Wisconsin Law Review Forward is an online only publication intended to move conversations in legal academia forward by providing a forum for the quick publication of topical and timely pieces that would otherwise be delayed by our production schedule for print issues. Many of our online pieces are short response pieces to larger pieces published in our print edition and all are shorter works commenting on larger topics in legal academia.
Recent Articles
2024 Articles
Conscription of Private Attorneys to Represent Indigent Criminal Defendants in States and Territories
This year marked the sixtieth anniversary of Gideon v. Wainwright, the seminal case in which the Supreme Court of the United States held that the Sixth and Fourteenth Amendments to the Constitution guarantee a right to court-appointed counsel to indigent criminal defendants charged with serious offenses. Very few would argue with that basic proposition today. Instead, the contemporary debate is whether to recognize a “civil Gideon,” i.e. a right to court-appointed counsel for indigent civil litigants.
September 11, 2024Taxing Vulnerable Children and Families Through Stategraft: It is Time to End Racialized Wealth Extraction in Foster Care
As unjust and counterproductive public policies go, taxing vulnerable children and families is among the worst. For years, experts have been sounding the alarm that foster care “child support”—making parents pay the state when it takes away their children—is bad family policy and fiscal policy. Importantly, critics have also pointed to the myriad ways the practice is unlawful. New guidance from the federal government to the states provides a generational opportunity to dismantle this form of stategraft in the foster care system. In this Case Study we highlight promising legislative and administrative responses to the recent federal guidance.
June 22, 2024Using the U.S. Department of Justice to Help End Juvenile Stategraft
In 2013, Berkeley Law’s Policy Advocacy Clinic began working with local advocates to study juvenile administrative fees. We found that these fees were a form of regressive and racially discriminatory wealth extraction often imposed unlawfully on youth and families across California. As part of a statewide campaign to abolish juvenile fees, we turned to the United States Department of Justice for help fighting these illegal and harmful practices in Sacramento County.
June 22, 2024Unraveling Stategraft: Ending Criminal Administrative Fees in California
In California, like every other state, courts charge administrative fees to people who come into contact with the criminal legal system. As recently as 2020, California authorized over 90 different criminal administrative fees. Since 2019, a coalition of advocacy groups known as Debt Free Justice California have pushed legislation to reduce that number in half by successfully raising questions about the legal and policy rationales for wealth extraction via monetary sanctions like fees.
April 22, 2024Race, the Criminal Legal System, and Stategraft: The California Racial Justice Act (2020)
After decades of unabated growth in mass incarceration, the number of incarcerated adults began to decline following the Great Recession. Changes in sentencing, policing, pre-trial diversion, and the recategorization of offense levels, among other strategies, helped reduce the number of persons under carceral control. While the lifetime risks of incarceration and imprisonment have declined from all-time highs, the routine imposition of monetary sanctions (fines, fees, court costs, penalty assessments, etc.) have continued to proliferate in the criminal legal system. The imposition of these monetary sanctions represents an immediately recognizable form of stategraft. In this essay, we argue that mass incarceration, and its attendant racial disparities in sentencing, is a form of stategraft that, in some cases, illegally transfers predominantly Black, Latine, and poor white bodies from control of oneself to control of the state. In doing so, the state appropriates the differential time and labor-power of persons under carceral control to illegally profit from racial inequality in mass incarceration and sentencing disparities.
April 22, 2024Automated Stategraft: Faulty Programming and Improper Collections in Michigan’s Unemployment Insurance Program
A consistent critique about public benefits programs is the idea that they may be ripe for fraud. To combat this concern, states contract with third-party companies to develop coding for their programs to weed out potential bad actors. However, disasters have followed public benefits programs’ attempts to create and use automated systems to process claims across the country, especially in the unemployment insurance context. But the very efforts aimed at fraud prevention can create fraud. What follows is a Case Study of one of the more egregious examples of this counter-intuitive truth in Michigan. Automation of state UI systems may have been applied with good intentions, yet punitive rules, an utter lack of oversight, and a naïve faith in technology have left more state-initiated fraud in its wake than had ever actually existed before the program. Michigan was among the first states to “modernize” their entire unemployment insurance system through a contract with a third-party company. As a result of over-calibrated, faulty algorithmic programming, the system wrongly charged tens of thousands of claimants as “fraudsters” and billed and collected exorbitant amounts of money that the state had no evidence was actually owed.
