Law Commons^™

Let The Good Time Roll: Early Release For Good Behavior In Prison, Michael M. O'Hear

Faculty Publications

No abstract provided.

Rolling Back The Tide: Toward An Individual Mandate For Flood Insurance, Alexander Lemann

Faculty Publications

The National Flood Insurance Program is in flux — and under attack. On March 13, 2014, Congress passed the Homeowner Flood Insurance Affordability Act, delaying and dismantling many of the reforms it had put in place just twenty months earlier, when it passed the Biggert-Waters Flood Insurance Reform Act of 2012. Today, flood insurance is both a critical part of the country’s approach to dealing with the rising flood threat posed by climate change and a beleaguered and perpetually broke symbol of governmental ineptitude, leading to calls for its elimination. By providing federally-subsidized flood insurance, critics argue, the National Flood …

Postmodern Decline? The Belief In A Rule Of Law As A Tenet Of American Ideology, David Ray Papke

Faculty Publications

A belief in the rule of law has traditionally been an important tenet in American ideology. This belief includes a respect for law itself and for independent courts that decide cases fairly in keeping with the law. The United States, ideologues proclaim, is more devoted to the rule of law than are other nations. But is the belief in a rule of law as a tenet of American ideology still firm in the emerging postmodern society? Popular sentiments as well as contemporary jurisprudence powerfully challenge the functionality and very attainability of a rule of law.

Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections For Bullied Special Education Students, Paul M. Secunda

Faculty Publications

Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individuals with Disabilities in Education Act (“IDEA”). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school …

A Defense Of Japanese Sovereignty Over The Senkaku/Diaoyu Islands, Ryan M. Scoville

Faculty Publications

Legal analyses on the sovereignty dispute over the Senkaku/ Diaoyu Islands have been unfavorable to Japan. The literature is populated primarily with works by commentators who argue in favor of the Chinese claim, and by others who conclude that the applicable law is simply too indeterminate to support either party. Analyses favoring Japan are rare and underdeveloped. This is a surprising state of affairs, given that Japan has the better argument. The purpose of this paper is to explain why.

The Penn State "Consent Decree": The Ncaa's Coercive Means Don't Justify Its Laudable Ends, But Is There A Legal Remedy?, Matthew J. Mitten

Faculty Publications

In a July 23, 2012 Consent Decree, the National Collegiate Athletic Association (NCAA), acting through its Executive Committee and President Mark Emmert, imposed unprecedented sanctions on Pennsylvania State University (Penn State). This action apparently was taken in an effort to convincingly demonstrate presidential control of intercollegiate athletics after recent widely reported scandals involving violations of NCAA amateurism, academic integrity, and ethical conduct rules by persons associated with high-profile intercollegiate football programs. This unprecedented use of de facto "best interests" power to punish a member university for individual criminal activity and institutional misconduct which traditionally has not been disciplined by the …

A Regulatory Solution To Better Promote The Educational Values And Economic Sustainability Of Intercollegiate Athletics, Matthew J. Mitten, Stephen F. Ross

Faculty Publications

Currently there are several pending antitrust suits challenging NCAA rules restricting the economic benefits intercollegiate athletes may receive for their sports participation. Although remedying the inherent problems of commercialized college sports (primarily Division I football and men’s basketball) is a laudable objective, a free market solution mandated by antitrust law may have unintended adverse consequences. Judicial invalidation of these rules may inhibit universities from providing many athletes with a college education they would not otherwise receive, by eliminating or reducing the value of scholarships for many players whose economic value is less than the cost of an education. A wholly …

Compelled Diplomacy In Zivotofsky V. Kerry, Ryan M. Scoville

Faculty Publications

To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President's power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?

This essay explores the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and …

An Analysis Of The Treatment Of Employee Pension And Wage Claims In Insolvency And Under Guarantee Schemes In Oecd Countries: Comparative Law Lessons For Detroit And The United States, Paul M. Secunda

Faculty Publications

To put the plight of the Detroit city employees into an international and comparative context when it comes to considering how their pension and wage claims should be treated in bankruptcy, it is instructive to consider how similar employee pension and wage claims would be treated in corporate insolvencies in other countries. It is necessary to focus on corporate insolvencies in other countries as the relevant comparison because most other countries do not have government systems in which municipalities have the same financial independence to borrow money and take on debt as municipalities do in the United States as part …

All It Ever Does Is Rain: Bruce Springsteen And The Alienation Of Labor, David Ray Papke

Faculty Publications

The popular singer and songwriter Bruce Springsteen is a product of the working-class family, and his songs often creatively capture not only working-class life but also workers' alienation from their labor. In an unsystematic way, Springsteen's lyrics portray how modern workers are alienated from the products of their labor, the process of working, other workers, and ultimately, from themselves. Although Springsteen primarily has blue-collar, industrial workers in mind, his thoughts on the alienation of labor continue to have relevance for workers in the American consumer society and in the contemporary global economy as well.

Limitations (A Response To Judge Posner), Chad M. Oldfather

Faculty Publications

In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations ­- the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging.

