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Articles 1 - 30 of 86
Full-Text Articles in Law
Coercive Insurance And The Soul Of Tort Law, Alexander Lemann
Coercive Insurance And The Soul Of Tort Law, Alexander Lemann
Faculty Publications
Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can …
Conservation Easements As A Way To Preserve Wisconsin’S Farmland: Why Wisconsin Should Adopt A Transferable Tax Credit Program, Jennifer E. Krueger
Conservation Easements As A Way To Preserve Wisconsin’S Farmland: Why Wisconsin Should Adopt A Transferable Tax Credit Program, Jennifer E. Krueger
Marquette Law Review
Conservation easements are a tool landowners can use to protect their land and preserve it for generations to come. Given the new emphasis society places on preserving the environment, many states have enacted some form of a conservation easement program where landowners who encumber their property with a conservation easement can receive a benefit for doing so. Wisconsin and Virginia are two states with this type of program. Wisconsin’s conservation easement program allows a landowner to donate his land and the state pays him the difference in the market value. Virginia’s program, on the other hand, allows a landowner to …
Binding Authority: Unamendability In The United States Constitution—A Textual And Historical Analysis, George Mader
Binding Authority: Unamendability In The United States Constitution—A Textual And Historical Analysis, George Mader
Marquette Law Review
We think of constitutional provisions as having contingent permanence—they are effective today and, barring amendment, tomorrow and the day after and so on until superseded by amendment. Once superseded, a provision is void. But are there exceptions to this default state of contingent permanence? Are there any provisions in the current United States Constitution that cannot be superseded by amendment—that are unamendable? And could a future amendment make itself or some portion of the existing Constitution unamendable?
Commentators investigating limits on constitutional amendment frequently focus on limits imposed by natural law, the democratic underpinnings of our nation, or some other …
Resolving Conflicts Over Scarce Resources: Private Versus Shared Ownership, W.C. Bunting
Resolving Conflicts Over Scarce Resources: Private Versus Shared Ownership, W.C. Bunting
Marquette Law Review
This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem, as narrowly defined in this Article, to be consistent, private ownership must yield the Pareto- optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing” disputing parties to share ownership of the contested resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Further, assuming transaction costs …
Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael M. O'Hear, Darren Wheelock
Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael M. O'Hear, Darren Wheelock
Faculty Publications
In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the …
Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka
Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka
Faculty Publications
How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the facts asserted. In 1972, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) proposed an innovative rule permitting all prior inconsistent statements to be used both for impeachment and as substantive evidence—a sea change in practice. Congress, …
Public Attitudes Toward Punishment, Rehabilitation, And Reform: Lessons From The Marquette Law School Poll, Michael M. O'Hear, Darren Wheelock
Public Attitudes Toward Punishment, Rehabilitation, And Reform: Lessons From The Marquette Law School Poll, Michael M. O'Hear, Darren Wheelock
Faculty Publications
Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration. In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin. Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety. However, we also found significant divisions in public opinion. For instance, while black and white respondents largely shared the same priorities …
Finding Customary International Law, Ryan M. Scoville
Finding Customary International Law, Ryan M. Scoville
Faculty Publications
Established doctrine holds that customary international law (“CIL”) arises from general and consistent state practice that is backed by a sense of legal obligation. Contemporary litigation requires federal courts to apply this doctrine to identify the contours of CIL in a diverse collection of cases ranging from civil actions under the Alien Tort Statute to criminal prosecutions under the Maritime Drug Law Enforcement Act. This Article provides an in-depth look at how federal judges carry out this task. Conducting a citation analysis of opinions published since the U.S. Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, this Article analyzes …
Justice Reinvestment And The State Of State Sentencing Reform, Michael M. O'Hear
Justice Reinvestment And The State Of State Sentencing Reform, Michael M. O'Hear
Faculty Publications
The national Justice Reinvestment Initiative has arguably been the most important development in American sentencing policy in the past decade. This essay introduces an issue of the Federal Sentencing Reporter that focuses on the JRI. The essay highlights both strengths and weaknesses of the JRI, particularly from the standpoint of reducing mass incarceration in the United States.
How Cosmopolitan Are International Law Professors?, Ryan M. Scoville, Milan Markovic
How Cosmopolitan Are International Law Professors?, Ryan M. Scoville, Milan Markovic
Faculty Publications
This Article offers an empirical answer to a question of interest among scholars of comparative international law: why do American views about international law appear at times to differ from those of other countries? The authors contend that part of the answer lies in legal education. Conducting a survey of the educational and professional backgrounds of nearly 150 legal academics, the authors reveal evidence that professors of international law in the United States often lack significant foreign legal experience, particularly outside of the West. Sociological research suggests that this tendency leads professors to teach international law from predominantly nationalistic and …
The Communistic Inclinations Of Sir Thomas More, David Ray Papke
The Communistic Inclinations Of Sir Thomas More, David Ray Papke
Faculty Publications
No abstract provided.
