Volume 2018, No. 6

PDF link Table of Contents


PDF link Its Own Dubious Battle: The Impossible Defense of an Effective Right to Strike

by Ahmed White

One of the most important statutes ever enacted, the National Labor Relations Act envisaged the right to strike as the centerpiece of a system of labor law whose central aims included dramatically diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. These goals have never been more relevant. But they have proved difficult to realize via the labor law, in large part because an effective right to strike has long been elusive, undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right to strike a cornerstone of labor law scholarship.

PDF link Insider Trading and the Integrity of Mandatory Disclosure

by James J. Park

Insider trading regulation has been primarily shaped by two theories. The first argues that unequal access to material information corrupts the integrity of securities markets. The second contends that insider trading misappropriates corporate property. The dominance of the market integrity and property frameworks has obscured an important reason to regulate insider trading—it can undermine the integrity of the disclosure mandated by the securities laws. Such disclosure is meant to benefit all investors and should not be exploited by a few. Insider trading is particularly problematic in a periodic disclosure system where the release of significant information is deliberately delayed so it can be analyzed and verified. This Article argues that protecting the integrity of mandatory disclosure is a compelling reason for insider trading regulation. This disclosure approach suggests clearer limits to the reach of insider trading law and enforcement than the market integrity and property theories.


PDF link Neither Seen nor Heard: Impeachment by Prior Conviction and the Continued Failure of the Wisconsin Rule to Protect the Criminal Defendant-Witness

by Alexander Straka

The evidentiary rule “impeachment by prior conviction” is grounded in the common law assumption that a person convicted of a crime is less credible than a person not convicted of a crime. It followed that convicted individuals testifying at trial may be impeached merely by their conviction record. In the wake of decades of research challenging the validity of the rule’s underlying assumption, as well as its utility, the federal government and at least a majority of states revised their evidentiary rules to protect the criminal defendant-witness from its prejudicial effect. Compared to the rest of the country, Wisconsin stood as a bulwark against any statutory revision or case law interpretation that would mitigate the prejudicial effect to the criminal defendant-witness.


PDF link Blurring the Denominator: Murr v. Wisconsin and the Increasing Complexity of Takings Analysis

by Andrew C. Gresik

Since the 1978 decision in Penn Central Transportation Co. v. New York City, courts in Fifth Amendment regulatory takings cases have sought to identify the “parcel as a whole” as the baseline definition of private property from which they determine whether or not a taking has occurred. While this so-called “denominator question” forms the core of takings analysis, the Supreme Court went decades without clearly articulating a standard for defining the parcel in question. Finally, in 2017 in Murr v. Wisconsin, the Court squarely addressed the denominator question. Alas, their answer provided little real clarity.

PDF link Death by Denominator: Reconsidering Constitutional Intra-State Deference in an Age of “Emergency Management”

by Collin Weyers

Michigan’s “Local Financial Stability and Choice Act” (PA 436) empowers state-appointed “emergency managers” to take outright control of local governments for a period of at least eighteen months, upon a finding of a “financial emergency.” In the case of Phillips v. Snyder, the United States Court of Appeals for the Sixth Circuit rejected, among other claims, arguments that PA 436 violated the Fourteenth Amendment by infringing upon the voting rights of the constituents and taxpayers of these local governments. The Sixth Circuit found “there is no fundamental right to have local officials elected” and rejected strict scrutiny. The Sixth Circuit clarified that while the Fourteenth Amendment protected the “right to vote on an equal footing with other citizens in a given jurisdiction,” to its mind, the relevant “jurisdiction” was simply each municipality where citizens complained of a voting rights infringement. Finding the citizens of cities challenging PA 436 could vote “on an equal footing” with others in their city, the Sixth Circuit upheld the law, applying only rational basis review.