Tag Archives: law

An Exciting Victory

As those of you who live in Wisconsin probably noticed, yesterday the Wisconsin Supreme Court issued a decision declaring the most recent stay-at-home order from the Wisconsin Department of Health Services unconstitutional. From a practical level, this returns the choice of whether or not to open to businesses and communities. From a more esoteric perspective, the ruling preserves due process and the rule of law in Wisconsin by requiring agencies to operate only within the explicit bounds of their legislative authority. 

But on a much more personal level, the case represents the culmination of nearly ten years of effort from the legal foundation where I work.

Almost ten years of lobbying, educating, and brief writing. Almost ten years of cases representing farmers and nurses and others regulated businesses.

All because agencies frequently use more power than the legislature specifically gave them and no one holds them accountable for it. But yesterday, the Wisconsin Supreme Court finally drew a line in the sand. Agencies can only use the authority explicitly granted to them by the Wisconsin Legislature. The Court explained: 

¶51 “To place this contention in context, the reader should note that there is history underlying how courts have interpreted administrative agency powers. Formerly, court decisions permitted Wisconsin administrative agency powers to be implied. See Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270 Wis. 2d 318, 677 N.W.2d 612. In theory, “any reasonable doubt pertaining to an agency’s implied powers” was resolved “against the agency.” Wis. Builders Ass’n v. DOT, 2005 WI App 160, ¶9, 285 Wis. 2d 472, 702 N.W.2d 433. However, the Legislature concluded that this theory did not match reality. Therefore, under 2011 Wis. Act 21, the Legislature significantly altered our administrative law jurisprudence by imposing an “explicit authority requirement” on our interpretations of agency powers. Kirsten Koschnick, Comment, Making “Explicit Authority” Explicit Deciphering Wis. Act 21’s Prescriptions for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 997.

(As an aside, Kirsten is a former intern at the foundation where I work and a friend of mine. She deserves all the congratulations for getting cited!) 

¶52 “The explicit authority requirement is codified at Wis. Stat. § 227.10(2m), which provides: “No agency may implement or enforce any standard, requirement, or threshold, . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter[.]” Furthermore, Wis. Stat. § 227.11(2)(a)1.—3., as summarized by a recent comment in the Wisconsin Law Review, “prevent[s] agencies from circumventing this new ‘explicit authority’ requirement by simply utilizing broad statutes describing the agency’s general duties or legislative purpose as a blank check for regulatory authority.” Koschnick, Making “Explicit Authority” Explicit, at 996. The explicit authority requirement is, in effect, a legislatively imposed canon of construction that requires us to narrowly construe imprecise delegations of power to administrative agencies…”

While there are plenty of battles left to fight, this is a victory and one well worth celebrating. 

It was worth wondering if I would fail my final because I had no time to study because I was at the office trying to get the brief finished with my boss. It was worth running the three blocks in high heels because none of us attorneys can get anything done on time without our support staff. (Who are all working from home and not around to help with the jammed printer!) It was worth locking myself out of the building and standing in the cold until the other intern came out to get me, forgot he also didn’t have a key, and so stranded both of us out in the cold. Actually…it was all worth it for the comical, pained expression when I handed over the blood-stained appendix to our brief because my boss stabbed himself with a stapler and we didn’t have time to print out another one before everything closed…

Ugh, just kidding. What an awful day that was. I knew there was a reason I didn’t blog about it. But guess what? It was worth it because incrementally, we preserve the rule of law by drawing clear lines for when an unelected, unchecked bureaucrat can regulate you and when it can’t. And that’s a reason to get out of bed in the morning. And run in high heels, get stabbed with a stapler, and freeze in the cold. 


A Law School Graduation Message

My school apparently decided that next to a physical graduation, the best option for law school graduates would be a slide-show they can share on FB with their picture and a brief message. 

