Wisconsin Law Review

Volume 2020, No. 3

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Essays: The New Realism in Business Law and Economics: Introduction by Claire A. Hill, Frequent Filer Shareholder Suits in the Wake of Trulia: An Empirical Study by Sean J. Griffith, Bias, Identity and M&A by Afra Afsharipour, The Fallacy of Director Independence by Yaron Nili, Repetition, Ritual, and Reputation: How Do Market Participants Deal with (Some Types of) Incomplete Information? by Claire A. Hill, Complete Contracts in Finance by Elisabeth de Fontenay, Path Dependence, Information, and Contracting in Business Law and Economics by Robert Anderson IV, Transformation Cost Engineering by Matthew Jennejohn, Boilerplate Semantics: Judging Natural Language in Standard Deal Contracts by Jeremy McClane, Revising Boilerplate: A Comparison of Private and Public Company Transactions by Robert E. Scott, Stephen J. Choi, & Mitu Gulati, Beyond Internal and External: A Taxonomy of Mechanisms for Regulating Corporate Conduct by Ann M. Lipton

2019 News of the School

Volume 2020, No. 2

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Keynote Lecture: Eight Futures of the Nondelegation Doctrine by Andrew Coan

Essays: Eighty Years of Federalism Forbearance: Rationing, Resignation, and the Rule of Law by Gil Seinfeld, Rationing the Constitution vs. Negotiating It: Coan, Mud, and Crystals in the Context of Dual Sovereignty by Erin Ryan, Judicial Capacity, Causation, and History: Next Steps for the Judicial Capacity Model by David S. Schwartz, Comparative Capacity and Competence by Eric Berger, Justifying Judicial Modesty by Stuart Chinn, Gerrymandering and Judicial Incapacity by Edward L. Rubin, Judicial Capacities by Jane S. Schacter, Docket Control, Mandatory Jurisdiction, and the Supreme Court’s Failure in Rucho v. Common Cause by Carolyn Shapiro, What Do Constitutional Law Professors Do? by David Fontana, Rations and Takings by Carol M. Rose, Leaving the Land of Easy Answers: Regulatory Takings, Rucho and the Nature of Constitutional Analysis by Neil Komesar, Extra-Judicial Capacity by Miriam Seifter, A Republic, If the Courts Can Keep It? by Laurence Claus, Baller Judges by Jon D. Michaels

Volume 2020, No. 1

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Articles: Affirmative Action as Transitional Justice by Yuvraj Joshi, Eminent Domain Law as Climate Policy by Alexandra B. Klass, Administrative Reasonableness: An Empirical Analysis by Alyse Bertenthal

Development is Not a Dinner Party: A Hurstian Perspective on Law and Growth in China

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Much has been written, and remains to be written, about the many roles law has played in China’s economic development since 1978. Without minimizing the value of what has been written so far, this essay seeks to broaden the discussion by applying to China’s recent history certain ideas of the great historian of nineteenth century American law and economic development, James Willard Hurst. The essay proceeds by providing a brief introduction to Hurst and his work on law and economic growth in the United States, then explores how those ideas might be applied to assist our understanding of what has happened in China.

The Political Significance of the Wisconsin School of Contracts

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The Wisconsin school of contracts is one of the most important scholarly contributions to the understanding of contracting practices and contract law from the second half of the twentieth century to the present. As part of the broader law and society movement in which Wisconsin scholars played a major part, it shifted focus from law-in-books to law-in-action and brought to light the importance of relationships and the limits of law as central elements of contract in society. As summarized by Stewart Macaulay and William Whitford:

To us, as we use it in connection with contract law, it expresses a widespread interest of how in fact, as opposed to in theory, statutory law and case precedent come into being; how people and businesses use contracts to manage their lives; how disputes in the performance of contracts arise and are settled; and how the resolution of disputes affects the parties to the disputes and influences future parties to contracts.

Vaccines in the Time of COVID-19: How Government and Businesses Can Help Us Reach Herd Immunity

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The COVID-19 pandemic continues to wreak havoc on American society. Public health experts agree that the best way to end it is with the development and implementation of a safe and effective vaccine program, and government, private industry and not for profit organizations have already committed billions of dollars towards this end. This Essay will examine three possible approaches that government and businesses can take to increase the likelihood that enough Americans are immunized against the SARS-CoV-2 coronavirus to achieve herd immunity.

Wisconsin’s Law of Negligence is Inherently Incompatible with the Restatement— So Why Does the Court Regularly Adopt Restatement Provisions?

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This essay proposes that Wisconsin’s formulations of duty and causation are unique and fundamentally incompatible with the Restatement (Second) of Torts. Part I offers a theory of Wisconsin negligence. It tracks the historical roots of Wisconsin’s negligence framework and distinguishes Wisconsin’s approach from jurisdictions that follow the Restatement by examining two famous cases, The Wagon Mound and the “exploding lamp” case.1

Part II considers two recent Wisconsin Supreme Court decisions and argues that in each case, the Court applied sections of the Restatement that were incompatible with Wisconsin law. These cases are microcosms of a larger debate among the justices questioning whether duty should be handled differently in cases of negligent omissions as opposed to negligent acts. This essay proposes that nearly a century of settled law resolves this debate, and that Wisconsin’s unique negligence analysis is strong enough to answer any difficult questions that come before it. When the Wisconsin Supreme Court resolves complicated cases by adopting unnecessary sections of the Restatement, it places the doctrinal integrity of Wisconsin’s negligence framework at risk. Judges would be wise to avoid the Restatement (Second) of Torts altogether.

College Football in the Time of COVID-19

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Thomas A. Baker III, Marc Edelman, & John T. Holden

The COVID-19 health crisis and resulting “stay at home” orders have led to newfound challenges for commercial sports leagues concerning how to safely and ethically conduct games during such uncertain times. For professional sports leagues, including Major League Baseball, the National Basketball Association, the National Football League, and the National Hockey League, many of the decisions about how to return to sport have entailed collectively-bargained negotiations between league owners and players’ unions. However, in collegiate sports, where the players are not unionized, these decisions are made unilaterally by colleges on either the individual school, conference, or national level—all without any meaningful player input. This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.

In Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19

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Nizan Geslevich Packin

The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.