Representative Tom Tancredo has introduced something he calls the “Jihad Prevention Act.” The bill would exclude from admission into the United States of “[a]ny alien who fails to attest . . . that the alien will not advocate installing a Sharia law system in the United States . . . .” The bill raises a number of questions but the one that calls out to me is the question of the government’s interest in the religious beliefs of its citizens. Constitutional doctrine says that the state must make no religious decisions and treat all equally but, as I argue in a forthcoming paper (and I was hardly the first to notice), the government engages in all sorts of conduct that is calculated to shape the religious beliefs of its citizens, and there is probably no way to avoid that. Certain religious systems may well be incompatible with liberal democracy. Christian Dominionism may be one of them. Perhaps a form of Islam insisting upon Sharia law is another.
Does the government have an interest in discouraging the formation and spread of such beliefs? If so, what can it do to further that interest?
The second installment of the symposia celebrating the 100th anniversary of the founding of Marquette Law School was convened earlier today. The same panel of scholars from the first session returned to discuss the period from 1908 to 1940. Joseph Ranney began by explaining how this time period saw the bureaucratization and professionalization of both legal education and the bar, and how these trends shaped the development of the Marquette Law School. In particular, Mr. Ranney noted the importance of the creation of the American Association of Law Schools, which sought to establish an accreditation process for law schools, and the transformation of law school faculties from exclusively part-time/adjunct professors to a combination of full-time and part-time/adjunct professors. Continue reading “Marquette Law School in the Early Twentieth Century”
At today’s faculty workshop, Robin Slocum, the Boden Visiting Professor Law, gave a fascinating presentation of her latest paper, entitled “The Dilemma of the Vengeful Client: A Prescriptive Framework for Cooling the Flames of Anger” (forthcoming in the Marquette Law Review). Noting that lawyers and the legal system can sometimes become weapons for vengeance in the hands of an angry client, Robin suggested that client counseling can help both the client and the lawyer achieve better outcomes in litigation and avoid the psychological and physiological costs of such vengeance-seeking activity. Effective client counseling, she argued, should focus on uncovering the thoughts and beliefs that underlie anger in order to identify the more rational aims of litigation. In addition, Robin suggested that law schools may consider adopting courses that build lawyers’ emotional competency to engage in this type of counseling.
There is an on-line book club discussion at PrawfsBlawg, organized by Matt Bodie (Saint Louis), about Steve Greenhouse’s new book: The Big Squeeze: Tough Times for the American Worker. Yesterday, Steve himself responded to the comments made by the other participants in the book club. Here’s a taste:
For starters, I want to say that when I researched and wrote my book, The Big Squeeze, I saw that workers were suffering not just from one squeeze, but from several squeezes. There is of course an economic/financial squeeze with wages stagnating and health and pension benefits getting worse. Then there is a time squeeze with Americans working 1,804 hours a year on average — 135 hours or nearly three-and-a-half fulltime weeks more than the typical British worker, 240 hours or six fulltime weeks more than the typical French worker and nine fulltime weeks more than the typical German worker. (Those of you who answer work emails at 11 p.m. know what I’m talking about.) The United States is the only industrial nation without laws guaranteeing workers paid vacation, paid sick day and paid maternity leave. (In the 27 countries of the European Union, workers are guaranteed at least four weeks vacation.)
Continue reading “Greenhouse on the Big Squeeze and Some More Employment Numbers”
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”
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.
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.
Continue reading “Who’s Afraid of ProCD?”
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 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”
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.
Continue reading “Disability Fraud at the LIRR”
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.
Continue reading “Wall Street Collapse = ERISA Stock Drop Litigation”
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.