Volume 2016, No. 1

 

Table of Contents

Address

All in the Family: A Legacy of Public Service and Engagement— Edward and Thomas Fairchild

R. Nils Olsen, Jr.

Rarely in life can you say that your first experience was your best. For my part, however, although my clerkship with Tom Fairchild was my first position as a lawyer, it was also the best experience in an otherwise privileged legal career. This is why I have chosen to focus on Judge Fairchild’s life and experiences. However, recognizing the unique family tradition of judicial and public service of the father-and-son combination of Edward and Thomas Fairchild, perhaps matched in Wisconsin history only by the achievements of the La Follettes, I will consider the lives and accomplishments of both men.


Articles

Religious Discrimination Based on Employer Misperception

Dallan F. Flake

This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer’s misperception of an employee’s religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual’s actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer’s intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory text is ambiguous, but the legislative history, EEOC guidance, and the broader federal antidiscrimination regime all support recognition of misperception-based religious discrimination claims under Title VII.

The Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc. further confirms the validity of such claims, as the Court held that Title VII liability is premised on an employer’s discriminatory motive, not its actual knowledge of an individual’s religious practices. Thus, if an employer’s motive is the touchstone for liability, it matters not whether an employer accurately perceives an employee’s religion, so long as religion motivates the adverse employment decision.

The New Lochner

Amanda Shanor

Commercial interests are increasingly laying claim, often successfully, to First Amendment protections. Once the mainstay of political liberty, the First Amendment has emerged as a powerful deregulatory engine—and one with great implications for modern governance. This Article identifies that development as a growing constitutional conflict between the First Amendment and the modern administrative state and analyzes its origins and implications.

The Article traces two opposing trends that have led to that constitutional conflict. A business-led social movement has mobilized to embed libertarian-leaning understandings of the First Amendment in constitutional jurisprudence. At the same time, administrative regimes have moved away from command-and-control regulation towards lighter-touch forms of governance that appear more speech-regulating.

The stakes of this conflict are high. Because nearly all human action operates through communication or expression, the First Amendment possesses near total deregulatory potential. For that reason, I argue that the First Amendment operates as the fullest boundary line of constitutional state action.

I identify the unique features of this modern form of constitutional deregulation—which I call the new Lochner—by interrogating the parallel drawn by a growing number of scholars and judges between recent First Amendment jurisprudence and Lochner v. New York’s liberty of contract.

The Article explores linkages between theories of the First Amendment and administrative law, and it analyzes the implications of the First Amendment’s deregulatory turn for understandings of democratic legitimacy, choice, and constitutional change. I argue that the new Lochner must be rejected because advocates of its deregulatory vision are forwarding a concept of liberty that has no limiting principle and, if taken to its analytical conclusion, would render self-government impossible.


Commentary

Go Directly to Jail, Do Not Pass Go, Do Not Collect $200: Improving Wisconsin’s Pretrial Release Statute

Tiffany Woelfel

Over the years, the population within Wisconsin’s jails has significantly increased. This population is not just those serving sentences, but rather the majority of individuals in jails are in pretrial detention, awaiting their trial. Pretrial detention has significant consequences for both the individual and the community.

However, judges receive very little guidance about what factors to consider when determining whether to release an individual or impose restrictions on that release. Because of this, many individuals are being unnecessarily detained before trial. Wisconsin’s current pretrial release statute is cumbersome and confusing. It requires a judge to consider a multitude of factors without providing any guidance about how to consider those factors.

Pretrial risk assessments are tools that help judges make better decisions about who can safely be released before trial. A pretrial risk assessment considers the important factors for safe release and weighs them according to how greatly they predict a successful release. By updating Wisconsin’s pretrial release statute and requiring that a pretrial risk assessment be performed, Wisconsin can safely increase the number of individuals released before trial, increase the support to judges when making release decisions, decrease the jail population, and save millions of dollars.