Legislative Policy Development
Foundation lawyers and staff help advance sound environmental, energy, and civil justice legislation with our policy expertise, research capabilities, and legislative drafting. Our experience was called upon to help develop recent civil justice and regulatory reform legislation, including:
- Civil Justice Reforms (2011 Wis. Act 2) – These sweeping reforms included: 1) Adoption of more reasonable product liability standards for manufacturers and sellers; 2) Elimination of the deeply flawed “risk contribution” theory in manufacturing lawsuits; 3) Adoption of Daubert standard to preclude use of junk science as evidence; and, 4) Limits on punitive damages.
- Regulatory Reforms (2011 Wis. Act 21) – These reforms focused on agency accountability, including new requirements for gubernatorial review and approval of all regulatory initiatives. Limits and clarification on agency authority were enacted, along with the requirement that all proposed rules undergo a rigorous cost-benefit analysis.
Current policy research and drafting projects relate to streamlining electric transmission line siting, and additional civil justice and regulatory reforms as part of Gov. Walker’s “Back to Work” Special Session, his second special session on jobs in 2011.
Staff expertise on tort reform legislation has been recognized by national organizations.
Andrew Cook was asked to present his paper, Fairly Allotting Liability Among Defendants, at the August 2011 meeting of the American Legislative Exchange Council in New Orleans.
State Court Challenges to Legislatively Enacted Tort Reforms, co-authored by Andrew Cook and Emily Kelchen, was published in the Summer 2011 edition of the Federalist Society’s State Court Docket Watch. The article provides a summary of recent state supreme court cases in which opponents of civil liability reform have challenged reform laws, mostly on constitutional grounds. The article also provides a summary of the recent reforms in Wisconsin law and an analysis of past Wisconsin reforms that were found unconstitutional.
Additionally, the Great Lakes Legal Foundation has prepared research memoranda regarding the following policies underlying related legislation.
- Analyzing the constitutionality of retroactive legislation under the Wisconsin Contracts Clause.
- Separation of Powers as it is related to delegation of authority to administrative agencies.
- A state by state analysis of punitive and compensatory damages in employment discrimination.
Regulatory Compliance
Foundation lawyers diligently monitor, assess and provide comments on state and federal regulatory initiatives. Our focus is on assuring agencies act within statutory authority and follow administrative rulemaking procedures. Foundation lawyers are in a good position to assess such compliance issues given our role in developing the key, underlying statutory provisions relating to agency authority and the administrative review process.
To support our regulatory program, we developed The Great Lakes Legal Foundation Regulatory Watch to provide timely updates and analyses of federal and Wisconsin regulatory programs.
Foundation attorneys are investigating the impact federal regulatory developments have on Wisconsin rules. For example, the nexus between the proposed federal Utility MACT standards and Wisconsin’s mercury standards is being closely scrutinized.
Our in-depth focus on the proposed federal rules constituting the “EPA’s regulatory train wreck” includes source documents, research studies, and commentary. No other organization provides access to as much information all in one place.
Foundation staff members are skilled at using open records requests to get access to important agency documents to support our position.
For example, the Wisconsin Natural Resources Board repealed an outdated total suspended particulate (TSP) standard in response to a Foundation petition drafted on behalf of Wisconsin Manufacturers & Commerce. Using information obtained through a public records request, the Foundation successfully argued state law required such repeal.
Additionally the Foundation has prepared memoranda regarding the following:
- Overview of, and case law regarding, agency jurisdiction over declaratory actions.
- Evaluating the constitutionality of legislation that would expand the Joint Committee for Review of Administrative Rules power to permanently suspend an agency rule.
- Case law and history of Wisconsin’s Public Trust Doctrine.
- Identifying and analyzing potential avenues to stop the EPA “Train Wreck.”
