The Costs of Janus v. AFSCME

Posted on Categories Business Regulation, Constitutional Interpretation, Constitutional Law, First Amendment, Labor & Employment Law, Legal Profession, Marquette Law School, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on The Costs of Janus v. AFSCME

Photo of statue depicting a bust of Janus, the two-headed Roman God.On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society.  The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.”  The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME.  What follows are my prepared remarks.

In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees.  The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.

In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.

Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party.  One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.

This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case. Continue reading “The Costs of Janus v. AFSCME”

The Nanny State

Posted on Categories Business Regulation, Political Processes & Rhetoric, Popular Culture & Law, PublicLeave a comment» on The Nanny State

Ideological rhetoric not only lionizes heroes but also deplores villains.  It tells us what we should like and what we should hate.  Neoliberal ideologues, in this regard, typically praise deregulation, privatization, and the market economy while condemning the “nanny state” as especially villainous.  If we reflect critically on the nanny-state rhetoric, we might be able to limit the persuasiveness of one of neoliberalism’s most-favored notions and in the process recognize who is most powerful in our society.

For starters, casting anything related to a nanny in a negative light is curious.  Popular culture, after all, includes an abundance of perky, resourceful, and indomitable nannies, all of whom are devoted to the well-being of those under their care.  Thoughts of Mary Poppins, Fraulein Maria in “The Sound of Music,” and Nanny McPhee win a warm spot in just about everybody’s hearts.  I always enjoyed the resourcefulness of Fran Fine, who was played by the feisty Fran Drescher in the popular 1990s sitcom “The Nanny,” while my favorite boyhood nanny was the large anthropomorphic dog Nana in the Peter Pan stories.  She wore a charming bonnet, built castles out of toy blocks, and lovingly made the beds for the Darling children.

How and why does the image of a nanny become a negative one for the neoliberal ideologue? Continue reading “The Nanny State”

A Bible for AI: The Need for Ethics in AI and Emerging Technologies

Posted on Categories Alumni Contributor, Business Regulation, Computer Law, Legal Ethics, PublicLeave a comment» on A Bible for AI: The Need for Ethics in AI and Emerging Technologies

Photo of a model of a human skull with the top of the skull removed, revealing computer circuitry inside.Recently, I attended the Compliance & Ethics Institute of the SCCE in Las Vegas. One of the keynote speakers was Amber Mac, a well-known public speaker for business innovation, internet of things, online safety, artificial intelligence (AI), and other topics. That morning, her keynote address was titled “Artificial Intelligence: A Day in Your Life in Compliance & Ethics.”

It was completely mind-blowing.

From her comments, I had a profound realization that ethics will be extremely important for AI and other emerging technologies as society progresses towards integrating these technologies into our daily lives. Note that this integration is starting to be, or is already, in our homes and workplaces. “Alexa” might already be part of your family. This development is growing in an exponential rate, and there’s no slowing it down. In fact, Waymo (the self-driving subsidiary of Google parent Alphabet) is launching the first ever commercial driverless car service next month. Yet, have we stopped to consider if an ethical “backbone” to all of this progress should be put in place as a guide for AI and all emerging technologies?

For example, a few years ago Microsoft released an AI chatbot on Twitter where the AI robot named Tay would learn from conversations it had. The goal was that the AI would progressively get “smarter” as it discussed these topics with regular people over the Internet. However, the project was an embarrassment. In no time, Tay blurted out racist slurs, defended white supremacists and even advocated for genocide.  So, how did this happen? Well, the problem was that Tay’s learning was not supported with proper ethical guidance. Without proper guidance, such as the difference between truth and falsehood or the general knowledge of the existence of racism, it was vulnerable to learning unethical thought and behavior. Continue reading “A Bible for AI: The Need for Ethics in AI and Emerging Technologies”

Compliance: The Emerging Career Path for Lawyers

Posted on Categories Alumni Contributor, Business Regulation, Corporate Law, Legal Practice, Legal Profession, PublicLeave a comment» on Compliance: The Emerging Career Path for Lawyers
Political cartoon from Puck Magazine in 1908 showing Moses holding the Ten Commandments and various business and Wall Street figures reacting with alarm.
From Puck Magazine, 1908. Various Wall Street figures react to Moses and the Ten Commandments.

