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No Person . . . Shall Ever Be Molested on Account of His Mode of Worship or Religious Sentiments . . . . : The Northwest Ordinance of 1787 and \u3ci\u3eStrader v. Graham\u3c/i\u3e
Get PDFThe Article looks at the first article of compact of the Northwest Ordinance,
the religious liberty guarantee: “No person . . . shall ever be molested on
account of his mode of worship or religious sentiments . . . .” Congress
provided that the Northwest Ordinance articles of compact would “forever
remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,
Chief Justice Roger Taney declared the articles of compact to be no longer in
force.
In evaluating Chief Justice Taney’s reasoning, the question posed at the
dawn of the 20th Century by historian Professor Andrew McLaughlin is
instructive: “Will they say that, because the men of 1787 did not act and speak
in the terms of philosophy which arose from the civilization of the next
century . . . they did not do what they intended to do?” Using the language and
history of the Northwest Ordinance, the Article argues that Chief Justice
Taney’s conclusion was in error.
The religious liberty protection of the Northwest Ordinance first article of
compact is arguably broader than that of the First Amendment. The article
suggests that it should be available to protect individuals disadvantaged and
discriminated against on the basis of their beliefs on matters of religion. Such
protection would extend to the over ninety million Americans who live in states
as to which the first article of compact was made applicable
First Draft Pick or Benched Indefinitely? The Future of the Single-Entity Doctrine in Sports Antitrust
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The Exculpatory Contract and Public Policy
Get PDFAcross the country, lawyers have searched for the magic formula to draft an exculpatory contract that would successfully exculpate their client in the event someone was injured while participating in a recreational activity sponsored by the client. Some examples of events would include snow skiing, swimming at a guest-only pool, horseback riding, white-water rafting, camping, running in a marathon, visiting a haunted house at Halloween, or a myriad of other events. The uniform standard by which the enforceability of these exculpatory clauses is measured is whether the exculpatory contract is against public policy.
The public policy of any state can be discerned by examining the various statutes passed by the legislature in that particular state. Many states have passed laws that provide immunity from civil liability for the sponsor of various recreational activities provided the sponsor complies with enumerated statutory requirements. This Article examines all the recreational statutes enacted in Wisconsin to discern Wisconsin’s public policy on the enforceability of exculpatory contracts.
The legislature has made clear that absent an overriding public purpose (opening up one’s land for free public use) the legislature is loath to grant civil immunity for a sponsor’s negligent conduct that causes injury to another. The public policy of tort law to provide just compensation to one who has been injured supersedes the contract principle of the party’s freedom of contract. However, even though the public policy is not to permit exculpation for a sponsor’s negligence, it is equally clear that the legislature does permit exculpation for the inherent risks in that activity. Therefore, the primary task of the lawyer in drafting an enforceable exculpatory contract is to clearly specify in the contract those risks inherent to the activity and be able to prove that the participant was aware of those risks at the time of contracting
Why Are Seemingly Satisfied Female Lawyers Running for the Exits? Resolving the Paradox Using National Data
Get PDFDespite the fact that women are leaving the practice of law at alarmingly high rates, most previous research finds no evidence of gender differences in job satisfaction among lawyers. This Article uses nationally representative data from the 2015 National Survey of College Graduates to examine gender differences in lawyers’ job satisfaction, and finds that any apparent similarity of job satisfaction between genders likely arises from dissatisfied female JDs sorting out of the legal profession at higher rates than their male counterparts, leaving behind the most satisfied women. This Article also provides a detailed examination of the specific working conditions that are associated with dissatisfaction for female lawyers before this sorting occurs, and compares job satisfaction of lawyers to that of other professions. The resulting analysis shows that recently graduated female lawyers have lower average satisfaction with their salaries relative to male lawyers, but that this result is likely due to differences in employer types. The data further indicates that a male–female satisfaction gap exists only among JDs, and not among those with bachelor’s as the highest degree or other professional or graduate degrees. This finding suggests that comparing lawyers to those in other professions could help to pinpoint unique characteristics of the legal profession that create dissatisfaction among women at the outset of their careers and causes them to exit the profession
Disgorging Emoluments
Get PDFThis Article is about unjust enrichment. It includes a theory of an unjust
enrichment cause of action against executive actors who receive unlawful
emoluments. Interpretations of the boundaries of unlawful emoluments range
from receipt of a gift or benefit because of the position of power held to quid
pro quo exchanges of a thing of value in exchange for government information
or advantage. Wherever the proper line, the purpose of the law of unjust
enrichment is to prevent and undo benefits one has no right to retain. It
achieves those goals with the use of restitution remedies including
disgorgement of unjust profits.
Unjust enrichment is particularly suited to remedy wrongful emoluments
because the goal is to undo improper gain rather than compensate for any
plaintiff losses. Unjust enrichment law and restitution-based remedies law are
experiencing a revival in the United States. This resurgence of interest in and
use of unjust enrichment theory has led to increased application of
restitutionary remedies. This Article proposes the restitutionary-based remedy
of disgorgement of emoluments that constitute unjust gains. This cause of
action and remedy already lie in American common law. Unjust enrichment
provides a freestanding basis for disgorgement relief as well as restitution
remedies to protect against fiduciary breaches and violations of other protected
interests. Article III standing and other jurisdictional obstacles may pose a
need for a cleaner, additional path. No existing statutes cover this field. Thus,
I propose a statutory solution that operationalizes restitutionary disgorgement
as the preferred remedy to undo unjust emoluments
