The open access debate goes well beyond the world of academia, and what follows is only a brief summary.  Many open access advocates support both free online access to works as well as the granting of a license that permits copying and redistribution of the work.  They underscore the broad societal benefits that would flow from broad public access to such information.  Opponents of the movement have argued that true open access is impossible because publishers could not then recover the costs of their work, and that all but a few scholarly journals would cease to exist.  The usual response to this criticism is that the journals could simply charge the authors fees to cover their costs in publishing such works (and, in turn, that the fees would likely be paid by the authors’ university employers).  Perhaps this counterargument is less attractive given the current global economic downturn.

I think the fundamental question is the following: what motivates academic authors to write and publish journal articles? 

My sense is that they do so primarily in order to garner scholarly acclaim and, at least at first, to secure tenure.  It therefore seems to me that such authors would obtain the maximum benefit from the broadest possible distribution of their articles.  Professor Shavell applies these conclusions to all academic works.  However, I understand why the arguments may not hold with respect to other academic publications such as textbooks, given the more predominantly economic reasons for which academic authors might undertake such projects. 

I am, of course, curious as to whether the abolition of copyright in either form (for academic journal articles, or for all academic works) would be of concern to this blog’s readers.

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 the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

The article will appear in the William & Mary Law Review in 2010.

The Law of Sports is extremely difficult to locate; in fact, it appears that there is no known copy in the United States. This work was reviewed in the London Journal in 1896, and the following description of the work can be found on page 152 of Volume 13 of Fores’s Sporting Notes and Sketches,(London 1896) under the heading of “Notes on Novelties”:

The Law of Sports by W. M. Thompson and J. D. A. Johnson, LL.D., is a useful pamphlet, the copious information therein contained being summarised into the smallest possible space. The legal points connected with the game laws, fishing, hunting, racing, and gambling, being (so to speak) “in a nutshell.” Hearnden, New Inn Chambers, is the publisher.

Fores’s Sporting Notes and Sketches, which can be found in the New York Public Library, was a magazine containing articles ”descriptive of British, Indian, Colonial, and Foreign Sport.”  Because Fores’s description makes no mention of team sports like cricket, rugby, or association football or of individual competitor sports like golf and tennis, it is conceivable that the Thompson and Johnson work is devoted only to what are often called “field sports.” 

If that is so, there are many older works on those topics, including George Putnam Smith, The Law of Field-Sports, which was published in 1886 by the New York publisher O. Judd Company, and Henry John Rous’ The Laws and Practices of Horse Racing (London 1866), which earned its author the appellation “the Blackstone of Horse Racing.”  Works on the law of hunting date back at least to the 18^th century.  Thomson Gale, The Game Laws was published in its 7^th edition in 1807.

The participants agreed that the day was a great way to brainstorm ideas and get inspired.  Those of us attending had such a good experience that Susan Thrower suggested starting a regional group to meet to discuss current scholarship in progress.  Please let Susan or me know if you’re interested.

Special thanks to ALWD for providing us with a generous grant for the forum, to Dean Kearney for his overall support, to Dan Weddle for all his work in co-organizing this event, and to the following panelists and participants:  Hillary Burgess (Hofstra), Mary Ann Becker (DePaul), Ian Gallacher (Syracuse), Melissa Greipp (Marquette), Sue Liemer (Southern Illinois), Lisa McElroy (Drexel), Andrea Mooney (Cornell), Michael Murray (Valparaiso), Michael O’Hear (Marquette), Sarah Ricks (Rutgers-Camden), Susan Thrower (DePaul), Mary Trevor (Hamline), Amy Vorenberg (Franklin Pierce), and Dan Weddle (UMKC).

I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

• hand-wrote comments and corrections on the motion;
• ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
• ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
• ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

Since the advent of LexisNexis headnotes and the LexisNexis classification system, the author has wondered about the different ways results are generated in West’s Custom Digest and in LexisNexis’s ‘Search by Topic or Headnote’ and by KeyCite and Shepard’s. There has been some anecdotal discussion about the differences, but no empirical investigation. This paper starts the investigation process: the author took ten pairs of matching headnotes from legally important federal and California cases and reviewed the cases in the results sets generated by each classification and citator system for relevance. The relevance standards for each case are included. The paper first reviews previous full-text database testing, and the benefits and detriments of both human indexing and algorithmic indexing. Then the two very different systems are tested. Ten pairs of headnotes is too small a sample to say absolutely that results generated by system A are and always will be a certain percentage more or less relevant than system B. However, the differences in the results sets for classification systems and for citator systems do raise some interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly.