When entering law school, and sometimes even before law school, students are put in front of this metaphorical “fork-in-the-road.”

Transactional or litigation?

In most law schools today, those are the two apparent options. However, this is just not the case anymore. There is at least one more, and emerging, option: the compliance route. It’s not completely transactional nor is it at all litigation. In some cases it takes ideas from both, and involves a bit of work in areas that would not necessarily be considered “practicing law.”

Oh, I’m sure I just hit a nerve for many of you. “Why would you go to law school and get into mountains of debt, and then get a job where you’re not completely practicing law?”

Bear with me and let me explain.

o In June 2016, a car manufacturer was forced to spend $14.7 billion to settle allegations of cheating emissions tests and deceiving customers on its diesel vehicles.

o In September 2016, a banking giant was hit with $185 million in fines by governmental authorities after thousands of its employees illegally opened unauthorized bank accounts. Earlier this year, new regulatory restrictions were imposed against the bank essentially halting the growth of the business until there has been sufficient improvement in its business practices. Continue reading “Compliance: The Emerging Career Path for Lawyers”

Wisconsin and the Startup Community: Why Attorneys and Law Students Should Become Engaged

Posted on Categories Business Regulation, Public, Student Contributor, Wisconsin Law & Legal SystemLeave a comment» on Wisconsin and the Startup Community: Why Attorneys and Law Students Should Become Engaged

Next week from November 5th to November 11th, Wisconsin is celebrating its Startup Wisconsin Week. Cities across the entire state of Wisconsin will be hosting programs and events geared toward helping Wisconsin grow its startup community. For the entrepreneurial-minded, this week provides an array of opportunities to network, learn tricks of the trade, and become more involved in the startup process. For transitionally focused attorneys, this week offers a variety of opportunities to meet new potential clients and learn more about how entrepreneurs can affect Wisconsin.

Wisconsin itself has a lot of success with maintaining new businesses. According to the Kauffman Index of Main Street Entrepreneurship, out of the 25 largest states, Wisconsin ranks second in small business activity. Out of this same group of states, Wisconsin also ranks fourth for the highest rate of female business owners and fourth with the highest rate of business owners between the ages of twenty to thirty-two.  Continue reading “Wisconsin and the Startup Community: Why Attorneys and Law Students Should Become Engaged”

Bitcoin and Money: An Advocate’s View

Posted on Categories Business Regulation, Computer Law, Public, Student Contributor, UncategorizedLeave a comment» on Bitcoin and Money: An Advocate’s View

Photo of a lampost with a paper flyer taped to it asking passerby to send bitcoins to pay for college.Some refer to Bitcoin as the internet of money. Why? Because they believe Bitcoin will revolutionize the way we transact with each other the same way the internet revolutionized the way we communicate with each other. Some critics argue otherwise. But, quite interestingly some of Bitcoin’s biggest critics are the same institutions and industries that stand to be disrupted by Bitcoin. To some, the idea of Bitcoin replacing our current mediums of exchange is too far-fetched. I would argue that our mediums of exchange throughout history have suffered arguably more drastic changes. As a human race we went from bartering, to exchanging precious metals, to paper money, and most recently to plastic cards with magnetic strips.  How do you think people reacted when they were told they would not be buying and selling goods with precious metals, but instead they would be using paper? This was a substantial aberration in the manner people transacted with each other, and it took hundreds of years for there to be consensus on this transition.

On that note, what is Bitcoin? Most people will say that Bitcoin is a digital currency. While at its essence this is not a false statement, if Bitcoin is simply a digital currency it would be inconsequential. Most of our currencies today are already digital. Bank accounts today are digital databases, and we use those bank account to transfer money to and from each other, in electronic form. That is digital money. The reality is that only about 8% of total world currencies exist in physical form. It would seem that if Bitcoin is as revolutionary as some claim, it would need to offer something beyond the digitalization of money, and it does. Let’s discuss some of these characteristics and possibilities. Continue reading “Bitcoin and Money: An Advocate’s View”