Persuading With Precedent: Understanding And Improving Analogies In Legal Argument, Jacob M. Carpenter
Persuading With Precedent: Understanding And Improving Analogies In Legal Argument, Jacob M. Carpenter
Faculty Publications
When writing persuasive briefs, attorneys use comparisons — metaphors or case-based analogies — to help explain their analyses and support their positions. But attorneys use the two types of comparisons for very different purposes. Several legal scholars have explored how attorneys use metaphors in their legal writing. While the existing scholarship on legal metaphors is excellent, it is not sufficient to properly understand how to best draft case-based analogies. Unfortunately, case-based analogies have been surprisingly understudied despite their critical role in persuasive legal briefs. Not surprisingly, many attorneys are unaware of how far short their analogies fall from reaching their …
A Time To Fly And A Time To Die: Suicide Tourism And Assisted Dying In Australia Considered, Hadeel Al-Alosi
A Time To Fly And A Time To Die: Suicide Tourism And Assisted Dying In Australia Considered, Hadeel Al-Alosi
Marquette Benefits and Social Welfare Law Review
In the United Kingdom, a series of high-profile court cases have led the Director of Public Prosecutions to publish a policy clarifying the exercise of its discretion in assisted suicide. Importantly, the experience in the United Kingdom serves as a timely reminder that Australia too should formulate its own guidelines that detail how prosecutorial discretion will be exercised in cases of assisted suicide. This is especially significant given the fact that many Australian citizens are traveling to jurisdictions where assistance in dying is legal. However, any policy should not distract from addressing law reform on voluntary euthanasia. Australian legislators should …
The Unintended Pregnancy Crisis: A No-Fault Fix, Eric Lindenfeld
The Unintended Pregnancy Crisis: A No-Fault Fix, Eric Lindenfeld
Marquette Benefits and Social Welfare Law Review
There is an ongoing and concerning public health problem in the United States relating to unintended pregnancies. Despite the fact that women consistently express dissatisfaction with existing contraception methods, the availability of cutting edge technologies remains stagnant. This paper argues that the threat of liability in the form on product liability lawsuits dissuades contraceptive manufacturers from innovating. This paper proposes a no-fault fix to the problem modeled around the National Childhood Vaccine Act of 1986.
High Prices In The U.S. For Life-Saving Drugs: Collective Bargaining Through Tort Law?, Paul J. Zwier
High Prices In The U.S. For Life-Saving Drugs: Collective Bargaining Through Tort Law?, Paul J. Zwier
Marquette Benefits and Social Welfare Law Review
Sudden exorbitant price hikes to patients who have long taken life-saving drugs are more and more common in today’s pharmaceutical market. The anxiety caused to patients who have been prescribed these drugs by their doctors is predictable and severe. Even when initially covered by insurance or through government programs, patients and their families can soon be made destitute by the high copays or caps on payments. This Essay argues that those who buy up life-saving drugs and decide to raise their prices, despite their knowledge of the consequences to patients, are committing the torts of intentional infliction of emotional distress …
Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff
Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff
Marquette Benefits and Social Welfare Law Review
Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to “opt out” of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While …
Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou
Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou
Marquette Benefits and Social Welfare Law Review
The psycho-legal concept of “rights apathy” is developed in
this Essay as an underlying factor of the very low rate of
incidence of workplace discrimination lawsuits filed in China,
despite an increasingly elaborate legal framework “on paper”
and workers’ rising awareness of their legal rights under
anti-discrimination laws. “Rights apathy” is underpinned by the
notions of “frustration” and “learned helplessness,” depicting the
indifference of workers in exercising their legal rights before a
tribunal or court. A number of institutional problems, namely
defects in existing anti-discrimination provisions, judicial
practices, and contradictions in other laws, policies, and
practices, can contribute to the …
Comment: Transgender Employment Discrimination Equality In Wisconsin: The Demise Of A Former Lgbtiq+ Rights Trailblazer, Alexandra A. Klimko
Comment: Transgender Employment Discrimination Equality In Wisconsin: The Demise Of A Former Lgbtiq+ Rights Trailblazer, Alexandra A. Klimko
Marquette Benefits and Social Welfare Law Review
Wisconsin, once known as “The Gay Rights State” and a
pioneer of the LGBTIQ+ civil rights movement, has
disappointingly failed to create transgender-inclusive
employment discrimination legislation, much like the majority of
American states. As a result, Wisconsin transgender employees
face shocking workplace discrimination with saddening
repercussions felt by transgender individuals who call Wisconsin
home. This Comment identifies the federal, state, and city
approaches that have extended equal employment
discrimination legal protections to transgender workers in the
United States. Further, this Comment urges the Wisconsin
legislature to incorporate “gender identity or expression” to
Wisconsin’s Fair Employment Act as a non-discrimination
category, …
Protective Plan Provisions For Employer-Sponsored Employee Benefit Plans, Kathryn J. Kennedy
Protective Plan Provisions For Employer-Sponsored Employee Benefit Plans, Kathryn J. Kennedy
Marquette Benefits and Social Welfare Law Review
Federal case law has provided plan sponsors of the
Employee Retirement Income Security Act of 1974 (ERISA)
covered plans with the ability to insert plan provisions that are
more favorable to the plan sponsor rather than the plan
participant or beneficiary (so-called “protective plan provisions”).
