Ninth Circuit: San Francisco Health Care Law Not ERISA Preempted

Posted on Categories Labor & Employment LawLeave a comment» on Ninth Circuit: San Francisco Health Care Law Not ERISA Preempted

Sanfran In a first in the health care reform context, and in opposition to the Fourth Circuit’s holding in the Wal-Mart Bill case of RILA v. Felder, the Ninth Circuit has ruled in Golden Gate Rest. Ass’n v. San Francisco, No. 07-17372 (9th Cir. 9/30/08), that the San Francisco health care law is not preempted by ERISA.

From the BNA Daily Labor Report this morning:

The Employee Retirement Income Security Act does not preempt a San Francisco ordinance that requires medium and large employers in the city to make minimum health care expenditures on behalf of covered employees, either by paying into their own employee benefits plans or into a fund maintained and administered by the city, the Ninth Circuit holds . . . .

Writing for the court, Judge Fletcher says ERISA preemption is limited in areas that historically are matters of local concern, that employers subject to the city ordinance law lacked the sort of discretion that would render the program an ERISA plan, and that the ordinance does not “relate to” a benefit plan covered by ERISA.

The case has been watched closely by employer representatives and employee groups, which predicted the decision could have wide-ranging implications for the future of health care funding. San Francisco Mayor Gavin Newsom in a statement calls the ruling ”a huge victory for this city and the 46 million Americans who don’t have health insurance.” Business groups, however, call the decision “devastating” for small business owners.

Continue reading “Ninth Circuit: San Francisco Health Care Law Not ERISA Preempted”

Responding to Racial Disparities in the Criminal Justice System

Posted on Categories Criminal Law & Process, Milwaukee, Race & Law, Wisconsin Criminal Law & Process1 Comment on Responding to Racial Disparities in the Criminal Justice System

The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities.  This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation.  As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed.  Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted.  For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted.  Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.

Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence

Posted on Categories Immigration LawLeave a comment» on Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence

Some of my former students will remember the domestic-violence asylum case, Matter of R-A-, which had been pending in a sort of limbo state since January 2001.  The R-A- case presents the issue of whether an immigrant may obtain asylum in the United States on the basis of her well-founded fear that she will suffer severe domestic violence if she is returned to her country, violence from which her country will not protect her.  This week, Attorney General Michael Mukasey issued a decision directing the Board of Immigration Appeals to reconsider the case.

Continue reading “Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence”

Fastcase: Free Online Research for All Wisconsin Bar members

Posted on Categories Legal Writing, Wisconsin Court System1 Comment on Fastcase: Free Online Research for All Wisconsin Bar members

If you are a member of the Wisconsin State Bar, beginning in November you will have free access to Fastcase.  Fastcase is a searchable online database of federal and state law.  The product overview at the Fastcase website makes the service look user-friendly.   Its coverage is fairly deep too, including state cases back to 1950 or earlier.

I was wondering when a convenient but much lower-cost legal research service like this would become widely available.  It seemed inevitable that it would eventually happen.  I haven’t tried Fastcase yet, but I am going to do so and will follow up with my thoughts about the interface and more details about the coverage.   In the meantime, I would be very interested to hear from anyone who already has experience using the service.

What Is an “Offense”?: Another ACCA Puzzle for the Courts

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, U.S. Supreme CourtLeave a comment» on What Is an “Offense”?: Another ACCA Puzzle for the Courts

I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here).  With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law.  The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms.  Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA.  As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum).  The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty. Continue reading “What Is an “Offense”?: Another ACCA Puzzle for the Courts”

A Professorial President?

Posted on Categories Political Processes & Rhetoric1 Comment on A Professorial President?

Before last night’s presidential debate, the pundits were saying that Obama had to be less “professorial” and “nuanced” than in his prior debates.  And the post-mortems today seem to indicate that he was successful on this count.  Call it self-serving, but I dislike the implication that being professorial should be regarded as disabling for a presidential candidate.  To be sure, this view has deep roots in our political culture.  For instance, in lieu of watching the debate last night, I attended the Milwaukee Repertory Theater’s production of a 1945 play, State of the Union, in which a neophyte presidential candidate is repeatedly urged by his handlers to avoid specifics and dumb down the language in his campaign speeches.  I take it that this view reflects, at least in part, an assumption that uninformed voters want to be reassured that the world is a simple place; that public policy questions have clear, easily comprehensible right answers; and that their own intuitive, emotion-driven responses are as sound a basis for making policy judgments as expertise and rigorous analysis.  The assumption may or may not be true–perhaps uninformed voters would rather be educated than pandered to–but indulging the assumption ultimately does a disservice to the quality of our political culture and democratic processes. Continue reading “A Professorial President?”

