Law Commons^™

Rights And Remedies: Rental Housing For Low-Income Households In The United States, David Ray Papke, Mary Elise Papke

Marquette Benefits and Social Welfare Law Review

The state of rental housing for low-income households in the United States is deplorable. Unaffordable, unsanitary, and insecure, this housing violates the internationally recognized right of housing. While the United States has never formally recognized that right, the right guarantees not only a roof overhead but also affordability, habitability, and security of tenure. Policies and programs seeking to remedy the problems in rental housing might consciously address these aspects of rental housing. Policies and programs of this sort will not be enough to eliminate all problems, but they would alleviate a matter of great embarrassment, namely, the most affluent country …

Inviting The People Into People's Court: Embracing Non-Attorney Representation In Eviction Proceedings, Gregory Zlotnick

Marquette Benefits and Social Welfare Law Review

Evictions often hide in plain sight—and so does one of the most effective responses. Studies uniformly confirm that represented tenants avoid evictions, and with it associated downstream effects, at appreciably higher rates than unrepresented tenants. Tenant representation is one of the most cost-effective anti-poverty interventions available in our housing system. Lawyers should support its expansion, even if and when it a non-lawyer serves as that intervenor in eviction court.

This paper argues that the legal profession should embrace and expand existing pathways for training eligible and interested individuals, regardless of whether they are licensed attorneys, to assist tenants facing eviction. …

A Critical Jeffersonian Mind For A Community Reinvestment Bind, Chaz D. Brooks

Marquette Benefits and Social Welfare Law Review

The Community Reinvestment Act of 1977 ("CRA") primarily sought to remedy decades of government sanctioned disinvestment in so-called “redlined communities.” Through the Home Owners’ Loan Corporation and later the Federal Housing Administration, the United States of America created from whole cloth a structure that encouraged and subsidized the explosion of homeownership in white American households. Following decades of racialized wealth generation, the United States had a change of heart. Congress determined that financiers needed a gentle push to invest fairly. Additionally, Congress wanted one thing clear in the drafting of this remedy— it must not allocate credit. This essay considers …

Sabermetrics And Patents?: Open Source, Property Protections, And Alice V. Cls Bank

Marquette Intellectual Property & Innovation Law Review

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Restating The Law Of Prescriptive Easements, John A. Lovett

Marquette Law Review

Prescriptive easements form an important but often overlooked building block in the architecture of property law. Prescription, the doctrine that allows a long-term user of another’s land to acquire a prescriptive easement burdening that land without compensating the owner, transforms a trespass into a permanent property right good against the world. Of all the elements of prescription, adverse use or adversity is often the most intensely disputed and often proves to be outcome determinative. Given its importance to prescriptive easement claims, courts have developed a number of presumptions to frame their analysis of the adversity element. For many years, leading …

Property And Equity In Trademark Law, Mark P. Mckenna

Marquette Intellectual Property Law Review

This lecture focuses on the relationship between trademark and unfair competition. Specifically, this lecture discusses the way trademark law has evolved over time with respect to property concepts. There has been a lot of discussion in the literature about the ways trademark law has come to treat trademarks as property. Many scholars who have written about this “propertization” have described it as a shift from consumer to producer protection.

I have written a lot about this narrative over the course of my career—I think it is overly simplistic, and in some ways, wrong. Trademark law has al-ways protected marks as …

Questions Of Trust, Betrayal, And Authorial Control In The Avant-Garde: The Case Of Julius Eastman And John Cage, Toni Lester

Marquette Intellectual Property Law Review

This article explores how the idea of trust-based dialogue can give us an alternative understanding about the nature of authorial control and inter-pretation across identity-based differences. Part One will discuss the respective personal stories, philosophies, and competing historical understandings that influenced Cage’s creation of Solo and Eastman’s interpretation thereof. Part Two will offer definitions of trust and communication from the fields of feminist relational psychology, philosophy, and law. Throughout Part Two, I will reflect on the extent to which a trust-based dialogue could have taken place between Cage and Eastman. My general sense is that the answer is “no.” Both …

