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Marquette Law Review

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Political Parties And Constitutional Fidelity Jan 2019

Political Parties And Constitutional Fidelity

Marquette Law Review

In the aftermath of the 2016 presidential election, fewer themes have received more attention from scholars and public commentators than political polarization. However, given the recent focus on tension and conflict in contemporary American society, the present also seems an especially appropriate moment to investigate those fundamental structures that have successfully worked in the opposite direction to bind and stabilize the American polity. The goal of this paper is precisely this task, and to emphasize the centrality of one particular structure that has played such a stabilizing function: the political parties. Parties are often invoked in discussions of political polarization ...


Table Of Contents Jan 2019

Table Of Contents

Marquette Law Review

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Bitcoin, Virtual Currencies, And The Struggle Of Law And Regulation To Keep Pace Jan 2019

Bitcoin, Virtual Currencies, And The Struggle Of Law And Regulation To Keep Pace

Marquette Law Review

At less than a decade old, Bitcoin and other virtual currencies have had a major societal impact, and proven to be a unique payment systems challenge for law enforcement, financial regulatory authorities worldwide, and the investment community. Rapid introduction and diffusion of technological changes throughout society, such as the blockchain that serves as Bitcoin’s crypto-foundation, continue to exceed the ability of law and regulation to keep pace. During 2017 alone, the market price of Bitcoin rose 1,735%, from about $970 to $14,292, causing an investor feeding frenzy. As of September 11, 2018, a total of 1,935 ...


Bias In The Boardroom: Implicit Bias In The Selection And Treatment Of Women Directors Jan 2019

Bias In The Boardroom: Implicit Bias In The Selection And Treatment Of Women Directors

Marquette Law Review

In light of the stagnation in growth of women directors on corporate boards, board diversity advocates and corporate leaders should look to the role implicit gender bias plays in the board nomination process and in challenges women directors face while serving on boards. Relevant stakeholders often overlook how implicit bias barriers prevent women from reaching the boardroom and persist as obstacles once women directors have earned their seats on the board. Incorporating social psychological research on implicit bias and recognized strategies to work around bias, such as objective assessments and guidelines, data analytics, and accountability mechanisms, this Article encourages companies ...


Mens Rea In Comparative Perspective Jan 2019

Mens Rea In Comparative Perspective

Marquette Law Review

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. As ...


Attorney-Client Privilege And The Kovel Doctrine: Should Wisconsin Extend The Privilege To Communications With Third-Party Consultants? Jan 2019

Attorney-Client Privilege And The Kovel Doctrine: Should Wisconsin Extend The Privilege To Communications With Third-Party Consultants?

Marquette Law Review

In today’s marketplace, the way that corporations conduct business is drastically changing, and lawyers are increasingly relying on third-party consultants, such as accountants or investment bankers, to facilitate them in providing accurate legal advice to corporate clients. Despite this reliance, whether the attorney–client privilege protects the communications between an attorney and a third-party consultant is often questioned. In United States v. Kovel, the Second Circuit found that the attorney–client privilege extended to communications between an attorney and a third-party consultant who acted as an interpreter. However, both federal and state courts have since split over the proper ...


Table Of Contents Sep 2018

Table Of Contents

Marquette Law Review

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Cooperation And Turnover In Law Faculties: A Game-Theoretic Model And An Empirical Study Sep 2018

Cooperation And Turnover In Law Faculties: A Game-Theoretic Model And An Empirical Study

Marquette Law Review

A standard account of group cooperation would predict that group stability would bring about greater cooperation because repeat-play games would allow for sanctions and rewards. In an academic unit such as a department or a law faculty, one might thus expect that faculty stability would bring about greater cooperation. However, academic units are not like most other groups. Tenured professors face only limited sanctions for failing to cooperate, for engaging in unproductive conflict, or for shirking. This article argues counter-intuitively that within limits, some level of faculty turnover may enhance cooperation. Certainly, excessive and persistent loss of faculty is demoralizing ...


The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All Sep 2018

The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All

Marquette Law Review

This Article shines a light on a little noticed phenomenon in American law: the promulgation of ten state statutes and one state regulation, each requiring education about genocide in elementary and/or secondary schools. The mandates, adopted from 1989 through 2018, appear to be only the beginning inasmuch as in 2017 another nineteen states publicly pledged to pass such mandates as well.

The Article describes each of the existing mandates and compares them to each other, including an analysis of the laws’ respective strong and weak points. This exposition, of interest in itself, also sets the stage for proposals to ...


Revisiting Belligerent Reprisals In The Age Of Cyber? Sep 2018

Revisiting Belligerent Reprisals In The Age Of Cyber?