I did not read the article (yet), but Joe Hodnicki’s post on the Law Librarian blog says that in Mart’s small sample, a search using Westlaw’s human-generated key numbers returned a larger percentage of relevant results than searches using Lexis’s algorithm-generated topic or “more like this” headnote.  More important than that (in my view), the results in the two systems were significantly different, with Lexis’s searches finding a number of relevant cases that were not found in the Westlaw searches.

Though the results are obviously preliminary, the study’s approach and findings are interesting.  I plan to discuss it with my students as some concrete support for my advice that to be very thorough in electronic research, it is best to try a number of different search strategies (e.g., terms-and-connectors, citator, and headnote searches) in both systems.

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

This is a fun and — only six days until the Packers’ season opener! — timely article.

One of the most intriguing presentations was Professor Kenneth Chestek’s talk “Judging by the Numbers:  an Empirical Study of the Power of Story.”  Professor Chestek conducted a study where he wrote four fictional test briefs:  two that focused heavily on stating the law and applying it (the “pure logos” briefs), and two that focused on creating a narrative story into which the law was inserted and applied (the “story” briefs).  (He wrote a logos brief and a story brief for both the petitioner and respondent.)  Professor Chestek solicited appellate practitioners, appellate judges, appellate judicial law clerks, appellate court staff attorneys, and legal writing professors to read these briefs and rate their strength of persuasion.  The participants knew they were taking part in a study, but they did not know who was conducting the study or what the purpose of the study was.

The results showed that overall, as judges and lawyers advance in their careers and gain more experience, they increasingly value the story in the case as a matter of persuasion.  For instance, judicial law clerks (with generally less experience) were more likely to focus on the strength of the law, while judges and practitioners (with more experience) found the briefs featuring a narrative storyline to be more persuasive.  Another breakdown of the numbers showed that of those practicing for zero to four years, 45.8% of the participants found the logos brief more persuasive, while 54.2% found the story brief more persuasive.  In contrast, of those participants practicing for twenty-five years or more, 14.3% found the logos brief more persuasive, while 78.6% found the story brief more persuasive.  7.1% of the twenty-five plus year group found neither more persuasive.

At the conference, Professor Chestek and the attendees considered theories for these results.  One idea is that less experienced lawyers are more likely to gravitate to the strength of precedent, while those judges and lawyers may more highly regard the value of the facts of a case.  Those judges and lawyers may also value reasoning by analogy more, instead of relying strictly on black letter law.

Professor Chestek is currently writing about his findings in a law review article.

To date, no U.S. or foreign court or arbitral tribunal has directly considered whether mandatory blood testing of athletes for banned performance-enhancing substances, including synthetic human growth hormone (rhGH), violates any internationally or nationally recognized individual rights to privacy or bodily integrity. To determine how this issue is likely to be resolved in litigation or arbitration, this article reviews the developing U.S. law and private international law established by arbitration awards regarding the legality of drug testing at the various levels of athletic competition as well as the compelled taking and testing of a person’s blood outside the context of athletics.

Highlights of the issue include:

* Jessica Litman’s wonderful and innovative Nies lecture on current copyright reform;

*  Interesting articles by Vanessa Rollins, Amy Tindall, Dmitriy Vinarov (and me, but I am not wearing that hat today!) on diverse subjects such as trademark fair use, the impact of the Seventh Amendment on patent litigation, and the re-thinking of patent fraud enforcement in light of current congressional reform;

*  Our initial entry in the Emerging Scholars Series, which highlights works of intellectual property scholars in the first three years of their career, by Marketa Trimble, on cross border injunctions in the United States; and

* Our Annual Intellectual Property Law Review Banquet Speech, by the General Counsel of the Subway Advertising Trust Fund, Mary Jane Saunders, on her practitioner’s life in copyright.

In particular, I want to highlight the scholarship of two our students—Renee Metzler and Kevin Rizzuto—who in their comments, undertook innovative scholarship on grace periods in patent law as well as an empirical look at fixing continuation application at the United States Patent and Trademark Office.

