University of Wisconsin Law School Faculty Scholarship Collection
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University of Wisconsin Law School Faculty Scholarship Collection
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The University of Wisconsin Law School Faculty Scholarship Collection is designed as a digital home for all scholarly articles and publications that the UW Law School Faculty and Staff have written.
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Faculty Scholarship
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The Democracy Principle in State Constitutions
Item Type:Journal ArticleCitation:Miriam Seifter & Jessica Bulman-Pozen, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859 (2021).Date:2021-03Abstract:In recent years, antidemocratic behavior has rippled across the nation. Lameduck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few. This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted—and have been repeatedly rewritten and amended—to empower popular majorities. In text, history, and structure alike, they express a commitment to popular sovereignty, majority rule, and political equality. We shorthand this commitment the democracy principle and describe its development and current potential. The Article’s aims are both theoretical and practical. At the level of theory, we offer a new view of American constitutionalism, one in which the majoritarian commitment of states’ founding documents complements the antimajoritarian tilt of the national document. Such complementarity is an unspoken premise of the familiar claim that the federal Constitution may temper excesses and abuses of state majoritarianism. We focus on the other half of the equation: state constitutions may ameliorate national democratic shortcomings. At the level of practice, we show how the democracy principle can inform a number of contemporary conflicts. Reimagining recent cases concerning electoral interference, political entrenchment, and more, we argue that it is time to reclaim the state constitutional commitment to democracy. -
Constructing Separate and Unequal Courtrooms
Item Type:Journal ArticleCitation:Ion Meyn, Constructing Separate and Unequal Courtrooms, 63 Ariz. L. Rev. 1 (2021).Date:2021Abstract:Federal reform transformed civil and criminal litigation in the early 1940s. The new civil rules sought to achieve adversarial balance as it afforded litigants, virtually all white, with powerful discovery tools. In contrast, the new criminal rules denied defendants, often litigants of color, any power to discover information. Instead, the new criminal rules emboldened the prosecutor to bring charges and control what facts to withhold from or share with the defendant. An essential feature of the criminal template’s design—to insert a white gatekeeper with unreviewable discretion who could distribute benefits and burdens across racial lines—was an established Jim Crow strategy to maintain the racial order. This Article explores the significance of drafting the rules of procedure within the social and political forces of Jim Crow. In this assessment, the Article finds that the most influential of the criminal template’s authors embraced Jim Crow norms: one lectured that Black people were predisposed to criminality; one authored a state supreme court decision that opined whites, but not Black people, had respect for the law; and one issued judicial opinions lauded by segregationists. This Article contends that federal reform, deeply influenced by the entrenched norms of the time, wrote race into procedure and contributed to the construction of separate and unequal courtrooms. The Article finally observes that our state and federal courtrooms still operate pursuant to key features of this Jim Crow blueprint. -
Taking Access Seriously
Item Type:Journal ArticleCitation:BJ Ard, Taking Access Seriously, 8 Tex. A&M L. Rev. 225 (2021).Date:2021Abstract:Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms. So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive. These decisions—where the courts refused to enforce copyright where the owners attempted to shut down a market rather than participate in it—have been criticized for their unclear policy guidance and lack of doctrinal grounding. We can reconcile these cases with copyright policy by focusing on access. These cases provide rich examples showing how expanded access advances copyright’s higher-order goals of promoting a more democratic and participatory culture. Focusing on access also provides a means for bringing doctrinal coherence to these cases through the fair-use defense. The courts permitted the use of copyrighted works in new markets despite the copyright owners’ objections because these markets could expand public access without diminishing the copyright industries’ creative incentives. Indeed, copyright owners often found the markets profitable after being forced to enter them. Copyright owners’ market refusal in these scenarios is a distinct type of market failure, and fair-use doctrine allows courts to correct it. -
Rethinking the role of personal connections in the Russian labor market: getting a job as a law graduate in Russia