Marquette Law Review

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How Shell Entities And Lack Of Ownership Transparency Facilitate Tax Evasion And Modern Policy Responses To These Problems Sep 2018

How Shell Entities And Lack Of Ownership Transparency Facilitate Tax Evasion And Modern Policy Responses To These Problems

Marquette Law Review

The purpose of this article is to review the use and application of shell entities, as they facilitate tax evasion, impede investigations, and harm society. This article details the types and characteristics of shell entities, reviews actual cases to exhibit how shells are abused, outlines reasons shells disguise beneficial ownership, and analyzes steps taken by countries and organizations to thwart the abuse of shell entities. Many types of shell entities are used by tax evaders and are often layered in an intricate network which conceals the identity of beneficial owners. Nominees and bearer shares are used in tandem with shell ...


Supreme Verbosity: The Roberts Court's Expanding Legacy Sep 2018

Supreme Verbosity: The Roberts Court's Expanding Legacy

Marquette Law Review

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What ...


... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution Sep 2018

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution

Marquette Law Review

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Collateral Consequences And Criminal Justice: Future Policy And Constitutional Directions Sep 2018

Collateral Consequences And Criminal Justice: Future Policy And Constitutional Directions

Marquette Law Review

National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from ...


Murr And Wisconsin: The Badger State's Take On Regulatory Takings Sep 2018

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

Marquette Law Review

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Masthead Sep 2018

Masthead

Marquette Law Review

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Towards A Series Of Academic Norms For #Lawprof Twitter, Carissa Byrne Hessick Jun 2018

Towards A Series Of Academic Norms For #Lawprof Twitter, Carissa Byrne Hessick

Marquette Law Review

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Institutional Pluralism And The (Hoped-For) Effects Of Candor And Integrity In Legal Scholarship, Paul Horwitz Jun 2018

Institutional Pluralism And The (Hoped-For) Effects Of Candor And Integrity In Legal Scholarship, Paul Horwitz

Marquette Law Review

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The Ethics Of Normative Legal Scholarship, Robin West Jun 2018

The Ethics Of Normative Legal Scholarship, Robin West

Marquette Law Review

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A Thought Experiment About The Academic "Billable" Hour Or Law Professors' Work Habits, Eli Wald Jun 2018

A Thought Experiment About The Academic "Billable" Hour Or Law Professors' Work Habits, Eli Wald

Marquette Law Review

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Law "Reviews"? The Changing Roles Of Law Schools And The Publications They Sponser, Leslie Francis Jun 2018

Law "Reviews"? The Changing Roles Of Law Schools And The Publications They Sponser, Leslie Francis

Marquette Law Review

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Legal Scholars' Ethical Responsibilities Concerning Neutrality And Objectivity, Candor And Exhaustiveness, Neil Hamilton Jun 2018

Legal Scholars' Ethical Responsibilities Concerning Neutrality And Objectivity, Candor And Exhaustiveness, Neil Hamilton

Marquette Law Review

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The Truth Of The Matter: Why The Social Contract Dictates Legal Scholars' Sincerity, Candor, & Thoroughness, Nicola A. Boothe-Perry Jun 2018

The Truth Of The Matter: Why The Social Contract Dictates Legal Scholars' Sincerity, Candor, & Thoroughness, Nicola A. Boothe-Perry

Marquette Law Review

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Conference On The Ethics Of Legal Scholarship Jun 2018

Conference On The Ethics Of Legal Scholarship

Marquette Law Review

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The Ethics Of Baiting And Switching In Law Review Submissions, Ryan Scoville Jun 2018

The Ethics Of Baiting And Switching In Law Review Submissions, Ryan Scoville

Marquette Law Review

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The Scholar's Dilemma, Chad Oldfather Jun 2018

The Scholar's Dilemma, Chad Oldfather

Marquette Law Review

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The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven J. Heyman Mar 2018

The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven J. Heyman

Marquette Law Review

This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England—a regime in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church.

In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within ...


Bringing The Science Of Policing To Liability For Third-Party Crime At Shopping Malls, Aaron D. Twerski, Jon M. Shane Mar 2018

Bringing The Science Of Policing To Liability For Third-Party Crime At Shopping Malls, Aaron D. Twerski, Jon M. Shane

Marquette Law Review

Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard for reasonable policing. Most courts place heavy emphasis on the foreseeability by the mall management of the likelihood of criminal activity to take place on the grounds of the mall. In doing so, they rely on the testimony of security experts who intuit as to the ...


International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth Mar 2018

International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth

Marquette Law Review

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Getting It Righted: Access To Counsel In Rapid Removals, Stephen Manning, Kari Hong Mar 2018

Getting It Righted: Access To Counsel In Rapid Removals, Stephen Manning, Kari Hong

Marquette Law Review

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