faith dealings" standard.


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

Rogers v. Rogers (grandparental visitation rights).


Tallmadge v. Boyle (affirmance of Circuit Court dismissal of malpractice claim).


Held v. Ackerville Snow Club (recreational immunity statute barred snowmobilers' tort claims).


State v. Hines (error to deny opportunity to allocute prior to imposing a reconfinement sentence).


State v. Feldmann (commitment as a sexually violent person under Wis. Stat. ch. 980).


State v. Stokes (commitment as a sexually violent person under Wis. Stat. ch. 980).

Appellate Opinions Released February 20, 2007

The Wisconsin Supreme Court did not release any opinions on this day.

The Wisconsin Court of Appeals released these opinions on this day, recommending publication of the following:

Muller v. Society Insurance (subrogation rights in a property insurance dispute).

The Court of Appeals did not certify any questions.

IRR Section opposes SB8 and AB30

Our State Bar's Individual Rights and Responsibilities Section has announced it opposes SB 8 and AB 30, companion bills

permitting an educational agency to refuse to employ or to terminate from employment an unpardoned felon.

2007 Spring Primary Elections

Today's Milwaukee Journal Sentinel reported results, including the Wisconsin Supreme Court.

Zoning on adult businesses upheld

Dicta by the Seventh Circuit, inconsistent with state case law, may set off a rush by municipalities to ban all adult-oriented businesses within city limits.

"Blameless" plaintiff's case can't be dismissed

A highly fractured Wisconsin Supreme Court has held that a plaintiff's case may not be dismissed as a sanction for discovery abuse by his attorney, if the plaintiff is blameless for the misconduct. How "blameless" will be defined in future cases is uncertain.

Letters to Wisconsin Lawyer

Our State Bar's monthly magazine hears from Kevin J. Killeen of Janesville who says Do Not Abandon Diploma Privilege, and from Thomas E. Dixon Jr., of Madison and Milwaukee who asks Does the Bar President's Agenda Matter?

FBI Search on Capitol Hill:

Legal and Policy Questions

Audio of this event, presented June 19, 2006 at The National Press Club, Washington, DC, by The Federalist Society's Criminal Law & Procedure and Federalism & Separation of Powers Practice Group.

The Florida Supreme Court:

Judicial Activism & Judicial Self-Restraint -- Some Examples

by Thomas C. Marks, Jr. and Pamela Buha, a Federalist Society white paper [25 pp. pdf] on the state of a state's judiciary

Out of Site, but Not Out of Mind

Our State Bar's President Steve Levine in Wisconsin Lawyer

Nonresident State Bar members are Bar members, too - deserving of proportional representation and CLE comity.

Appellate Opinions Released February 19, 2007

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Additionally, the Wisconsin Court of Appeals did not certify any questions today.

This Week in Liberal Judicial Activism: Week of February 19, 2007

Ed Whelan at Bench Memos.

Mr. Whelan will be the featured speaker at our chapter's March 8th luncheon.

Future Wisconsin Conference, February 24, 2007

at the Bluemound Gardens Conference Center, Wauwatosa, Wisconsin

Here are Registration [pdf] and free Student Registration [pdf] forms.

2007 National Student Symposium at Northwestern Feb. 23-24

This year's theme is "Law & Morality."

You can regiser on-line. CLE credit is available.

Appellate Opinions Released February 16, 2007

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today (unrelated to professional discipline).

The Wisconsin Court of Appeals did not certify any questions today.

Appellate opinions released February 15, 2007

Wisconsin Court of Appeals opinion for publication

State v. Circuit Court for Monroe County (court can assess jury fees under Wis. Stat. §814.51 against State for canceled trial)

Appellate Opinions Released February 14, 2007

The Wisconsin Supreme Court did not release any opinions on this day.

The Wisconsin Court of Appeals released these opinions on this day, recommending the following for publication:

State v. Cox (harmless error when court failed to instruct the jury that, of two counts submitted for deliberation, one was lesser included of the other; jury returned guilty verdict on both counts, so the court struck the verdict on the lesser).

