Marquette Law Review Article Featured in Prescription Painkiller Exposé

In cooperation with 60 Minutes, the Washington Post has published a fascinating new story about the behind-the-scenes efforts of actors in the pharmaceuticals business to soften regulatory enforcement at the just the time that the nation’s opioid problems were reaching epidemic proportions. The story would be an engaging read for anyone, but Marquette folks may note a particular point of interest: the Post prominently quotes a forthcoming article in the Marquette Law Review.

According to the Post story, the federal Drug Enforcement Administration has long had authority to block suspiciously large shipments of prescription painkillers that pose an imminent danger to the community. In the late years of the Bush Administration and early years of the Obama Administration, the DEA became increasingly aggressive in using this authority to target businesses that were involved in questionable ways with the distribution of opioids. The Post reports that these businesses pushed back, initially finding some success through lobbying the Department of Justice. However, they seemingly had their greatest success when Congress passed, and President Obama signed into law, changes to the DEA’s enforcement standards and procedures.

This legislation is the subject of the Marquette Law Review piece, authored by John Mulrooney and Katherine Legel. Mulrooney is an administrative law judge with the DEA. Legel, a graduate of Marquette Law School, was a judicial law clerk with the DEA. Of the 2016 law, they write, “If it had been the intent of Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal.” This and other aspects of the law review article are noted in the Post’s reporting. Student-editors who have been working on the article should feel gratified to see the piece playing such a prominent role in the ongoing efforts of journalists, policymakers, and academics to better understand the multitude of factors that may be contributing to the current opioid crisis.

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The Rise of Benefit Corporations: Show me the Money…and the Good

A large cardboard box with a hole in the top is labeled to accept donations for a book drive sponsored by the organization Better World Books.The “Benefit Corporation” is a new corporation class and it may be coming to a state near you (if it hasn’t already).  A benefit corporation (colloquially referred to as B-corp) is an entity type that seeks to blend profit and purpose.

In 2010, Maryland was the first state to adopt a benefit corporation law.  Since then, about 30 other states have followed suit. As of October 2017, the Wisconsin legislature had a bill under consideration to create a benefit corporation statute.

What Exactly Is a Benefit Corporation?

Benefit corporations seek to create a material positive impact on society and the environment. These companies focus beyond the entrenched corporate purpose of profit maximization.  Most states with benefit corporation statutes base these laws on the Model Benefits Corporation Legislation.  Benefit corporations are required to (a) espouse a general/specific public benefit, (b) be accountable, and (c) be transparent.

This pursuit of public benefit could take various forms, such as: providing low-income communities with beneficial services; preserving the environment; improving human health; promoting the arts; or any other nonpecuniary purpose that could be of benefit to society or the environment.

For example, Better World Books, a benefit corporation, is an online book retailer that sells used and new books.  For every book sold, it gives a percentage of its funds and unsold books to literacy foundations across the globe.  Some other famous companies who have decided to go the benefit corporation route include Kickstarter, Etsy, and Ben and Jerry’s.

Benefit corporations are usually required to have some measure of accountability. This often entails measuring the provision of the corporation’s stated public benefit goal against an independent third-party standard.

Most benefit corporation statutes also require specific disclosures. Corporations are required to provide an annual benefit report to their shareholders regarding the corporation’s success or failures in delivering the espoused public benefit. 

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Public Hearing to Address Judicial Recusal Rules

Logo with the words "Access to Justice" over the ops of photos of Louis Butler, Mike Skwierawski, Ed Fallone and Jay Heck.On Wednesday night, October 11th, the non-partisan organization Common Cause in Wisconsin is holding a town hall meeting/public hearing entitled “Access to Justice.” Co-sponsors of the event include the League of Women Voters of Wisconsin, the League of Women Voters of Milwaukee County, and the American Association of University Women of Wisconsin.  This free event is open to the public and will take place October 11 from 6:30PM to 8:00PM at Marquette Law School in the Appellate Courtroom (Main Level).  Marquette University Law School is not a sponsor of the event.

The focus of the event will be the recusal rules that the Wisconsin Supreme Court has adopted for our state judiciary.  Wisconsin’s current state recusal “non-standard” was written by the lobbyist organization Wisconsin Manufacturers & Commerce in 2010. The current rule essentially states that judges may decide for themselves whether to recuse themselves in a case involving a donor or special interest group who made campaign contributions to that judge.

This past April, the Wisconsin Supreme Court discussed a petition by 54 retired Wisconsin judges to establish reasonable thresholds for recusal of trial and appellate judges when they receive campaign contributions from a defendant or plaintiff – or if they benefited from spending by an “outside” special interest group involved in a case before their court.  The State Supreme Court voted 5 to 2 to reject this petition, and the Court did so without any input from the public.

The purpose of Wednesday night’s event is to educate persons in attendance on the issue of judicial recusal rules and to seek public input on possible reforms.  I will be one speaker at this event, along with former State Supreme Court Justice Louis Butler, former Milwaukee County Circuit Court Judge Michael Skwierawski, and Jay Heck from Common Cause.

Again, this event is free and open to the public.  I hope to see you there.

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