I look forward to the work of incoming Board in the new school year!

Janie Kim and Matt Parlow make a thoughtful contribution to the debate with a new paper on SSRN entitled “Off-Court Misbehavior: Sports Leagues and Private Punishment.”  Here is the abstract:

This Essay examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy — from players’ unions and commentators alike — especially when a commissioner invokes the “in the best interest of the sport” clause of the professional sports league’s constitution and bylaws. The Essay then contextualizes such league discipline in criminal punishment theory — juxtaposing punishment norms in public law with incentives and rationales for discipline in professional sports — and analyzes the legal and cultural limitations to this approach.

As Kim and Parlow point out, one of the troubling aspects of league-administered punishment for off-court misconduct is that the procedures and standards seem so informal and ad hoc compared with those of the criminal justice system.  This raises legitimacy problems for league punishment — all the more so when the league itself is perceived to have unclean hands (see, e.g., MLB and steroids).

In her article, Professor Robbins suggests that archetypes, as universally recognized symbols, can be used to create a compelling image of a client.  As Professor Robbins states, “Because people respond — instinctively and intuitively — to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients’ goals by subtly portraying their individual clients as heroes on a particular life path.”  (768-69.)  The key to using archetypes is to tap into a judge or jury’s unconscious to align the client’s story with a hero’s transformative journey. 

How do you put your client on the path of a hero’s journey? 

The first step is to assign a “cast of characters,” and the most important roles are that of the judge (or jury) and the client.  (775.)  Through the story you tell of your client, the client will transform him or herself into a hero.  The benefit of telling a client’s story as a hero’s journey is that heroes, like real life clients, have flaws.  Heroes are not perfect; in fact, what makes the story compelling is that the hero must work through or conquer those flaws.    

The article lists and describes twelve different hero archetypes from which to choose, such as a “caregiver” (caring for a family against all odds), or an “every person/orphan” (searching for an identity).  (778.)  Professor Robbins recommends casting a judge as the hero’s mentor.  In archetypal stories, a hero like Harry Potter or Frodo Baggins needs a mentor like Dumbledore or Gandalf.  The article also explains how to cast other characters or identity traits such as the villain (not necessarily the opposing party, Professor Robbins notes) and the guardian.

Besides casting the characters, a lawyer needs to understand the stages of an archetypal hero’s journey:  the departure, the initiation, and the return.  The departure is the start of the quest with a “road of trials.”  (792-93.)  Departure reminds me of Frodo Baggins’ trek to the town of Bree, where he first encounters a Ringwraith.  During the initiation, a hero learns lessons to help him or her “to reach the ultimate goal.”  (795.)  During this phase, the hero faces his or her fears and finally slays the proverbial “dragon.”  Those hearing the story of initiation are reminded of their own mortality in the hero’s “ritual injury or dismemberment.”  (796.)  In the return, the hero is transformed and “achieves bliss” — “the hero has conquered the fears that previously hindered him or her from growth as an individual.”  (800.)

The hero’s journey can work very well with the traditional concept of building a theory of the case.  The theory of a case melds narrative/storytelling with the law to create a cohesive case presentation.  The hero’s journey strengthens the narrative component of a case.  Has anyone tried to use a hero’s journey in developing a case?  What storytelling techniques do you use?

The forty contributors vary considerably by gender, race, and ethnicity.  A majority, but only a majority, grew up in states where legally segregated schools existed at the time of the Brown decision.  Some are old enough to have remembered the day that the decision was handed down; others were born after it was already the law of the land.  But all, to one extent or another, believe that their personal and professional lives have been profoundly shaped by the Brown decision.

I read Law Touched Our Hearts with great interest. 

Although I am too young to remember the actual announcing of the Brown decision — it was handed down two weeks before my second birthday — it was clearly a defining event in my life.  In 1956, my family moved from Giles County, Virginia, where I was born, to White Sulphur Springs, West Virginia.  Two years earlier, after an attempt to integrate the White Sulphur schools in response to Brown, the town and nation witnessed the first post-Brown, anti-integration riot in the United States which led the county school board to cancel the integration experiment after only one week.  In 1956, integration occurred a second time, this time as the result of a federal court order.  My mother started teaching at White Sulphur Elementary that fall, and when I started school there two years later the fate of integrated education seemed anything but certain.  In 1959, we moved back to Virginia where the schools were completely segregated, and I experienced integration a second time in 1964, when Giles County decided to voluntarily close its black schools and incorporate the entire black and white population into a single school system.  (Incredibly, Giles County was the first county in Virginia to do this.)

