For more information on my background and my teaching, visit my Marquette University Law School faculty web page and course web pages (depending on the year, I teach Employment Discrimination, Employment Law, 1L Constitutional Law, a Seminar on Federal Class Actions, and Law & Economics).

Scott Moss
Assistant Professor of Law
Marquette University Law School
1103 West Wisconsin Ave., Milwaukee WI 53202
phone (414) 288-5492 / fax (414) 288-7891
e-mail Me

Pictures of my daughter Piper Jaden Moss
- @5 mo.: Smiling; Crawling; More Crawling; Laughing; with Marianna
- @11 mo.: Weird Mirror Pic; Hiding; Grabbing My Nose; Laughing w/ Marianna; Elton John
- @18-20 mo.: Collage of 9 Pictures

Links

My Articles & Presentations

Law Review Articles & Book Chapters

Prisoners and Students and Workers - Oh, My! A Cautionary Note about Excessive Institutional Tailoring of First Amendment Doctrine, 54 U.C.L.A. L. Rev. ___ (forthcoming mid-2007).

Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, 105 Mich. L. Rev. __ (forthcoming spring 2007).

Against "Academic Deference": Keeping Title VII Alive to Redress Academic Discrimination, 27 Berkeley J. Emp. & Lab. L. 1 (2006).

Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will, 67 U. Pittsburgh L. Rev. 295 (2005).

The Fair Labor Standards Act (book chapter being added, as of October 2005, to the 3-volume Lexis/Bender treatise, Employee Rights Litigation: Pleading & Practice.

Women Choosing Diverse Workplaces: A Rational Preference With Disturbing Implications For Both Occupational Segregation And Economic Analysis Of Law, 27 Harvard Women's Law Journal 1 (spring 2004).

Public Funding For Disability Accommodations: A Rational Solution To Rational Discrimination And The Disabilities Of The ADA, 33 Harvard Civil Rights-Civil Liberties Law Review 197 (winter 1998) (co-authored with Daniel A. Malin).

An Appeal By Any Other Name: Congress's Empty Victory Over Habeas Rights -- Felker v. Turpin, 32 Harvard Civil Rights-Civil Liberties Law Review 249 (winter 1997).

Works in Progress

Courts' "Behavior" Problems: What Behavioral and Happiness Economics Say Employment Law Is Getting Wrong (with Peter H. Huang) (expected fall 2007) (view abstract here).

The Intriguing Federalist Future of Reproductive Rights (essay) (with Douglas Raines) (expected early/mid-2007)

O Brave New World That Has Such Evidence: An Economic Analysis of Courts' Misguided Rules on Discovery of Digital Evidence (expected 2007 or early 2008)

Reported Judicial Decisions & News Coverage of Significant Cases
(All reported decisions are on matters in which I wrote the brief, appeared in court, or both.)

Summary judgment: Sarmiento v. Queens College CUNY, No. 05-1236, 2005 WL 2840269 (2d Cir. Oct. 28, 2005) (affirming grant of summary judgment against claim of discrimination and retaliation in college's failure to hire plaintiff as an anthropology professor).

Motion to dismiss: Ouedraogo v. Durso Associates, Inc., No. 03 CV 1851 (RLC), 2005 WL 1423308 (S.D.N.Y. June 16, 2005) (denying motion to dismiss minimum/overtime wage claim of supermarket deliveryman: plaintiff, who was formally retained only by a "labor agent," stated a claim (FRCP 12b6) that the supermarket was his "joint employer" under an "economic realities" theory; the court exercised supplemental jurisdiction over plaintiff's claim even though he had only state-law claims and even though this defendant faced only that state-law claim, because plaintiff also had state-law claims against another defendant that did face federal law claims from other plaintiffs (deliverymen with similar wage claims), justifying the exercise of supplemental jurisdiction).

Daubert motion: E.E.O.C. & Schieffelin v. Morgan Stanley & Co., 324 F.Supp.2d 451 (S.D.N.Y. 2004) (granting and denying cross-motions to exclude expert economists, actuary, and securities lawyer in gender discrimination pattern-or-practice action). (Also take a look at this New York Times article about the $54 million settlement that came days after this decision.)

Summary judgment: Ansoumana v. Gristede's Operating Corp., 255 F.Supp.2d 184 (S.D.N.Y. 2003) (granting deliverymen plaintiffs partial summary judgment, as to liability, in minimum/overtime wage class action). (Also take a look at this New York Times article about this decision and this New York Times article about the $3 million settlement with one of the three defendants.)

