Law Commons^™

Oral History And The Study Of The Judiciary, Chad M. Oldfather

Faculty Publications

This essay, which is a review of William Domnarski’s “Federal Judges Revealed” (Oxford University Press, 2008), explores the usefulness of oral history as a vehicle for understanding the judiciary. “Federal Judges Revealed” presents the insights gleaned from a study of over 100 oral histories given by Article III judges, ranging across the span of the judges’ lives. The essay first explores the methodological strengths and weaknesses of oral history as a general matter, and then further develops the analysis through a review of three oral histories given by the late Seventh Circuit Judge Thomas Fairchild. The essay then turns specifically …

Revolutions In Local Democracy? Neighborhood Councils And Broadening Inclusion In The Local Political Process, Matthew J. Parlow

Faculty Publications

Political marginalization of minorities and government corruption are two key factors that have led to the overwhelming decline and decay of America's major cities. Local governments must combat the historical entrenchment of these two evils in order to reverse the trend toward demise. Neighborhood councils may be the best structural changes to local government because they provide more meaningful opportunities for political engagement of minority groups, while also serving as an antidote to systemic corruption in local government. This Essay analyzes the problems plaguing local government in urban cities and explores how neighborhood councils may be able to help address …

The Beginning Of The End For Life Without Parole?, Michael M. O'Hear

Faculty Publications

No abstract provided.

Encouraging Savings Under The Earned Income Tax Credit: A Nudge In The Right Direction, Vada Waters Lindsey

Faculty Publications

During 2007, 3.6 million or 9.7% of people in the United States age 65 or older were below the poverty level. In light of the number of elderly people living below the poverty level, it is important that everyone, including low-income workers, have the opportunity to save for retirement. Low-income workers face many challenges to saving for retirement. The barriers to saving include the lack of access to retirement plans and lack of investment savvy. For example, only 42% of workers employed in service occupations in the private industry have access to employer retirement plans. The percentage drops to 39% …

Turning A Short-Term Fling Into A Long-Term Commitment: Board Duties In A New Era, Nadelle Grossman

Faculty Publications

Corporate boards face significant pressure to make decisions that maximize profits in the short run. That pressure comes in part from executives who are financially rewarded for short-term profits despite the long-term risks associated with those profit-making activities. The current financial crisis, where executives at AIG and numerous other institutions ignored the long-term risks associated with their mortgage-backed securities investments, arose largely because those executives were compensated for the short-term profits generated by those investments despite their longer-term risks. Pressure on boards for short-term profits also comes from activist investors who seek to make quick money off of trading in …

If You Speak Up, Must You Stand Down: Caperton And Its Limits, Richard M. Esenberg

Faculty Publications

No abstract provided.

Charters, Compacts, And Tea Parties: The Decline And Resurrection Of A Delegation View Of The Constitution, Edward A. Fallone

Faculty Publications

This article seeks to address a gap in constitutional law scholarship: the absence of a systematic examination of the manner in which the contractual nature of the Constitution illuminates the original understanding of the text. By closely examining the historical evidence, I argue that the interpretation of the Constitution has been influenced by dueling conceptions of contractual origin. One view treats the Constitution as a charter that delegates limited and defined authority to the federal government. The second view treats the Constitution as a compact the terms of which reflect a bargain between the federal government and a discrete body …

The Contemporary “Fist Inside The Velvet Glove”: Employer Captive Audience Meetings Under The Nlra, Paul M. Secunda

Faculty Publications

One of the more effective anti-union techniques used by employers during labor organizational campaigns is the holding of employee captive audience meetings. Employees, in the midst of deciding whether or not to join a union, are compelled to attend an assembly where management has a one-way conversation with them about the evils of unionism. These meetings occur during working hours, when the employer is best able to exert its economic authority over employees and to play on fears of job loss if employees vote for the union.

While employees are free to leave these meetings in the formal sense, they …

Appellate Review Of Sentences: Reconsidering Deference, Michael M. O'Hear

Faculty Publications

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. Despite …

Constitutional Safety Valve: The Privileges Or Immunities Clause And Status Regimes In A Federalist System, Bruce E. Boyden

Faculty Publications

The American Constitution was born flawed: it failed to provide a mechanism for resolving entrenched differences in the social status regimes between states. This Article argues that part of the purpose of the Privileges or Immunities Clause of the Fourteenth Amendment was to correct that flaw. The Privileges or Immunities Clause was the culmination of a long antebellum debate over whether southern states had to respect the rights of northern black citizens as they traveled. The Clause achieves this goal by requiring states in certain circumstances to respect the status determinations of other states when the citizens of those other …

The Domestication Of International Criminal Law: A Proposal For Expanding The International Criminal Court’S Sphere Of Influence, Lisa J. Laplante

Faculty Publications

No abstract provided.

