Volume 2008, No. 3


The Proper Role of Courts: The Mistakes of the Supreme Court in Leegin

By Lance McMillian

Separation of powers matters. Accordingly, each branch of the federal government should remain faithful to its institutional role. However, in the 2007 case of Leegin Creative Leather Products v. PSKS, Inc., the United States Supreme Court betrayed this founding principle. In Leegin, the Court disturbed nearly one hundred years of antitrust jurisprudence by overruling Dr. Miles Medical Co. v. John D. Park & Sons Co. At first blush, Leegin might seem an odd threat to the principle of separation of powers. An antitrust decision, it hardly qualifies as a sexy topic for legal scholars or other observers. Still, Leegin remains a remarkable decision because of the Court’s blithe disregard of fairly clear congressional intent. The issue before the Court centered on the question of whether minimum-resale-pricing agreements between manufacturers and distributors should be considered per se illegal. Dr. Miles said yes; Leegin said no. This disagreement is hardly remarkable. The Court frequently reverses its prior precedent.

The twist in Leegin, though, is that Congress expressly endorsed the Dr. Miles rule. In passing the Consumer Goods Pricing Act of 1975, Congress clearly indicated its policy preference that the practice of vertical price-fixing should remain unlawful. It is axiomatic that responsibility for framing economic policy for the nation rests with Congress and the President, not the Supreme Court. Nevertheless, in the field of antitrust, because of the Sherman Act’s broad generalities, the Court has always had more leeway to fill in the blanks left open by Congress. But this freedom to fill the void when faced with legislative silence does not give legitimacy to the Court taking the next step, namely, substituting its own judgment over a contrary judgment of Congress. And this next step is exactly the path the Court traveled in Leegin. This Article explains the mistakes made by the Court in embarking on this journey. Moreover, this Article discusses the perils that follow when the Court decides it is accountable to no branch but itself.

The Immoral Application of Exclusionary Rules

By Todd E. Pettys

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an impermissible manner. Forcing jurors to take responsibility for a verdict based on a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech on the basis of fears about what that speech might cause citizens to believe or about how that speech might cause citizens to behave. Drawing on the work of Jeremy Bentham, Immanuel Kant, Thomas Scanlon, and others, this Article contends that a court infringes on jurors’ autonomy in a morally problematic way when it refuses to admit relevant, readily available evidence. This Article argues that the infringement is especially troubling because jury service is a vital component of the American system of self-government, a domain in which citizens’ autonomy interests are particularly strong.

This Article focuses on three major exclusionary rules: the rule barring the admission of relevant evidence believed to pose a risk of unfair prejudice, the rule barring the admission of relevant hearsay, and the rule barring the admission of relevant character evidence when offered to prove how a person behaved on a particular occasion. This Article contends that, while there are occasions when applying these rules is morally permissible, the existing rules sweep far too broadly, infringing on jurors’ autonomy in ways that cannot be morally justified.


Wisconsin’s Public-Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records

By Leanne Holcomb & James Isaac

Under Wisconsin’s public-records law, the public is permitted access to the actions of government officials in order to act as an effective check on government power and give force to the democratic system. This policy translates into the legal right of inspection by any person of any public record, absent express exceptions under the law. Over the last three decades, however, statutes have not kept pace with technological advancements that have dramatically transformed public records, threatening the presumption of complete public access. The emergence of electronic documents as the preeminent record of government activity has complicated the application of existing public-records law to records-retention practices and the disclosure of public records. As e-mail illustrates, primary electronic documents are often capable of being “deleted,” but not in the traditional sense of this term. This difference begs the question whether deleted e-mail, and other deleted electronic documents like it, belongs to the public record and should be disclosed upon request. This Comment argues for an answer in the affirmative.

Additionally, the creation of each primary record in electronic form includes numerous unseen secondary records, such as metadata, that do not accompany traditional paper records. While secondary records are unintentionally created, they nonetheless provide a considerable amount of information about the creation and history of the record, information that is sometimes of great use to the requester and arguably in line with the existing statutory definition of record. Wisconsin needs to address these electronic-records issues in order to maintain an up-to-date and relevant public-records law. This Comment therefore suggests adapted statutory language and continued judicial recognition of electronic documents’ peculiarities, aiming to modernize the public-records law and provide a solid platform from which the legislature can address inevitable technological advances in the future.

A “Simple” Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin’s Statutes for Probate Summary Procedures

By Mark T. Johnson

Piecemeal changes to the Wisconsin probate summary procedures have unintentionally shifted the burdens and risks associated with settling small estates. For example, summary settlement and summary assignment, which were intended to be simple and straightforward, have fallen into disuse because they are cumbersome and confusing. On the other hand, transfers by affidavit are easy to use, but misuse is a risk, especially when estates up to $50,000 are at stake. In addition, recent litigation and controversy demonstrate the uncertainty in the current probate-summary-procedure options.

This Comment analyzes the current Wisconsin probate-summary-procedure statutes and examines recent controversies and confusions. To explore alternatives, this Comment considers the Uniform Probate Code, responses from attorneys and county officials, and legislative drafting style. Finally, this Comment offers principles and proposals for revising the Wisconsin statutes to renew the usefulness of this niche of the probate code.

An Analysis of Recent Tax Reforms from a Marital-Bias Perspective: It Is Time to Oust Marriage from the Tax Code

By Wendy Richards

As the American family dynamic continues to change, the tax code should change to reflect current population demographics. The tax treatment of marriage contrasts sharply with the actual role that marriage currently plays in society. The recent tax reforms took steps toward alleviating the burdens created by the marital bias but did little to address the bias itself. Accordingly, fundamental reform is necessary. With so many American families functioning without a marriage certificate, it is time for the tax code to stop classifying families on the basis of marriage.