April 22, 2024
2023 Articles
A Case of Alleged Stategraft in Nevada: Stephen Lara v. State of Nevada, et al.
Stategraft, a term coined by Professor Bernadette Atuahene, occurs when governments and government actors supplement their funding by illegally charging individuals. This illegal extraction can be intentional or unintentional, but its impact remains the same: a systemic funneling of funds that belong in the hands of residents into government pockets. Former U.S. Marine Stephen Lara’s case is an instance of alleged stategraft because the practice of ‘equitable sharing’ between state and federal agencies resulted in the allegedly illegal seizure of thousands of dollars from Mr. Lara by the state agency.
November 26, 2023Recent U.S. Supreme Court Decision Shows that the Dormant Commerce Clause Does Not Preclude Wisconsin Fair Dealership Law Damages for Sales beyond State Borders
Twenty-five years ago, in Morley-Murphy Co. v. Zenith Electronics Corp., the Seventh Circuit warned that courts should not construe the Wisconsin Fair Dealership Law (WFDL) to authorize lost-profits damages arising from sales anticipated outside of Wisconsin, lest doing so raise constitutional concerns under the so-called dormant Commerce Clause. Some commentators and litigants have questioned the basis for this warning. Even though no state or federal court has ever fully adjudicated the issue, courts have continued to heed the Morley-Murphy warning. The U.S. Supreme Court’s recent decision in National Pork Producers Council v. Ross should trigger reconsideration of the Seventh Circuit’s past suggestion. The Ross decision reaffirms the centrality of an antidiscrimination principle to dormant-Commerce Clause doctrine and clarifies that, absent a showing of purposeful discrimination against out-of-state businesses, the dormant Commerce Clause should not prohibit enforcement of the WFDL, even beyond the borders of Wisconsin.
November 14, 2023Emerging Technology’s Language Wars: Smart Contracts
Work at the intersection of blockchain technology and law represents a highly interdisciplinary area of inquiry. Often, researchers, law-makers, lawyers, and other stakeholders unnecessarily debate issues because of linguistic misunderstandings. As the third of four studies examining the impact of clashes of linguistic meaning on law and policy around emerging technologies, this Essay uses smart contracts as a case study to demonstrate the real legal harm that arises from a failure to communicate. Specifically, this Essay uses techniques from corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates as to whether the law should “accommodate” smart contracts. This Essay’s approach also further contributes evidence that corpus linguistics might be particularly effective as a tool for identifying linguistic ambiguities before they are embedded in law, rather than as a tool for resolving ambiguities after the fact. In the smart contract context, resolving such ambiguities early frees law to focus on the interesting and new issues the technology actually presents, rather than ineffectively future-casting for a use case most of industry does not actually seek to develop.
March 6, 2023
2022 Articles
A Window of Opportunity to Regulate Addictive Technologies
We spend large parts of our days on screens. Often more than we intend to. Screen time has increased steadily for over a decade, even before the Covid-19 pandemic. This is no coincidence. Reports leaking from Silicon Valley revealed that tech companies used manipulative designs to extend users’ time on screens. The internet economy’s business model relies on extending user time online to collect more data and target more advertising at users. This Article aims to answer why regulators did not intervene for years to protect users, especially children, from the harms of excessive screen time. It does so by developing law and technology theory to examine what influences the creation and breadth of windows of opportunity to regulate new technologies. Specifically, it identifies three factors that can obstruct the creation of meaningful windows of opportunity: (i) the invisibility of the technology; (ii) rapid entrenchment of norms and business interests; and (iii) social and institutional resistance to early intervention. The article also offers insight into how the occurrence of mega-historical events can reopen windows of opportunity by shaking up entrenched norms and practices. The Article sheds light on how a window of opportunity to regulate addictive technologies failed to originally materialize, while re-opening later. First, the technology design that made screens addictive was invisible. As a result, users did not notice that their time online was gradually extended. By the time that public reports raised awareness of the technology addiction and overuse problem, both user norms and business interests were deeply engrained. Screens permeated practically every aspect of everyday lives. And, the primary business model of the internet economy relied on maximizing user time. Second, U.S. regulators generally resist early intervention, particularly of information technology and the Internet. Unsurprisingly, they opted for a wait-and-see approach in addressing technology overuse. Finally, the Article argues that the Covid-19 pandemic was a mega-historical event that created a window of opportunity to tackle the technology overuse problem. While the pandemic exacerbated the problem by significantly increasing screen time, it also made the technology visible. People realized how much time they spent on screens and how it affected them. This realization, coupled with increasing scientific evidence of the harms of technology overuse, created a window to regulate addictive technologies.