Item Type:Journal ArticleCitation:Kathryn Hendley, Rethinking the role of personal connections in the Russian labor market: getting a job as a law graduate in Russia, Post-Soviet Affairs (Jan. 21, 2021), https://www.tandfonline.com/doi/full/10.1080/1060586X.2021.1874768.Date:2021-01-21Abstract:This article explores the entry-level legal job market based on a survey of graduating full-time Russian law students fielded in 2016. The findings contradict the prevailing assumptions about the post-Soviet labor market that connections trump experience. They show that law-graduate respondents placed little value on the contacts of friends and family. Regression analysis confirms that personal self-confidence and experience are much stronger predictors of success on the job market. -
Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring
Item Type:Journal ArticleCitation:Jason Webb Yackee, Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring, 2020 Wis. L. Rev. 1199 (2020).Date:2020Abstract:Can universities legally employ race- and sex-based preferences in faculty hiring? This Article explores the history, law, and practice of faculty-related affirmative action, tracing its origins back to several largely forgotten legal challenges brought in the early 1970s concerning universities’ blatant discrimination against women. Since that time, universities have developed hiring schemes that are typically hidden from public view and steer certain minority and female faculty candidates into special hiring processes. These special processes, called “Target of Opportunity Programs” (TOPs), create faculty positions for which candidates are identified on the basis of race and sex and for which candidates from non-preferred demographics cannot apply. The legality of TOP searches is rarely discussed openly on campus. While some have suggested that the Supreme Court’s diversity rationale in the admissions context permits preference-based faculty hiring, this Article shows that the diversity rationale translates poorly to the context of faculty hiring. Moreover, faculty hiring, unlike admissions, is regulated by a complex system of anti-discrimination norms in state law, federal employment law, and administrative regulations that appear to tightly constrain permissible employment-related affirmative action. This Article concludes that race- and sex-based preferences for faculty hiring are problematic; they are difficult to justify under the standard diversity rationale, and they seem to violate employment law and an Executive Order governing government contractors by creating the functional equivalent of race- and sex-based set asides. -
International Investment Law and Regulatory Governance
Item Type:Book SectionCitation:Jason Yackee, International Investment Law and Regulatory Governance, in Comparative Law and Regulation: Understanding the Global Regulatory Process 480 (Francesca Bignami & David Zaring, eds., 2016).Date:2016 -
The Regulatory State in East Asia
Item Type:Book SectionCitation:John Ohnesorge, The Regulatory State in East Asia, in Comparative Law and Regulation: Understanding the Global Regulatory Process 92 (Francesca Bignami & David Zaring, eds., 2016).Date:2016 -
Debating the Extent of Party/State Control Over Overseas Nonprofit Organisations: Charity Law Debates in China
Item Type:Book SectionCitation:Mark Sidel, Debating the Extent of Party/State Control Over Overseas Nonprofit Organisations: Charity Law Debates in China, in Debates in Charity Law 37 (John Picton & Jennifer Sigafoos, eds., 2020).Date:2020 -
Election Law in a Nutshell
Item Type:BookCitation:Daniel P. Tokaji, Election Law in a Nutshell (2013).Date:2013 -
Election Law in A Nutshell, 2nd Edition
Item Type:BookCitation:Daniel P. Tokaji, Election Law in a Nutshell (2d ed. 2017).Date:2017 -
From Registration to Recounts: The Election Ecosystems of Five Midwestern States
Item Type:BookCitation:Daniel P. Tokaji, Steven F. Huefner & Edward B. Foley, From Registration to Recounts (2007).Date:2007 -
The Coyotes of Carthage
Item Type:BookDate:2020Abstract:Dre Ross has one more shot. Despite being a successful political consultant, his aggressive tactics have put him on thin ice with his boss, Mrs. Fitz, who plucked him from juvenile incarceration and mentored his career. She exiles him to the backwoods of South Carolina with $250,000 of dark money to introduce a ballot initiative on behalf of a mining company. The goal: to manipulate the locals into voting to sell their pristine public land to the highest bidder. Dre arrives in God-fearing, flag-waving Carthage County, with only Mrs. Fitz’s well-meaning yet naïve grandson Brendan as his team. Dre, an African-American outsider, can’t be the one to collect the signatures needed to get on the ballot. So he hires a blue-collar couple, Tyler Lee and his pious wife, Chalene, to act as the initiative’s public face. Under Dre’s cynical direction, a land grab is disguised as a righteous fight for faith and liberty. As lines are crossed and lives ruined, Dre’s increasingly cutthroat campaign threatens the very soul of Carthage County and perhaps the last remnants of his own humanity. A piercing portrait of our fragile democracy and one man’s unraveling, The Coyotes of Carthage paints a disturbingly real portrait of the American experiment in action.This political thriller is the debut novel of UW Law Professor Steven Wright and is a work of fiction. -
Competing for Votes
