#lochnerism

[vicforberger]

Making factual findings subject to never-ending review: Wisconsin Bell

In Wisconsin Bell, an employee with bi-polar disorder asked to be off work temporarily because his anxiety was triggering a mental breakdown. The employer did not believe the request was legitimate, however, and dismissed the employee for shirking.

The employee presented copious evidence about his disability, while the employer simply asserted it did not believe him. Unfortunately for the…

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[vicforberger]

Beres: Agency discretion to undo a statutory scheme

In Beres, the case turns on a dispute between the Department and the Commission over whose interpretation of the absenteeism disqualification is most reasonable. In its quest to get its interpretation adopted, the Department is willing to subject all agency decision-making to heightened scrutiny.

Taking effect in January 2014, Wis. Stat. § 108.04(5)(e) provides that a claimant will be…

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[vicforberger]

TetraTech: Agency discretion and "process"

TetraTech: Agency discretion and “process”

The alleged problems with regulation and administrative agencies is exemplified in the TetraTechcase. In this tax matter, the dispute concerns how expansive for tax purposes a statutory reference to “process” should be read. A company, TetraTech, was responsible for “processing” contaminated water as part of an effort to clean the Fox River of pollutants. Wis. Stat. § 77.52(2)(a)11 (emphasis…

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[vicforberger]

Beres and agency deference, Part 2

In three cases set for oral argument on December 1st — TetraTech v. DOR, Appeal No. 2015AP2019, DWD v. LIRC (Beres), Appeal No. 2016AP1365, and Wisconsin Bell, Inc. v. LIRC, Appeal No. 2016AP355 — the Wisconsin Supreme Court is re-considering the whole field of agency deference in what could be a legal revolution that up-ends modern governance.

In a previous post, I described the statutory text…

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