Bitcoin, Blockchain, and Smart Contracts – Part 2

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Currency on a blockchain was the logical first step, and while it may well disrupt the way our financial systems operate, it was just that – the first step. Public and private industry adoption of blockchain and smart contracts is not dependent on the price or market capitalization of cryptocurrencies. Just this year blockchain popularity increased by 11% among large enterprises, while the cryptocurrency market capitalization, from early January to today, has decreased by an estimated $600 billion. Let’s talk emerging uses.  Continue reading “Bitcoin, Blockchain, and Smart Contracts – Part 2”

Bitcoin, Blockchain, and Smart Contracts – Part 1

Posted on Categories Business Regulation, Computer Law, Corporate Law, Public, Student ContributorLeave a comment» on Bitcoin, Blockchain, and Smart Contracts – Part 1

Photo of a Bitcoin Cash wallet on a mobile phone and a copy of Mastering Bitcoin written by Andreas AntonopoulosOver the past year and a half Bitcoin and other cryptocurrencies have been taken a place under the mainstream spotlight, meaning the public at large has witnessed the speculative behavior in the cryptocurrency market. In December 2017 the price of one Bitcoin surpassed $20,000, only to encounter a bear market where the market price today is around $6,500. This volatility is not new to Bitcoin. For example, on December 4, 2013, Bitcoin was $1,175 and shortly after, on February 10, 2014, the price hit a low $100.  I point out price volatility to show that the cryptocurrency market is a unique speculative market. With that being said, let’s put money to the side and focus on the technology on which the Bitcoin network runs – blockchain technology. As we will see, using blockchain to create and maintain a currency is only the beginning.

At its essence blockchain technology is linked data between computers. It is defined as a digital, decentralized, append-only, distributed ledger that allows unrelated individuals to transact with each other without the need for a third-party or controlling authority. Because no third-party transaction confirmation is needed, the network becomes trustless. I want to make a note on the ‘append-only’ characteristic because it is crucial to the high security value blockchain provides. Append only means that data can only be added to the blockchain, it cannot be removed. Blocks that are already on the chain cannot be altered in any way. You can only make a change by noting it on a future block that is not on the chain yet, and every participant of the blockchain can see this change. At very technical levels advanced cryptography is what allows blockchain to exist, but diving into a discussion of these technicalities requires a scientific discussion, which, while interesting, would not serve a legal purpose. However, something of high-relevance to the legal community is a discussion of smart contracts. Working closely with coders and blockchain experts, attorneys can draft smart contracts that provide a more efficient, secure, and cost-effective way of facilitating transactions between individuals. Continue reading “Bitcoin, Blockchain, and Smart Contracts – Part 1”

Will a Wisconsin Benefit Corporation Benefit Your Start-Up?

Posted on Categories Business Regulation, Corporate Law, Marquette Law School, PublicLeave a comment» on Will a Wisconsin Benefit Corporation Benefit Your Start-Up?

Certified B Corp LogoThis semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Nikki Paterson.

As a student associate in Marquette’s Law and Entrepreneurship Clinic, I see many start-up companies struggle with entity selection. It can be a difficult decision because founders have to consider liability, management structure, employee compensation, formation formalities, future investments, and tax implications, among other things.

As of February 26, 2018, the decision-making process got even harder. That is when 2017 Wisconsin Act 77 took effect, which recognized a new type of entity: benefit corporations. Far from being a trailblazer, Wisconsin was the 34th state to adopt such legislation.

So what is a benefit corporation? A benefit corporation is a type of corporation that places social and environmental values on equal footing with profits; in other words, a corporation with a “triple bottom line.” Chapter 204 of the Wisconsin Statutes specifies the process and requirements of incorporating a benefit corporation. Continue reading “Will a Wisconsin Benefit Corporation Benefit Your Start-Up?”

Foxconn Deal Tips the Scales of Justice

Posted on Categories Business Regulation, Civil Procedure, Constitutional Law, Corporate Law, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Foxconn Deal Tips the Scales of Justice

Photo of the front of the building that houses the U.S. Supreme Court, with an inscription above th doorway that reads "equal justice under the law."

The following opinion piece appears in the Milwaukee Journal Sentinel

 

Our system of justice rests upon two pillars: equal treatment and independent judgment.  Every person who appears before our state courts expects to be treated equally to every other litigant.  In addition, every party to a lawsuit expects to have his case heard by a judge who is free to exercise their own independent judgment.  Recently, the state legislature in Madison and Governor Walker approved legislation – a $3 billion package luring Foxconn Technology Group to build a flat-screen TV factory in Racine County — that seriously undermines these two fundamental principles.

