Wisconsin Supreme Court Research Articles

Sudden lockdown repeals, social mobility, and COVID‐19: Evidence from a judicial natural experiment

AbstractThe imposition and lifting of COVID‐19 lockdown orders were among the most heatedly debated policies during the pandemic. Credible empirical evaluations of the effects of reopening policies are difficult because policymakers often explicitly linked sustained reductions in COVID‐19 cases to the lifting of lockdown orders. This hardwired policy endogeneity creates challenges in isolating the causal effects of lifting of lockdown orders on social mobility and public health. To overcome simultaneity bias, we exploit a natural experiment generated by the Wisconsin Supreme Court when it abolished Wisconsin's “Safer at Home” order on separation‐of‐powers grounds. We capitalize on this sudden, dramatic, and largely unanticipated termination of a statewide lockdown order to estimate its effect—relative to a more gradual scaling back of restrictions—on social mobility and COVID‐19 case growth. First, using anonymized smartphone data from SafeGraph and a synthetic control design, we find that termination of COVID‐related restrictions had small and short‐lived negative impacts on social distancing. Then, using data on case and mortality rates, we find no evidence that the Wisconsin Supreme Court decision impacted COVID‐19 growth up to a month following the repeal. These findings suggest that in the absence of carrying new information, sudden lockdown repeals may generate smaller behavioral responses than policymakers anticipate.

Treatment Over Objection of an Inmate

In Winnebago County v. C.S. (In re C.S.) , 940 N.W.2d 875 (Wis. 2020), the Wisconsin Supreme Court held that the Wis. Stat. § 51.61(1)(g)(3) (2015–2016) was facially unconstitutional because it allowed inmates who are involuntarily committed under Wis. Stat. § 51.20(1)(ar) (2013–2014) to be

Machine Advice with a Warning about Machine Limitations: Experimentally Testing the Solution Mandated by the Wisconsin Supreme Court

Abstract The Wisconsin Supreme Court allows machine advice in the courtroom only if accompanied by a series of warnings. We test 878 US lay participants with jury experience on fifty past cases where we know ground truth. The warnings affect their estimates of the likelihood of recidivism and their confidence, but not their decision whether to grant bail. Participants do not get better at identifying defendants who recidivated during the next two years. Results are essentially the same if participants are warned in easily accessible language, and if they are additionally informed about the low accuracy of machine predictions. The decision to grant bail is also unaffected by the warnings mandated by the Supreme Court if participants do not first decide without knowing the machine prediction. Oversampling cases where defendants committed violent crime does not change results either, whether coupled with machine predictions for general or for violent crime. Giving participants feedback and incentivizing them for finding ground truth has a small, weakly significant effect. The effect becomes significant at conventional levels when additionally using strong graphical warnings. Then participants are less likely to follow the advice. But the effect is counterproductive: they follow the advice less if it actually is closer to ground truth.

Factors Influencing Risk for COVID-19 Exposure Among Young Adults Aged 18-23 Years - Winnebago County, Wisconsin, March-July 2020.

On May 13, 2020, the Wisconsin Supreme Court declared the state's Safer at Home Emergency Order (https://evers.wi.gov/Documents/COVID19/EMO28-SaferAtHome.pdf) "unlawful, invalid, and unenforceable,"* thereby increasing opportunities for social and business interactions. By mid-June, Winnebago County,† Wisconsin experienced an increase in the number of infections with SARS-CoV-2, the virus that causes coronavirus disease 2019 (COVID-19), with the largest increase among persons aged 18-23 years (young adults) (1). This age group§ accounts for 12.5% of the population in the county. To identify factors that influence exposure to COVID-19 among young adults in Winnebago County, characteristics of COVID-19 cases and drivers of behaviors in this age group were examined. During March 1-July 18, 2020, 240 young adults received positive SARS-CoV-2 test results, accounting for 32% of all Winnebago County cases. In 30 key informant interviews, most interviewees reported exposure to misinformation, conflicting messages, or opposing views about the need for and effectiveness of masks. Thirteen young adults described social or peer pressure to not wear a mask and perceived severity of disease outcome for themselves as low but high for loved ones at risk. Having low perceived severity of disease outcome might partly explain why, when not in physical contact with loved ones at risk, young adults might attend social gatherings or not wear a mask (2). Exposure to misinformation and unclear messages has been identified as a driver of behavior during an outbreak (3,4), underscoring the importance of providing clear and consistent messages about the need for and effectiveness of masks. In addition, framing communication messages that amplify young adults' responsibility to protect others and target perceived social or peer pressure to not adhere to public health guidance might persuade young adults to adhere to public health guidelines that prevent the spread of COVID-19.

