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Articles 1 - 30 of 62
Full-Text Articles in Law
Armed And Under The Influence: The Second Amendment And The Intoxicant Rule After Bruen, F. Lee Francis
Armed And Under The Influence: The Second Amendment And The Intoxicant Rule After Bruen, F. Lee Francis
Marquette Law Review
In 2001, the Michigan Legislature passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that alcohol misuse is keenly associated with firearm ownership, risk behaviors involving firearms as well as risk for perpetrating harm to one’s self or others. Researchers also found that an estimated 8.9 to 11.7 million firearm owners binge drink in an average month. In an attempt …
Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii
Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii
Marquette Law Review
This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that
a violation of Miranda was not a violation of the Fifth Amendment privilege
against self-incrimination. This Article examines the original language of the
Miranda opinion, the statements and intentions of the members of the Miranda
Court, and subsequent precedent to determine Miranda’s true nature. Further,
this Article examines the reasoning of Vega and the dangers created by its
pronouncements, especially in light of the Court’s earlier characterization of
Miranda as a constitutional rule in Dickerson v. United States. This Article
asserts that the Justices who …
Racial Discrimination In Jury Selection: The Urgent Need For Sixth Amendment Protections For Black Capital Defendants, Claire Austin
Racial Discrimination In Jury Selection: The Urgent Need For Sixth Amendment Protections For Black Capital Defendants, Claire Austin
Marquette Benefits and Social Welfare Law Review
In the U.S., death row is made up of a disproportionate number of black persons. In capital trials, black defendants often face all white juries. The deep-rooted racial discrimination in the justice system impacts jury selection because prosecutors use peremptory strikes to remove black jurors from the jury panel. As the law stands today, the Sixth Amendment guarantee of an impartial jury made up of a fair representation of the jury applies only to the pool of jurors called in for jury service, not those who are actually selected to hear the case.
This comment analyzes the Supreme Court decision, …
Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii
Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii
Marquette Law Review
Anglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government.
Gender Confirmation Surgery And The Federal Prison System: Eighth Amendment Framework And Proposed Alternatives, Julie Barnett
Gender Confirmation Surgery And The Federal Prison System: Eighth Amendment Framework And Proposed Alternatives, Julie Barnett
Marquette Benefits and Social Welfare Law Review
As reform for individuals with gender dysphoria has developed, the prison system's accommodation of those individuals' needs has underperformed. There have been a number of cases in the past few years where inmates who are experiencing gender dysphoria have not received adequate care in the form of gender confirmation surgery. Four of the Federal Appellate Circuit Courts have decided that a physician's refusal to provide an inmate with gender confirmation surgery is not a violation of the 8th Amendment. One circuit ruled differently and held that denial of the surgery to an inmate experiencing gender dysphoria does violate the 8th …
Pathways To Justice: Positive Rights, State Constitutions, And Untapped Potential, Dustin Coffman
Pathways To Justice: Positive Rights, State Constitutions, And Untapped Potential, Dustin Coffman
Marquette Benefits and Social Welfare Law Review
Positive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They've been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the "social contract," they should be entitled to certain positive protections guaranteed by the state created by way of said "contract." …
Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti
Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti
Marquette Law Review
Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …
The First Amendment And The Regulation Of Speech Intermediaries, Shaun B. Spencer
The First Amendment And The Regulation Of Speech Intermediaries, Shaun B. Spencer
Marquette Law Review
Calls to regulate social media platforms abound on both sides of the political spectrum. Some want to prevent platforms from deplatforming users or moderating content, while others want them to deplatform more users and moderate more content. Both types of regulation will draw First Amendment challenges. As Justices Thomas and Alito have observed, applying settled First Amendment doctrine to emerging regulation of social media platforms presents significant analytical challenges.
Some Observations On Separation Of Powers And The Wisconsin Constitution, Chad M. Oldfather
Some Observations On Separation Of Powers And The Wisconsin Constitution, Chad M. Oldfather
Marquette Law Review
In recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.
