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A Legal Analysis of Wisconsin’s Disturbing History of Unpunished Lynchings, 1848–1910
No full text“Wisconsin is getting a reputation for lynching.” So reported the Manitowoc Pilot in 1881, after an enraged mob stormed a courtroom in Pepin County and, in the midst of legal proceedings, brutally lynched Ed Maxwell, who had been charged with killing two law enforcement officers. Between 1848 and 1910, Wisconsin had dozens of similar lynching attempts, undertaken by hundreds of otherwise law-abiding citizens and witnessed by thousands more. Nineteen resulted in violent death. Yet with only one exception, an outlier involving a battered wife, no one was ever criminally punished for engaging in lynchings in Wisconsin. This record is even more remarkable given the state’s proud history of prohibiting capital punishment as a legal penalty.
From a legal perspective, the lack of accountability in Wisconsin for lynching activity can be traced to three main factors. First, the state’s constitution requires that local prosecutors, and only local prosecutors, determine whether criminal charges should be issued. This restriction meant that the decision to criminally pursue lynchers rested solely with a person whose election to office came from the same local community that often supported, or at least condoned, the lynching in question. Second, the state\u27s constitutional embodiment of the principle of jury nullification, the belief that the application of laws passed by a larger democratic body (Congress, state legislatures) could properly be ignored by a local community, acting through a jury, in any given case. Thus, even if a local prosecutor was willing to pursue criminal lynching charges, those charges could be and often were rejected by a jury, not because of difficulties of proof, but rather because the lynched victim was believed to have received the penalty that he or she deserved. Finally, during the time period when the majority of the lynchings took place, the Wisconsin courts created disincentives for codefendants to cooperate and “turn state’s evidence” against their fellow lynchers. The Wisconsin Supreme Court in 1877 chastised prosecutors who had pursued such plea bargains and called such deals “a fraud upon the court and an obstruction of public justice.” Combined, these factors created significant legal hurdles for law enforcement officials seeking to overcome community reluctance and issue criminal charges against those involved in lynchings. For the hundreds of people in Wisconsin who directly participated in lynchings between 1848 and 1910, that meant they could, and did, act with legal impunity.
In this Article, the author reviews the history of lynchings in Wisconsin, as well as the concurrent backdrop where capital punishment was prohibited as a legal remedy. The Article then examines from a legal perspective how lynching prosecutions were hindered by provisions of the state constitution and by rulings of the Wisconsin Supreme Court, all resulting in a disturbing history in which lynching activity went largely unpunished
The Ideational Dimension of Judicial Power
No full textThe judiciary dominates contemporary American politics. In the United States, courts have overcome their humble origins to act as central figures in nearly every major policy dispute and separation of powers dispute. To explain this development, scholars have documented the increase in the federal judiciary’s institutional capacity and resources. Most accounts of the judiciary’s changing role in American constitutional politics focus on the courts’ expanded jurisdiction, the statutes that channel judicial review, the courts’ material resources, or changes to how politicians harness or respond to the judiciary. But focusing on these more formal institutional changes only gets us so far. Namely, it cannot explain how the judiciary can become more powerful absent a formal institutional change, especially in a consistently juristocratic regime marked by judicial supremacy.
One of the most salient stories in American political development is the judiciary’s success in securing bona fide governing authority. One critical piece of the story is the changing role that ideas and norms about courts play in empowering the judiciary within the constitutional system. Ideas, norms, and assumptions about the judiciary’s proper role in the constitutional system supplement the more formal institutional changes that the literature already documents to empower the judiciary. This Article explores the ideational component of American judicial power, which existing literature has not yet appreciated
Substituting One Judge for Another: The Lax Standard of Review in Involuntary Commitment
No full textWisconsin involuntarily commits individuals at a rate nearly five times the national average, stripping them of core constitutional rights—including liberty, the ability to refuse treatment, and firearm possession. Yet, when these life-altering orders are appealed, they are almost always reviewed by a single appellate judge. This Comment argues that such a limited review undermines the constitutional weight of involuntary commitments, which closely mirror criminal convictions in the scope of rights deprived. Tracing the historical development of Wisconsin’s civil commitment statutes, this Comment demonstrates how commitments implicate both substantive and procedural due process concerns. It then compares Wisconsin’s one-judge review framework to the multi-judge approaches of neighboring states, analyzes the risks of judicial error, and weighs the minimal fiscal costs of reform. Ultimately, this Comment contends that Wisconsin should join its neighbors in requiring three-judge appellate panels for involuntary commitment appeals, ensuring that these cases—so central to personal liberty—receive the scrutiny they deserve
The Laboratory of Repair: Testing California’s Right to Repair Law in the Post-Analytical Phase
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Boden Lecture: Taxation of Autonomous Artificial Intelligence
No full textThis Article proposes that tax can be a useful supplement to other measures to regulate Autonomous Artificial Intelligence (AAI) and limit its potential harmful effects. This proposal differs from command-and-control regulation of AAI along the lines of European Union legislation that may unduly limit the development of AAI. It also differs from existing proposals to tax AAI to generate revenue to help workers displaced by AAI programs, or to tax the data used by AAI. The proposal is based on granting AAI programs like ChatGPT separate legal personhood, like corporate personhood, while incentivizing or requiring their corporate owner to place them in a separate corporate shell. The tax rate on AAI’s income is adjusted based on harmfulness indices based on an objective assessment, thereby creating an incentive for its corporate owner to reduce the harm. Developing a new tax on AAI excludes it from the limits imposed by the existing international tax regime on taxing multinationals, which are inappropriate for a tax on a person that does not have a physical location except on servers that can be located anywhere. Instead, the tax should be levied by the jurisdictions in which AAI users are located
