Recent UW Law School Faculty and Staff Scholarship

Here is the latest faculty and staff scholarship from the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • “Realizing the Promise of Padilla Through a Law School/Public Defender Collaboration”
    2015 Wisconsin Law Review 339

    The Supreme Court’s 2010 decision in Padilla v. Kentucky thrust the issue of the immigration consequences of crime into the legal limelight. The Court held that the Sixth Amendment’s guarantee of effective assistance of counsel requires defense counsel to provide their noncitizen clients with specific advice regarding immigration consequences. Deportation, the Court found, is a uniquely severe penalty that is “intimately related to the criminal process,” and that, for many noncitizens, is the most important potential consequence of the criminal process. Suddenly, defense attorneys found themselves deputized as the first line of defense against deportation for their noncitizen clients. By “plea bargain[ing] creatively,” the Padilla Court explained, counsel may be able “to craft a conviction and sentence that reduce the likelihood of deportation.” Widely hailed as a landmark decision – a “Gideon for immigrants” – Padilla’s promise has proved elusive in practice, particularly in the realm of indigent defense. Implementing Padilla has proven a daunting challenge for defender offices across the country given the complexity of the law, the lack of lawyers with the appropriate expertise, and the already stretched financial and personnel resources of indigent defense offices.

  • “Tax-Exempt Hospitals & Their Communities”
    6 Columbia Journal of Tax Law 33

    Hospitals in the U.S. have long been able to obtain exemption from federal income tax because they meet the requirement known as the standard of “community benefit.” Yet lawmakers and scholars know virtually nothing about the actual workings of tax-exempt hospitals, or about whether, how, and to what extent they deliver benefits to their communities. Within the last five years, however, IRS tax return forms have started asking hospitals to quantify these benefits, as well as to give detailed information about their financial practices with respect to their patients. These new questions coincide with new requirements for tax-exempt hospitals put in place as part of 2010’s health care reform bill, the Affordable Care Act. The new tax return data offers a first-time opportunity to evaluate the workings of tax-exempt hospitals from the perspective of both the traditional requirements for tax-exempt hospitals and the 2010 reforms of the Affordable Care Act. This Article analyzes data from all tax-exempt hospitals in the U.S. in 2012 to show that tax-exempt hospitals differ widely in their provision of community benefits (and financial practices). In particular, these activities vary systematically in relation to their different notions of “community” and the characteristics of the communities where the hospitals are located. This evidence demonstrates that tax-exempt hospitals seem to be responding to the specific needs of their own communities when allocating their resources among different community-benefit activities. The data show, in addition, that while tax-exempt hospitals are generally adopting the financial policies that Congress and the IRS are requesting, hospital financial aid policies also vary by community. These findings raise several fundamental questions for lawmakers and tax policy scholars in the era of the Affordable Care Act. In particular, the findings suggest that lawmakers need to grapple seriously with how they allow tax-exempt hospitals to define their communities. For example: is it appropriate for tax-exempt hospitals merely to benefit a narrowly defined community or should they operate in terms of a broader understanding of community? In light of the new data presented, this Article considers these questions and outlines several alternatives to the “community benefit” standard to address them.

  • “Jean Braucher’s Contracts World View”
    Arizona Law Review, Vol. 58, No. 1, 2016, Forthcoming

    Drawing from 14 contracts articles by the late Professor Jean Braucher (which are listed in the Appendix), I restate the structure of her thought about contract law. Subheadings in the article are: (1) The Law in Action; (2) Contracts are Relational, and Doctrinal Law is Marginal; (3) The Social Significance of Contract Doctrine is Largely Symbolic; (4) The Market is Not Perfect: There is Room For Regulation; (5) Government Works, but Not Always; (6) What Kind of Regulation; (7) When Cases Do Get to Appellate Courts, How Should Judges Behave?; (8) A Few Additional Observations.

  • My Time (1967-69) at the Faculty of Law, University of Dar Es Salaam”
    Zanzibar Law Yearbook, 2015, Forthcoming

    A personal account of my time (1967-69) on the Faculty of Law,University of Dar es Salaam. At the time the Faculty of Law was the only law school in Eastern Africa. The Faculty struggled with formulating a curriculum appropriate to the existing circumstances and governing political values. Ultimately the curriculum drafted was not adopted,largely because it was seen as overly influenced by expatriate members of the Faculty of Law.

  • “Transatlantic Investment Treaty Protection”
    CEPS Special Report No. 102, March 2015
    by JASON W. YACKEE et al.

    This paper presents an informal cost-benefit analysis of the inclusion of investment protection provisions, including investor-state arbitration, in an investment chapter in TTIP. The analysis is conducted from the perspective of the EU and its member states. It argues that there is little evidence to suggest that investor-state arbitration will provide the EU with meaningful benefits, such as increased foreign investment from the US. In contrast, investor-state arbitration may impose non-trivial costs, in the form of litigation expenses and reduced policy space. This is due to the huge volume of US investment that would be covered by the investment chapter, as well as the fact that an investment chapter would almost certainly give foreign investors greater rights than they currently enjoy under EU and member state law. We conclude that, from the perspective of the EU, the case for including investor-state arbitration in TTIP is weak. Although we do not conduct a cost-benefit analysis from the perspective of the US, such an analysis would likely raise similar issues.

  • “The Development of Contracts: Law in Action”
    Temple Law Review, Vol. 87, 2015, Forthcoming

    This article explains the history of the materials (long unpublished) that became the contracts casebook: Macaulay et al., Contracts: Law in Action. In the early years we worked closely with Ian Macneil, another pioneer of relational contract thinking. And we contextualized our cases, reflecting a law in action perspective. We identify five themes as providing a structure to the materials: (1) Incorporating UCC Article 2 into the contracts course; (2) Remedies first; (3) Law in Action; (4) Relational contracts; and(5) Contracts are everywhere.

  • “Shaken Baby Syndrome/Abusive Head Trauma: A Complicated Child Welfare Issue”
    37 The Guardian 1 (June 2015)

    This is a short response to a recent paper by Dr. Sandeep Narang and Dr. Christopher Greeley, in which we raise concerns about the diagnostic reliability of certain medical findings used as the basis for allegations of child abuse, particularly shaken baby syndrome and abusive head trauma.

  • “Engaging the Third Sovereign: The Nature, Reach, and Sources of Tribal Law”
    Wisconsin Lawyer, 47, May 2015

    This article attempts to clarify some of the confusion surrounding tribal law, which, notably, is distinct from federal Indian law. Whereas federal Indian law concerns the relationship between federal, state, and tribal governments, tribal law is the law tribes develop and apply to their members and territories. This article explores the nature of tribal government, reviews tribes’ complex relationships with federal and state governments, examines the reach of tribal law, and highlights available sources of tribal law.

The University of Wisconsin Law School, Legal Studies journal contains abstracts and papers from this institution focused on this area of scholarly research. To access all the papers in this series, please use the following URL: