Zelinsky on the 401(k) Lessons from the Crash of 2008

Posted on Categories Labor & Employment Law1 Comment on Zelinsky on the 401(k) Lessons from the Crash of 2008

Ownershipsociety_2 Good piece here from Ed Zelinsky (Cardozo) on the 401(k) aspect of the 2008 economic collapse from the Oxford University Press Blog:

Even as we contemplate the financial carnage of the Crash of 2008, the federal government sends a strong, paternalistic and, ultimately, misguided message to 401(k) participants: Invest your retirement savings in common stocks.

Continue reading “Zelinsky on the 401(k) Lessons from the Crash of 2008”

Should Sentencing Judges Be Required to Respond to Defendants’ Arguments for Lenience?

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit, U.S. Supreme CourtLeave a comment» on Should Sentencing Judges Be Required to Respond to Defendants’ Arguments for Lenience?

I address this question in a new paper I’ve just posted on SSRN entitled “Explaining Sentences.” Here is the gist of the paper. Since 2005, federal judges have had increased discretion to impose sentences below the range prescribed in the federal sentencing guidelines. Since the guidelines ranges are based almost entirely on the aggravating circumstances of the crime, defendants typically argue for below-range sentences based on mitigating personal circumstances (e.g., post-offense rehabilitation, effects of extended incarceration on innocent family members, positive record of military or other community service, mental illness, physical disability, age). Some precedent, perhaps most notably in the Seventh Circuit, indicates that sentencing judges should respond to such arguments even when they choose to impose a guidelines sentence, explaining to defendants why their arguments have been rejected. Other decisions, however, indicate that the sentencing judge need do little or nothing to explain a guidelines sentence. For instance, in Rita v. United States, the Supreme Court seemed to indicate it would suffice if the sentencing judge merely acknowledged the defendant’s arguments at some point somewhere on the record.

I think decisions like the one in Rita are unfortunate. Given what is at stake–often years of a person’s life–it seems a small enough imposition to require district court judges to explain themselves in a more thorough manner. Moreover, a robust explanation requirement may help to counteract the natural tendency of busy judges (as Judge Posner puts it) just “to impose the guidelines sentence and be done with it”–a practice that threatens to undermine the Supreme Court’s rejection of mandatory sentencing guidelines three years ago.

Who’s Afraid of ProCD?

Posted on Categories Computer Law, Intellectual Property Law, Seventh CircuitLeave a comment» on Who’s Afraid of ProCD?

It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.

I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.

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The World Remains a “Land of Dreams”

Posted on Categories Religion & Law10 Comments on The World Remains a “Land of Dreams”

This Friday, in my seminar on Law & Theology, we turn to a topic that is near and dear to my heart – the role of religion in public discourse. Although not all proponents of minimizing God talk in the public square seek to mold a secular society, some do. They argue that religion – particularly religion outside of the highly privatized and skeptically contingent world of liberal Protestantism – is irrational and, for that reason, potentially dangerous. Richard Rorty told conservative Christians that the goal of a liberal teacher is “to discredit you in the eyes of your children, trying to strip your fundamentalist religious community of dignity, trying to make your views seem silly rather than discussable.” Children from such homes, he wrote, “are lucky to find themselves under the benevolent Herrschaft [domination] of people like me, and to have escaped the grip of their frightening, vicious, dangerous parents . . . .”

Within the legal academy, Steven Gey argues that the public square should be a “religion free zone” and popular writers, such as Richard Dawkins and Sam Harris, write bestsellers calling for the end – or at least the marginalizing – of faith. In a forthcoming film, comedian (?) Bill Maher announces that “[t]he plain fact is religion must die for man to live.”

But is this assumption of a post-religious world governed by rationality consonant with reality? Continue reading “The World Remains a “Land of Dreams””

The Story of the Economic Collapse From Main Street

Posted on Categories Labor & Employment Law10 Comments on The Story of the Economic Collapse From Main Street

Sinking_ship The following news stories from the Associated Press this past Friday confirm that that Wall Street financial meltdown is also being felt throughout the country on Main Street.

From the Associated Press on September 19th:

Florida’s unemployment rate rose to 6.5 percent in August. According to the state labor department that’s the highest the state has seen in more than 13 years. The number is up from 6.2 percent in July, and up from 4.2 percent since August 2007. The state’s total number of jobs lost in the past year rose to 99,100. According to federal numbers, that’s the largest loss in the nation for the third month running. 606,000 residents are currently without work in the state. In Miami-Dade County, the unemployment rate is 5.5 percent, up from 3.8 a year ago, according to the U.S. Bureau of Labor Statistics.

Adjusted numbers are not available for other Florida counties, but Broward’s unadjusted number is 6.1 percent, up from 3.9 a year ago. Monroe County is at 4.8 percent, and was at only 3 percent in August 2007. Florida’s unemployment numbers are being pushed by job losses in the construction industry and related fields. The current national rate is 6.1 percent. Only Rhode Island saw a larger unemployment spike in the past year.

Continue reading “The Story of the Economic Collapse From Main Street”

Disability Fraud at the LIRR

Posted on Categories Labor & Employment LawLeave a comment» on Disability Fraud at the LIRR

Lirr_logo_2 Here is a disturbing report from the New York Times yesterday concerning the awarding of disability benefits to former workers at the Long Island Rail Road:

During the workweek, it is not uncommon to find retired L.I.R.R. employees, sometimes dozens of them, golfing there. A few even walk the course. Yet this is not your typical retiree outing.

