August 28, 2014

US Supreme Court Review: Two Employee Benefit Cases (Dudenhoeffer and Hobby Lobby)

Posted by:
Category: Business Regulation, Corporate Law, Health Care, Labor & Employment Law, Public, U.S. Supreme Court
Leave a Comment »

US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) This blog post is the third of three on labor and employment law cases by the United States Supreme Court in the last Term. This post focuses on two employee benefit law/ERISA cases: Fifth Third Bancorp v. Dudenhoeffer and Burwell v. Hobby Lobby Stores, Inc. First, a disclosure: Along with six other law professors, I co-wrote an Amicus Curiae brief in support of the Dudenhoeffer plaintiffs.

Dudenhoeffer involves so-called ERISA stock-drop litigation, which has been rampant in the federal courts for a couple of decades now. The basic formula of these cases is that, as part of the employer-sponsored retirement plan (whether an employee stock ownership plan (ESOP) or a participant-directed 401(k) plan), the employer offers its own stock as either the entire pension plan investment or part of the pension plan investment.   When the company goes south and its stock price falls, plan fiduciaries find themselves in a difficult position as far as whether to sell the stock or to hold on to it. This is especially so when the plan fiduciary has conflicting duties as an officer of the company and as a fiduciary of the plan. As a corporate officer, not only is the person supposed to act in the best interests of shareholders to maximize the value of the company, but securities law forbids them to trade stock based on non-public material information. As a fiduciary to the ESOP or 401(k) plan, ERISA gives that same person an obligation to act in the best interest and with the same care as a prudent fiduciary would when making decisions about that employee benefit plan. And in case you are wondering, ERISA Section 408(c)(3) gives employers the ability to assign the same person both officer and plan fiduciary roles or set up so-called “dual-role fiduciaries.” Read more »

Print Friendly



August 27, 2014

US Supreme Court Review: Two Labor Law Cases (Noel Canning and Harris v. Quinn)

Posted by:
Category: Labor & Employment Law, Public, U.S. Supreme Court
Leave a Comment »

US Supreme Court OT2013 logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) Last month I commenced a series of posts of the United States Supreme Court’s labor and employment law decisions last term by blogging on the Court’s decision in the First Amendment public employee free speech case of Lane v. Franks, No. 13-483 (June 19, 2014).  In two separate blog posts, I will comment on two labor law Court decisions (NLRB v. Noel Canning and Harris v. Quinn) and two employee benefit/ERISA decisions (Burwell v. Hobby Lobby Stores, Inc. and Fifth Third Bancorp v. Dudenhoeffer).  This post discusses the labor law cases.

To begin, National Labor Relations Board v. Noel Canning, 134 S. Ct. 2550 (June 26, 2014), is obviously much more than just an ordinary labor law case.  Yes, it concerns the validity of decisions made by the National Labor Relations Board (NLRB or Board) when it had a quorum based solely on presidential recess appointments from roughly January 2012 through August 2013.  More specifically, on January 4, 2012, President Obama, faced with the prospect of another two-member Board (see below why this is a problem), used his constitutional recess appointment powers to make three intra-recess appointments.  In an effort to prevent any intra-session appointments, the Republican-controlled House of Representatives refused to give its consent to the Democratic-controlled Senate to go into recess.  See U.S. Const. Art. II, sec. 5 (“[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days . . . .”).  In response, the Senate held very brief, pro forma sessions in which no business was conducted.

Read more »

Print Friendly



The Likely and the Less Likely — Insights from the New Law School Poll

Posted by:
Category: Political Processes & Rhetoric, Public
1 Comment »

The Registered and the Likely – maybe that could be the name of a political soap opera, although I doubt it would attract high ratings in the general public. But it would attract high ratings among those involved in election campaigns and those eager to understand those campaigns and politics overall.

New results from the Marquette Law School Poll, released Wednesday, put the Registered and the Likely in the spotlight. Among 815 registered voters across the state, Republican Gov. Scott Walker led Democratic challenger Mary Burke 47.5 percent to 44.1 percent in the race for governor. But among 609 participants in the poll who were labeled likely to vote in November, Burke led Walker, 48.6 percent to 46.5 percent.

