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

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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.

Continue reading “Disability Fraud at the LIRR”

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.

Continue reading “Wall Street Collapse = ERISA Stock Drop Litigation”

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”

Addressing the Short-Termer Problem in Corporate Governance

Posted on Categories Corporate Law, Legal Scholarship, Speakers at MarquetteLeave a comment» on Addressing the Short-Termer Problem in Corporate Governance

Continuing our faculty workshop series, Nadelle Grossman presented a work in progress earlier this week entitled “Clarifying the Long-Term Nature of Director and Shareholder Fiduciary Duties.”  Her presentation examined the various factors that have magnified the influence of short-term institutional shareholders, such as hedge funds and activist investors, over the decisions of corporate management.  These factors include the way the market punishes firms that fail to meet their quarterly earnings targets, the incentives of money managers to maximize their own fees by boosting the share price of their holdings, and the increasing effectiveness of the shareholder franchise.  Professor Grossman argued that the increasing influence of the “short-termers” has impaired management’s ability to set a long-term strategy for the corporation.  Her thesis is that the fiduciary duties of directors and institutional shareholders should be re-examined in order to promote the adoption of business strategies with longer time frames. Continue reading “Addressing the Short-Termer Problem in Corporate Governance”

Me and the Man

Posted on Categories Criminal Law & Process, Legal Scholarship1 Comment on Me and the Man

I just got back from Florida State, where I presented a paper at a faculty workshop.  (Many thanks to Professor and PrawfsBlawger Dan Markel for being a terrific host.)  In the paper, I propose a new type of specialized drug court built around restorative justice principles.  (The paper is not on SSRN yet, but look for it soon.)  The FSU folks had a lot of helpful comments and questions.  In one of the more interesting exchanges, my interlocutor raised a concern that restorative justice, with its focus on personal accountability, would detract from a broader social justice agenda, drawing attention away from the structural inequalities in society that contribute to the prevalence of crime in low-income communities.  It’s a fair point, although I think my proposed RJ program, which would draw lay community representatives into conferences with drug offenders, is capable of contributing to the sort of community mobilization and political activism that my interlocutor favors.  In any event, I was a bit surpised to find myself defending RJ from a social justice challenge.  RJ proponents sometimes present themselves as the vanguard of a revolutionary social movement.  How ironic, then, that when I first advocate an RJ solution to an important social problem, it is suggested that I am really acting as (to use Chad Oldfather’s phrase) “Agent of the Man”!

Science Explores the Power of Storytelling to Persuade

Posted on Categories Legal WritingTags , 2 Comments on Science Explores the Power of Storytelling to Persuade

I read an interesting article from the Scientific American blog this morning, The Secrets of Storytelling:  Why We Love a Good Yarn.  As the article states, “Psychologists and neuroscientists have recently become fascinated by the human predilection for storytelling. Why does our brain seem to be wired to enjoy stories? And how do the emotional and cognitive effects of a narrative influence our beliefs and real-world decisions?”

As a legal writing professor, the most interesting part of this research is the way it is confirming, with good evidence, what good litigators have long recognized: “stories have a unique power to persuade and motivate, because they appeal to our emotions and capacity for empathy.”  I try to teach my students to think about the role of narrative in their legal analysis from the beginning of their work with a legal problem.  Of course, legal arguments must be based upon the law, but the best legal arguments are the ones that find a legal backbone for an appealing story.  (We are fortunate to have on the faculty at Marquette a leading scholar who has written extensively about narrative in legal discourse, David Papke.)

If you are interested in reading more specifically what the science shows, you could start with the “Happily Ever After” section of the article I am discussing, which discusses a few recent findings.  Some law professors are studying this stuff, too.  Kathryn Stanchi from Temple University (who had a long and strong litigation practice before going into teaching) has written two good articles on the subject: The Science of Persuasion:  An Initial Exploration and Playing with Fire:  The Science of Confronting Adverse Material in Legal Advocacy.