Protective order: Zeng Liu v. Donna Karan Int'l, Inc., 207 F.Supp.2d 191 (S.D.N.Y. 2002) (granting garment worker plaintiffs' protective order against defendants' discovery as to their immigration status in minimum/overtime wage class action). (Also take a look at this CNN article about the filing of this case.)

Appeal of dismissal: Sanginario v. New York City Transit Auth'y, 296 A.D.2d 413, 744 N.Y.S.2d 492 (2d Dep't 2002) (affirming dismissal of paralegals' class action challenging their status as independent contractors lacking benefits or civil service protections).

Class action certification: Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001) (granting deliverymen plaintiffs' motion for class certification in minimum/overtime wage action). (Also take a look at this New York Times article about this decision.)

Attorney fee award: Sherry v. N.Y. Med. Coll., 2000 WL 661457 (S.D.N.Y. May 22, 2000), later op., 2000 WL 781867 (June 19, 2000) (awarding plaintiff $118,633 in attorney fees, then on plaintiff's motion for reconsideration raising fee award to $129,975).

Why Massachusetts is Overreaching in Accusing the Boston Two of a Bomb Scare for their Cartoon Publicity Stunt, FindLaw's Writ (Feb. 7, 2007).

The Tough Road Ahead in the Lawsuit against S&C for Anti-Gay Discrimination: The Plain Truth about Plaintiffs, FindLaw's Writ (Jan. 23, 2007).

An Overview of Disparate Impact Litigation, Annual Civil Rights Training Institute of the NAACP Legal Defense and Education Fund, Inc. (Warrenton, VA, October 8, 2004).

Contingent Worker Wage-Hour Abuses: The Class Action Remedy (with Adam Klein), Employee Rights Quarterly 45 (winter 2001).

Marshalling The Evidence In Employment Discrimination Cases: A Perspective From The Plaintiff's Bar (with W. Outten, P. Filippatos, & N. Ruan), 657 P.L.I./Litig. 101 (June 2001).

Practice Pointers On Opposing The Affirmative Defense That The Employer Took Reasonable Steps To Prevent Sexual Harassment: Perspective Of A Plaintiff's Attorney (with W. Outten & N. Ruan), 656 P.L.I./Litig. 187 (June 2001).

Overview of Workplace Claims in New York: Perspective of Employees? Counsel (with W. Outten, A. Golden, P. Filippatos, & J. Raisner), 627 P.L.I./Litig. 807 (Oct. 2000).

When Your Employer Thinks You Acted Disloyally: The Guarantees and Uncertainties of Retaliation Law, (with W. Outten) Employment Law Counselor 2 (June 2001).

Clark County School District v. Breeden: An Unreasonable View of the Reasonable Employee? The New York Employee Advocate 1 (July/Aug. 2001).

Reeves and Dale: Pretext and Puritanism The New York Employee Advocate 1 (July/Aug. 2000).

Media Appearances & Interviews

Lisa Kaiser, How to Stop the War, Shepherd Express (Jan. 25, 2007) (discussing separation of war powers among the President and Congress, as well as Supreme Court review of foreign policy controversies).

Katie Hafner, Canned Phrases for Making an Exit, The New York Times, Pg. C-1 (Dec. 23, 2006) (discussing dubious family reasons explanations given by employers and employees for terminations of employment relationships).

April Rockstead Barker, Should Constitution Define Marriage?, Wisconsin Law Journal (Nov. 1, 2006) (discussing proposed state constitutional amendment banning gay marriage).

ABC 12 (WISN-Milwaukee) News at Five:
--- Dec. 5, 2006: on cases just argued at the Supreme Court on the legality of public school affirmative action
--- Nov. 6, 2006: on state constitutional amendment banning gay marriage
--- Aug. 30, 2006: on proposed state constitutional amendment banning gay marriage

WMCS 1290 AM, The Eric Von Show -- guest on many occasions:
--- Nov. 8, 2006: on the 2006 elections and their impact
--- Sept. 26, 2006: on state constitutional amendments & referenda on gay marriage and the death penalty
--- July 25, 2006: on Presidential signing statements
--- July 20, 2006: on federal funding for embryonic stem cells
--- June 30, 2006: on Supreme Court case Hamdan v. Rumsfeld
--- Nov. 2, 2005: on Supreme Court nominee Samuel Alito
--- Oct. 10, 2005: on Supreme Court nominee Harriet Miers
--- Aug. 1, 2005: on Supreme Court nominee John Roberts & U.N. Ambassador nominee John Bolton
--- July 19, 2005: on Supreme Court nominee John Roberts

Todd Richmond, Wisconsin voters get clear opposites in Van Hollen, Falk, The Contra Costa Times, Sept. 13, 2006 (also printed in the Duluth News Tribune and several other newspapers via Associated Press)

Matt Villano, That's Your Desk. It Used to Be Mine., The New York Times, Sec. 3 (Business), Pg. 9 (July 9, 2006) (discussing the legality of employers outsourcing jobs and conditioning terminated employees' severance offers on those employees' efforts to train their off-site replacements).