Quiescent Sovereignty Of U.S. Territories, Michael J. Kelly
Quiescent Sovereignty Of U.S. Territories, Michael J. Kelly
Marquette Law Review
Under modern democratic theory, the font of sovereignty springs from the people; however, traces of its past as a power emanating from the Crown continue to haunt the domestic and international status of sub-sovereign legal entities such as U.S. Territories. Quiescent sovereignty describes that which is possessed by the people of the Territories; a sovereignty that is theirs, but that is wielded on their behalf by the federal government. Although fiduciary responsibilities attach to this arrangement, cycles of attention/neglect are the modus vivendi. Bilateral relationships between the Territories and the federal government are varied, but such differences should not impact …
Your Liberty Is Not A Right To Jeopardize My Health: How A State Covid-19 Vaccine Mandate Promotes Health Justice, Rebecca L. Doloski
Your Liberty Is Not A Right To Jeopardize My Health: How A State Covid-19 Vaccine Mandate Promotes Health Justice, Rebecca L. Doloski
Marquette Benefits and Social Welfare Law Review
The COVID-19 pandemic has once again brought the vaccine debate into the national spotlight. Except this time, whether to be vaccinated or not has become widely politicized and the rapid spread of misinformation has led to a deadly game of those who refuse to be vaccinated not only allowing themselves to be susceptible to a deadly virus, but also putting others at risk. In addition to the misinformation and politicization of this issue, the question of constitutionality of such measures is back in the spotlight as potential state vaccine mandates appear to be on the horizon. This paper seeks to …
This Toothless Court: Judicial Review In Wisconsin Post-Mayo, Jay Mcdivitt
This Toothless Court: Judicial Review In Wisconsin Post-Mayo, Jay Mcdivitt
Marquette Law Review
None.
Swearing In The Phoenix: Toward A More Sensible System For Seating Members Of The House Of Representatives At Organization, Brian C. Kalt
Swearing In The Phoenix: Toward A More Sensible System For Seating Members Of The House Of Representatives At Organization, Brian C. Kalt
Marquette Law Review
Under U.S. House precedent, any member-elect can challenge the right of
any other member-elect to take the oath of office at the beginning of a new term.
The uncontested members-elect then swear in and decide the fate of those who
were forced to stand aside. If the House is closely divided and there are
disputed elections at the margins, a minority party could exploit this procedure
to try to seize control of the House.
Revenge Of The Sixth: The Constitutional Reckoning Of Pandemic Justice, Brandon Marc Draper
Revenge Of The Sixth: The Constitutional Reckoning Of Pandemic Justice, Brandon Marc Draper
Marquette Law Review
The Sixth Amendment’s criminal jury right is integral to the United States
criminal justice system. While this right is also implicated by the Due Process
Clause, Equal Protection Clause, and several federal and state statutes,
criminal jury trial rates have been declining for decades, down from
approximately 20% to 2% between 1988 to 2018. This dramatic drop in the
rate of criminal jury trials is an effective measure of the decreased access to
fair and constitutional criminal jury trials.
Balancing Mickey Mouse And The Mutant Copyright: To Copyright A Trademark Or To Trademark A Copyright, That Is The Question, Michael A. Forella Iii
Balancing Mickey Mouse And The Mutant Copyright: To Copyright A Trademark Or To Trademark A Copyright, That Is The Question, Michael A. Forella Iii
Marquette Intellectual Property Law Review
None.
Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr
Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr
Marquette Intellectual Property Law Review
No abstract provided.
Gene Patents, Drug Prices, And Scientific Research: Unexpected Effects Of Recently Proposed Patent Eligibility Legislation, Charles Duan
Gene Patents, Drug Prices, And Scientific Research: Unexpected Effects Of Recently Proposed Patent Eligibility Legislation, Charles Duan
Marquette Intellectual Property Law Review
Recently, Congress has considered legislation to amend § 101, a section of the Patent Act that the Supreme Court has held to prohibit patenting of laws of nature, natural phenomena, and abstract ideas. This draft legislation would expand the realm of patent-eligible subject matter, overturning the Court’s precedents along the way. The draft legislation, and movement to change this doctrine of patent law, made substantial headway with a subcommittee of the Senate holding numerous roundtables and hearings on the subject.