The Colorado Supreme Court:

Independence or Activism?

by Shawn Mitchell, a Federalist Society white paper [16 pp. pdf] on the state of a state's judiciary

Administrative Register effective February 15, 2007

The Revisor of Statutes Bureau has issued the first half of No. 614 [25 pp. pdf]

Wisconsin Criminal Justice Study Commission releases report

Our State Bar reports

The Wisconsin Criminal Justice Study Commission has released its first report [6 pp. pdf] related to the DNA testing backlog at the State Crime Laboratory.

Are Judicial Elections a Threat to Judicial Independence?

A Conversation Between State Supreme Court Justices Harold F. See, Jr. and Randall T. Shepard

Video of this event, presented October 24, 2006 in the First Amendment Lounge of the National Press Club, Washington, DC, by The Federalist Society's State Courts Project

Staying the Course:

An Update on the Alabama Supreme Court

by Marc James Ayers, a Federalist Society white paper [20 pp. pdf] on the state of a state's judiciary

Improving the Judicial System:

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

Panel discussion:
Helaine M. Barnett, President, Legal Services Corporation
Richard Scruggs, Senior Partner, Scruggs Law Firm
Randall T. Shepard, Chief Justice of Indiana
Larry D. Thompson, Former Deputy Attorney General of the United States
Pete Williams (moderator), Justice Correspondent, NBC News
transcript [18 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)

Tom Fairchild: 1912-2007: 'One of the greatest judges'

Deborah Ziff reports in the Wisconsin State Journal on the death Monday of the former state attorney general, state supreme court justice, and Seventh Circuit Judge.

[Former Chief Justice Nathan] Heffernan, who joined the Supreme Court in 1964, recalled that Fairchild always dressed very conservatively, in dark blue and black garb. When Heffernan asked Fairchild about his apparel, Fairchild responded, "You can get by with a hell of a lot of liberalism if you dress conservative enough."

(via The Wheeler Report)

Class Action Fairness Act: Two Years Later

Link to audio of the panel discussion at this event, held earlier today at the National Press Club, Washington, DC

Lawyers in Love

by Jackson Browne (1983)

Political Tidbits, February 14, 2007

The latest report from The Hamilton Consulting Group.

Includes links to Budget Bill [1,757 page PDF doc.], Budget in Brief [114 page PDF doc.], Budget in Very Brief [27 page PDF doc.], Dept. of Administration Budget Page, and bios of the candidates in next Tuesday's primary election for Wisconsin Supreme Court Justice.

Barwatch Bulletin, February 12, 2007

ABA Watch reports from the Midyear Meetings

Econ 101

An excellent Arizona Republic article documenting that when you violate the Constitutional right to liberty of contract by raising (or imposing in the first place) minimum wages, real people lose real jobs.

Acquitted conduct enhances sentence

The U.S. Supreme Court's holding in U.S. v. Booker does not change the law -- that a defendant's sentence may be enhanced based on conduct for which he was tried and acquitted.

Oh yes, and of course, the interstate commerce clause permits federal prosecution of a wholly intrastate, face-to-face robbery, because the defendant used the Internet to locate the victim.

GPS tracking is not a search or seizure

Reasoning wholly by analogy, without ever acknowledging the fundamental question of law -- does warrantless tracking of a citizen's vehicle violate a reasonable expectation of privacy -- the Seventh Circuit has held that no search or seizure occurs when an officer places a GPS tracking device on a vehicle.

Barwatch Bulletin, February 10, 2007

ABA Watch reports from the Midyear Meetings

Appellate Opinions Released February 13, 2007

The Wisconsin Supreme Court did not release any opinions today.

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

Waters v. Waters (calculating amount of child support due).

The Wisconsin Court of Appeals did not certify any questions today.

Appellate Opinions Released February 12, 2007

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

The Wisconsin Court of Appeals did not certify any questions today.

Barwatch Bulletin, February 9, 2007

ABA Watch reports from the Midyear Meetings in Miami.

This Week in Liberal Judicial Activism—Week of February 12

Ed Whelan at Bench Memos.

Mr. Whelan will be the featured speaker at our chapter's March 8th luncheon.

Case may determine what judicial candidates say

Dee J. Hall in the Wisconsin State Journal

On Tuesday, U.S. District Judge John Shabaz will hear arguments from the anti-abortion rights group and an attorney representing two state agencies. They'll fight over whether Wisconsin's Supreme Court rules limiting the speech of judicial candidates should be suspended to allow Wisconsin Right to Life to quiz judicial candidates for the upcoming spring elections.

