The Unemployment Rate Is Worse Than You Think

Posted on Categories Labor & Employment Law1 Comment on The Unemployment Rate Is Worse Than You Think

Graph_down I have been telling students in my employment law class for years that the reported unemployment rate that so many in this country depend upon is a farce and does not nearly capture the full number of the people without jobs or underemployed in the United States.

Daniel Gross of Slate does a nice job explaining this latest form of voodoo economics:

It’s hard to overstate the poor numbers coming out of Wall Street in recent months. But could it be that we’re overstating the gravity of the situation? As job losses have mounted and consumer confidence has plunged, policymakers, news organizations, econo-pundits, and even some of my Slate colleagues have noted that the unemployment rate, which rose to 6.1 percent in September, seems to be at a nonrecessionary, noncatastrophic, low level. The unemployment rate is still below where it was in 2003; and between September 1982 and May 1983, the last very deep recession, it topped 10 percent . . . .

But maybe the employment data are much worse than they seem.

Continue reading “The Unemployment Rate Is Worse Than You Think”

LaRue and the Coming Avalanche of ERISA Fiduciary Litigation

Posted on Categories Labor & Employment Law1 Comment on LaRue and the Coming Avalanche of ERISA Fiduciary Litigation

401k_2 Not so much.

You may recall that after the Supreme Court in LaRue v. DeWolff, Boberg, and Associates found that individuals could bring breach of fiduciary claims against their plans for mismanagement of their 401(k) accounts, there were many who predicted that such 401(k) suits would overwhelm the courts and generally spell disaster for the judiciary of this country (I didn’t predict that, but I thought the principle of the holding was an important one).

Now, that coming avalanche of litigation might still happen in some world where the sky is green, but interestingly I just received word from DeWolff, Boberg’s Supreme Court advocate, Tom Gies of Crowell and Moring, that Mr. LaRue has voluntary dismissed his claim in the action recognizing that he could not meet the applicable statute of limitations.  Yup, that’s right. These claims are now so easy that Mr. LaRue decided he couldn’t proceed.  In short, these types of claims are still extremely difficult for plaintiffs to prevail upon — for one reason, because of the statute of limitation issue that bit Mr. LaRue in the behind — and all the doomsday prognostications to the contrary seem just a tad off.

Cross posted at Workplace Prof Blog.

Priorities for the Next President: Tax Policy

Posted on Categories Uncategorized1 Comment on Priorities for the Next President: Tax Policy

One of the biggest priorities of the incoming President is to develop an economic plan.  Included in this economic plan will be the next President’s vision of the Internal Revenue Code and tax policy.   As illustrated by the Economic Stimulus Act of 2008, the Internal Revenue Code is frequently relied upon to influence behavior, including stimulation of the economy.  The 2008 Act included tax rebates for low- and middle-income taxpayers and tax benefits for businesses, with a substantial increase in the expensing limits of Internal Revenue Code § 179. Under § 179, taxpayers are allowed to claim a current deduction for the purchase of tangible personal property used in a trade or business instead of recovering the cost over time by claiming a depreciation deduction.  The maximum allowable deduction under § 179 is now $250,000, although that amount will be reduced to $128,000 in 2009.  The 2008 Act also created a new fifty-percent special depreciation allowance for certain property placed in service during 2008.  Unfortunately, the Act has done little to stabilize the economy, and the next President’s economic plan will also need to address the ailing stock and real estate markets and the overall financial crisis. 

In addition, the next President’s economic plan is particularly critical because it must address the fate of the numerous tax provisions that will sunset at the end of 2010.  Continue reading “Priorities for the Next President: Tax Policy”

From “Me, My, Mine” to “We, Our, Mine”

Posted on Categories Human Rights, Legal ScholarshipLeave a comment» on From “Me, My, Mine” to “We, Our, Mine”

Although Peru’s Yanachocha gold mine is one of the largest and most profitable gold mines in the world, the mine owners have been repeatedly stymied by local residents in their efforts to expand production.  In response to environmental problems associated with the mine, protesters (pictured above) have blockaded mine facilities and clashed with security forces on several occasions, costing the mine owners millions of dollars along the way.  So, how can mine owners elsewhere in the developing world avoid such costly conflicts with the communities that host their operations?  This is the question addressed by my colleague Lisa Laplante in a fascinating new article just posted on SSRN, “Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector.”  (The article can also be found at 11 Yale Human Rights & Development L.J. 69 (2008).)

In essence, Lisa and her co-author Suzanne Spears argue that the “extractive industries” should embrace the principle of free prior and informed consent (FPIC): before initiating new projects (and on an on-going basis thereafter) companies should obtain consent for their activities from the communities that will be most affected by them. 

Continue reading “From “Me, My, Mine” to “We, Our, Mine””

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

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federalism, Seventh CircuitLeave a comment» on 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). Continue reading “Seventh Circuit Week in Review (With a Brief Digression on Criminal Justice Federalism)”

Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans

Posted on Categories Legal Scholarship, Speakers at MarquetteLeave a comment» on Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans

At yesterday’s faculty workshop, Professor John Lovett of Loyola-New Orleans gave an eye-opening presentation on his latest scholarship, entitled “The Winding Road to Recovery: Observations on Property Relations Three Years After Hurricane Katrina.” Professor Lovett detailed the devastation to single-family and multi-family housing in New Orleans. He then explained how different governmental programs — responsible for billions of dollars earmarked for rebuilding and repopulation efforts — have failed or had limited success. Continue reading “Legal and Other Obstacles to Community Rebuilding Efforts in New Orleans”

Why Don’t We Punish People Who Kill in Self-Defense?

