Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees. Continue reading “Retributive Damages in a World Without Trials”
My colleagues Nadelle Grossman and Kali Murray have recently prepared this informative podcast regarding the implications for I.P. licensing of the Supreme Court’s recent decision in Quanta Computer, Inc., v. LG Electronics, 128 S.Ct. 2109, 170 L.Ed. 2d 996, 76 USLW 4375 (June 9, 2008). I understand that this will be the first in an occasional series of podcasts on current issues in intellectual property prepared by Marquette’s I.P. professors. This is an exciting new venture, and I look forward to hearing their future productions.
The Ninth Circuit Court of Appeals, sitting en banc, recently decided an interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain considered sacred in their religion. Apparently, the government planned to use recycled wastewater, which contains 0.0001% human waste and would, in the view of some of the plaintiffs, desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.
The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentially, no such claim could be brought against neutral laws of general applicability under the Constitution’s Free Exercise Clause.
The Ninth Circuit (over three dissents) rejected the challenge. That doesn’t surprise me. Any rule that required accommodation of the plaintiffs’ claim here would likely result in religiously based gridlock on a host of policy questions. The outcome tracks an earlier Free Exercise decision. What interests me is the court’s reasoning. Continue reading “Desecrating a Sacred Mountain”
Cross Posted: Workplace Prof Blog
A follow-up to yesterday’s post discussing stagnating wages and later retirement ages (this one from the Washington Post):
Six months ago, Ivan Sanchez was optimistic about his future. He had recently earned a bachelor’s degree in business management and was writing a book about growing up among gangs and guns in the Bronx.
Then he was threatened by something else: a credit card bill, student and car loan debt, higher gas bills and rising rent. With two high school age children in need of clothing and school supplies and a toddler in need of much more, it didn’t take very long for Sanchez’s optimism to fade. That’s when he decided to do what any financial planner would advise against: He dipped into his 401(k) retirement plan.
Dalton Conley, a sociologist at NYU, has an op-ed in today’s New York Times arguing that something novel has happened to the life of leisure: it isn’t very leisurely anymore. “[I]t is now the rich who are the most stressed out and the most likely to be working the most. Perhaps for the first time since we’ve kept track of such things, higher-income folks work more hours than lower-wage earners do.”
Conley hypothesizes that this intriguing development is the result of greater disparity in incomes at the top end of the scale — what he calls an “economic red shift.” That is, the richer you are, the faster people at the wealth level just above you seem to be pulling away. Combine that with the fact that people usually define their socioeconomic status in relative terms — i.e., how they compare to the Joneses — and you have an explanation for why hours increase with income. Or, as Conley puts it, at higher income levels, “the opportunity cost of not working is all the greater ( … since the higher we go, the more relatively deprived we feel).” Continue reading “Lawyers and the Economic Red Shift”
Cross Posted on: Workplace Prof Blog
Apparently, they should not expect one in 2009 (or maybe not in this lifetime).
U.S. workers can expect skimpy raises in their base salaries next year, but top performers may still fatten their paychecks with merit compensation.
A study released Tuesday by Hewitt Associates, a human resources consulting firm, found base pay will rise by 3.8 percent in 2009, marking the seventh consecutive year of flat growth.
One-time performance-based pay, however, is expected to grow by 10.6 percent. That’s down slightly from 10.8 percent this year and 11.8 percent in 2007.
Great. On our way to more pay inequality in this country and to a place where workers will have to wait longer before being able to afford retirement (Yahoo! News via AP): Continue reading “Can A Worker Get a Break?”
The Seventh Circuit has an interesting new sentencing decision, United States v. Carter, which nicely illustrates the impact of the Supreme Court’s decision last year in Gall v. United States. Robert Carter, the husband of defendant Virginia Carter, embezzled money from his insurance business over several years. There is no indication that Virgina Carter participated in the embezzlement, but she likely had some knowledge of what was going on. Eventually, for reasons that are unclear, she sought a divorce. Following the advice of her lawyer, who did not know that much of the family income was illegal, Carter attempted to take control of the couple’s liquid assets by transferring them into her own individual bank accounts. Normally, this would be a sound tactical move in a divorce setting, but, by virtue of the criminal origin of the assets, Carter thereby became a money launderer. Following conviction, she faced a recommended sentence of 87-108 months in prison under the federal sentencing guidelines. Continue reading “A Galling Case in the Seventh Circuit”
Cross posted at Workplace Prof Blog:
Michael Connolly (Univ. of Surrey (UK)) provides this not-so-good news for disability rights advocates from across the pond. Michael’s analysis, “The House of Lords Narrows the Meaning of Disability-Related Discrimination,” appears in Green’s Employment Law Bulletin (Emp LB 2008 Issue 86 August 2008 1-5 ISSN 1352-2159) and is available on Westlaw.
Blogging among legal academics was for a long time virtually unheard of, the province of a few (seemingly oddball) hobbyists. Then, with the remarkably successful efforts of Brian Leiter, Stephen Bainbridge, Prawfsblawg, Concurring Opinions, Moneylaw, and many others, legal-academic blogging became more mainstream. While the extent of blogging’s utility is still debated, and while blogging still remains a gratuitous undertaking rather than a formal faculty duty, blogging’s potential as a medium for serious legal discourse can no longer be doubted. Outside of law, blogging’s success has led some organizations to consider recognizing blogging’s value in an official way: by making it mandatory. Will law schools follow suit? Can and if so under what circumstances should law faculty be expected to blog as part of their formally defined duties? Continue reading “Teaching, Scholarship, Service … and Blogging? Decanal Encouragement of Law Faculty Blogging”
My colleague Matt Parlow has a new article suggesting that real estate developers are becoming more sensitive to environmental concerns. The article, “Greenwashed: Developers, Environmental Consciousness, and the Case of Playa Vista,” appeared as part of a terrific symposium issue of the Boston College Environmental Affairs Law Review on “The Greening of the Corporation.” (The entire issue is available here.) Matt’s article centers on a fascinating case study of Playa Vista, an enormous (and enormously controversial) mixed-use development project in Los Angeles near environmentally sensitive wetlands.
As Matt relates in the abstract to his article, he finds the Playa Vista saga to be a hopeful one: Continue reading “Real Estate Development and Environmental Consciousness”
Welcome to the Marquette University Law School faculty blog. While I cannot guarantee similar longevity, this new undertaking calls to my mind the launch some 92 years ago of the Marquette Law Review. On the opening page of the journal it was maintained that “the institution which would expand and fulfill its mission must make known its ideals and communicate its spirit.” W.A. Hayes, Foreword, 1 Marq. L. Rev. 5 (1916). At that time it was clear that “[t]he most effective way of doing both is by means of a suitable magazine.” Id. Today Marquette Law School, which is expanding and fulfilling its mission in impressive and unprecedented ways, requires in addition to the Marquette Law Review (as well as our other journals and the Marquette Lawyer alumni magazine) other “effective way[s]” to make known our ideals and communicate our spirit. I believe that this blog will be one such, as it will highlight our talented and thoughtful faculty and others associated with the Law School. I commend Professor Michael M. O’Hear, our new (and first) Associate Dean for Research and Managing Editor of the blog, upon his leadership of this effort, and I look forward to both reading and contributing to the blog. I invite all with a stake in Marquette Law School and in law and public policy, especially in this region, to be frequent visitors.