These golfers are considered disabled. At an age when most people still work, they get a pension and tens of thousands of dollars in annual disability payments — a sum roughly equal to the base salary of their old jobs. Even the golf is free, courtesy of New York State taxpayers.

With incentives like these, occupational disabilities at the L.I.R.R. have become a full-blown epidemic.

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Wall Street Collapse = ERISA Stock Drop Litigation

Posted on Categories Corporate Law, Federal Civil Litigation, Labor & Employment Law1 Comment on Wall Street Collapse = ERISA Stock Drop Litigation

Graphup Not a surprising development at all. From BNA Daily Labor Report (subscription required):

As several heavy hitters in the financial world have come under pressure or have gone bankrupt in the past couple of months because of the subprime mortgage and lending crisis that has battered investment firms and banks, the employer “stock drop” cases that proliferated in the post-Enron Corp. and post-WorldCom Inc. age are on the rise.

Although the Employee Retirement Income Security Act claims raised in these stock drop cases have not been identical, there are two central claims that arise in these cases. The first claim typically raised is that the plan fiduciaries breached their duties by offering company stock as a plan investment option when the stock was an imprudent or unwise investment. The second claim focuses on the disclosure obligations of the plan fiduciaries and often alleges that the fiduciaries breached their duties by not telling plan participants of financial matters of the plan sponsor that made the sponsor’s stock an imprudent investment.

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Protecting Workers in a Federal System

Posted on Categories Federalism, Labor & Employment Law, Legal Scholarship1 Comment on 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.

Begay, Begone! ACCA, Aaak!

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, U.S. Supreme Court1 Comment on Begay, Begone! ACCA, Aaak!

I’ve posted recently on some of the fallout from the Supreme Court’s April decision in Begay v.United States, but not yet commented on Begay itself.  It is a remarkable case.  After twelve convictions in state court for DUI, Begay was convicted in federal court for being a felon in possession of a firearm.  The sentencing judge found that his prior DUI felony convictions qualified Begay for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act, which applies to felon-in-possession defendants who have at least three prior convictions for a “violent felony.”  The Supreme Court reversed, determining that DUI is a not a “violent felony.”  I think this was the right result, but it was reached by the wrong means. Continue reading “Begay, Begone! ACCA, Aaak!”

Shut Up, I’m Talking!

Posted on Categories International Law & Diplomacy1 Comment on Shut Up, I’m Talking!

is the title of a great book by Gregory Levey that I read this summer about his surprising journey from law school to speechwriter for the Prime Minister of Israel. Levey is a Canadian who, after surviving his first year of law school at an unnamed New York law school decided that he needed a break and planned to join the Israeli army. I imagine that one of the reasons the law school remains unnamed is, as Levey puts it, when thinking about his reasons for joining the Israeli army, “Anyone who’s ever gone to law school will understand when I say that, at the time, the risk of being shot at or blown up by Islamic Jihad, or perhaps kidnapped by the Hezbollah and taken to Iran to be tortured and murdered, seemed almost preferable to the notion of continuing to suffer through another semester of classes.” Continue reading “Shut Up, I’m Talking!”

The Scope of IRCA Preemption

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Scales Thanks to Ross Runkel for bringing to my attention this case from the 9th Circuit concerning whether the Legal Arizona Workers Act (LAWA)  is preempted by Immigration Reform and Control Act (IRCA).  In CPLC v. Napolitano (9th Cir 09/17/2008), the court examined LAWA, which allows state courts to suspend or revoke the business licenses of employers who knowingly or intentionally hire “unauthorized aliens.”  As Ross explains:

That act also requires employers to use the federal E-Verify system (an internet-based system that allows an employer to verify an employee’s work authorization status).


The 9th Circuit rejected various facial challenges to the Act, concluding (among other things) that it is not expressly preempted by the federal Immigration Reform and Control Act (IRCA).  In reaching that conclusion, the court determined that the Act fell within the scope of the “savings clause” of IRCA’s express preemption provision as a “licensing law.”

So it seems that IRCA, like ERISA, recognizes federalism concerns by exempting certain types of state laws that have historically been in the domain of state regulation.

Cross posted at Workplace Prof Blog.

A Civil Conversation With the Party Bosses

Posted on Categories Political Processes & Rhetoric, Speakers at MarquetteLeave a comment» on A Civil Conversation With the Party Bosses

Yesterday, a packed room of more than one hundred people at the Law School was treated to the latest installment of On the Issues with Mike Gousha, featuring Wisconsin Republican Party Chairman Reince Priebus and Wisconsin Democratic Party Chairman Joe Wineke.  Gousha began the program by asking Priebus and Wineke about what role Wisconsin will play in the outcome of this year’s presidential election.  Both party chairmen confirmed that Wisconsin is considered “in play” for the presidential election, with recent polling showing Barack Obama with a narrow 2-3 point lead over John McCain in the state.  When asked what factor(s) will determine the election, Priebus suggested that the issue of trust — that is, which candidate voters trust most — will be dispositive.  Wineke countered that the election would turn on the economy.  Both also agreed that get out the vote (GOTV) volunteer efforts will be critical to success, in the state and nationally.  Continue reading “A Civil Conversation With the Party Bosses”