I was also interested in Law Touched Our Hearts because eight of the contributors are good friends of mine.  I can say, though, without fear of contradiction, that the most moving and most poignant essay in the entire collection is the one written by my Marquette colleague Phoebe Williams.  Phoebe’s essay, titled “Segregation in Memphis,” tells the story of her experiences as an 8-year old school child in segregated Memphis schools when the Brown decision was handed down.  Although the Brown edict was to be adopted with “all deliberate speed,” the “promises of Brown,” as Phoebe puts it “remained unrealized” in Memphis.  There had been no school integration in Memphis when Phoebe graduated from high school in 1963, and there would be none for years to come.  Her first experience with integrated education came when she enrolled at Marquette as an undergraduate.

Phoebe’s essay wonderfully captured the spirit of optimism that arose with the handing down of the Brown decision, as well as the disappointment that accompanied the failure of southern states to live up to its mandates.

I was already familiar with much of Phoebe’s account because of an appearance she made several years ago in a class on the History of the Civil Rights Movement that I was teaching in the College of Arts and Sciences.  I invited Phoebe to come speak to the class about her experiences growing in the era of segregation.  The students in the class were riveted by her presentation, even though most were northerners and had been born more than two decades after the Brown decision.  Many students later told me that Phoebe’s presentation was the highlight of the class.

I strongly recommend Law Touched Our Hearts to anyone interested in the history of civil rights in the United States, but I insist that anyone with any sort of Marquette connection should read Phoebe Williams’ contribution to the collection (pp. 123-134).

Should police focus their resources on the inner-city or the suburbs?  Flip a coin, Harcourt suggests.  What maximum prison term should the legislature prescribe for a given offense?  Try drawing a number out of a hat.  Did the defendant really intend to cause the victim’s death?  Get out the tarot cards.

Harcourt’s paper appears in the new book Criminal Law Conversations, along with critical commentary written by law professors Alon Harel (Hebrew University), Ken Levy (L.S.U.), Alice Ristroph (Seton Hall), and some guy named Michael O’Hear.  The SSRN version includes the four responses plus Harcourt’s reply.  The abstract appears after the jump. 

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere – in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid the pitfalls of ideology and unconscious bias. Alon Harel challenges Harcourt’s position, arguing that he is overly skeptical and that instead of embracing chance by default, he should abandon his skepticism for the sake of defending randomization. Ken Levy argues that Harcourt confuses power with right and that it is not possible to embrace randomization without first addressing the proper justification for punishment. Michael O’Hear acknowledges the significant role of luck in contemporary punishment practices, but he argues for channeling chance in more appropriate and useful directions. Alice Ristroph, while also acknowledging the significant role of chance in the criminal law, argues that instead of embracing chance at moments of indeterminacy, it would be better simply not to punish. In a reply, Harcourt responds to these criticisms and argues that we should think of randomization in the punishment field as a way to get beyond punishment as a form of social engineering – as a practice intended to change humans, to correct delinquents, to treat the deviant, or to deter the super-predator. The increased use of chance to resolve issues at moments of indeterminacy, Harcourt argues, could usher in a world in which punishment is chastened by critical reason – an idea, he suggests, worth taking seriously.  

Nadelle Grossman

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 stocks whose prices overly reflect short-term firm values.

Yet this excessive focus on producing short-term profits runs counter to the interests of non-short-termist investors and other corporate constituents, as well as our economy and society as a whole, in creating corporate enterprises that are profitable on an enduring basis. Once again, the current financial crisis provides a lens through which we can see the distressing impact — both to individual businesses as well as to the entire U.S community — of an excessive focus on short-term profits.

I propose a solution to address this problem of short-termism. Under my proposal, directors would be required to make decisions that are in the long-term best interest of stockholders and the corporation under their fiduciary duties. I explain in the article why I propose fixing the short-termism problem through fiduciary duties as well as how, practically, my proposal would be implemented.