"I Had A Lakehouse In Tahoe": The Legal Ramifications Of California Tapping Lake Tahoe And How It Affects Homeowners, Gregory Stratz

Marquette Law Review

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Murr And Wisconsin: The Badger State's Take On Regulatory Takings

Marquette Law Review

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Sharing Is Caring: Regulating Rather Than Prohibiting Home Sharing In Wisconsin, Apallonia C. Wilhelm

Marquette Law Review

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The Architectural Works Copyright Act: Can It Protect An Architect's State Of The Art Development When Funded Through Federal Dollars?, Kyle R. Moore

Marquette Intellectual Property Law Review

Westlawn Gardens, the multi-million, multi-phase redevelopment, is nearing completion. As it stands, the LEED award winning development is the largest public housing neighborhood in Wisconsin. But what if a commercial company or individual tried to recreate that development; would the original architect’s work be protected under copyright law?

Copyright law has provided no answers and the law typically protects the architect, but when federal dollars are handed down to independent agencies the ownership line is blurred. 17 United States Code Section 105, states that “copyright protection under this title is not available for any work of the United States government, …

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Marquette Law Review

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

What's Wrong With Partial Intestacy?, Richard F. Storrow

Marquette Law Review

This article questions whether wills law's disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law's disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates.

Arrr... Whose Booty, Mates? Who Possesses Legal Title To A Home Run Baseball That Lands Outside A Stadium's Confines?, Michael R. Gavin

Marquette Sports Law Review

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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 …

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 …

Colder Than A Landlord's Heart? Reconciling A Debtor's Authority To Sell Property Free And Clear Of A Lease Under Bankruptcy Code Section 363(F) With The Tenant's Right To Remain In Possession On A Lease Rejection Under Bankruptcy Code Section 365(H), Bruce Grohsgal

Marquette Law Review

The question examined in this Article is a simple one—Can a tenant with a right to possession under section 365(h) of the Bankruptcy Code be ousted from possession by a free and clear sale of the real property by the debtor-landlord pursuant to section 363(f) of the Bankruptcy Code? The Seventh Circuit, the only court of appeals to have considered the issue, said “yes” in Precision Industries, Inc. v. Qualitech Steel SBQ, LLC and authorized a sale free and clear of the lease and the tenant’s right to remain in possession. Subsequent decisions from the district and bankruptcy courts are …

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

A Breach Of Trust: Rock-Koshkonong Lake District V. State Department Of Natural Resources And Wisconsin's Public Trust Doctrine, Anne-Louise Mittal

Marquette Law Review

Wisconsin has a particularly notable tradition of using the public trust doctrine aggressively to protect the state’s natural resources. The general thrust of the doctrine’s evolution in Wisconsin has been expansion beyond the doctrine’s traditional application to waters navigable for commercial purposes. Emblematic of such expansion is the Wisconsin Supreme Court’s decision in Just v. Marinette County, which scholars have characterized as a landmark extension of the public trust doctrine to non- navigable wetlands adjacent to navigable waters. In light of this tradition, it is unsurprising that the Wisconsin Supreme Court’s recent pronouncement that the Department of Natural Resources …

Picking Up The Remnants Post-Waller: Properly Limiting The Scope Of Uneconomic Remnant Claims In Wisconsin Eminent Domain Proceedings, Samuel A. Magnuson

Marquette Law Review

Statutory interpretation often requires a court to review the legislative intent behind the statute. However, this task is not always easily undertaken when the intent of the legislature is itself unclear. A recent Wisconsin Supreme Court case illustrates the difficulty in properly interpreting arguably ambiguous statutory language. Nevertheless, this Comment hopes to demonstrate that by examining the history of remnant theory, it should be clear that uneconomic remnant claims in eminent domain proceedings were intended to be limited to situations where the partial taking creates either a physical remnant or a financial remnant. Furthermore, this Comment argues that the Wisconsin …