Item Type:Journal ArticleCitation:Yaron Nili & Kobi Kastiel, Competing for Votes, 10 Harv. Bus. L. Rev. 287 (2020).Date:2020Abstract:Shareholder voting matters. It can directly shape a corporation's governance, operational and social policies. But voting by shareholders serves another important function-it produces a marketplace for votes where management and dissidents compete for the votes of the shareholder base. The competition over shareholder votes generates ex ante incentives for management to perform better, to disclose information to shareholders in advance, and to engage with large institutional investors. Traditional corporate law has looked to a variety of "market forces" as a means of curbing the agency costs of public corporations. Yet, for various reasons, these market forces are, at best, an incomplete answer to the agency costs associated with public corporations. This Article is the first to develop a theory of a new force that may have a better chance at curbing managerial entrenchment-the competition for votes. In a world where shareholder voting is becoming increasingly powerful, and where highly incentivized and sophisticated players, such as hedge funds, aggressively court the support offellow shareholders, the importance of active competition for votes cannot be understated. The Article empirically depicts the emergence of a vibrant competition for votes, outlines its major building blocks, and explains how to further facilitate its operation. The policy implications of our analysis are wide-ranging, casting new light on several hotly contested governance debates such as the legitimacy of dual-class shares, shareholder activism, the role of passive investors, and the role of proxy advisors. -
Shadow Governance
Item Type:Journal ArticleCitation:Yaron Nili & Cathy Hwang, Shadow Governance, 108 Calif. L. Rev. 1097 (2020).Date:2020Abstract:Corporations have something to say about some of the most important social and economic issues of our time-and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies comprising what we call "shadow governance." These non-charter, non-bylaw governance documents express a corporation's commitment to and process on issues as wide-ranging as campaign finance, environmental sustainability, and sexual harassment, but are largely overlooked by scholars and practitioners alike. This Article addresses that gap, revealing how shadow governance documents influence corporate decision-making and corporate behavior. This Article makes two contributions to the literature. First, it presents a descriptive account of the scope of shadow governance in the modern U.S. corporation. It analyzes a hand-collected dataset of shadow governance documents from companies listed in the Standard & Poor's 1500 (S&P 1500) to show the array of and variation in shadow governance documents. Second, this Article uses original interviews with directors and general counsels to show how shadow governance documents influence corporate decision-making. Among other things, these documents set the board's annual agenda, define the metes and bounds of boards' and committees'responsibilities, and memorialize the corporation's values. These are all exceptionally important corporate functions that are relegated to shadow governance documents, where shareholders and other corporate outsiders have little ability to effect change. This Article's exploration of shadow governance documents is both theoretically and practically important. Shadow governance documents are not just poorly understood they are also largely overlooked by scholars and practitioners. This Article's account has the potential to open a new field for scholarly research and to provide new strategies for those who wish to influence corporate behavior. -
Continuity or Change? The Role of Gender in Career Preferences for Young Russian Lawyers
Item Type:Journal ArticleCitation:Kathryn Hendley, Continuity or Change? The Role of Gender in Career Preferences for Young Russian Lawyers, 37 Wis. Int'l L.J. 249 (2020).Date:2020 -
Legal Education Failures, Spontaneous Bypasses, and the Reproduction of Hierarchy in Brazil: Some Preliminary Thoughts
Item Type:Journal ArticleCitation:David M. Trubek & Camila Alves, Legal Education Failures, Spontaneous Bypasses, and the Reproduction of Hierarchy in Brazil: Some Preliminary Thoughts, 6 J. Inst'l. Stud. 754 (2020).Date:2020 -
The Emerging Legal Architecture for Social Justice,
Item Type:Journal ArticleCitation:Louise G. Trubek & Luz Herrera, The Emerging Legal Architecture for Social Justice, 44 N.Y.U. Rev. L. & Soc. Change 355 (2020).Date:2020Abstract:Lawyers advocating for social change are now front and center in newspapers and social media. This Article discusses how a new breed of progressive lawyers envision social justice law practice today. These lawyers, who we refer to as 'critical lawyers,' are diverse in background, gender, ethnicity and race. They see law as a complex, contradictory tool rather than a necessary and sufficient route to justice. Their practices differ from the traditional nonprofit public interest firms of the earlier generation that assumed that making law and lawyers accessible would lead to justice. To highlight the differences, the Article discusses the law practices of Beyond Legal Aid, Law for Black Lives, and TIME's UP. Beyond Legal Aid is redesigning legal services to produce community partnerships. Law for Black Lives provides legal services to ensure greater equity in criminal procedures. TIME's UP is radically revising how women respond to sexual harassment at the workplace. These practices seek to democratize the use of law to advance social justice by developing community and client collaborations. They rely on revenue from many sources including client fees, small donations through on-line platforms, and volunteer expertise. They seek to develop structures that can provide sustainability, flexibility, and growth including nodes and networks models that allow linkages across varied practice sites. This new architecture requires support from a variety of sources, including law schools and peer support groups- all of which enable the sharing of ideas and innovations. -