This paper is forthcoming in the Michigan Journal of Law Reform. 

The second paper, entitled “Director Compliance with Elusive Fiduciary Duties in a Climate of Corporate Governance Reform,” addresses other aspects of the fiduciary duties of board members.  Here is the abstract:

Corporate governance has become a hot topic following accounting scandals at Enron, WorldCom and others, which led to colossal corporate collapses. In many of those cases, the boards were “asleep at the wheel,” failing to catch managers’ questionable accounting practices. The Sarbanes-Oxley Act of 2002 was the federal government’s attempt at fixing the holes in the corporate governance system exposed by the accounting scandals. Through a patchwork of disclosure requirements and conduct rules, Congress and the Securities and Exchange Commission have attempted to bring about an increase in board oversight of, and independence from, management. The stock exchanges have also jumped into the corporate governance arena, implementing new rules with similar objectives. This collective corporate governance reform has imposed a significant new layer of responsibilities and qualifications on directors of public companies. Yet, shareholders’ only avenue to enforce the new duties under these reforms is through state law fiduciary duties. My article demonstrates how state courts have started to enforce the governance mandates under the reforms through fiduciary duties. Specifically, in my article I examine the watershed Disney case and the duty to act in good faith, and identify how Delaware courts are poised to use this duty to enforce directors’ oversight responsibilities under the corporate governance reforms. My article takes a uniquely holistic view of these shifts in Delaware jurisprudence, explaining how they allow Delaware courts to more closely align the standard of conduct expected from directors with the standard of review that courts apply in determining liability. My article ultimately submits that by more closely aligning these two standards through the duty to act in good faith, the Delaware courts are able to reflect evolving shareholder expectations in fiduciary duty law, thereby making directors more responsive to the shareholders who elected them.

This paper has already been published at 12 Fordham Journal of Corporate and Financial Law 393 (2007).

BARROCK LECTURE

THE LEGITIMACY OF POLICE AMONG YOUNG AFRICAN-AMERICAN MEN
Tracey Meares

HALLOWS LECTURE

BEYOND DECISIONAL TEMPLATES: THE ROLE OF IMAGINATIVE JUSTICE IN THE TRIAL COURT
The Honorable Sarah Evans Barker

ARTICLES

DRAINING THE MORASS: ENDING THE JURISPRUDENTIALLY UNSOUND UNPUBLICATION SYSTEM
David R. Cleveland

THE DISAPPOINTED EXPECTATIONS TEST AND THE ECONOMIC LOSS DOCTRINE
Ralph C. Anzivino

INFORMATIONAL BLACKMAIL: SURVIVED BY TECHNICALITY?
Chen Yehudai

COMMENT

“SLICING A SHADOW”: THE DEBATE OVER COMBINED REPORTING AND ITS EFFECT ON WISCONSIN’S BUSINESS CLIMATE
Staci Flinchbaugh

NOTE

JAMIE S. V. MILWAUKEE PUBLIC SCHOOLS: URBAN CHALLENGES CAUSE SYSTEMIC VIOLATIONS OF THE IDEA
Amy L. MacArdy

SPEECH

LAW REVIEW ANNUAL BANQUET: THE JOY OF LAW
The Honorable William C. Griesbach

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts.  My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.  The abstract appears after the jump. 

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves. The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts’ failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

The economic loss doctrine is a judicially created rule that determines whether contract or tort law applies when a defective product causes damage. The doctrine’s starting premise is that contract law governs if the defective product causes economic loss and tort law governs when the defective product causes property damage. A common refrain is that the doctrine was created to prevent contract law from drowning in a sea of tort. However, as the rule has developed, courts have continued to expand contract coverage at the expense of tort coverage. First, when the defective product damages only itself, the courts concluded that such property damage should be resolved under contract law, not tort law. Next, when the defective product damages the system of which it was a component part, the courts concluded that such property damage should also be resolved under contract law, not tort law. Recently, another rule has begun to receive judicial acceptance that further expands the coverage of contract law at the expense of tort law. The rule is called the “disappointed expectations” test or the “reasonably foreseeable” rule. It provides that property damage that was reasonably foreseeable at the time of contracting is recoverable only under contract law, not tort law. The purpose of this Article is to examine the disappointed expectations rule and determine whether it is a positive addition to the legal landscape of the economic loss doctrine.