When Is It Democratic to Postpone an Election? Elections During Natural Disasters, COVID-19, and Emergency Situations

Holding regular elections is an essential feature of democratic practices. The case for postponing elections is often made during emergency situations, however. Despite the critical nature of the i...

COVID-19, bar crowding, and the Wisconsin Supreme Court: A non-linear tale of two counties

The Wisconsin Supreme Court’s nullification of a carefully crafted, statewide regulatory scheme led to the substitution of a motley collection of asynchronous, uncoordinated local reopening plans that ultimately facilitated a resurgence of COVID-19. The distinct paths of epidemic containment and subsequent resurgence in Wisconsin’s two most populous counties, Milwaukee and Dane, can be directly mapped into their respective volumes of bar traffic. A seemingly small relaxation of social distancing rules can result in a relatively large increase in the incidence of new infections.This study relies exclusively on publicly available, aggregate health data that contain no individual identifiers. The author has no competing interests and no funding sources to declare. This article represents to the sole opinion of its author and does not necessarily represent the opinions of the Massachusetts Institute of Technology, the National Bureau of Economic Research, Eisner Health, or any other organization.

Did the Wisconsin Supreme Court Restart a Covid-19 Epidemic? Evidence from a Natural Experiment

Both the White House and state governors have explicitly linked thresholds of reduced COVID-19 case growth to the lifting of statewide shelter-in-place orders (SIPOs). This "hardwired" policy endogeneity creates empirical challenges in credibly isolating the causal effect of lifting a statewide SIPO on COVID-19-related health. To break this simultaneity problem, the current study exploits a unique natural experiment generated by a Wisconsin Supreme Court decision. On May 13, 2020, the Wisconsin Supreme Court abolished the state's "Safer at Home" order, ruling that the Wisconsin Department of Health Services unconstitutionally usurped legislative authority to review COVID-19 regulations. We capitalize on this sudden, dramatic, and largely unanticipated termination of a statewide SIPO to estimate its effect on social distancing and COVID-19 case growth. Using a synthetic control design, we find no evidence that the repeal of the state SIPO impacted social distancing, COVID-19 cases, or COVID-19-related mortality during the fortnight following enactment. Estimated effects were economically small and nowhere near statistically different from zero. We conclude that the impact of shelter-in-place orders is likely not symmetric across enactment and lifting of the orders.

Political Fairness in Redistricting: What Wisconsin's Experience Teaches

In this paper, to be presented at an election law forum sponsored by the University of Memphis Law Review and published in a forthcoming issue of the University of Memphis Law Review, I argue that the law and practice of redistricting should address the question of political fairness. I base my argument on the history of redistricting in Wisconsin which I discuss at some length. Although under the Wisconsin Constitution redistricting is a legislative responsibility, in every Wisconsin redistricting since the 1950s lawsuits were started and courts became involved. Moreover, all of the maps drawn by courts, one by the Wisconsin Supreme Court and three by three-judge federal courts, were politically unfair. This was true whether or not the courts that drew the maps chose to ignore or consider political factors. The fact is, from a political standpoint, none of the courts knew what they were doing. I contend that state legislatures should establish a standard of political fairness with which redistricting plans must comply. In the absence of such legislation, entities that engage in redistricting, such as courts or commissions, should on their own initiative endeavor to create politically fair plans and utilize all available tools including modern computer technology to assist them. A politically fair plan is one that reflects the political complexion of the state. In other words, the composition of legislative districts should be based on the preference of the state’s voters. Thus, if a state is 53 percent Republican, then 53 percent of its legislative districts should at least lean Republican, and if a state is 51 percent Democratic, then 51 percent of the state’s legislative districts should at least lean Democratic. In order to determine the political make up of a state, it is essential to rely on a sufficient number of elections held over a sufficient period of time and to avoid elections that are overly determined by candidate specific factors. Thus, a redistricting entity should calculate the percentage of votes received by candidates of both major parties in the five preceding presidential or gubernational elections and average them. This will create an accurate political profile of the state. This process will enable the redistricting entity to establish a standard of political fairness that will govern drawing the map. Under the standard, each party is entitled to a percentage of legislative districts equal to the average percentage of votes it received in the five elections.