High “Status”: Reforming Employment Protections for Medical Cannabis Users Based on Status
No full textThis paper explores the inconsistencies in employment protections for medical cannabis users, with a focus on the divergent interpretations of protections based on “status” across different jurisdictions. The analysis begins with an overview of federal and state laws, followed by an examination of varying court approaches to the scope of protections afforded to medical cannabis users. Courts differ in interpreting whether status protections extend to cover positive drug test results, leading to significant variations in employment rights depending on jurisdiction. To address these disparities, this paper proposes two model statutes tailored to the level of protection each state may choose to extend to medical cannabis users, aiming to foster consistency and ensure clear employment rights for individuals utilizing state-sanctioned medicine
Don’t Trust the Process: The Viability of Eighth Amendment Claims for Ultra-Processed Food Overconsumption in Prisons
No full textWith the largest prison population worldwide, American prisons serve more food than anywhere else. To cut costs, American prisons overwhelmingly (or even entirely) serve prisoners ultra-processed foods, which, if overconsumed, have detrimental and long-lasting health effects. Prisoners taking issue with the food being served to them rely on the courts to counteract any inappropriate prison dietary practices, wielding the Eighth Amendment as a constitutional guarantee to be free from cruel and unusual punishment. But courts are failing to protect this constitutional guarantee by relying on precedent that is at odds with modern Eighth Amendment principles. Indeed, when it comes to prison dietary claims, courts currently rely on an antiquated legal standard that renders food constitutionally permissible so long as there is sufficient caloric content in prisoners’ meals. Applying this standard, courts take no issue with even the most disingenuous prison dietary practices— meaning that the overconsumption of ultra-processed food comes nowhere near an Eighth Amendment violation. This cannot stand. As this Article contends, the courts’ current caloric content standard for prison dietary claims is unworkable because it betrays the Eighth Amendment’s “evolving standards of decency” framework, as articulated by the Supreme Court in Helling v. McKinney. By (rightfully) applying the Court’s Helling framework to prison dietary claims, there is a possibility of ultra-processed food overconsumption in prison diets being considered an Eighth Amendment violation if courts find these diets to be against the current standards of decency. This Article then incorporates a communication frame, providing theoretical and practical solutions to address society’s excessive tolerability for ultra-processed foods— thereby giving prisoners a meaningful path to success in Eighth Amendment claims under Helling. Ultimately, this Article provides a workable path toward respecting and protecting prisoners’ Eighth Amendment rights and personal health by minimizing the provision of ultra-processed foods in prisons
Legal Deserts or Mirages? Lawyers, Legal Services, and Respect for Law in Rural Wisconsin and Rural America
No full textIn recent years the legal profession has raised alarms about a perceived shortage of lawyers in rural America. State legislatures, courts, and bar associations have created rural lawyer recruitment (RLR) programs to address the perceived shortage, which include stipends, logistical support, and training for law students and lawyers willing to make a commitment to rural practice. Is there really a crisis? If so, are current RLR programs an effective means of stemming the crisis?
This Article examines these questions from several different angles, singling out rural Wisconsin for particular attention. It concludes that although lawyer density ratios (the proportion of lawyers to population) are lower in rural areas than urban areas, lawyer density has long remained stable in rural Wisconsin, suggesting that claims of a rural crisis are overblown. But the near-total absence of lawyers in some rural counties poses a real risk of erosion of respect for the rule of law in those counties.
The Article examines rural demand for legal services in detail. Rural Wisconsin residents are generally as litigious as their urban counterparts, suggesting that there may not be an unmet demand for additional services. Rural culture also inhibits demand: many rural residents believe that lawyers and formal legal processes are biased in favor of urban areas and that they undermine core rural values of community solidarity and neighborliness. But demand for at least one practice area is potentially expandable: immigration law, a practice area of great concern to burgeoning rural Latino and Asian populations, which few rural lawyers have tapped.
The Article next examines the challenges of supplying more lawyers to rural areas. It concludes that concerns over a hollowing-out of the rural bar as baby-boomer-generation lawyers retire are largely unfounded. However, many law students and young lawyers avoid rural practice because they believe urban areas offer better financial, professional, social, and cultural opportunities and because they do not receive enough support from established rural lawyers. Many of these concerns are well founded, although concerns about financial disadvantages of rural practice have been overstated. The Article argues that RLR programs should devote more effort to recruiting rural-raised law students and young lawyers who find rural practice more attractive than their urban-raised colleagues and that such programs should encourage aspirant rural lawyers to offer their services as presiders in alternative dispute resolution (ADR) proceedings and as providers of settlement-oriented claim resolution services to personal injury victims who value quick resolutions and wish to avoid prolonged litigation. The Article concludes that although RLR programs have real value, they are unlikely to succeed unless current models are extensively modified