This Article first examines what is the “plan document” for
purposes of ERISA and what protective plan provisions should
be considered for insertion into the plan document and its
related “instruments.”
Allowing States To Help Workers Safe For Retirement: Department Of Labor's Proposed Rulemaking That Provides A Safe Harbor For State Savings Programs Under Erisa, William A. Nelson
Allowing States To Help Workers Safe For Retirement: Department Of Labor's Proposed Rulemaking That Provides A Safe Harbor For State Savings Programs Under Erisa, William A. Nelson
Marquette Benefits and Social Welfare Law Review
There is a “retirement crisis” in America. Contributing to
this crisis is the fact that millions of Americans do not have
access to a retirement savings plan through their employers.
States, concerned with the economic stability of their citizens,
have created laws that require private sector employers to
implement state-administered payroll deduction IRA programs
in their workplaces. Even though many states are currently
debating whether to adopt state payroll deduction programs,
this Article will focus on Oregon, Illinois, and California, which
have enacted laws along those lines.
One obstruction to wider adoption of such state measures
has been uncertainty about …
The Relationship Between A Collegiate Student-Athlete And The University: An Historical And Legal Perspective, Adam Epstein, Paul M. Anderson
The Relationship Between A Collegiate Student-Athlete And The University: An Historical And Legal Perspective, Adam Epstein, Paul M. Anderson
Marquette Sports Law Review
None
Foreword, Jill K. Ingels
Neither Employees Nor Indentured Servants: A New Amateurism For A New Millennium In College Sports, Brian L. Porto
Neither Employees Nor Indentured Servants: A New Amateurism For A New Millennium In College Sports, Brian L. Porto
Marquette Sports Law Review
None
The Ninth Circuit Decision In O'Bannon And The Fallacy Of Fragile Demand, Andy Schwarz, Richard J. Volante
The Ninth Circuit Decision In O'Bannon And The Fallacy Of Fragile Demand, Andy Schwarz, Richard J. Volante
Marquette Sports Law Review
None
Addressing The Current Crisis In Ncaa Athletics: Where Is Congress?, Thomas J. Horton, Drew Degroot, Tyler Custis
Addressing The Current Crisis In Ncaa Athletics: Where Is Congress?, Thomas J. Horton, Drew Degroot, Tyler Custis
Marquette Sports Law Review
None
From Board Of Regents To O'Bannon: How Antitrust And Media Rights Have Influenced College Football, Thomas A. Baker Iii, Natasha T. Brison
From Board Of Regents To O'Bannon: How Antitrust And Media Rights Have Influenced College Football, Thomas A. Baker Iii, Natasha T. Brison
Marquette Sports Law Review
None
Let's Give It Arrest: Why The Ncaa Should Adopt A Uniform Disciplinary Policy, Michael Kessler
Let's Give It Arrest: Why The Ncaa Should Adopt A Uniform Disciplinary Policy, Michael Kessler
Marquette Sports Law Review
No abstract provided.
The Demand For Student-Athlete Labor And The Supply Of Violations In The Ncaa, Jill S. Harris
The Demand For Student-Athlete Labor And The Supply Of Violations In The Ncaa, Jill S. Harris
Marquette Sports Law Review
None
Hey, College Sports. Compromise On Compensation And You Can Have A Legal Monopoly, Todd A. Mcfall
Hey, College Sports. Compromise On Compensation And You Can Have A Legal Monopoly, Todd A. Mcfall
Marquette Sports Law Review
None