Flying Too Close to the Sun: Lessons Learned from the Judicial Expansion of the Objective Patient Standard for Informed Consent in Wisconsin

The Wisconsin Supreme Court, after adopting the doctrine of the objective (reasonable) patient standard, expanded it in bold and innovative ways over nearly four decades, until the Wisconsin legislative and executive branches drastically reversed this course. The saga has implications for other jurisdictions considering adoption or expansion of the objective patient standard doctrine.

A Child's Right to Be Well Born: Venereal Disease and the Eugenic Marriage Laws, 1913-1935.

An extensive literature describes the legal impact of America's eugenics movement, and the laws mandating sterilization, restriction of marriage by race, and ethnic bans on immigration. But little scholarship focuses on the laws adopted in more than 40 states that were commonly referred to as "eugenic marriage laws." Those laws conditioned marriage licenses on medical examinations and were designed to save innocent women from lives of misery, prevent stillbirth or premature death in children, and save future generations from the myriad afflictions that accompanied "venereal infection." Medical journals, legal journals, and every kind of public press outlet explained the "eugenic marriage laws" and the controversies they spawned. They were inextricably bound up in reform movements that attempted to eradicate prostitution, stamp out STIs, and reform America's sexual mores in the first third of the 20th century. This article will explain the pedigree of the eugenic marriage laws, highlight the trajectory of Wisconsin's 1913 eugenic enactment, and explore how the Wisconsin Supreme Court case upholding the law paved the way for the majority of states to regulate marriage on eugenic grounds.

Will Your Religion Allow Youuto Live? The Mature Minor Doctrine, Religious Exemptions, and a Look into Louisiana Law

Imagine being fifteen years old and diagnosed with a rare disease that will kill you if you do not undergo certain medical procedures. Further imagine that the treatment the doctors say will save your life is a treatment that is utterly against your religion. Would you follow your religious beliefs, or would you follow the doctor’s highly recommended procedures? Would you weigh your parent’s beliefs, or are you mature enough to make the decision for yourself? Even if you think you are mature enough, will your home state allow your “mature” decisions to be considered in court? The 1974 Child Abuse Prevention and Treatment Act originally required states to adopt religious exemptions to child neglect in order to keep federal funding for child-protection programs. Despite the lifting of this requirement, many states still have the exemptions in force. Due to these exemptions, many children have died because their parents believe that they are not required to give their children proper medical treatment if it is against their religion. The mature-minor doctrine makes these issues even stickier. While some states use this doctrine in a very limited sense, others have adopted a broad interpretation that would allow a mature minor to refuse medical treatment while not holding the parents responsible. Each state has its own unique interpretation of religious exemptions and the mature-minor doctrine. Thus, both should be interpreted with particular caution. This article uses a 2013 Wisconsin Supreme Court case, Dane County v. Sheila W., as a factual backdrop to discuss the issues of religious exemptions and the mature-minor doctrine. These issues have not been heavily discussed in Louisiana, and this article seeks to provide an overview and a guide for when Louisiana is faced with a similar situation.

Who Makes the Decisions, Especially When it Concerns Minors?

