November 1, 2007 John Kaminski 'How Do You Pick a Judge?'

Professor John P. Kaminski will be the guest speaker at our November 1, 2007 noon luncheon at the University Club, 924 East Wells Street in Milwaukee. Prof. Kaminski is Director of the Center for the Study of the American Constitution at the University of Wisconsin-Madison. His subject is

"How Do You Pick a Judge? Judicial Selection Under Our First Four Presidents, 1789-1813"

More information, including how to reserve if you plan to attend, can be found on the reservation form.

Presented by the Milwaukee Lawyers Chapter and the Marquette Law Student Chapter.

September 17, 2007 Paul Clement "Supreme Court Review"

Paul Clement, Solicitor General (and acting Attorney General - or is he?) of the United States, will present a "2006 Supreme Court Review" at this year's Consitution Day celebration luncheon in Milwaukee.

Update: "Acting attorney general weighs in on high court", in Regional News Briefs in the September 18, 2007 Milwaukee Journal Sentinel.

August 16, 2007 Roger Clegg, "Immigration and Assimilation"

Roger Clegg returned to speak on "Immigration and Assimilation" at a Noon luncheon, August 16, 2007, at the Milwaukee Athletic Club, 757 North Broadway. Mr. Clegg is President of the Center for Equal Opportunity.

Presented by the Milwaukee Lawyers Chapter and the Marquette Law Student Chapter of the Federalist Society.

Mr. Clegg last spoke at a Milwaukee Lawyers Chapter event on September 20, 2001, for that year's Constitution Day celebration.

July 19, 2007 Gregory Katsas, "Fighting A War: The Administration's Approach to the Detention, Interrogation, and Trial of Enemy Combatants"

Gregory Katsas, Principal Deputy Associate Attorney General of the United States, is schedulte speak on this topic at a Noon luncheon Thursday, July 19th at the Milwaukee Athletic Club, presented by the Milwaukee Lawyers Chapter and Marquette Law Student Chapter.

May 10 Rachel Brand event canceled

Update 2: Sorry, but the event is off (breaking our fifteen year streak). If you sent a prepaid reservation, we hope to be in touch with you shortly about returning or refunding your payment.

Update: We received word this morning (May 7th) that Ms. Brand will be unable to appear. We'll post more information on the event (cancellation/rescheduling/new speaker) as soon as it's available.

Rachel L. Brand is the featured speaker at a luncheon May 10, 2007 at the University Club, 924 East Wells Street, Milwaukee.

Ms. Brand is Assistant Attorney General for Legal Policy in the United States Department of Justice.

To attend, print, complete, and mail the reservation form.

Presented by the Milwaukee Lawyers Chapter and the Marquette Law Student Chapter.

March 26, 2007: A Court Unbound?

This white paper [31 pp. pdf] by Rick Esenberg, on The Recent Jurisprudence of the Wisconsin Supreme Court, is part of a Federalist Society's series on the state of a state's judiciary.

He discussed the paper at a noon luncheon Monday, March 26, 2007 in the Marshall Room of the Milwaukee Bar Association, 424 East Wells Street, Milwaukee.

(1.0 CLE credit, pending approval)

Judicial restraint is the notion that judges ought to base their decisions upon a source of authority that is outside of themselves and their own notions of the just. In a democracy, this source should be rooted, at some point, in the formal consent of the governed. As Chief Justice John Roberts has put it, "[j]udges are like umpires. Umpires don't make the rules; they apply them . . . ."

A court's willingness to restrict itself to interpretation of laws that are made by others is vital not only to the maintenance of democracy, but to the very notion of judicial independence. If judges come to be another set of political actors – deciding which set of policies are best – there is no compelling reason to regard their decisions as final or to respect their independence from the political fray.

Judicial restraint is not synonymous with "pro-business" or "anti-liability" or even "conservative" decisions. Although our recent judicial history may be comprised largely of "activist" decisions advancing what may be seen as the goals of the political left, there is nothing inherently "liberal" or "conservative" in this view of restraint. In fact, one of the most notorious manifestations of judicial activism occurred in the first part of the twentieth century when the United States Supreme Court consistently struck down Progressive-era economic legislation on grounds not set forth in, or fairly inferable from, the constitutional text.

Recently, the Wisconsin Supreme Court has shown a willingness to abandon long accepted principled constraints on the court's use of its power. In adopting an extraordinarily aggressive form of equal protection analysis, it has substantially weakened the presumption that statutes are constitutional. By adopting an expansive view of its supervisory powers and evincing a willingness to re-examine factual findings to which courts customarily defer (or to make findings normally made by other branches of governments), the court has demonstrated an increased affinity for the imposition of grand judicial solutions to difficult social problems.

Much of this has been the product of a sharply divided court, suggesting that we have reached a critical juncture. The court is now more or less evenly divided between two groups of justices who have dramatically different notions of the role of the judiciary. It is the purpose of this white paper to facilitate a discussion about this important trend and to foster a dialogue about the proper role of the courts in our state.

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 spoke at a Noon luncheon at The University Club, 924 East Wells Street, presented by the Milwaukee Lawyers Chapter.

November 10th Douglas Kmiec "The Supreme Court and the War on Terror"

Professor Douglas W. Kmiec of the Pepperdine University Law School will speak at a luncheon presented by the Milwaukee Lawyers Chapter and the Marquette Law Student Chapter on the topic "The Supreme Court and the War on Terror --What Remains of the President's Power to 'Wage War Successfully'?"