This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that …

Legislative Diplomacy, Ryan M. Scoville

Faculty Publications

A traditional view in legal scholarship holds that the Constitution assigns to the President an exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its membership routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign legislatures. And members of the House and Senate frequently travel overseas on congressional delegations, or “CODELs,” to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the President. Moreover, many of these activities have occurred ever …

Mass Incarceration In Three Midwestern States: Origins And Trends, Michael M. O'Hear

Faculty Publications

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and …

Not Just Kid Stuff? Extending Graham And Miller To Adults, Michael M. O'Hear

Faculty Publications

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Faculty Publications

One of the central goals of federal securities laws is to protect investors by ensuring that they receive a steady flow of timely, complete, and accurate information. However, that goal is partially undermined by the SEC’s failure to require public companies to disclose anything about their strategic management processes despite increasing requirements on the disclosure of associated risk management processes. Like risk management processes, strategic management processes are designed to create firm value. But instead of focusing on loss-creating risks, strategic management focuses on wealth-creating opportunities. As a result, investors are given a lopsided — rather than a complete or …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Faculty Publications

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Book Review: (The History Of) Criminal Justice As A Morality Play, Michael M. O'Hear

Faculty Publications

Stephanos Bibas's new book, The Machinery of Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a "participatory morality play," in which ordinary members of the community played a crucial role. In Bibas's view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas's book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects …

The Duty To Think Strategically, Nadelle Grossman

Faculty Publications

Under Delaware corporate law, directors and officers have a duty to oversee their firm’s management of risk to limit losses. Corporate law does not, however, require directors or officers to oversee their firm’s management of strategy to create gains. Yet, managing both risk and strategy is essential to a firm in creating value. In fact, as I argue in the Article, the current focus by courts and commentators only on risk management to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose a model for how Delaware corporate law can drive firms to …

Two Cheers For The New Paradigm, Michael M. O'Hear

Faculty Publications

This brief essay comments on Attorney General Eric Holder's much-publicized announcement in 2013 of new federal prosecution priorities. While Holder's announcement represents a welcome shift away from the rigid legalism that has dominated federal prosecutorial policies for a generation, some concerns are also highlighted in the essay.

Solving The Good-Time Puzzle: Why Following The Rules Should Get You Out Of Prison Early, Michael M. O'Hear

Faculty Publications

Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior.

Written a generation ago, the leading scholarly article on the subject presented a strong case against good time, which has yet to be effectively addressed. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct — credits can be denied or withdrawn as a penalty for violations of prison rules — the article questioned how it could possibly be …

Not So Sweet: Questions Raised By Sixteen Years Of The Plra And Aedpa, Michael M. O'Hear

Faculty Publications

No abstract provided.

The Wisconsin Public-Sector Labor Dispute Of 2011, Paul M. Secunda

Faculty Publications

The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social, and economic implications. Governor Walker’s claim that Act 10’s anti-collective bargaining approach was required to balance Wisconsin’s budget is belied by two unassailable facts. First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with …

The Great Recession And Its Implications For Community Policing, Matthew J. Parlow

Faculty Publications

During the last twenty years, community policing has been the dominant approach to local law enforcement. Community policing is based, in part, on the broken windows theory of public safety. The broken windows theory suggests a link between low-level crime and violent crime — that is, if minor offenses are allowed to pervade a community, they will lead to a proliferation of crime and, ultimately, a community plagued by violent crime. To maintain a perception of community orderliness, many local governments adopted “order maintenance” laws — such as panhandling ordinances and anti-homeless statutes. This emphasis on cracking down on such …

Bypassing Habeas: The Right To Effective Assistance Requires Earlier Supreme Court Intervention In Cases Of Attorney Incompetence, Michael M. O'Hear

Faculty Publications

No abstract provided.

Privatizing Workplace Privacy, Paul M. Secunda

Faculty Publications

Perhaps “the” question in this age of workplace technological innovation concerns the amount of privacy employees should have in electronic locations in the workplace. An important related question is whether public-sector and private-sector employees, who have different legal statuses under the state action doctrine, should enjoy the same level of workplace privacy. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it audited an officer’s text messages from his city-issued pager. In a cryptic …

Muted Message: Capital Punishment In The Hollywood Cinema, David Ray Papke

Faculty Publications

Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding …

Unique Problems And Creative Solutions To Assessing Learning Outcomes In Transactional Drafting Courses: Overcoming “The Form Book Problem”, Jacob M. Carpenter

Faculty Publications

In transactional drafting courses, students need to practice evaluating and using forms to aid them when they draft contracts. Only by working with forms can students learn to identify forms’ benefits and dangerous pitfalls. On the other hand, when students use forms, how can professors assess whether students crafted the contract carefully based on their own knowledge and skills, or whether they essentially just copied a form? This article provides nine creative solutions that enable professors to assess whether students have attained the skills and knowledge needed to draft strong contracts, even when students use forms to guide their drafting.

From Dallas Cap To American Needle And Beyond: Antitrust Law's Limited Capacity To Stitch Consumer Harm From Professional Sports Club Trademark Monopolies, Matthew J. Mitten

Faculty Publications

A nearly fifty-year contemporaneous trend of increasing legal protection for sports team trademarks, collective exclusive licensing of professional sports team trademarks, and antitrust litigation regarding its validity culminated in the United States Supreme Court’s 2010 decision in American Needle, Inc. v. NFL, which rejected the NFL’s single-entity defense. Collective exclusive trademark licensing by professional sports leagues generally does not have significant incremental anticompetitive effects beyond the consumer harm already caused by each individual club’s lawful trademark monopoly, which likely are outweighed by procompetitive benefits in many instances. However, in order for antitrust law to minimize the consumer harm caused by …

The Future Of Nlrb Doctrine On Captive Audience Speeches, Paul M. Secunda

Faculty Publications

No abstract provided.

Brutal Choices In Curricular Design … Going Live: The Pros And Cons Of Live Critiques, Alison E. Julien

Faculty Publications

No abstract provided.