Bioethical questions within the law, especially those concerning life-saving treatment, often require quick decisions. But litigation is notoriously slow and cumbersome. Such disputes are often moot by the time they reach an appellate court—one that can issue a decision of precedential value—because a decision by the court can have no practical legal effect on the controversy. While courts normally dismiss moot cases, there are some important exceptions. Famously, the U.S. Supreme Court in Roe v. Wade proceeded to decide the constitutionality of restrictions on abortion, even though the plaintiff’s baby had already been born (Roe v. Wade, 410 U.S. 113 (1973)). After all, “the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied” [125]. Roe is not unique in this respect. Traditionally, appellate courts have adjudicated moot bioethics cases in two main situations: (1) when the issues are of public importance and (2) when the issues are capable of repetition yet evading review. But, increasingly, appellate courts are abdicating their responsibility to decide moot cases satisfying these exceptions. In re Sheila W., 2013 WI 63; 348 Wis.2d 674, 835 N.W.2d 148, a July 2013 decision from the Wisconsin Supreme Court, is of interest because it illustrates a growing trend of appellate courts declining to address difficult and controversial bioethics issues. Sheila W. (Sheila) was a 15-year-old resident of Dane County, Wisconsin. In February 2012 she was diagnosed with aplastic anemia, a life-threatening illness in which a person’s immune system attacks her bone marrow, preventing the body from producing new blood cells. Sheila’s physicians gave her antibody treatments. After three days, however, Sheila’s red blood cell, white blood cell, and platelet counts remained very low. Her physicians determined that she needed blood transfusions. Without them, Sheila was at risk of infection, spontaneous hemorrhage, and cardiac arrest. In short, Sheila’s physicians concluded that, without blood transfusions, she would die. But Sheila and her family are Jehovah’s Witnesses who believe that God prohibits blood transfusions. Accordingly, Sheila’s parents refused to consent to blood transfusions. Moreover, Sheila’s parents thought that Sheila was mature enough to make her own decision. They told Sheila that they would support her decision whether to accept or refuse transfusions. Like her parents, Sheila also refused to consent to the transfusions. She told her attending physician that she “would rather die... than survive [with] the stigma Bioethical Inquiry (2013) 10:441–444 DOI 10.1007/s11673-013-9486-z

Buried Alive: The Constitutional Question of Life Without Parole for Juvenile Offenders Convicted of Homicide

In a string of recent cases, the Supreme Court has recognized the legal effect of juvenile defendants’ diminished culpability. This has led to a shift towards a jurisprudence that protects juvenile offenders from the most severe penalties. This Note argues that, since Graham v. Florida, juvenile life without parole is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, regardless of the offense. It first traces the development of contemporary juvenile justice, looking to the first system in New York and to early Supreme Court decisions regarding procedural due process rights for juvenile defendants. Next, the Note looks to the distinction that Eighth Amendment case law has made between capital and noncapital offenses and the abandonment of this distinction in Graham. It analyzes the two mandates from Graham and argues that the first mandate, that the court must consider youth as a mitigating factor in handing down a sentence, applies beyond sentencing considerations. The second mandate requires lower courts to guarantee the possibility of release of juvenile defendants, regardless of the severity of the offense or sentence. In the final Part, this Note applies the logic of Graham to State v. Ninham, a recent Wisconsin Supreme Court case. The author finds that juvenile life without parole is a violation of the Eighth Amendment’s bar on cruel and unusual punishment in all circumstances, and this conclusion must inevitably disturb the current sentencing structure of the entire criminal justice system.

