Volume 2012, No. 5



PDF link An Invisible Union for an Invisible Labor Market: College Football and the Union Substitution Effect

By Michael H. LeRoy

Should college football players have collective bargaining rights? The National Collegiate Athletic Association’s (NCAA) contractual relationship with student-athletes provides scholarships while limiting the athletes’ earnings. This model is premised on the belief that players are amateurs. But this view is contradicted by the heavy commercialization of NCAA football. Meanwhile, football players do not receive enough aid to pay their full cost of attending school. This Article theorizes that college football players participate in an invisible labor market, where the NCAA is a monopsony purchaser of their labor and strictly allocates these market inputs to regulate competitive balance between schools.

I propose a unique and limited form of collective bargaining for college football that is consistent with the NCAA’s amateur athlete model. This proposal does not involve wage negotiations or strikes, but allows players to bargain over scholarship shortfalls, extended or improved educational benefits, complete medical and hospital insurance for football-related injuries, long-term disability insurance for injuries such as brain trauma, transfer and eligibility rights not inconsistent with NCAA rules, and a grievance process to challenge abusive treatment by coaches and administrators. This proposal also draws from industrial relations research on the “union substitution” effect, which shows that when employers face a credible threat of unionization they provide more voice and benefits to employees. If state or federal lawmakers proposed this type of representation for college football players, this would be enough to stimulate a robust union substitution effect—that is, the NCAA would likely be pressured to provide players a voice in their own affairs and be more responsive to their own concerns.

PDF link Gaining Assurances

By Julia Y. Lee

This Article explores alternative legal mechanisms for solving a type of coordination problem known as the Assurance Game. The traditional approach has been to focus on changing the expectations of the parties. This Article focuses on altering the underlying payoff structure—not through sanctions, but through risk-reducing mechanisms such as guarantees.

One type of risk-reducing mechanism is the conditional money-back guarantee. Conditional money-back guarantees operate in settings ranging from federal deposit insurance to daily deal websites such as Groupon and LivingSocial. In each of these, a promise is made to return an individual’s monetary contribution if an event or condition that depends on the actions of others is met. The condition may be (1) the reaching of a predetermined threshold, or (2) the happening of some event. This Article examines both types of conditional money-back guarantees and analyzes factors that may impact their effectiveness.

PDF link Federal Circuit Patent Precedent: An Empirical Study of Institutional Authority and Intellectual Property Ideology

By David R. Pekarek Krohn & Emerson H. Tiller

In this Article, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, the Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they are pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) on patent law than they treat the regional circuits (compared to the Supreme Court) on copyright law. Second, the Federal Circuit’s precedent tends to be relied on more in pro-patent opinions than in anti-patent opinions. In addition, both of these effects are stronger in how the district courts use the precedent—i.e., how many times precedent is cited—than in what higher court precedent is used.


PDF link Let the Master Answer: Why the Doctrine of Respondeat Superior Should Be Used to Address Egregious Prosecutorial Misconduct Resulting in Wrongful Convictions

By Alisha L. McKay

Prosecutorial misconduct is a known cause of wrongful convictions, yet prosecutors enjoy absolute immunity when working within their official capacities. Furthermore, municipalities generally cannot be held responsible for the misdeeds of their employees, including prosecutors. This is true even when the misdeeds of employees involve egregious prosecutorial misconduct that results in a wrongful conviction. Ethical guidelines and the possibility of criminal sanctions have long been touted as sufficient control mechanisms for promoting prosecutorial accountability. These methods, however, are not sufficient and do not allow redress for those individuals who are wrongfully convicted due to prosecutorial misconduct.

The doctrine of respondeat superior should be available to hold municipalities liable for the acts of prosecutors engaged in egregious or intentional misconduct. In addition to the current and proposed measures aimed at increasing prosecutorial accountability, the use of respondeat superior is part of a viable solution aimed at reducing prosecutorial misconduct as a contributing factor in wrongful convictions. Furthermore, the use of the doctrine aligns with the underlying justifications of vicarious liability and provides a remedy for those wrongfully convicted as a result of egregious prosecutorial misconduct.

PDF link Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2

By Kristen Irgens

2011 Wisconsin Act 2, an omnibus tort reform bill, made the most substantial changes to Wisconsin’s civil litigation system in over sixteen years. Historically, Wisconsin paved the way for legal innovation by creating unique legal doctrine and by refusing to accept other majority or federal approaches. Prior to Act 2, such innovative law included a relevancy standard for expert opinion testimony and a strict products liability standard based on what a reasonable consumer would contemplate. Act 2 completely reshaped these two areas of law to relieve Wisconsin businesses’ fears of excessive litigation.

The purpose of Act 2 was to make Wisconsin “open for business” by shielding businesses from liability, thus incentivizing them to increase profits and hire employees. The sea change made to Wisconsin’s strict products liability law seemingly complies with Act 2’s goals. It implements a stricter reasonable-alternative-design standard that makes it more difficult to recover from defective products injuries. Additionally, four Wisconsin Supreme Court justices expressed a desire to adopt this more exacting test for strict products liability. But the judiciary branch did not anticipate additional safeguards such as affirmative defenses, a strict statute of repose, or a provision that will remove more Wisconsin cases to federal court, which may ultimately make it more difficult for plaintiffs to recover.

The “open for business” purpose of these legislative changes, however, failed to consider its effects on all areas of law. Specifically, Act 2’s new expert opinion testimony standard applies to all actions, civil and criminal. This effect on criminal law does not necessarily comport with Act 2’s goals. The Wisconsin State Legislature replaced the decades-old relevancy test for expert opinion testimony with the federal reliability standard based on the Daubert trilogy. The Wisconsin Supreme Court repeatedly rejected the Daubert standard because it was concerned with taking fact-finding functions away from the jury and adding expenses and time for trial judges and the state. Additionally, the legislature’s actions may have violated the separation of powers by imposing the Daubert test upon Wisconsin courts despite their contrary will.

Wisconsin’s strict products liability and expert opinion testimony standards have undergone a sea change. These changes, however, are not completely debilitating or out of step with widely accepted standards. Additionally, Act 2 may also be more of an ideological change than a substantive change because it has not greatly affected litigation practice in Wisconsin. This Comment first examines the law prior to Act 2 and the impetus for change. It then fleshes Act 2’s changes and its practical implications. This Comment then proposes how practitioners and trial judges should interpret and implement these new standards in ways that will comport with legislative intent and simultaneously safeguard judicial efficiency and the right of plaintiffs to sue. It concludes that Act 2’s sweeping changes will change Wisconsin’s legal atmosphere in some respects but will not dramatically impact its civil justice system.