Prior to Hamdi, Rasul, and Hamdan, the Supreme Court had observed that the power to wage war is "the power to wage war successfully." See Hirabayashi v. United States, 320 U.S. 81, 93. (1943). This observation of Chief Justice Hughes was also noted by two famous Court civil libertarians, Justices Douglas and Black, in their concurring opinion in New York Times v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 2142 (1971). In light of recent rulings against the President's conduct of the "war on terror," is this still true?

To attend, print and mail the reservation form.

Here is a list of our past chapter events.

September 25th Paul Clement "2006 Supreme Court Review"

For our chapter's 11th annual Constitution Day celebration, Paul Clement, Solicitor General of the United States, returns to review the last term of the United States Supreme Court at a luncheon at the Milwaukee Athletic Club. More information can be found on the invitation.

Sorry, your browser doesn't support the embedding of multimedia.
Update: In this video clip from the event, Mr. Clement summarizes Hamdan v. Rumsfeld. We've also posted a page of photos from the event.

Here is a list of our past chapter events.

"The Legacy of the Rehnquist Court"

The Federalist Society's Federalism & Separation of Powers Practice Group and Milwaukee Lawyers Chapter presented this half-day conference on Thursday, February 23, 2006.

9:00 a.m. - 10:30 a.m. Solicitor's General Roundtable on the Structural Constitution under the Rehnquist Court: separation of powers and federalism.

- Hon. Paul D. Clement, Solicitor General of the United States
- Hon. Walter E. Dellinger, of O'Melveny & Myers, and formerly Acting U.S. Solicitor General
- Hon. Theodore B. Olson, of Gibson Dunn & Crutcher, and formerly U.S. Solicitor General
- Dean Joseph D. Kearney, Marquette University Law School (Moderator)

10:45 a.m. - 12:15 p.m. The Rehnquist Court and the Enterprise of Judging: the Rehnquist Court's jurisprudence generally, and judicial interpretation.

- Prof. Ann Althouse of the University of Wisconsin Law School
- Prof. Richard W. Garnett, Notre Dame Law School
- Hon. David G. Leitch, General Counsel, Ford Motor Co., and formerly Deputy White House Counsel
- Prof. John O. McGinnis, Northwestern University School of Law
- Hon. Stephen M. Colloton, U.S. Court of Appeals for the 8th Circuit (Moderator)

12:30 p.m. - 2:00 p.m. Lunch, and Keynote Address by Justice Antonin Scalia, U.S. Supreme Court

P.S. Thanks, for the mentions, to Milwaukee Journal Sentinel, State Bar of Wisconsin, and Town Hall.

Paul Clement "2005 Supreme Court Review"

For this year's Consitution Day celebration Paul D. Clement, Solicitor General of the United States, presented a review of the recently completed term of the United States Supreme Court at a noon luncheon at the Milwaukee Athletic Club.

Update: outline of Mr. Clement's presentation

I. 2004 Term decisions

Overshadowed by the retirement of Justice O'Connor and then the death of Chief Justice Rehnquist.

Sixth Amendment Trial by Jury
United States v. Booker Federal Sentencing Guidelines
Probably the most important decision of the term.

Federalism
Gonzales v. Raich medical marijuana. While no one characterized it this way, the question was would it make a difference if Filburn was growing marijuana rather than winter wheat, Wickard v. Filburn (1942)
Granholm v. Heald interstate wine shipment

Seperation of Powers
Tenet v. Doe followed Totten v. United States (1876)

First Amendment: Freedom of Religion
Van Orden v. Perry Texas Ten Commandments monument
McCreary County v. American Civil Liberties Union of Ky. framed Ten Commandments (King James Version)

Takings
Kelo v. New London

II. 2005 Docket

Gonzales v. Oregon state assisted suicide law and the Controlled Substances Act

Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal Religious Freedom Restoration Act and the Controlled Substances Act: religious use of a Schedule I hallucinogenic

Ayotte v. Planned Parenthood of Northern New England New Hampshire parental notification of minor's abortion

FAIR v. Rumsfeld Solomon Amendment versus First Amendment

What to Do About Eminent Domain Abuse, by Thomas W. Merrill

Mr. Merrill is Charles Keller Beekman Professor at the Columbia University School of Law. He spoke at a Noon luncheon at the at the Milwaukee Athletic Club, presented by the chapter.

Some consider it an abuse when the power of eminent domain is used to take property from one private party if it ultimately ends up in the hands of another private party. Mr. Merrill found three factors common to cases which would fit a narrower standard for abuse. First, the property is taken by an unelected body, typically an economic development corporation. Second, the purchase is off-budget, the purchase price effectively provided by the private party which will ultimately acquire the property. Third, the particular condemning government is in a zero sum game against other governments. The condemnation does not produce development that would not otherwise occur. Rather, it makes a location in one place, often an already developed area, attractive relative to an alternative undeveloped "greenfield" site.

He saw three approaches to protecting the interests of those whose property would be acquired. One is an stricter public use standard to justify takings. While some state courts might be persuaded of this, he did not see a majority on the U.S. Supreme Court. Such majorities usually require what he called a Baptist/bootlegger coalition, which would arrive at the same result (e.g. prohibition) from very different premises. There are also practical problems in application. For example, why should it matter if a municipality condemns land for a stadium to be built by a sports team rather than the municipality building the stadium to lease to that same team.

A second approach is to compensate for losses beyond the fair market value of the property, such as relocation expenses, or the cost of improvements which are not reflected in the market value. This approach can have the inherent difficulty of measuring non-market values, and has been susceptible to abuses.

He proposed a third approach in which compensation to individual owners includes some or all of the increase in value of the larger assembled parcel compared to the smaller parcels which made it up.