Last Resort of Individuals with Dementia Threatened

A recent Wisconsin Supreme Court decision held that individuals with dementia cannot be placed involuntarily into “units for the acutely mentally ill.”1 This creates a treatment vacuum for people with dementia who develop behavioral disturbances too severe to be managed elsewhere. Ironically, one premise for the court's decision was that, under Wisconsin law, civil commitment required amenability to “treatment,” which was defined as “rehabilitation.” The court ruled that because individuals with dementia cannot be rehabilitated, they cannot be civilly committed. Can individuals with psychiatric or behavioral disturbances caused by dementia be cured? No. Can they be treated? Most certainly yes. In spite of recent data on the dangers and limitations of pharmacological therapies for behavioral disturbances due to dementia, there is much (including a safe environment and nonpharmacological therapy) that inpatient psychiatric facilities can offer to individuals with dementia.2-5 Many people experience improvement or resolution of their symptoms.4, 5 In Wisconsin, a fundamental misunderstanding about the care of individuals with dementia has resulted in the exclusion of individuals with dementia from the civil commitment process. That process is an unpleasant but necessary step on the path to stabilization for many people with psychiatric or behavioral symptoms of dementia. It is our hope that the misunderstanding in Wisconsin will be quickly corrected. Perhaps even more important, we hope that Wisconsin's mistake does not spread to other states. California and Florida are the two states with the greatest number of people aged 65 and older. There is a real possibility that both could follow Wisconsin. California's attorney general has concluded that individuals with Alzheimer's disease may be held for 72 hours in the first step toward civil commitment,6 but further detention must be for treatment.7 A California court could, as in Wisconsin, conclude that treatment is not possible for dementia. Indeed, one California court upheld a conservator's determination that an individual's “inability to care for himself [was] not a product of a mental disorder for which treatment [was] available in a state mental hospital, but a result of dementia.”8 The definition of “mental illness” in Florida is broad enough to include dementia and even specifies that etiology is irrelevant.9 The Florida Supreme Court has held that a person who is involuntarily committed has a right to treatment.10 Florida statutes codify and broaden this right to include “such medical, vocational, social, educational, and rehabilitative services as his or her condition requires in order to live successfully in the community.”9 This broad definition of treatment may appear encouraging, but a court could conclude that civil commitment is inappropriate for individuals with advanced dementia who will never be able “to live successfully in the community.” Success in treating individuals with dementia, as with other mental illnesses, often means modest and sometimes temporary improvement in symptoms. To twist that unfortunate reality into a reason to deny supportive care in what may be the best setting is a legal blunder of colossal proportions. We must educate policy-makers to reverse the Wisconsin error and to prevent its spread. Conflict of Interest: Neither author has any conflict of interest. Author Contributions: Fredrick Vars provided legal analysis. Caroline Harada provided medical expertise. Both contributed significantly to the drafting. Sponsor's Role: No sponsor.

How Not to Conduct a Forensic Hypnosis Interview: A Case Study

A forensic hypnosis interview played a major role in a murder conviction. Several years later, the reliability of the interview was called into question leading to a court hearing on whether the methods used by the hypnosis specialist, hired by the police, conformed to the legal guidelines established by the Wisconsin Supreme Court. This article examines the many errors committed by the hypnosis specialist, and the subsequent legal proceedings which altered the verdict.

Super Quorums under the Wisconsin Constitution

This essay takes a brief and preliminary look at the remedies available to the Wisconsin Senate to enact its 2011 proposed budget legislation without Democratic senators who fled the state in February 2011. Article VIII, §8 of the Wisconsin Constitution requires a three-fifths quorum only for statutes that are fiscal, that is, statutes that actually appropriate money, impose taxes, create a debt, or release a claim owed to the state. Even then, these categories have consistently been interpreted in the most limited form conceivable. For example, in State v. Stitt (1983), the Wisconsin Supreme Court determined that the issuance of short-term debt was not debt under Article VIII of the constitution and thus was not so as to trigger the three-fifths quorum and roll call requirements. The Wisconsin attorney general in 1971 gave a formal opinion to the legislature that a bill that changed collective bargaining rights substantially was not fiscal in nature and was not subject to the three-fifths super quorum provision. Because collective bargaining rights and that very statutory chapter (ch. 111) are at the heart of the proposed Senate Bill 11, the most controversial portions of the bill could be passed constitutionally with just a simple majority of elected members present, without a three-fifths quorum. Though some provisions in Senate Bill 11 are clearly fiscal - e.g., increasing appropriations for needy families, health care, and corrections - much of the bill is not fiscal. Even provisions that observers might reasonably assume to be fiscal are probably not fiscal under Wisconsin law, such as the rule that in the future employers can agree to pay no more than 88% of health care costs. Because much of Senate Bill 11 is not subject to the three-fifths quorum, these portions could be separated from the rest of the bill and passed by majority vote in the presence of a simple majority of the elected Senators. With Republicans holding 19 of the Wisconsin Senate's 33 seats, Republicans thus constitute a quorum to pass much of Senate Bill 11 without any Democratic Senators present or voting. The rest of the bill would have to await the return of the wandering Senators and the return of a three-fifths quorum.