And, oh. The things I wish I could say. At the end of the day, I’m probably going to choose a nice, boring thank you to friends and family. But here is a non-exhaustive list of things I wish I was snarky enough to get away saying on my graduation slide:

  • Three years of my life I will never get back.
  • I wish they would have told me to fix my necklace. [It’s crooked in my graduation photo]
  • I spent a lot of money for this one slide.
  • To all the attorneys who said not to go to law school, you were right.
  • Are we done yet.
  • This goes out to all the relatives who didn’t think I’d make it to college.
  • I read nearly 800 books while attending law school. What’d you do?
  • 20 years ago I announced I would become a lawyer. Be careful what you wish for.
  • Westlaw 4 Ever
  • This is either going to end in alcoholism or world domination. 
  • Just following in my great, great grandpa’s footsteps.
  • “tutti-frutti, argle-bargle, jiggery-pokery” ~ Justice Scalia
  • Law school taught me to appreciate the masterpiece that is Legally Blonde the Musical.
  • I don’t care what you say, administrative law is sexy.
  • Justice Thomas is the G.O.A.T.
  • Hey, look, Mom, I made it!
  • Thanks to the Federalist Society for providing the only sane space on campus
  • “Your dream stinks. I was talking to her.” ~ Hooked Hand Thug in Tangled. 
  • 1L year scared me to death. 2L year worked me to death. 3L year trapped me in my apartment.
  • My home school graduation was way better than this.
  • Shout out to all the law school meme pages for keeping me sane during finals. 
  • I have a juris doctorate. Why does that not make me a doctor? 
  • I came. I saw. I got a B.
  • I never did make it to law prom.
  • My 2 credits of Trusts and Estates does not qualify me to look at your will.
  • I should have known what was coming when I got cold called twice on my first day.
  • Bring back judicial wigs!
  • “No one actually knows what kind of law they want to do anyway,” everyone in law school after asking you what kind of law you want to practice.

 

 

I reserve the right to add to this list. Any suggestions for additions? 


One Final Down..

Can we all just agree that math doesn’t belong in law school? There is a reason we’re all law students and not engineers. (Okay, some engineers do go to law school, but they’re all going to be patent lawyers and are their own, odd breed.)

For the rest of us….math is just torture. My final today had math on it. It was a multiple choice exam and I’d faithfully plug the equation into my calculator and get an answer that did not resemble any of the options. 

Which is basically what I spent 2.5 hours doing. 

But at least I had a vague understanding of what was going on. I exited the final and asked someone who took it with me how he thought he did with the equations. He looked startled and went, “What equations?!”


Pizza and Beer

Most professors bring donuts to the last day of class.

My Public Sector Labor Law professor brought pizza and beer. I guess when you are 69 you just do what you like. 

“Do what you like” actually sounds like a good description for the class overall. Our last writing assignment was to write a paper and “pick what you feel the right answer is and then work backwards. No need to cite any law or anything” was all the direction we got. 

At least I got dinner out of it.


Killing Perfectionism

I sort of tumble through Tuesdays as a general rule of thumb but today felt particularly bad. I actually did the readings for my first class but when the professor called on me, I hadn’t a clue what the answer was. Unfortunately, it proved to be a rather vital point so he pointed at me every time it came up for the rest of class. 

I had about an hour till my second class and I planned to read for it beforehand. But turns out I left my textbook at home. And as it happens, this professor cold calls so I had to own up to not doing the reading so I wouldn’t get called on. It is quite demoralizing to admit to someone that even though you’ve had an entire week to do the readings, you didn’t. 

Then my third class. I did the reading. It didn’t matter; I barely understand a word of Immigration Law. 

And then finally my fourth class, where I don’t have the textbook yet so I didn’t read for it. 

It doesn’t sound too bad listing it like that. But when you add in trying to prep for discussion groups tomorrow and wrapping up a project for my Foundation job and the guilty knowledge that final edits on my law review article are due and, oh, any other number of e-mails and projects slipping out of my grasp….it feels exhausting. 

And I am reminded that every semester I tell myself I won’t listen to the perfectionist in my head. I will do what I can and make the best of how it turns out. But it still stings. I want to do it all. I want to be perfectly prepared for class. I want As. I want to turn in perfect work assignments and spout wisdom to my students and somehow maintain a social life and be a good big sister while I’m at it. 

And I just can’t. I need to intentionally give up my expectations. Physically set them aside and say ‘no.’ So I do. And once I do I think I’m done for good. But no, it sneaks back. Again and again and again. The pressure to Do Better. To be perfect. 

