Volume 2008, No. 1


Snapshots from the Seventh Circuit: Continuity and Change, 1966–2007

By Hon. Diane P. Wood

The Fairchild Lecture, University of Wisconsin Law School, April 27, 2007


Nonprosecution Agreements as Contracts: Stolt-Nielsen and the Question of Remedy for a Prosecutor’s Breach

By Sarah Baumgartel

This Article explores the possible remedies available to a corporate defendant when a federal prosecutor violates an existing nonprosecution or immunity agreement. The United States Court of Appeals for the Third Circuit recently considered this issue in Stolt-Nielsen, S.A. v. United States, ruling that a company could not obtain an injunction preventing its indictment based on a previously negotiated immunity agreement. This decision accorded with the prior analysis of other courts in that it considered the question of remedy from the perspective of constitutional rights, weighing a defendant’s due-process rights against the executive’s prosecutorial discretion. A better approach would be to analyze these agreements as contracts and consider the responsibilities and rights of each party to the agreement on the basis of traditional contract-law principles. With this orientation, it is clear that, contrary to the findings of the Third Circuit, companies have strong legal arguments in favor of a preemptive injunction, and there is no separation-of-powers bar to a court granting such relief.


Agency Preemption and the Shimer Analysis: Unmasking Strategic Characterization by Agencies and Giving Effect to the Presumption against Preemption

By Karen A. Jordan

Significant federalism concerns are raised when state products-liability actions are preempted by federal regulatory schemes. For example, the FDA has recently taken the position that its approval of the labels on prescription drugs preempts civil tort claims grounded in a manufacturer’s failure to warn. Using the FDA’s recent stance on the issue of preemption, this Article demonstrates that federal agencies can engage in strategic characterization by pointing to Congress as the source of preemption, rather than the agency itself. In doing so, agencies avoid political and judicial scrutiny of agency action. This Article proposes that courts use a more realistic, totality-of-the-circumstances approach when deciding whether Congress or an agency is the source of preemption. Further, the Article demonstrates that properly identifying a case as one of preemption by the agency can result in a type of hard-look review of the agency’s decision to preempt. Use of a hard-look review can serve as a proxy—in cases of agency preemption—for the presumption against preemption that is used in all other categories of preemption analysis.


Fish on Morphine: Protecting Wisconsin’s Natural Resources through a Comprehensive Plan for Proper Disposal of Pharmaceuticals

By Teirney Christenson

Scientific research on the harmful effect of pharmaceuticals on fish and other aquatic life in Wisconsin’s surface water has raised concerns over proper disposal of unused and expired pharmaceuticals. However, current regulations frustrate, rather than encourage, environmentally safe disposal methods. This Comment proposes a comprehensive regulatory scheme that will promote environmental stewardship while taking into account the concerns of all parties involved. Ultimately, these proposed changes will provide a safer environment for Wisconsin’s aquatic life, protect Wisconsin’s groundwater from potential pollution, reduce the cost of proper disposal for health-care facilities, and provide vital medications to those who cannot afford them.


The Implications of State ex rel. Thomas v. Schwarz for Wisconsin Sentencing Policy after Truth-in-Sentencing II

By Brenda R. Mayrack

This Note explores how the Wisconsin Supreme Court’s recent decision in State ex rel. Thomas v. Schwarz will impact the future of the state’s sentencing policy after Truth-in-Sentencing II. The Thomas decision demonstrates the court’s continued willingness to shape the state’s sentencing policies after Truth-in-Sentencing I (TIS I) and Truth-in-Sentencing II (TIS II)—both to repair ambiguous or unconstitutional statutory provisions and to advance the judicial branch’s interests in efficiency and continued authority over criminal penalties. Thomas fits squarely into the growing TIS jurisprudence, following recent decisions in State v. Tucker, State v. Trujillo, and State v. Stenklyft.

Thomas has returned one offender to prison, exposed other offenders to more prison time, and ensured that the DOC will continue to treat consecutive parole and extended-supervision sentences as one continuous Ashford sentence. On another level, Thomas may shift the balance of power among the three branches of government in determining which branch shapes future sentencing policy. This will depend largely on the legislature’s response, if any, to the court’s decision. If the legislature does not act to amend TIS II, the court’s role in TIS II litigation will continue as it has in Thomas, Tucker, Trujillo, and Stenklyft. If the legislature does act to amend TIS II, the court will likely continue to have to interpret and clarify any subsequent sentencing legislation passed by the legislature. Either way, after Thomas, the Wisconsin Supreme Court will continue to play a major role in determining the future of the state’s sentencing policies after TIS II.