County Executive Candidates: Trying to Establish Their Identities

The new guy. The outsider. The insider. The legislator in line with Scott Walker. The former legislator critical of Scott Walker.

A crucial part of running for office, especially when you’re not a household name, is establishing an identity in the minds of the general public. The most interesting part of watching the first joint appearance of the five candidates for Milwaukee County Executive last week was not in the position statements and answers the five gave. It was in how they tried to identify themselves.

The session, held in the Appellate Courtroom of Eckstein Hall and moderated by Mike Gousha, the Law School’s distinguished fellow in law and public policy, was co-sponsored by the Law School and the Milwaukee press Club. A full house of about 200 was on hand and the session was broadcast later on television.

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Will the NLRB Change Its Position on Captive Audience Speeches?

This is the question that Paul Secunda considers in a new paper, “The Future of NLRB Doctrine on Captive Audience Speeches.” Under established doctrine, employers may require employees who are contemplating unionization to attend meetings at which speeches opposed to unionization are presented.  However, the National Labor Relations Board has recently undergone some significant membership changes that could conceivably lead to reconsideration of the “captive audience” doctrine.  Paul’s paper describes how this reconsideration might come about and discusses potential outcomes.  His conclusion:

I believe the Board will likely not prohibit all captive audience meetings as I believe they could, and should, do under current law.  Rather, the Board is likely to engage in a more restrained approach based on already-existing doctrines and cases given the Board’s desire to avoid the misimpression that it is merely engaging in politically-motivated flip-flopping.

Paul’s paper was part of a symposium at Indiana University-Bloomington on labor and employment law under the Obama Administration.  The abstract appears after the jump.

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Interstate Travel and Marriage

As Professor Idleman alerted our Constitutional Law course last year, there’s nothing like the posture of a criminal defendant challenging a law’s constitutionality. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (plaintiff who was charged but not indicted under Texas’ sodomy laws unsuccessfully sues attorney general in action seeking to declare laws unconstitutional) with Lawrence v. Texas, 539 U.S. 558 (2003) (criminal defendants’ charges expunged when sodomy laws declared unconstitutional). Sure the passage of time had more than a little to do with the diverging outcomes in Bowers and Lawrence — but the criminal defense posture didn’t hurt.

A criminal defendant and a plaintiff encounter necessarily inconsistent judicial receptions. Put simply, the claim of one who faces the cruel stigma of criminality — where his or her prospective jail time flows in part from a voter-initiated constitutional amendment — will receive a more exacting hearing than a civil complaint filed by an unjailed plaintiff, disgruntled on the losing side of that same amendment’s enactment.

Because Lawrence declared unconstitutional all sodomy laws, however, how could a gay American be criminalized?

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