And then I go and forget my textbook at home. 

I don’t know what this semester will bring. I hoped it would be less than last year. From a pure “listing” of things, it is less. But being a 3L comes with new types of responsibility. (If I’m even a 3L, as Thailand hasn’t sent my official transcript to the law school yet so as far as any formal records show, I’m a semester behind and still a 2L…but that’s a rant for another day.) 

I know there is an entire spiritual element missing from this post. God pours many blessings into my life. And sometimes I do recognize and appreciate that fact. But if I’m honest, perfectionism hurts me in my spiritual journey as much as anywhere. I don’t live up to the goals I set for myself. I don’t read the Bible or pray nearly as much as I should. And so I just let that weigh on me, yet another “extra” that doesn’t get accomplished. 

It isn’t so much a battle with perfectionism as a war. Some battles perfectionism wins. Some I win. And some days, like today, it ends in a draw because I’m too tired and confused to process anything. 


Watching Oral Arguments

One of the former interns at the Foundation where I work swung by today to look up some paperwork. She is also a 3L and her article is also getting published by the Wisconsin Law Review this semester. She took over for me as president at the Federalist Society. We have a lot in common. 

Our boss (former boss, in her case) recently did an oral argument before the Wisconsin Supreme Court and someone in the office tipped us off that we could watch it on WisconsinEye. So we did. It was quite eye-opening. To be perfectly blunt, we were both shocked at how poorly some of the oral arguments went. (Not our boss, of course. He was great.) But some of the other presenters routinely interrupted the justices, didn’t know the answer to basic questions, or took a condescending tone when explaining the law. 

It was a very crystallizing moment for me. Not just because my friend and I realized ‘hey, even we could do that!’ But sitting there, talking to my friend about our upcoming publications, watching an oral argument about a brief we both helped write, I realized…I finally feel like a 3L. It isn’t that I’m a full-fledged attorney yet. But in a year I will be. 

Maybe someday my friend and I will argue before the Wisconsin Supreme Court together. Or even sit on the court. Or maybe we will go our opposite ways and totally lose contact. But for a moment, I did not feel like we were watching as clueless students, only half sure of what was going on. We watched as colleagues, knowledgeable and passionate about the law, discussing the strengths and weaknesses of our boss’s presentation. (I mean, what weaknesses? There were no weaknesses.) And I am looking forward to more of that. I realized…

There is a light at the end of this law school tunnel! 


Remembering I’m an Extrovet

Yesterday, my Mom kindly consented to join me at an AFP event and we headed into Milwaukee. I almost didn’t go. But I RSVPed and felt somewhat obliged to attend and there would be food.

I walked through the doors at the event, looked around the room, and saw people I knew. Moreover, people I liked. Former co-workers, bosses, and mentors. People I spent years fighting alongside. People I only know from Facebook. People I met once years ago. People I wanted to know. The AFP, grassroots world. In the flesh. 

I guess I just didn’t realize how much I missed that world. 

It was like a light flickered on in my head. ‘I know this situation. I am trained for this situation. I can go work the room. I can catch up on all the changes. Network.’

I often feel displaced in law school, to say nothing of the five months I spent in Thailand. But this was the opposite feeling of displacement. It was belonging. 

And I also realized, while I miss the people, I don’t necessarily miss the job. That is, given the chance to go back to my old position, I probably wouldn’t. I like the law. I like the extra layer of understanding I possess when I talk about policies impacting our state. 

I’m not sure where that leaves me, except with a strong reminder that I’m still becoming. No matter how stressful this past year, no matter how stressful the coming one, it is not the last chapter. I’ve got people rooting for me. People who trained me, mentored me, and pushed me forward. And right now a new batch of people train, mentor, and push me. But that doesn’t mean the last bunch forgot about me. They’re still my people. I’m just also getting more people. 

More than anything, the evening reminded me that I’m an extrovert and need to spend more time with people who fill me up. 

Which leads me to a major thank you to my introverted mother for sticking around much later than she wanted while I caught up with people. She also had to deal with my giddy rambling on the drive back. My Mom is the real MVP.