November 21, 2022Making Sense of Legal Disruption
What does it mean for technology to disrupt law? Several possibilities come to mind. The first is that disruption refers to reshuffling some feature of the prevailing social order, destabilizing the balance of power and rights under prior law. Social impacts like these are instrumental to legal disruption—they often precipitate legal action to reverse or entrench the new status quo—but focusing on social impacts tells us little about the role or response of law itself. The second possibility is disruption in the sense of challenging and changing substantive legal doctrine. This is perhaps the most popular and intuitive usage, and certainly a core concern for legal scholars. To define disruption this way, however, sweeps in too much. Change is an expected feature of a functional legal system rather than an indicator of anything remarkable. One might try to reserve the disruption label for particularly sudden changes or difficult doctrinal problems, but this solution invites further line-drawing questions. This framing of legal disruption is also incomplete: it begs for an account of why some doctrinal challenges prove more difficult than others. This essay introduces a third possibility grounded in institutional analysis. By this account, legal disruption arises when technological change presents problems that are difficult to resolve through standard processes of making, enforcing, and updating the law. It arises fundamentally from the mismatch between the questions presented and the capabilities of existing legal institutions along the dimensions of authority, competence, and legitimacy. This account of disruption provides a schema for understanding how the difficulty of resolving techlaw problems extends beyond questions at the level of doctrine.
November 13, 2022Overprotecting: A Comment on Professor Krishnan’s LODE Model for Immigration Hearings
In this short comment, I raise two concerns regarding the implementation of Professor Krishnan’s model. The first is that the LODE model’s analogy to the discretionary interlocutory appeal is imperfect, and the imperfection is not merely technical, but rather involves the very heart of the reason for such interlocutory appeals: it is difficult to see how the LODE model will actually produce appellate rulings that could potentially shorten or terminate the underlying hearing. Instead, the LODE model seems likely only to create delay while the appellate court decides, based on an incomplete record, whether the rest of the immigration hearing will involve record development by the immigration judge. The second concern is that the LODE model puts the appellate court into the position of having to decide (again, on an incomplete record) whether the noncitizen’s lawyer is inept or incompetent. Such a ruling could have far-reaching implications on any potential ineffective assistance of counsel claim brought by a noncitizen who loses at the hearing.
September 7, 2022Willard Hurst, Technological Change, and the Transformation of American Public Law
The University of Wisconsin’s James Willard Hurst was arguably the most significant legal historian in the United States. Hurst not only launched the so-called “new” legal history as an alternative to traditional constitutional narrative, but he also founded the interdisciplinary field of “law and society” more generally. And Hurst is most famous for some of his more general observations about the relationship between economic development and the growth of American law. As Lawrence Friedman put it, “[O]n the general question of the relationship between law and the economy, the pioneer work of J. Willard Hurst is still a fundamental starting point. . . .” Much of that work concerned the nineteenth century and law’s role in what Hurst talked about as “the release of creative energy.”