Patent Settlements as Antitrust Violations

Posted on Categories Intellectual Property LawLeave a comment» on Patent Settlements as Antitrust Violations

Earlier this week, I had the chance to participate together with Scott Hemphill and Dan Crane on an interesting conference panel devoted to the antitrust implications of settling a patent suit between rival drug makers. Here is a short version of the issue we discussed.

Imagine someone suing you and then offering to pay you a few million dollars if you agree to settle the case. Sound strange, impossible, or just plain crazy? Well maybe it is for the average citizen. But strange as it may sound, for generic drug manufacturers this is not merely possible; it actually occurs with some frequency, as is documented empirically in Scott’s excellent working paper and in Dan’s important earlier work on the subject. Continue reading “Patent Settlements as Antitrust Violations”

Judge White Visits Her Alma Mater

Posted on Categories Milwaukee, Speakers at Marquette, Wisconsin Court SystemLeave a comment» on Judge White Visits Her Alma Mater

Yesterday’s On the Issues with Mike Gousha featured a conversation with Marquette Law School graduate and Milwaukee County Circuit Court Judge Maxine Aldridge White. Judge White’s journey from growing up in the Mississippi Delta as the daughter of a sharecropper to her current position on the bench is a compelling and inspiring one. Judge White reflected on her time at the Law School and how her experience here helped shape and influence her career. In particular, she pointed to the support and guidance provided her by Professor Phoebe Williams. Continue reading “Judge White Visits Her Alma Mater”

What We Need Is Red and Blue Face Paint

Posted on Categories Political Processes & RhetoricLeave a comment» on What We Need Is Red and Blue Face Paint

Andrea’s post on sports and Michael’s on the impact of the election on students’ preparation for class brought to mind this thread over at the Volokh Conspiracy. Ilya Somin links to articles in the Washington Post and Slate arguing that political partisans behave like sports fans They are less interested in a careful consideration of the issues than in identifying with one side or the other. Ilya maintains that this is a manifestation of rational ignorance, i.e., the idea that voters rationally invest little effort in obtaining political information because their vote is unlikely to be important. When some voters, e.g., political junkies, do obtain such information, the purpose is not to help in making a decision, but to enhance the enjoyment of being on, for example, the Republican or Democratic teams. Continue reading “What We Need Is Red and Blue Face Paint”

Is the Election Affecting Students’ Preparation for Class?

Posted on Categories Legal EducationLeave a comment» on Is the Election Affecting Students’ Preparation for Class?

That’s the question that came to my mind after reading this article in the Boston Herald about the effects of a bitterly contested presidential election on employee productivity. My colleague Paul Secunda is quoted in the article, noting that emotions are at an especially high level in this election year. And if the workplace is being affected, I’m guessing the classroom is, too.

What Happens When the Tattoo Generation Goes to Law School?

Posted on Categories Legal Practice19 Comments on What Happens When the Tattoo Generation Goes to Law School?

Call me an old fuddy-duddy, but I’ll be the first to admit I do not “get” tattoos. If you really want to show off that rebellious streak (or solidarity with the underclass, or unrestrained individualism, or whatever), there are many other ways to do so that are much less painful and permanent. When I see young people with prominent tattoos, I can’t help but think about the professional job opportunities they have foreclosed by making a permanent record of their youthful passions. But, according to an article in today’s New York TImes, my concerns may be misplaced:

In a mysterious and inexorable process that seems to transform all that is low culture into something high, permanent ink markings began creeping toward the traditional no-go zones for all kinds of people, past collar and cuffs, those twin lines of clothed demarcation that even now some tattoo artists are reluctant to cross.

Not entirely surprisingly, facial piercing followed suit.

Suddenly it is not just retro punks and hard-core rappers who look as if they’ve tossed over any intention of ever working a straight job.

Artists with prominent Chelsea galleries and thriving careers, practicing physicians, funeral directors, fashion models and stylists are turning up with more holes in their faces than nature provided, and all manner of marks on their throats and hands.

Continue reading “What Happens When the Tattoo Generation Goes to Law School?”