Marquette University Law School Faculty Blog

What’s in a “Like”?

Post author:Jesse Dill
Post published:August 14, 2012
Post category:Computer Law First Amendment Public

A big part of why I am so intrigued by social media and employment law is because of the extent of information people are willing to share with others about themselves through these mediums. One way this can be accomplished is through the “like” feature on Facebook. Facebook describes the “like” feature as “a way to give positive feedback or to connect with things you care about on Facebook.” Once someone hits the “like” button, a caption to the content indicates his or her positive affirmation.

Consumer Reports (p. 28, June 2012) recently featured the extent to which people “like” things on Facebook. A national survey of active Facebook adults revealed that over the previous 12 months, 4.7 million “liked” a page pertaining to health conditions or treatments, 2.3 million “liked” a page regarding sexual orientation, 7.7 million “liked” a page relating to religious affiliation, and 1.6 million “liked” a page pertaining to a racial or ethnic affiliation. I raise these statistics with employers when I talk about social media because these all relate to protected class statuses under the Wisconsin Fair Employment Act, Wis. Stat. § 111.31 et seq. Taking an adverse employment action after learning an individual liked such things as these may open the door to a charge of unlawful discrimination.

A recent decision out of the Eastern District of Virginia is bringing front and center questions concerning the significance of a “like” in a First Amendment context. In Bland v. Roberts, 11CV0045 (E.D. Va. Apr. 24, 2012), several deputy sheriffs claimed they were unlawfully fired for supporting the sheriff’s election opponents in an election the incumbent sheriff ultimately won. Two of the plaintiffs claimed that the retaliation was due, in part, to the fact that they expressed support on the election opponent’s Facebook page. The court found the only evidence of a “statement of support” was through each individual “liking” the challenger’s Facebook page. The court found that a “like” was not sufficient speech to support the plaintiffs’ freedom of speech retaliation claim. The court explained:

The Interstate Commerce Act: A Final Convocation

Post author:Joseph D. Kearney
Post published:August 13, 2012
Post category:Business Regulation Legal History Public

Earlier this year I observed the 125th anniversary of the Interstate Commerce Act, among the most important statutes that Congress has ever enacted. I allowed that a future issue of the Marquette Law Review would publish essays by a number of leading scholars concerning the Act and its legacy. With the summer issue of the Marquette Law Review now out, that future is now.

The remembrance is titled “125 Years Since the Interstate Commerce Act: A Symposium in the Form of a Final Convocation.” As I explain in my Foreword (“The Last Assembly of Interstate Commerce Act Lawyers”), the essays, collectively available at the link at the beginning of this paragraph, are by an impressive collection of scholars:

James W. Ely, Jr., the emeritus Milton R. Underwood Professor of Law and emeritus Professor of History at Vanderbilt University, recalls “The Troubled Beginning of the Interstate Commerce Act”;
Randal C. Picker, the Paul and Theo Leffmann Professor of Commercial Law at the University of Chicago Law School, writes of the interplay between the Act and the antitrust law enacted only three years later, in “The Interstate Commerce Act and the Sherman Act: Playing Railroad Tycoon”;
Thomas W. Merrill, who is Columbia University’s Charles Evans Hughes Professor of Law, discusses the unusual phenomenon of administered contracts in the Act’s regulatory scheme, suggesting that the form of regulation was more impressive than the fact (in “The Interstate Commerce Act, Administered Contracts, and the Illusion of Comprehensive Regulation”);
Paul Stephen Dempsey, Tomlinson Professor of Global Governance in Air & Space Law and Director of the Institute of Air & Space Law at McGill University, focuses on the ICC as an agency, taking us broadly from its creation to its demise, in “The Rise and Fall of the Interstate Commerce Commission: The Tortuous Path from Regulation to Deregulation of America’s Infrastructure”;
Richard D. Cudahy, Senior Judge of the U.S. Court of Appeals for the Seventh Circuit (whose scholarly and judicial career was recently celebrated by the Yale Journal on Regulation, but no link is available), points us to the future, sketching the possible relevance of the Interstate Commerce Act’s paradigm for modern debates over regulation (“The Interstate Commerce Act as a Model of Regulation”); and
James B. Speta, Professor of Law at Northwestern University (and my fellow editor of this symposium), concludes the project with a critical assessment of the Act’s pertinence in an area—namely, telecommunications—with almost as much importance to the twenty-first century as the railroads (which the Act was passed to control) possessed in the nineteenth: “Supervising Discrimination: Reflections of the Interstate Commerce Act in the Broadband Debate.”

Most of these essays are short, and each is an engaging assessment of an act whose legacy can be felt today, not only in the general fact of the administrative state whose creation began with the Interstate Commerce Act but also in specific debates (as Prof. Speta demonstrates) about regulation today. We invite you to read the essays.

Of Paul Ryan and Buggy Whips

Post author:Edward A. Fallone
Post published:August 13, 2012
Post category:Business Regulation Political Processes & Rhetoric Public

First of all, I have to admit that my prediction was wrong. I predicted that Paul Ryan would not be the Republican nominee for Vice President in 2012. My reasoning was simple: I didn’t believe that Mitt Romney would risk being overshadowed by his running mate on questions of economic policy. However, Mitt Romney did indeed choose Paul Ryan as his running mate late last Friday, thus demonstrating that he is comfortable running for President on a fiscal blueprint that is known as “The Ryan Plan” rather than “The Romney Plan.”

The selection of Paul Ryan immediately transforms the presidential race, turning it from an up or down referendum on President Obama’s performance into a choice between two starkly different views of economic policy. The Republican Party, which proudly labels itself a “brand,” will now embark on an effort to sell a plan that includes tax cuts for the wealthiest Americans, reductions in monies spent on programs that benefit low income Americans, and the acceptance of unrestrained budget deficits because defense spending is left untouched. The sales pitch is that this combination will lead to a faster economic recovery. The question is whether anyone will buy what they are selling.