Carolyn Lochhead, Full Senate Takes up Alito Nomination, The San Francisco Chronicle (January 25, 2005) (discussing impact on Supreme Court of confirmation of Justice Alito)

Carolyn Lochhead, Shuffling Nominees, Bush May Hit Jackpot, The San Francisco Chronicle, Pg. A-1 (January 15, 2005) (discussing the sequence of Bush nominees to the Supreme Court and the prospects of a Justice Alito: "Judge Alito is a tremendously bright, qualified and tremendously conservative jurist who will be a credit to the Supreme Court as an institution and decidedly move the Supreme Court to the right")

Brian Tumulty, Alito Vote Won't Be Easy; Kohl, Feingold share concerns after hearings, The Appleton Post-Crescent (January 15, 2005) (discussing prospects of Alito nomination following the performance of Judge Alito at his confirmation hearings))

Wisconsin Public Radio (90.7 FM, Milwaukee), The Ben Mehrens Show (January 10, 2006) (Interview on the Alito nomination & confirmation hearings)

WTMJ-4 (NBC affiliate), Interview on the Alito nomination & confirmation hearings (January 11, 2006) (video available on the linked page -- the 1/11/06 entry on the chronological list)

Gina Holland, Reaction to Alito Nomination, Associated Press (October 31, 2005) (collecting instant reactions the morning of the Alito nomination; "Judge Alito is exactly the far-right nominee that the Republican Party's reactionary wing demanded after it 'Borked' Harriet Miers. Judge Alito is to the right of the existing Supreme Court on abortion, and he's to the right of all nine justices, even Scalia and Thomas, in advocating an extremely high burden of proof for employment discrimination cases.") (also published in The Washington Post, in The San Jose Mercury News, on a Fox News broadcast and website, and in various other media outlets).

John Brigardner, Jenkens & Gilchrist's Video Pep Rally Pumps Up Controversy, The American Lawyer (October 26, 2005) (abbreviated version also published in The National Law Journal, October 24, 2005)

Lisa Kaiser, The Elevation of Judge Roberts, Shepherd Express (September 8, 2005) (3rd article from the top in the hyperlink) (discussing the re-nomination of Judge Roberts as Chief Justice rather than Associate Justice)

Rick Klein, Chief justice sets tone and legacy of the court, The Boston Globe (September 5, 2005) (discussing the Chief Justice's role in assigning, even manipulating the assignment of, written opinions among justices)

Lisa Kaiser, Judge Roberts: Not a Man of Mystery, Shepherd Express (August 25, 2005) (3rd article from the top in the hyperlink) ("Contrary to those who say that Supreme Court nominee Judge John G. Roberts is a man of mystery, Scott Moss, assistant professor of law at Marquette University Law School, calls Roberts the 'Where's Waldo' of the conservative movement. 'He was always kind of there, in the background,' Moss said. While Moss acknowledged that we don't have a complete picture of Roberts' career, 'there is a trend in what we do know,' he said. 'There is a paper trail, and it's one of a lifelong effort of advocating for conservative causes.' ")

Judith Davidoff, Group opposes Roberts; State coalition writes senators, The Capital Times (August 11, 2005) (discussing evidence that John Roberts has held and advocated conservative legal views; e.g., "Some of his time working in Republican White Houses was as much policy-based as law-based")

Andrew Becker, Selection doesn't serve diversity, groups complain; Some women, minorities hope Bush will reach out with next vacancy, Dallas Morning News (July 20, 2005) (discussing the range of diversity and ideological considerations for the next open Supreme Court seat, following the Roberts nomination) (also published in the Lexington Herald-Leader and 15 other newspapers).

