Volume 2023, No. 6

PDF link Table of Contents


PDF link Reining in Recusals

Justin C. Van Orsdol

As the spotlight on the Supreme Court shines brighter, the public has become increasingly aware of judicial misconduct and ethical issues. This increased awareness has also exposed the judiciary’s less-than-stellar record on handling such issues. Of these ethical issues, recusal decisions are a prominent cause for concern—especially in today’s hyper-politicized world.

When or whether to recuse is a sensitive and important question most judges are bound to face. Although some statutory guidance exists, that guidance is far from a model of clarity. Even where statutory guidance is facially clear, recusal problems still persist due to benign and technological errors, or—in some cases—a fundamental misunderstanding of what the statutes require.

PDF link Unconstitutional Police Pretexts

Nadia Banteka

This Article unearths the pernicious effects of pretextual policing on civil rights and democratic principles. The Fourth Amendment’s pretext doctrine has faced widespread criticism for enabling police to shield the real reasons for searches and seizures from constitutional scrutiny. In its ruling on Whren v. United States, the Supreme Court established that police actions, not their motivations, are the relevant factor in determining the constitutionality of searches and seizures. As a result, police can use ostensibly legal justifications as a cover for unconstitutional conduct. This Article breaks new ground by arguing that pretextual policing extends beyond searches and seizures. It reveals a broader alarming phenomenon in which police use existing laws as a pretext to avoid accountability and expand the state’s carceral power.

PDF link Can’t Get It out of My Head: Trade Secrets Liability for Remembered Information

Timothy Murphy

The earliest trade secrets cases recognized that intentional memorization of trade secret information for the purpose of misappropriating that information should be redressable in a trade secrets action. However, courts did not distinguish between information that was intentionally memorized versus information that was inadvertently remembered. In the early days, trade secrets law was characterized by unfair competition approaches whereby liability would be found only if there was some improper act by the misappropriator. This approach was solidified in the Restatement (First) of Torts, which conditioned misappropriation liability upon a knowledge requirement. The knowledge requirement continued in the later statutory period, but courts applied it inconsistently and sometimes not at all. This Article develops a taxonomy of remembered information and uses the taxonomy in conjunction with cognitive science to suggest that misappropriation liability should not attach in many cases of remembered information because the employee’s state of mind would preclude a finding that the knowledge requirement was met.


PDF link Imperfect Precedent: Applying the Proper Perspective to Copyright

James M. Twieg

Copyright law only works when it successfully balances two objectives: incentivizing authors to produce creative works and ensuring the public has access to enjoy those works. Technology has advanced significantly since passage of the Copyright Act of 1976, and both the dramatic expansion of the internet and digitization of creative works have repeatedly challenged the law in pursuing those ends. The internet has presented a fundamental question to courts who must decide whether to view conduct through the lens of the virtual reality of the internet or the physical reality that allows the internet to function. This seemingly innocuous decision, often made without significant consideration of the differences, is sometimes decisive for a case.


PDF link Disrupting the Jail-to-Deportation Pipeline in Wisconsin

Ben Levey

Most deportations of noncitizens living in Wisconsin involve violations of state law. In Wisconsin—and across the country—the majority of noncitizens who face deportation proceedings do so after coming into contact with the criminal legal system. When Immigration and Customs Enforcement (ICE) learns that a potentially removable noncitizen is in criminal custody, it issues a request, known as an ICE detainer, to law enforcement personnel to hold that person until ICE agents can detain them. Most Wisconsin law enforcement agencies comply with these requests, and several Wisconsin sheriffs have entered into agreements with ICE, known as Section 287(g) agreements, to take on additional immigration enforcement duties.

This Comment argues that such cooperation is unlawful. Holding someone on an ICE detainer constitutes an arrest. Under Wisconsin law, the power to arrest must come from a state statute, and no state statute authorizes arrests for civil immigration violations. Therefore, Wisconsin law enforcement agencies may not comply with ICE detainers because there is no state law authority to do so. The aforementioned Section 287(g) agreements are likewise unlawful. Per the Immigration and Nationality Act, Section 287(g) agreements must be consistent with state law. Wisconsin law does not authorize detainer compliance, an integral component of the state’s Section 287(g) agreements. The agreements currently operational in Wisconsin are therefore inconsistent with state law and thus invalid. Moreover, these agreements were entered improperly.

PDF link If It Walks Like a Duck: Revisiting the National Labor Relations Board’s Political Subdivision Test

John Chick

For almost ninety years, the National Labor Relations Act (NLRA) has protected the rights of most private sector workers to form and join a union and to collectively bargain. But what does it mean to be a private sector worker? The question is simple enough on its face. A municipal clerk, for example, is clearly a public sector worker, and a stockbroker is likewise a private sector worker. But is a teacher at a publicly funded charter school run by a private non-profit a private sector worker? Is a nurse at a semi-privatized state hospital which receives no public funding a public sector worker?

The NLRA itself provides no guidance for these questions, leaving them for the National Labor Relations Board (NLRB) and the federal judiciary to resolve. To that end, the NLRB has routinely relied on a two- pronged test outlined in the 1970s to determine whether an employer is a “political subdivision” and therefore exempt from NLRA coverage. While the test is simple, it over emphasizes certain characteristics as dispositive and downplays or ignores other important considerations.

PDF link Cleaning up the Opioid Crisis: Emerging Public Nuisance Liability in Opioid Litigation

Stephen Goettsche

As the opioid crisis wages on and overdose deaths soar to record highs, communities across the nation struggle to address the devastating impacts. Meanwhile, tribal, state, and local governments have filed thousands of lawsuits that seek to hold pharmaceutical companies liable for funding programs to abate the crisis. Among other claims, the plaintiffs allege that the opioid industry—manufacturers, distributors, and pharmacies—caused a public nuisance through the oversupply of prescription opioids. These claims are a novel application of public nuisance law.

Between November 2021 and August 2022, the protracted opioid lawsuits finally delivered five decisions. The public nuisance claims achieved mixed results. Courts in Oklahoma and West Virginia rejected the claims as a matter of law. In a state court in California, the plaintiffs failed to meet their burden of proof. But federal courts in California and Ohio found the opioid industry defendants liable under public nuisance law. What accounts for these varied and conflicting outcomes?