So who’s ahead, Walker or Burke? The best answer is that it’s too close to say – by both measures, the race is within the margin of error of the poll. Read more »

Print Friendly



Prox and the Poll

Posted by:
Category: Political Processes & Rhetoric, Public
Leave a Comment »

Senator ProxmireHe died more than nine years ago, but the spirit of the late U.S. Senator William Proxmire lives on in Wisconsin. The proof can be found in the latest Marquette Law School Poll, which suggests that someone like Proxmire, a political maverick if there ever was one, might play well in Wisconsin today. More on that in a moment, but first a couple of thoughts on what this latest survey tells us.

Today’s Marquette Law School Poll tends to complicate the national narrative about Wisconsin: that we’re a hyper-polarized state with voters split almost equally between Republican red and Democratic blue. While voting patterns certainly seem to support that claim, the poll results point to an electorate with a considerably more nuanced view of the world, replete with mixed messages that are sure to cause a lot of head-scratching among political pundits. Case in point: the poll finds that 54 percent of voters feel the state is moving in the right direction, which for the last three-and-a-half years, has been a distinctly conservative one. But on a number of key issues, Wisconsin voters agree with positions favored by Democrats. They support a hike in the minimum wage and accepting federal dollars to expand Medicaid. They don’t like outsourcing. They think tax cuts favor the wealthy. They want to know more about whose deep pockets are funding political campaigns. Past polls have also shown majority support for repealing the state’s same-sex marriage ban.

Read more »

Print Friendly



August 21, 2014

Learning the “Old-Fashioned Way”: Study Says Taking Notes by Hand Better for Recall

Posted by:
Category: Higher Education, Legal Education, Public
2 Comments »

note takingThese days, it’s hard to find a law student who doesn’t come to class with a laptop or tablet of some type. Even if the student avoids the temptation to access the Internet during class and simply uses his laptop to take notes, it’s likely his recall of concepts will be not as good as a student who takes her notes by hand.

According to a post in The Chronicle of Higher Education, researchers have found that taking class notes by hand helps students better recall concepts in the lecture. The researchers asked students to take notes using “their normal classroom note-taking strategy.” Some used laptops (disconnected from the Internet) and others used pen and paper and wrote longhand. After 30 minutes, students were tested on the lecture. Researchers discovered that while the laptop note-takers took more than twice the amount of notes as the longhand note-takers, the laptop note-takers “scored significantly lower in the conceptual part of the test.” Both groups scored the same on factual recall. Read more »

Print Friendly



August 20, 2014

Rule 18.2: Comments on Bluebook Citation to Internet Resources

Posted by:
Category: Legal Practice, Legal Research, Legal Scholarship, Legal Writing, Public
Leave a Comment »

Rule 18.2 in the Bluebook governs citation to sources and information available on the Internet. Although the rules in the Nineteenth Edition provide significantly more guidance on the subject than the general principles articulated in the Eighteenth Edition, citation to Internet sources remains a source of confusion for many legal writers. Until the editors release the Twentieth Edition and its inevitable alterations to Rule 18.2, here are a few tips and reminders about citation to Internet resources.

Read more »

Print Friendly



Of Trump Cards and Lawyering

Posted by:
Category: Criminal Law & Process, Legal Practice, Legal Profession, Pro Bono, Public, Seventh Circuit
Leave a Comment »

King of SpadesSome of the best and the worst of the legal profession can be seen through Socha v. Boughton, No. 12-1598, decided by the Seventh Circuit this past week. The substance of the case involved the court’s applying — for the first time — the doctrine of equitable tolling to excuse a late filing by a state prisoner in a habeas case. This required a conclusion that the district court had abused its discretion in concluding otherwise, including the catchy characterization that “[t]he mistake made by the district court and the state was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt” (slip op. at 19).

Yet it is the lawyering that I want especially to note. Read more »

Print Friendly



August 17, 2014

An Interview with Professor Jake Carpenter

Posted by:
Category: Marquette Law School, Public
Leave a Comment »

Carpenter

[Editor’s Note: This blog is the fourth in a series of interviews with faculty and staff at the Law School.]