Foreward: The National Sports Law Institute’S Sports Law Alumni Association, Paul M. Anderson

Faculty Publications

No abstract provided.

Cultural Cognition At Work, Paul M. Secunda

Faculty Publications

Cultural cognition theory provides an anthropological- and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decisionmaking.

Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges, in many instances, are not fighting over ideology, but rather over legally consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence.

This distinction between ideology …

Can A Copyright Owner Prevent The Sale Of An Item, Made Abroad, But Then Imported Into The United States?, Kali Murray

Faculty Publications

No abstract provided.

Does The "Bona Fide" Error Defense Of The Fair Debt Collection Practices Act Include Mistakes Of Law?, Ralph C. Anzivino

Faculty Publications

No abstract provided.

Compassion And The Public Interest: Wisconsin’S New Compassionate Release Legislation, Gregory J. O'Meara

Faculty Publications

No abstract provided.

Targeted Reform Of Commercialized Intercollegiate Athletics, Matthew J. Mitten, James L. Musselman, Bruce W. Burton

Faculty Publications

This Article observes that American society’s passion for intercollegiate sports competition is an extremely powerful, naturally evolved cultural force. The marketplace responds to cultural forces, and the commercialization of college sports directly reflects the marketplace realities of our society. For example, colleges and universities rationally utilize their intercollegiate athletic programs, particularly NCAA Division 1 FBS football and basketball, as a means to achieve a wide range of legitimate objectives of higher education. Thus, the authors advocate that university athletic department revenues should continue to be exempt from federal taxation, specifically the unrelated business income tax (UBIT), despite the increasingly commercialized …

“Sports Law”: Implications For The Development Of International, Comparative, And National Law And Global Dispute Resolution, Matthew J. Mitten, Hayden Opie

Faculty Publications

In this Article, we observe that legal regulation of national and international sports competition has become extremely complex and has entered a new era, which provides fertile ground for the creation and evolution of broader legal jurisprudence with potentially widespread influence and application. Our principal aim is to draw these developments to the attention of legal scholars and attorneys not necessarily familiar with sports law. Specifically, the evolving law of sports is having a significant influence on the development of international and national laws, is establishing a body of substantive legal doctrine ripe for analysis from a comparative law perspective, …

What Travels: Teaching Gender In Cross Cultural Negotiation Classrooms, Andrea K. Schneider, Sandra Cheldelin, Deborah Kolb

Faculty Publications

No abstract provided.

Addressing Political Captive Audience Workplace Meetings In The Post-Citizens United Environment, Paul M. Secunda

Faculty Publications

Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known impact of this watershed case might have a significant impact in the workplace: It may permit employers to hold political mandatory captive audience meetings with their employees. To eliminate this danger, and consistent with the First Amendment framework for election law issues post-Citizen United, this Article urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act Law, SB 519 (effective Jan. 1, 2010). SB 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by …

Professional Sports League Commissioners’ Authority And Collective Bargaining, Matthew J. Parlow

Faculty Publications

With the National Basketball Association (NBA) and National Football League (NFL) collective bargaining agreements set to expire within the next two years, many experts are already predicting what changes may be made to both leagues’ governing labor documents. One likely point of contention between the owners and the players’ unions — though rarely discussed in the experts’ predictive discourse — is the power of the respective league commissioners to punish or discipline wayward players for misbehavior committed off of the court or field. This article will analyze this area of sports law by exploring this power of each league’s sports …

The Nba And The Great Recession: Implications For The Upcoming Collective Bargaining Agreement Renegotiation, Matthew J. Parlow

Faculty Publications

Like most businesses, the National Basketball Association (NBA) has suffered significant negative impacts from the Great Recession. The league’s drop in revenue exposed distinct flaws in the NBA’s current business model and in the terms of employment for NBA players. Due to the precarious economic state of the NBA, the league anticipates a contentious, but necessary, renegotiation of the NBA’s collective bargaining agreement (CBA), which will expire at the end of the 2010-11 season. This article will analyze the effects of the Great Recession on the NBA and the likely implications for the renegotiation of the CBA. Part II of …

The Lonely Death Of Public Campaign Financing, Richard M. Esenberg

Faculty Publications

This paper argues that the recent decision of the United States Supreme Court in FEC v. Davis renders the idea of public financing of elections largely irrelevant. In Davis, a majority of the Court saw the provision of a "compensatory" benefit to the opponent of a candidate who spends more than a designated amount as a burden on speech. That burden, moreover, cannot be justified by an interest in "leveling the playing field." The paper argues that Davis’ rationale is equally applicable to candidates facing independent expenditures. It suggests that a public financing system cannot be designed in a way …

May State Law Take Away An Employer’S Right To Do Business In The State As A Penalty For Employing Unauthorized Aliens, When Federal Law Handles Such Violations Differently?, Jessica E. Slavin, Alyssa Johnson

Faculty Publications

No abstract provided.