Posted on Categories Criminal Law & Process, Legal Scholarship4 Comments on Why Don’t We Punish People Who Kill in Self-Defense?

My colleague Janie Kim has a fascinating new article on SSRN called The Rhetoric of Self-Defense. In the article, she explores a surprising difficult problem in criminal law theory: why we don’t punish people who kill in order to save themselves from deadly attacks. I say “surprisingly difficult” because the self-protection defense is a well-established, noncontroversial aspect of criminal law. Compared to, say, the insanity defense, self-protection provokes little deep-seated opposition. Indeed, some purported self-defenders (like Bernhard Goetz, pictured above) have become folk heroes of sorts. Given its intuitive appeal and widespread support, the self-protection defense must rest on a firm theoretical foundation, right?

It turns out, though, that the dominant strands of criminal law theory have a hard time providing a compelling justification for the defense.

Continue reading “Why Don’t We Punish People Who Kill in Self-Defense?”

Email Negotiation Advice

Posted on Categories Legal Writing3 Comments on Email Negotiation Advice

With the onslaught of email and texting, it’s not surprising that more and more negotiation is being conducted by email.  Two interesting recent pieces from the blogosphere had some advice on this.  First, you should not actually be conducting negotiation over the email according to Vicky Pynchon at Settle It Now.  Scientific American just published a study that shows people are more likely to lie over email than when writing things down with pencil and paper.  “The authors suggest that e-mail is a young phenomenon and its social rules are looser and still evolving, whereas when you put something in writing, psychologically there is a stronger hold—it’s really there, in writing.”

And, should you be contemplating sending late night email, you might want to install this new program from Google.  As Diane Levin helpfully points out,   

Google, understanding full well the dark side of human nature (particularly that side of human nature that responds to its email after too many Jell-O shots in the wee hours of the morning), offers a solution: Mail Goggles. Here’s how it works:

When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you’re in the right state of mind?

By default, Mail Goggles is only active late night on the weekend as that is the time you’re most likely to need it. Once enabled, you can adjust when it’s active in the General settings.

What seems to me to still be missing is an email program that prevents “flaming” emails from being sent that you then later regret.  Perhaps Google can create a program that screens for four-letter words or too many exclamation points and then asks you if would prefer to send this email to a friend rather than the negotiator on the other side?

Cross-posted at indisputably.

The Judicial Process, Defined

Posted on Categories Judges & Judicial Process, Legal Education2 Comments on The Judicial Process, Defined

Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own. My aim in this post is to talk a little bit more about what I’ve got in mind when I talk about the judicial process as a field of learning. Probably the best way to do so is to describe the seminar I’m teaching this semester, “Judging and the Judicial Process,” which provides a pretty good first cut.

Our focus, as I put it in the course description, is “on courts as institutions and on judges as the primary actors within those institutions.” We started with what one might call the “standard” model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on. Continue reading “The Judicial Process, Defined”

Priorities for the Next President: Criminal Justice Policy

Posted on Categories Criminal Law & Process, Legal ScholarshipLeave a comment» on Priorities for the Next President: Criminal Justice Policy

I’ve just received the latest issue of the Federal Sentencing Reporter, which is entirely devoted to ideas for criminal justice reform for the next Administration. The contributors are an amazingly diverse and well-credentialed bunch, including two U.S. Senators, two Congressmen, two representatives of the U.S. Department of Justice, a judge of the Missouri Supreme Court, the head of the Minnesota Sentencing Guidelines Commission, the former special projects director of the U.S. Sentencing Commission, and representatives of the Heritage Foundation, the Cato Institute, the National Association of Criminal Defense Lawyers, the American Bar Association, the Federal Defenders, the private defense bar, and the legal academy. The contents are more specifically described through links here. (Unfortunately, little besides the table of contents is available for free download, although my own humble contribution to the issue is described in this post.  As an author, I do have a few extra copies that I would be happy to give away; please e-mail me your address if you are interested.) I look forward to reading what looks like a rich set of ideas by some of the most interesting thinkers and influential leaders in the criminal justice field.

The Culpability of Passive Abuse

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process5 Comments on The Culpability of Passive Abuse

Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system.  What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather.  Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison.  Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes?  Continue reading “The Culpability of Passive Abuse”

Tussle of the Titans: Secunda v. Carpenter

Posted on Categories Speakers at MarquetteLeave a comment» on Tussle of the Titans: Secunda v. Carpenter

There was a great debate this noon between our own Professor Paul Secunda and Dale Carpenter of Minnesota. The question before the house was the meaning of Lawrence v. Texas, a 2003 Supreme Court decision which struck down a state law prohibiting homosexual sodomy. Both Professors Secunda and Carpenter agree that the majority decision, written by Anthony Kennedy, was rather opaque (I regard this as kind), leaving us uncertain as to just what type of right it recognized and how similar claims might be assessed in the future.

In Professor Carpenter’s view, Lawrence should be read to recognize a fundamental right to sexual autonomy. State interference with this right should presumably be subject to strict scrutiny. Professor Secunda argues that Lawrence cannot be read in this way, but, instead, ought to be understood as a move away from strictly tiered scrutiny toward a balancing approach applying rational basis scrutiny with, I suppose, more or less “bite” depending upon the nature of the liberty interest infringed. It is my impression that the nature of this more “carniverous” form of review (I can’t help myself) would depend on some notion of what forms of human autonomy are most compelling and a regard for the need to protect discrete and insular minorities, a view that, for me, recalls John Hart Ely’s  masterwork Democracy and Distrust.

Both Professors Secunda and Carpenter argued forcefully for their positions. Continue reading “Tussle of the Titans: Secunda v. Carpenter”