Wisconsin Supreme Court and Legislative History

Legislative history has been directly mentioned more than 1,800 times in the body of Wisconsin Supreme Court opinions. In 1927, the Wisconsin Legislature established the Legislative Reference Bureau (LRB) to maintain files of drafting records for each proposed bill. Since the late 1990s, the files have been available electronically to make the information more accessible to lawyers appearing in Wisconsin courts.

A Kalal for the Wisconsin Constitution

When the Wisconsin Supreme Court interprets state statutes, it follows a methodology first set in State ex rel. Kalal v. Dane County Circuit Court (2004). This method focuses primarily on the text of the statute, and circumscribes reference to legislative history and other secondary sources.Yet when the Wisconsin Supreme Court interprets the state constitution, it follows a different methodology, first set in Buse v. Smith (1976). This method looks at text, legislative and popular history, and contemporaneous legislative enactments. For amendments to the state constitution, legislative and popular history covers two sessions of the Legislature and the statewide discussion of the amendment in advance of its ratification by the people at the polls.In the first half of this paper, I outline the Court's interpretation of the state constitution through history, both from 1848 to 1976 and 1976 to present. In the second half, I critique the Court's current method, and decide that it is an unreliable guide for judicial interpretation of the state constitution. Additionally, I suggest that Kalal advanced certain rule of law values which make its method preferable. Thus, I conclude by recommending that the Court adopt the methodology of Kalal for interpreting both statutes and the state constitution.

Hoffman v. Red Owl Stores and the Limits of the Legal Method

According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a “clear and unambiguous promise” on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann’s equity contribution to the franchise. After locating and interviewing Hoffmann, Whitford and Macaulay tell a different story. They view as insignificant the misunderstanding about the nature of Hoffmann’s equity contribution. Rather, they focus attention on additional statements urging Hoffmann to sell his bakery business and store. In these later statements, ignored by the Wisconsin Supreme Court, they find the “missing promise” that they challenged all of us to look for years ago. While I credit their account, I remain as unconvinced by their story as they are of mine. Thus, the important question is how scholars could draw such different inferences from the same basic facts. In this Essay, I speculate that the different stories are a product of our respective methodological commitments: their commitment to a law and society approach to legal issues and mine to law and economics modes of analysis. Those diverse approaches illustrate the tension between “context” and “theory” and the inherent paradox of legal analysis: without context no legal rule can be applied, but with nothing but context no legal rule can be found. For this reason, I conclude, it is important for legal academics of every stripe to appreciate the biases inherent in their methodology of choice and work to correct for them

Public Policy Shields Engineer and Contractor from Tort Liability for Pipeline Failure

Many civil engineering projects involve efforts to abate natural hazards, such as flooding and landslides. These projects can affect hundreds or even thousands of people. The engineers and contractors on these projects are responsible to the entities that retained them to properly perform the work. But what happens when the abatement project fails and the natural hazard harms third parties? This was the case in Butler v. Advanced Drainage Systems, Inc. A pipeline project, which was intended to prevent damage resulting from rising water levels in a lake, failed, leading to neighboring properties being damaged. The property owners sued the engineering and contracting firms that did the work. At issue on review by the Wisconsin Supreme Court was whether public policy factors would preclude the property owners’ claim. The Wisconsin Supreme Court held that the claim was indeed precluded based on pubic policy.