The principle of equal treatment commands that the same rules should apply to all parties appearing before the court.  No one should receive special status.  It is true that the two sides in a case might not be evenly matched, and that one might have more financial resources or a more skilled legal team.  But, even then, both parties in the case should be subject to the same set of laws and procedures, and have the same opportunity to argue that the law supports their claim.

The Foxconn legislation creates special treatment for Foxconn whenever that corporation is sued in Wisconsin courts.  The law forces the Wisconsin Supreme Court to directly take appeals involving “Electronics and Information Technology Manufacturing Zones” (EITM) from the circuit courts. By law there is only one such zone, and that zone is home to Foxconn. Typically, the high court would hear appeals at their discretion, and then only after the case was heard by an intermediate court.  The reason for placing cases involving Foxconn on a “fast-track” to the Wisconsin Supreme Court should be obvious.  That Court currently boasts a majority of Justices who were elected with the financial support of Wisconsin’s largest trade and manufacturing lobbyists.  The drafters of the legislation expect these Justices to be sympathetic to the concerns of manufacturers like Foxconn.

We expect our state court judges to be free to exercise their independent judgment when deciding the merits of a case.  It is the trial judge that hears the facts and the evidence, and who determines the appropriate remedy should the plaintiff prevail.  It is not the state legislature’s job to decide which party in a case should win, or what remedy should be imposed in an individual case. Continue reading “Foxconn Deal Tips the Scales of Justice”

Completing the Revolution

Posted on Categories Business Regulation, Judges & Judicial Process, Legal Scholarship, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court1 Comment on Completing the Revolution

Painting depicting a Revolutionary War scene of a young drummer boy, an older man, and another soldier playing the fife as all three march across a battle fleld. Prof. David Strifling rightly draws our attention to what he terms “the quiet revolution” taking place in Wisconsin administrative law.  As deputy legal counsel for the governor several years ago, I was privileged to be a foot soldier in that revolution, which sought to reinvigorate core constitutional principles around the separation of powers, government transparency, and executive responsibility.  Thus far, the revolution has primarily been fought in the legislature (primarily through 2011 Act 21 and 2017 Act 57) and the executive branch (especially the Governor’s Executive Order 50 and the Attorney General’s opinion 01-16).

The Wisconsin Supreme Court will soon have its opportunity to join and accelerate the revolution when it hears and decides Tetra Tech v. DOR (Court of Appeals decision) and LIRC v. DWD (Court of Appeals decision) (scheduled for argument Friday, December 1).  These cases both present core questions of agency deference, institutional competence, and judicial power – in short, the opportunity for the Court to supplant its current doctrine with a new approach.  As evidence of the sea change that these cases could mark, consider that the Wisconsin Institute for Law & Liberty, Wisconsin Manufacturers & Commerce (leading 10 other business groups), and the Wisconsin Utilities Association all have filed amicus briefs in Tetra Tech making thoughtful arguments as to the value and validity of agency deference.

I have recently posted to SSRN a paper that delves into the past and future of deference in Wisconsin’s jurisprudence.  Originally intended to complete my trilogy of Marquette Law Review articles on interpretation of the Wisconsin Constitution and Wisconsin statutes, the timeliness of these cases has instead prompted a shorter essay which tackles the important questions raised in Tetra Tech with an eye toward the fundamental principles which should guide the Court’s decision.  Ultimately I conclude that the current scheme conflicts with constitutional first principles, the statutes, and common sense.  I believe the Court should deep-six its doctrine and start anew with the standards set forth in Wisconsin’s administrative procedures act (Ch. 227).  Please read the essay to see why.  And we’ll all be watching closely as these cases move forward.  Just because the revolution won’t be televised (I’ve never seen an episode of Law & Order or Suits concerning administrative law) doesn’t mean it won’t have significant implications for law in our state.

Daniel Suhr is a 2008 graduate of the Marquette University Law School.

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

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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.  Continue reading “The Rise of Benefit Corporations: Show me the Money…and the Good”