The Wisconsin Supreme Court has interpreted its rules to say that "a judge or candidate for judicial office may not, while a proceeding is pending or impending ... make any public comment that may reasonably be viewed as committing the judge, judge-elect or candidate to a particular case outcome."

Because of the rules, the group said in its suit, it was unable to use its survey in 2006 because six of seven judicial candidates questioned declined to give their views.

The Legacy of the Department of Justice under Attorney General Edwin Meese III

Audio [mp3] of this Federalist Society event at the Ronald Reagan Presidential Library, January 27, 2007.

The Wisconsin Supreme Court Chooses Not to Reel In the Economic Loss Doctrine

by Lawrence J. Drabot and Jennifer M. Viken, Wisconsin Civil Trial Journal

Red Mass 2007 - February 18

at St. John Cathedral in Milwaukee. St. Thomas More Lawyers Society of Wisconsin

Director’s column: moving forward together

From The Third Branch, quarterly newsletter of the Wisconsin Court System

As we enter a new two-year budget cycle and legislative session, the Director of State Courts Office will be taking a more proactive approach.

Most-Cited American Legal Periodicals

ranked at the Law Library at Washington & Lee University

(via The Green Bag)

The identity of Dennis York revealed

Melanie Conklin reports in the Wisconsin State Journal that Christian Schneider has given up his pseudonym and blog Dennis York to become a fellow at Wisconsin Policy Research Institute.

Oral argument week of February 11, 2007

The Wisconsin Supreme Court has scheduled oral argument in the following.

TUESDAY, FEBRUARY 13, 2007

09:45 a.m. State v. Thomas S. Mayo, 04AP1592-CR

10:45 a.m. State v. Bobby G., 06AP66-NM

01:30 p.m. Steven J. Wickenhauser, et al. v. Jack Lehtinen, et al., 04AP2681

WEDNESDAY, FEBRUARY 14, 2007

09:45 a.m. State v. Jeffrey Townsend, 03AP429-CR

10:45 a.m. State v. William F. Schweda, et al., 05AP1507

01:30 p.m. State v. Robert E. Post, 05AP2778-CR

Synopses of the above and live audio of arguments are available.

The Wisconsin Court of Appeals [2 pp. pdf] has scheduled oral argument in the following.

02/13/07 at Dist. II, 2727 North Grandview Blvd., Waukesha

9:30 a.m. Emmpak Foods, Inc. v. LIRC, 2006AP729

Appellate Opinions Released February 9, 2007

The Wisconsin Supreme Court did not release any opinions today.

The Wisconsin Court of Appeals neither released any opinions nor certified any questions today.

Customary International Law, the War on Terror, and the Constitution

Audio of this event, presented May 3, 2006 at the Association of the Bar of the City of New York, by The Federalist Society's International & National Security Law Practice Group, The Federalist Society's New York City Lawyers Chapter, and the Association of the Bar of the City of New York

ABA Watch, February 2007

This issue [20 pp. pdf] contains

ABA Considers Recommendations on Judicial Conduct, Gun Control, & "Apology Legislation" at Mid-Year Meeting, Page 1

Michael Wallace Speaks with the Federalist Society, Page 1

ABA Partners with Diverse Coalition In Seeking Reforms to Thompson Memo, Page 2

Department of Education Review ABA Law School Accreditation Standards, Page 3

National Right to Work Legal Defense Foundation Seeks Participation in ABA Labor Conference, Page 6

ABA President Criticizes Charles Stimon’s Remarks about Guantanamo Lawyers, Page 7

ABA Testimony in Michael Wallace Nomination, Page 8

and in an Online Supplement [5 pp. pdf]

ABA President William Neukom Speaks to The Federalist Society

Update: Our State Bar's Inside the Bar newsletter reported State Bar seeks ABA delegates for two-year terms.

De Novo, February 2007

Our State Bar's Appellate Practice Section's latest newsletter includes Nicholas Zales's interview of Wisconsin Supreme Court Justice Ann Walsh Bradley.

Justice Roggensack addresses ACS chapter

Wis