WTMJ 1130 AM News (July 19, 2005) (discussing the Supreme Court nomination of John Roberts)

William Neikirk, O'Connor bow puts new focus on Rehnquist, Chicago Tribune (July 2, 2005) (discussing the possibility that Chief Justice Rehnquist might retire following the retirement of Justice O'Connor) (also published in the Baltimore Sun and 16 other newspapers).

Ann McFeatters, First woman on top court steps down; Justice O'Connor cast swing vote on key issues, Toledo Blade (July 2, 2005) (discussing the retirement of Justice O'Connor and its implications for future Supreme Court decisions).

Seth Stern & Michael Sandler, Court Could Set New Precedents on Sweeping Array of Contentious Issues, Congressional Quarterly (CQ Today, Legal Affairs) (July 1, 2005) (recounting Justice O'Connor's "swing vote" on abortion, affirmative action, campaign finance reform, and governmental religious displays; "There's really no end to the number of important precedents that could be reversed if Justice O'Connor's replacement is so inclined, said Scott Moss, a Marquette University professor of constitutional law. … But while her successor may disagree with many of her positions, Marquette's Moss said there may be reasons to shy away from overturning precedents O'Connor helped write. Some justices, regardless of their ideological tilt, may be reluctant to overturn decisions based on the belief that constitutional rights shouldn't change at the whim of the court, Moss said.").

Broadcast interviews on the retirement of Justice O'Connor and its implications for future Supreme Court decisions:

* Fox 6 (WIWI-Milwaukee) News at Five (July 1, 2005)
* WB 18 (WVTV-Milwaukee) News at Nine (July 1, 2005)
* WISN News/Talk Radio 1130 AM (July 1, 2005)

Tom Heinen, Commandments rulings settle little: Case-by-case guideline leaves both sides unhappy, Milwaukee Journal-Sentinel (June 28, 2005) (" 'The court's religion jurisprudence has been a mess for a long time,' said Scott Moss, a constitutional law professor at Marquette University Law School. 'The court used to enforce a wall of separation between church and state. As of the 1980s, various justices led the court to reject the strong wall. But the court has never agreed to what replaces the wall, so the court's decisions on whether government is endorsing religion have been so fact-specific that cases 'A' and 'B' couldn't help you predict case 'C.' I pity states and towns trying to figure out what is permissible, because it's not even clear that a state or a town could do exactly what Texas did. Justice Breyer might say a contemporary effort to do the same thing is more divisive in today's pluralistic society.' ") (also published in the Kansas City Star and 14 other newspapers).

Rick Barrett, Harley Investor Sues: Shareholder claims poor sales hidden, Milwaukee Journal-Sentinel (May 19, 2005) (discussing securities/accounting fraud class action filed against Harley Davidson).

April Rockstead Barker, Class Action Law Raises Jurisdictional Issues, Wisconsin Law Journal (March 23, 2005) (discussing Class Action Fairness Act of 2005; my view of the law is generally negative).

Bradley Wooten, Tort reform: Fair for whom? Legal, business communities divided over new federal 'Class Action Fairness', The Business Journal of Milwaukee (April 4, 2005).

Jennifer Garrett, Class Actions Get a Bad Reputation, Corporate Report Wisconsin (vol. 20, no.3, November 2004).

Fox 6 (WIWI-Milwaukee) News at Five, "Voter Misperceptions" (October 29, 2004) (discussing fraudulent flyer, targeted at minority voters, falsely stating that you cannot vote if you have unpaid parking tickets, ever committed any crime, etc.).

WB 18 (WVTV-Milwaukee) News at Nine, "Felons Voting" (October 20, 2004) (discussing NAACP's voter drive in two county jails (Dane and Racine Counties) for still-eligible voters behind bars on election day)

---

Employment Law Links

Workplace Fairness -- The premier non-profit organization focusing on employee rights. I was thinking of doing a blog, links to government anti-discrimination agencies, and information on employment rights -- but Workplace Fairness already has been doing a great job with all of those things, and I have better things to do with my time than re-invent the wheel amateurishly.

The National Employment Lawyers Association (NELA) -- The premier bar association for plaintiff-side employment lawyers. If you're interested in plaintiff-side employment law, you should get to know them.

Outten & Golden LLP -- My old firm (I was the first new associate they hired, back in '99); the biggest and best plaintiff-side employment law firm in the galaxy; and a great bunch of lawyers.

Daily Developments in EEO Law by Paul Mollica -- A very useful blog with summaries and interesting observations about new federal court employment discrimination decisions; Paul is a partner at Chicago's Meites, Mulder, Burger & Mollica, one of the top plaintiff-side employment law firms in the country.