Professor Carpenter teaches Legal Analysis, Writing, and Research courses at Marquette Law School. Outside of the law school, Professor Carpenter presents at writing conferences across the country, teaches Continuing Legal Education courses for the Illinois Attorney General’s offices in Chicago and Springfield, Illinois, and co-teaches a course, Writing Persuasive Briefs, for the National Institute of Trial Advocacy (NITA). Professor Carpenter is also active on various committees of the Legal Writing Institute.  Before teaching, Professor Carpenter was a civil litigator.

Prior to practicing law, Professor Carpenter was a member of the law review and graduated with honors from Mercer University School of Law. At Mercer, he received the Woodruff Scholarship, the law school’s top scholarship award. Professor Carpenter graduated with honors from DePauw University in Greencastle, Indiana. While at DePauw, Carpenter was named an All-American in track.

Question: How did you first become interested in teaching legal writing? 

I became interested in legal writing when I started practicing law and learned how much of a daily, critical role writing plays in a lawyer’s job.  Fortunately, I had some colleagues in my firm who were great attorneys, great writers, and great mentors.  I often saw the difference a strong brief made compared to a poorly written brief, and I began to view writing briefs as a fun challenge.  After gaining confidence and experience, I began to really enjoy all aspects of writing briefs.  When I decided to pursue teaching at a law school, I wanted to teach legal writing courses because researching and writing briefs were what I enjoyed most about practicing law.  I wanted to help students develop in those areas because it’s such an integral part of practicing law.

Read more »

Print Friendly



August 15, 2014

“With Friends Like These . . .”: New Critiques of Graham and Miller

Posted by:
Category: Criminal Law & Process, Legal Scholarship, Public, U.S. Supreme Court
Leave a Comment »

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   Read more »

Print Friendly



August 7, 2014

Is it Time to Bring Back the Marquette Law School Baseball Team?

Posted by:
Category: Marquette Law School, Public, Sports & Law
1 Comment »

Vintage BaseballEvery now and then the debate over whether or not Marquette should re-establish its varsity football team gets revived. Once a respected participant in the highest level of college football, Marquette unceremoniously dropped football in 1960. (See also here.)

In spite of its long tradition in sports law, it is a not well known fact that our law school once had its own baseball team. In his The Rise of Milwaukee Baseball: The Cream City from Midwestern Outpost to the Major Leagues, 1859-1901 (p. 324), Milwaukee historian Dennis Pajot notes that in 1895, a team called The Milwaukee Law Class competed with the city’s other amateur teams.

The Milwaukee Law Class, organized by the city’s law students in 1892, was Milwaukee’s first law school. In the mid-1890’s, its name was changed to the Milwaukee Law School, and in 1908, it was acquired by Marquette University. This is why the law school celebrated its centennial in 1992. (A second centennial celebration in 2008 marked the 100th anniversary of Marquette’s acquisition of the Milwaukee Law Class/School.) Read more »

Print Friendly



July 25, 2014

US Supreme Court Review: Bond v. United States

Posted by:
Category: Constitutional Law, International Law & Diplomacy, Public
Leave a Comment »

US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

Continuing with this blog’s coverage of the recently concluded Supreme Court term, I’ll offer a few thoughts on the decision in Bond v. United States, which addressed a challenge to a statute that Congress passed in 1998 to implement the Chemical Weapons Convention (“CWC”). Most have heard about the underlying facts: After finding out that her husband was the father of her best friend’s soon-to-be-born child, Carol Anne Bond tried to poison the friend with 10-chloro-10H-phenoxarsine and potassium dichromate. This plan didn’t work, but the authorities found out about it and prosecuted Ms. Bond under 18 U.S.C. § 229(a) for possession and use of a “chemical weapon.” Bond then entered a conditional guilty plea that preserved her right to appeal and, after a lot of other litigation, made two arguments before the Supreme Court. First, she contended that Section 229(a) doesn’t apply because she didn’t use 10-chloro-10H-phenoxarsine and potassium dichromate as “chemical weapons” within the meaning of the statute. Second, she argued that the statute is invalid even if it applies because it exceeds the enumerated powers of Congress and intrudes upon powers that the Tenth Amendment reserves for the states. Read more »

Print Friendly



July 24, 2014

Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

Posted by:
Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
1 Comment »

In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison.  Subsequent reforms to this system have been either short-lived or very modest in scope.  However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers.  Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:  

  • 85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
  • 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
  • 55% agreed that “once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.”

Read more »

Print Friendly