After surveying the development of the disappointed expectations test, which has been adopted by the Wisconsin Supreme Court, Ralph identifies several reasons why the test should be rejected.  He pointedly concludes, “The rule is the most recent progression of tort law drowning in a sea of contract law.”

The government’s high-profile raids may encourage an anti-enforcement backlash, especially when accompanied by criminal prosecutions of employers and employees alike.  In fact, high-profile raids seem perfectly tailored to amplify anti-enforcement norms.  By coupling employer enforcement measures with large-scale criminal prosecutions and removal of immigrants, the measures arouse the anxieties of the Hispanic population.  By bankrupting large employers, the measures also jeopardize the economic future of the communities that depend on them.

As an alternative to an enforcement strategy built around a small number of high-impact raids, Ben proposes reforms that would result in a larger number of enforcement actions against employers, but with less draconian results for both employers and employees.  He would make it easier for the government to sanction employers who hire illegal immigrants, but also reduce the magnitude of the sanctions in many cases, which should diminish anti-enforcement backlash.

Ben’s paper won the Silver Quill Award earlier this year for being one of the top two students comments published in volume 92 of the Marquette Law Review.

Entitled “A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions,” the full Secunda-Hart article is available here on SSRN.  You can read the abstract after the break. 

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decisionmaking and examine the policies and practices operating in a challenged workplace to identify those that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social framework experts, and some courts have agreed that the testimony should not be allowed. Because of the importance of this testimony to ferreting out large-scale discrimination in the workplace, the stakes in the debate over its admissibility are considerable.

The debate has moved recently from the courtroom to the pages of law reviews. In an essay published last fall, three academics argued that social framework testimony as it is commonly accepted by district courts should be categorically disallowed. The arguments for the exclusion of social framework testimony as it is currently presented in employment discrimination class action litigation are fundamentally flawed. A blanket exclusion of this evidence is inconsistent with the Federal Rules of Evidence and Supreme Court precedent on the district courts’ responsibility for assessing the admissibility of expert testimony more generally.

This article puts the debate over social framework expert testimony in context, explaining what the testimony is and the role it has played in employment discrimination litigation, with a particular focus on the way the testimony has been offered in class action suits like Dukes v. Wal-Mart. It explains how the normal rules of evidence law should apply to social framework expert testimony, and under the flexible and permissive standards of the Federal Rules of Evidence, framework testimony offered by a qualified expert should be admissible in many employment class actions. The argument that this kind of evidence should always be excluded is driven as much by a particular view of employment discrimination law as by the governing evidentiary rules. Ultimately, the arguments for blanket exclusion of social framework testimony in these cases can best be understood as part of a political debate and a litigation strategy.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

Andrea and her coauthors offer a humorous, but also disheartening, review of media coverage from the 2008 election that typecast Clinton and Palin into their respective roles.  They also discuss social scientific research suggesting that the double bind arises from deeply entrenched gender stereotypes.  They conclude more hopefully, however, with suggested strategies for professional women to minimize the harmful effects of the double bind.

The second paper, “Women at the Bargaining Table: Pitfalls and Prospects,” presents some of these suggestions in more detail, with particular attention to the implications for teachers of negotiation. 

Here is the abstract:

Research evidence across a number of disciplines and fields has shown that women can encounter both social and financial backlash when they behave assertively, for example, by asking for resources at the bargaining table. But this backlash appears to be most evident when a gender stereotype that prescribes communal, nurturing behavior by women is activated. In situations in which this female stereotype is suppressed, backlash against assertive female behavior is attenuated. We review several contexts in which stereotypic expectations of females are more dormant or where assertive behavior by females can be seen as normative. We conclude with prescriptions from this research that suggest how women might attenuate backlash at the bargaining table and with ideas about how to teach these issues of gender and backlash to student populations in order to make students, both male and female, more aware of their own inclination to backlash and how to rectify such inequities from both sides of the bargaining table.

The first paper appears as a chapter in Rethinking Negotiation Teaching: Innovations for Context and Culture (2009), while the second is published at 25 Negotiation Journal 233 (2009).