Political Violence And The Media, Robert G. Meadow

Marquette Law Review

Violence commonly covered by mainstream news media includes socially sanctioned violence (organized prizefighting, police actions) or violence between and among societies (international terrorism, wars). Less universal, with wide variation across political cultures, is coverage of political violence. Political violence—sometimes officially sanctioned by governments seeking to remain in power and other times by competitors seeking to control government—is used to capture or maintain political power.

Political violence can take many forms, including assassinations, rebellions, guerilla wars, kidnappings, or mob violence. Violent outbreaks between legislators are also common in some political systems. Political violence such as rebellions and insurrections may take place …

Mediating Post-Conflict Dialogue: The Media's Role In Transitional Justice Processes, Lisa J. Laplante, Kelly Phenicie

Marquette Law Review

For many post-conflict countries like Peru, the end of gunfire does not necessarily imply an end to internal conflict. Remaining post-conflict societal friction may even be as threatening to long-lasting peace as the war itself. This situation may be attributed, in part, to the media’s failure to adequately mediate conflicting views of a country’s history—its causes and consequences, its villains and heroes. Certainly, newspapers, radio, and television, as well as the newly emerging micromedia (e.g., e-mail) and middle media (e.g., web logs or “blogs”), reach huge audiences on a daily basis before, during, or after conflict. As primary information sources …

A Delicate Balance Of Life Tenure And Independence: Conditional Resignations From The Federal Bench, Allison A. Luczak

Marquette Law Review

Judicial selection, including judicial resignations, nominations, and confirmations, is comprised of a patchwork of traditions, rules, and constitutional provisions. The Constitution does not explicitly detail a formalized process at any stage of the appointments process, but checks and balances have organically developed and changed over time as the process has become more politicized. The question becomes, then, whether conditional resignations comport with this system or the Framers’ intent. At the Supreme Court level, conditional resignations are rare. Only a handful of conditional resignations have ever been submitted. At the court of appeals and district court levels, it is unclear how …

Drafting Restrictive Covenants In Employment Contracts, Ralph Anzivino

Marquette Law Review

Restrictive covenants or non-compete clauses are commonly used in employment contracts to prevent unfair competition. Unfair competition normally takes the form of a former employee soliciting the employer’s customers or using confidential information after becoming employed with a competitor of his former employer. Courts and Legislatures have detailed a number of specific requirements that a restrictive covenant in an employment contract must satisfy to be enforceable. For example, an employer must have a ‘protectable interest.’ An employer can protect confidential information, but how do the courts distinguish the employer’s confidential information from that information which an employee can call his …

Equality Among Equals: Is The Senate Cloture Rule Unconstitutional?, Michael J. Teter

Marquette Law Review

The United States Senate now operates as a sixty-vote chamber. Nearly every action, from passing significant legislation to consenting to routine executive nominations, requires support from a supermajority of senators. The basis for the sixty-vote Senate rests with Rule XXII, defining the standard for invoking cloture to end debate. A largely ignored provision of the Constitution renders Rule XXII suspect. Article I, Section 3 states, in part, “Each Senator shall have one Vote.” Conventional wisdom misidentifies this clause as serving only the basic purpose of denoting a change from the state-based voting practiced under the Articles of Confederation. The history …

Getting Back To The Purpose: Analyzing Jones V. Harris Associates L.P. In Light Of Section 1(B) Of The Investment Company Act, Oladotun O. Obadina

Marquette Law Review

In Section 1(b) of the Investment Company Act, Congress expressly provides courts with a guide as to how its provisions should be interpreted. Congress lists a series of ways that investors participating in investment companies are adversely affected. It then expressly declares that interpreters of the Investment Company Act should construe its provisions to mitigate—and where possible, eliminate—these adverse effects. This Comment contends that Congress’ explicit statement in Section 1(b) of the Investment Company Act, detailing how the Act should be construed, ought to be a guide in interpreting its provisions, even under a textualist statutory interpretation.

Section 36(b) of …