Seventh Circuit Week in Review (With a Brief Digression on Criminal Justice Federalism)

The Seventh Circuit issued only one new criminal opinion in the past week.  In United States v. Robinson, the defendant’s ex-girlfriend (Evans) reported to a Milwaukee police officer that Robinson had a gun in his home, a charge that was later confirmed after the officer obtained a warrant to search Robinson’s residence.  Robinson was then convicted in federal court of being a felon in possession of a firearm.  On appeal, he argued that the cop who applied for the search warrant should have disclosed that Evans had recently been charged with disorderly conduct for threatening Robinson with a knife.  In Robinson’s view, had the judicial officer known the history of conflict between Evans and Robinson, the officer would have discounted the credibility of Evans’ allegation that Robinson had a gun and declined to issue the search warrant.  At a minimum, Robinson argued that he was entitled to a hearing on the matter under Franks v. Delaware, 438 U.S. 154 (1978).

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Protecting Workers in a Federal System

Paul Secunda has a new pair of working papers on SSRN, entitled “The Ironic Necessity for State Protection of Workers” and “More of Less: The Limits of Minimalism and Self-Regulation.”  These are his opening and closing statements in a debate with Jeffrey Hirsch for PENNumbra.  Paul takes the position that the federal government is doing a poor job of protecting American workers, noting a lack of capacity or will to engage in robust enforcement of statutes likes the National Labor Relations Act and the Occupational Safety and Health Act.  As a result, he would like to see states play a more active role in workplace regulation. 

These short papers touch on an important, longstanding debate in federalism theory: whether each field of social regulation ought to be handled exclusively at a particular level of government (federal, state, or local), or whether shared responsibilities ought to be the norm.  The exclusivity model was dominant through much of this nation’s history, but was almost entirely supplanted in the middle decades of the last century by a cooperative federalism model.  As someone who worries a lot about transparency and accountability in government, I confess to some unease about the opaque, complex federal-state-local arrangements that now predominate in nearly every major field of public policy (environmental protection, crime, health care, education, housing, transportation, etc.).  On the other hand, if the mechanisms of democratic accountability do not operate well, the exclusivity model can lend itself to agency capture, bureaucratic inertia, and regulatory stagnation–which is (I take it) how Paul would characterize the present state of federal labor and employment law.

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