This article considers some less-discussed consequences of that draft leg- islative proposal. The legislation likely opens the door to patenting …
Tracing The Evolution Of Standards And Standard-Setting Organizations In The Ict Era, Manveen Singh
Tracing The Evolution Of Standards And Standard-Setting Organizations In The Ict Era, Manveen Singh
Marquette Intellectual Property Law Review
No abstract provided.
Unconstitutional Parenthood, Jeffrey A. Parness
Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard
Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard
Marquette Law Review
The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …
Is The Constitution’S Convention For Proposing Amendments A “Mystery”? Overlooked Evidence In The Narrative Of Uncertainty, Robert G. Natelson
Is The Constitution’S Convention For Proposing Amendments A “Mystery”? Overlooked Evidence In The Narrative Of Uncertainty, Robert G. Natelson
Marquette Law Review
Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable, subject to congressional control, or both. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction.
The Online Defamation Dilemma: Adapting An Age-Old Doctrine To The Reality, Elizabeth Elving
The Online Defamation Dilemma: Adapting An Age-Old Doctrine To The Reality, Elizabeth Elving
Marquette Law Review
none.
The Past And The Present: Stare Decisis In Wisconsin Law, Daniel R. Suhr, Kevin Leroy
The Past And The Present: Stare Decisis In Wisconsin Law, Daniel R. Suhr, Kevin Leroy
Marquette Law Review
None
The Living Constitution And Moral Progress: A Comment On Professor Young's Boden Lecture, David A. Strauss
The Living Constitution And Moral Progress: A Comment On Professor Young's Boden Lecture, David A. Strauss
Marquette Law Review
None
Title Ix And Title Vii: Parallel Remedies In Combatting Sex Discrimination In Educational Employment, Lynn Ridgeway Zehrt
Title Ix And Title Vii: Parallel Remedies In Combatting Sex Discrimination In Educational Employment, Lynn Ridgeway Zehrt
Marquette Law Review
The federal circuit courts of appeals are divided over the proper relationship between Title IX of the Higher Education Amendments Act of 1972 and Title VII of the Civil Rights Act of 1964. Specifically, the federal courts disagree over whether an employee of an educational institution may sue her employer for employment discrimination under either Title IX or Title VII. Some courts have concluded that these employees may not bring employment discrimination claims under Title IX, holding that Title VII provides the sole avenue for obtaining monetary relief for employment discrimination against educational institutions. Other courts have reached the opposite …
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Marquette Law Review
None
Tribal Sovereign Immunity As A Defense At The Patent Trial And Appeal Board? Or A Violation Of U.S. Antitrust Laws?, Samantha Roth
Tribal Sovereign Immunity As A Defense At The Patent Trial And Appeal Board? Or A Violation Of U.S. Antitrust Laws?, Samantha Roth
Marquette Intellectual Property Law Review
This Comment will address two primary issues. First, it will analyze the basis of sovereign immunity rights of tribes, with a focus on the relationship between intellectual property rights and sovereignty. Second, it will discuss whether this arrangement violates the antitrust laws of the United States. This Comment concludes that even if a claim of tribal sovereign immunity is legitimate, it is likely that such an arrangement still violates the relevant antitrust claims.
A Masterpiece Of Simplicity: Toward A Yoderian Free Exercise Framework For Wedding-Vendor Cases, Austin Rogers
A Masterpiece Of Simplicity: Toward A Yoderian Free Exercise Framework For Wedding-Vendor Cases, Austin Rogers
Marquette Law Review
The Free Exercise Clause was enacted to protect diverse modes of religious
practice. Yet certain expressions of free exercise have entailed concomitant
harm to those outside the religious community, especially LGBTQ persons.
This trend has been acutely present in the recent onslaught of wedding-vendor
cases: LGBTQ persons seek the enforcement of statutorily protected rights,
while religious objectors seek refuge from state intrusion under constitutional
shelter. Consequently, wedding-vendor cases present an area of law in which
free-exercise jurisprudence and anti-discrimination jurisprudence have been
clashing.
However, despite the primacy of religious freedom and equal protection in
American jurisprudence, courts analyze wedding-vendor cases …
"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal
Marquette Law Review
The 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 …
Disgorging Emoluments, Caprice L. Roberts
Disgorging Emoluments, Caprice L. Roberts
Marquette Law Review
This 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 …