July 11, 2022Demystifying Mindreading for the Law
A few summers ago, I was playing in the yard with my kids. I noticed my 3-year-old son pinching the tops off the red lilies we had planted, which were just starting to bloom. I told him to stop. He immediately froze and blurted out “it was an accident!” I surveyed the scene. There were eight decapitated lilies in a row. Eight. I pressed him. “So, you are saying it was an accident, eight times?” He looked down, and then off into the horizon. The jig was up. He furrowed his brow—wondering how I could possibly know it had been intentional. I told him that we generally do not repeat the same movement, accidentally, eight times. He was mystified that I could have known his private thoughts. I told him that he was already developing the ability to read other people’s minds, and it would improve as he got older. He looked at me in awe, as if I had some superpower. But it’s one of the most basic things we humans do. This sort of mindreading—where we look beyond the actual words spoken, to discern someone’s true thoughts through their eye gaze, affect, expressions, character, demeanor, and any other cues—is an essential part of our social lives. By aggregating lots of information about other people’s mental states, past behavior, character (and unfair stereotypes), we decide whether they should be praised, condemned, or forgiven.
May 3, 2022Parking Meters: A Roadblock In Chicago’s Ability To Transform Its Streets
The public safety need for social distancing during the COVID-19 pandemic spurred the City of Chicago to begin reimagining its public right of way. One program of particular success was the City’s “Make Way for Dining” program initiated in the summer of 2020. This program created temporary outdoor “Café Streets” and pedestrianized roadways for dining and shopping to support a reeling restaurant industry due to forced closures and prohibitions on indoor dining. The City’s plan to help revive the local economy did come at a cost, however, as the City’s Transportation Commissioner, Gia Biagi, acknowledged that “street closings might require the [C]ity to compensate the consortium that leases Chicago parking meters for any taken out of service.”
March 6, 2022
2020 Articles
Vaccines in the Time of COVID-19: How Government and Businesses Can Help Us Reach Herd Immunity
The COVID-19 pandemic continues to wreak havoc on American society. Public health experts agree that the best way to end it is with the development and implementation of a safe and effective vaccine program, and government, private industry and not for profit organizations have already committed billions of dollars towards this end. This Essay will examine three possible approaches that government and businesses can take to increase the likelihood that enough Americans are immunized against the SARS-CoV-2 coronavirus to achieve herd immunity.
November 15, 2020Wisconsin’s Law of Negligence is Inherently Incompatible with the Restatement— So Why Does the Court Regularly Adopt Restatement Provisions?
This essay proposes that Wisconsin’s formulations of duty and causation are unique and fundamentally incompatible with the Restatement (Second) of Torts. Part I offers a theory of Wisconsin negligence. It tracks the historical roots of Wisconsin’s negligence framework and distinguishes Wisconsin’s approach from jurisdictions that follow the Restatement by examining two famous cases, The Wagon Mound and the “exploding lamp” case.1 Part II considers two recent Wisconsin Supreme Court decisions and argues that in each case, the Court applied sections of the Restatement that were incompatible with Wisconsin law. These cases are microcosms of a larger debate among the justices questioning whether duty should be handled differently in cases of negligent omissions as opposed to negligent acts. This essay proposes that nearly a century of settled law resolves this debate, and that Wisconsin’s unique negligence analysis is strong enough to answer any difficult questions that come before it. When the Wisconsin Supreme Court resolves complicated cases by adopting unnecessary sections of the Restatement, it places the doctrinal integrity of Wisconsin’s negligence framework at risk. Judges would be wise to avoid the Restatement (Second) of Torts altogether.
October 13, 2020College Football in the Time of COVID-19
Thomas A. Baker III, Marc Edelman, & John T. Holden
July 28, 2020
The COVID-19 health crisis and resulting “stay at home” orders have led to newfound challenges for commercial sports leagues concerning how to safely and ethically conduct games during such uncertain times. For professional sports leagues, including Major League Baseball, the National Basketball Association, the National Football League, and the National Hockey League, many of the decisions about how to return to sport have entailed collectively-bargained negotiations between league owners and players’ unions. However, in collegiate sports, where the players are not unionized, these decisions are made unilaterally by colleges on either the individual school, conference, or national level—all without any meaningful player input. This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.In Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19
Nizan Geslevich Packin
July 5, 2020
The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.