Stafford Rosenbaum Attorney Jeff Mandell Co-Authors Article for Marquette Law Review
“Counting to Four: The History and Future of Wisconsin’s Fractured Supreme Court” was authored by Attorneys Jeffrey A. Mandell and Daniel J. Schneider and was originally published in Marquette University Law Review, Volume 107, Issue 1 (2023).
Over the past decade, the Wisconsin Supreme Court has issued “fractured” opinions—decisions without majority support for any one legal rationale supporting the outcome—at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court’s particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one has analyzed the deeper issues animating this predicament: how fractured opinions in Wisconsin have been handled in the past, what norms surround those choices, and why this problem has become so pronounced.
This Article details the history of fractured opinions at the Wisconsin Supreme Court, from the state’s founding to the present, with a particular focus on the past twenty years and the development of the court’s current crisis. With this history in mind, along with (i) foundational principles of state judicial practice and (ii) the shortcomings of the United States Supreme Court’s approach to fractured opinions in Marks v. United States, 430 U.S. 188 (1977), a series of potential reforms are proposed. In particular, this Article suggests that the Wisconsin Supreme Court clearly define and explain what this Article dubs “the Rationale Rule,” that is, the court-adopted principle that a “majority of the participating judges must have agreed on a particular point” of law for precedent to form on that point.
Attorney Jeff Mandell is a partner in the firm’s Madison, Wisconsin office. He co-chairs Stafford Rosenbaum’s Election and Political Law practice team with Attorney Doug Poland, both of whom are among Wisconsin’s leading election law litigators. Jeff argues frequently before the Wisconsin Supreme Court and state courts at every level, regularly handles cases and appeals in federal courts, and has participated in cases at the U.S. Supreme Court on a broad range of issues including election law, administrative law, civil procedure, civil liberties, and more. Jeff is a subject matter expert who frequently writes and presents on election and political law issues and cases.
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