Civil Society and COVID in China: Responses in an Authoritarian Society
Item Type:Journal ArticleCitation:Mark Sidel & Ming Hu, Civil Society and COVID in China: Responses in an Authoritarian Society, Nonprofit & Voluntary Sector Q. (Oct. 21, 2020), https://doi.org/10.1177/0899764020964596.Date:2020-10-21Abstract:Can civil society play a useful role in response to a pandemic like COVID-19 in a one-party state? We explore that issue based on the role of civil society and philanthropy in responding to COVID in China, where a large and innovative—and restricted— civil society and philanthropy sector has developed. Our preliminary findings are that while restrictive policies toward civil society significantly limit the role that civil society organizations and philanthropy can have in response to the pandemic, civil society still shows strength and vitality in emergency service, funding, volunteering, mutual aid, in-kind donations, and even policy advocacy. While the prospects for civil society in China are uncertain because of political restrictions before and during the COVID crisis, civil society continues to build capacity and show its capabilities to Chinese citizens and its governance institutions. -
Civil Justice for All
Item Type:ReportCitation:Tonya L. Brito et al., Am. Acad. Arts & Sci., Civil Justice for All (2020).Date:2020 -
Introduction to the Symposium on the American Convention on Human Rights and Its New Interlocutors
Item Type:Journal ArticleCitation:Jorge Contesse & Alexandra Huneeus 113 AJIL Unbound 351 (2019).Date:2019 -
Introduction to the Symposium on Non-State Actors and New Technologies in Atrocity Prevention
Item Type:Journal ArticleCitation:Larissa van den Herik & Alexandra Huneeus 113 AJIL Unbound 247 (2019).Date:2019 -
Who's Afraid of the Big Bad (Germline Editing) Wolf?
Item Type:Journal ArticleCitation:R. Alta Charo, Who's Afraid of the Big Bad (Germline Editing) Wolf?, 63 Persp. Biology & Med. 93 (2020).Date:2020Abstract:Germline genome editing has garnered dire predictions about its societal effects, but experience with other reproductive technologies should caution us about making extravagant claims. Amniocentesis was predicted to result in increased stigmatization of people born with Down syndrome, but in fact people with these conditions have been increasingly integrated into schools and workplaces. Artificial insemination by donor was predicted to result in women choosing to “optimize” their children, but in fact most women eschewed the offerings of the so-called “genius sperm bank,” and when choosing among donors, have tended to look for those who most resemble their husbands and partners. IVF was predicted to cause parents to view children as commodities, but no such change has been evidenced. Preimplantation genetic diagnosis was predicted to become widespread and used for an ever-increasing range of conditions, including those unrelated to serious disease or shortened life span, but this has not happened either. Critics of germline genome editing have argued that even if it were safe and effective, it would inevitably be abused by prospective parents who wish to improve upon what is already predicted to be a healthy outcome, and that this practice would become sufficiently widespread among those able to afford it that we would be creating a new genetic caste system. Before developing policy around such predictions, it is important to learn from the past. -
Rogues and Regulation of Germline Editing
Item Type:Journal ArticleCitation:R. Alta Charo, Rogues and Regulation of Germline Editing, 380 New. Eng. J. Med. 976 (2019).Date:2019-03-07 -
A Professional Standard for Informed Consent for Stem Cell Therapies
Item Type:Journal ArticleCitation:R. Alta Charo, A Professional Standard for Informed Consent for Stem Cell Therapies, 322 JAMA 1651 (2019).Date:2019-08-12 -
Human Organoids: a new dimension in cell biology
Item Type:Journal ArticleCitation:R. Alta Charo et al., Human Organoids: a new dimension in cell biology, 30 Molecular Biology Cell 1129 (2019).Date:2019-05-01Abstract:Organoids derived from stem cells or tissues in culture can develop into structures that resemble the in vivo anatomy and physiology of intact organs. Human organoid cultures provide the potential to study human development and model disease processes with the same scrutiny and depth of analysis customary for research with nonhuman model organisms. Resembling the complexity of the actual tissue or organ, patient-derived human organoid studies may accelerate medical research, creating new opportunities for tissue engineering and regenerative medicine, generating knowledge and tools for preclinical studies, including drug development and testing. Biologists are drawn to this system as a new “model organism” to study complex disease phenotypes and genetic variability among individuals using patient-derived tissues. The American Society for Cell Biology convened a task force to report on the potential, challenges, and limitations for human organoid research. The task force suggests ways to ease the entry for new researchers into the field and how to facilitate broader use of this new model organism within the research community. This includes guidelines for reproducibility, culturing, sharing of patient materials, patient consent, training, and communication with the public.