Federal Law & Legal System – Page 182 – Marquette University Law School Faculty Blog

Seventh Circuit Week in Review

Post author:Michael M. O'Hear
Post published:November 8, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

The Seventh Circuit had two new opinions in criminal cases this week, with the government winning both. (Since I started this Week in Review series three weeks ago, the government has gone 10-0 — an even better run than the Tennessee Titans have been enjoying. Let’s hope the Packers don’t have the U.S. Department of Justice coming up on their schedule!)

In United States v. Anderson (No. 07-3654), the court considered a bank robber’s request for appointment of an expert to evaluate his mental health. The district court had denied the request, and the Seventh Circuit (per Judge Posner) affirmed. Normally, we think of mental health evaluations in connection with the insanity defense or determinations of competency to stand trial, but Anderson wanted an expert to help him advance a sentencing argument, specifically, that he suffered from diminished mental capacity at the time of his bank robbery. (And the fact that he did rob a bank provides prima facie evidence of diminished capacity: bank robbers are successfully apprehended at a much higher rate than most other criminals. As I tell my students, if you want to steal money, there are a lot smarter ways to do it than to rob a bank!)

Milwaukee Third Municipality to Pass Paid Sick Leave Ordinance

Post author:Paul M. Secunda
Post published:November 6, 2008
Post category:Federal Law & Legal System Health Care Labor & Employment Law

This past Tuesday, the voters of the City of Milwaukee overwhelmingly (68%) approved the sick pay ordinance. Under this ordinance, private employers in Milwaukee must provide paid sick leave to workers, who earn the benefit at the rate of one hour of sick pay for every thirty hours of work.

The Milwaukee Journal-Sentinel reports:

Employers would have to grant 72 hours of sick leave per calendar year or 40 hours if they have fewer than 10 employees.

Although the ordinance is due to take effect in about 100 days, the Metropolitan Milwaukee Association of Commerce has filed notice that it intends to legally challenge the law on the grounds that (1) it is inconsistent with federal and state laws for family and medical leave; and (2) oversteps the city’s authority to require sick pay from employers outside the city that have employees living in Milwaukee.

I am no expert on the second issue, but the first ground of challenge seems utterly without merit. The federal FMLA and state leave law provide a floor under which no law may go, but states and municipalities have always been free to be more generous, and, in this case, provide some paid leave to workers. The fact that the business group believes the ordinance will cause them economic harm is not grounds for setting the ordinance aside.

I am hopeful that the court deals quickly with this matter so that the ordinance can go into effect when scheduled and start providing much-needed relief for the workers of Milwaukee when they become sick.

Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

Post author:Jessica E. Slavin
Post published:November 5, 2008
Post category:Federal Civil Litigation Legal Practice Legal Research Wisconsin Civil Litigation

A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN. Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law. She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.

Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.” She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”