Law Commons^™

Plea Bargaining For The People, Daniel S. Mcconkie Jr

Marquette Law Review

Our criminal justice system must be democratic enough to allow for significant citizen participation. Unfortunately, our current system cuts the people out. Instead of juries, plea bargaining professionals like prosecutors, defense attorneys, and judges decide most cases. Plea bargaining does efficiently process cases but, in addition to its well-known coercive aspects that warp case outcomes, ignores what I call “criminal justice citizenship.” This refers to the people’s privilege to participate on an equal basis in the criminal justice system. That participation strengthens our democracy, shores up the legitimacy of the system, and helps to ensure that the system, within constitutional …

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 …

Pandemic (Or War) Notwithstanding, Joseph D. Kearney

Marquette Law Review

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This Toothless Court: Judicial Review In Wisconsin Post-Mayo, Jay Mcdivitt

Marquette Law Review

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Orange Is The News Blackout: The First Amendment And Media Access To Jails, Frank D. Lomonte, Jessica Terkovich

Marquette Law Review

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Searching For Accountability Under Fisa: Internal Separation Of Powers And Surveillance Law, Peter Margulies

Marquette Law Review

The Foreign Intelligence Surveillance Act (FISA) has never been more controversial. Enacted to bolster surveillance's institutional framework after the excesses of J. Edgar Hoover's FBI, FISA's deficits have been front and center due to the Justice Department Inspector General's report on the flawed Carter Page FISA request and disclosures of excessive FBI querying of U.S. person information under § 702 of the FISA Amendments Act. This Article suggests that current problems have their roots in the failure of both the FBI and the Department of Justice (DOJ) to learn the lessons of FISA's origins and history.

It’S Time To Put Character Back Into The Character-Evidence Rule, Steven Goode

Marquette Law Review

Federal Rule of Evidence 404(b), which governs the admissibility of other-acts evidence, is a mess, and recently-promulgated amendments will not fix it. The amendments fail to address the two major problems underlying Rule 404(b). First, the rule is based on a categorical judgment about the relative probative value and unfair prejudice of other-acts evidence when offered as character evidence; that is, to prove the defendant acted in accordance with his or her character. In numerous cases, however, other-acts evidence is highly probative and the rule’s categorical judgment is decidedly wrong. Not surprisingly, courts often admit such evidence, typically by erroneously …

Wisconsin’S Craft Beer Industry: Crafting Better Law For A More Competitive Market, Michaela A. Hendricks

Marquette Law Review

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Are We Dropping The Crystal Ball? Understanding Nascent & Potential Competition In Antitrust, John M. Yun

Marquette Law Review

Nascent and potential competitors can represent a vital source of innovation and dynamic growth for an industry and, in the process, can discipline the exercise of market power from incumbents. Yet are those benefits extinguished before they can fully ignite when powerful incumbents acquire these nascent and potential competitors? Moreover, how does the acquisition of these competitors fit into the larger antitrust framework? This Article offers a number of propositions to address these concerns and questions in regard to competition that has not been fully realized. First, this Article offers a clear legal and analytical delineation between the doctrines of …

A Net For A Cooperator’S Leap Of Faith: The Due Process Need For Universal Acceptance Of Bad Faith Review Of Prosecutors’ Substantial Assistance Determinations In Federal Sentencing, Lucius T. Outlaw

Marquette Law Review

Cooperation is critical to federal criminal cases. For the government, cooperation is vital to securing the leads, information, and evidence needed to successfully investigate and prosecute criminal activity, particularly drug trafficking conspiracies and white-collar fraud crimes. For federal defendants, cooperation is the primary way to reduce their prison time exposure. Therefore, how a defendant’s cooperation is evaluated and translated into sentencing leniency is a significant issue for the government and cooperating defendants. Federal law and sentencing guidelines grant the keys to the

evaluation process to federal prosecutors by requiring a prosecutor’s substantial assistance motion before a judge can grant sentencing …

Be Reasonable: The Applicability Of Chevron To Agency Interpretations Of Split-Authority Statutes, Jessica L. Asbridge

Marquette Law Review

The well-known Chevron doctrine is under siege as courts continue to carve out exceptions to its scope and some scholars and judges question whether it should be overruled entirely. One ongoing battle concerns whether the doctrine, which requires courts to defer to reasonable agency interpretations of ambiguous statutes, applies to certain “split-authority” statutes administered by multiple agencies, such as the Sarbanes-Oxley Act’s whistleblower provisions (SOX) and similar employment statutes. Both the Department of Labor (DOL) and the Securities and Exchange Commission (SEC) administer SOX’s whistleblower provisions, with the DOL having formal adjudicative authority and the SEC having rulemaking authority, leading …

Workplace Transparency Beyond Disclosure: What's Blocking The View?, Lisa J. Bernt

Marquette Law Review

Recent developments have exacerbated informational asymmetry between

employers and workers. Employers increasingly use “black box” automateddecision

systems, such as machine learning processes where algorithms are

used in recruitment and hiring. They have technological tools that enable

intense monitoring of workers. Contemporary work relationships have

changed, with trends toward remote and scattered worksites. Employees are

more frequently bound by nondisclosure agreements, non-disparagement

provisions, and mandatory arbitration agreements. These developments have

made it more difficult for workers to communicate with each other and to act

collectively.

Necessary Coverage For Authentic Identity: How Bostock Made Title Vii The Strongest Protection Against Employer-Sponsored Health Insurance Denial Of Gender-Affirming Medical Care., Jennifer A. Knackert

Marquette Law Review

In June 2020, the United States Supreme Court held that Title VII

protection from discrimination on the basis of sex extended to LGBTQ+

employees. The Bostock v. Clayton County, Georgia decision dealt with three

separate cases where LGBTQ+ employees had been fired from their jobs based

on either their sexual orientation or gender identity. While the shared issue in

these cases had to do with employee termination, the textualist argument

presented by the Court leads many legal scholars to believe that the holding

would be applicable to other areas of employment discrimination covered by

Title VII such as employer-sponsored healthcare …

Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon

Marquette Law Review

The Racketeer Influenced and Corrupt Organizations Act (RICO) came into

the world in 1970, a time of great social upheaval that was accompanied by

shifting attitudes towards both crime and civil litigation. From the outset, the

statute’s complexity, ambiguity, and uncertain purpose have confounded courts

and commentators. At least some doubts as to the statute’s meaning and

application arise because it has criminal and civil components that subject it

to the twin—yet antithetical—social impulses to be “tough on crime” while

containing a perceived “litigation explosion.” In this Article, I situate RICO

in this larger context and offer that context as …

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.

Toward Racially Equitable And Accountable Tech, Andrea Giampetro-Meyer, Janae James, Sydney Brooke

Marquette Law Review

This Article examines three distinct areas to consider how we might move

toward racially equitable and accountable tech. The three distinct areas are:

(1) fair housing, (2) surveillance, and (3) social media. Fair housing raises

questions about where today’s racially biased algorithms fit within the context

of historical, racist government housing policy. Surveillance raises questions

about how some tech tools render Black faces invisible, while others render

Black faces dangerously conspicuous. Social media highlights the clash

between civil rights and civil liberties, especially when racial justice conflicts

with freedom of speech. Our analysis leads us to consider the extent to …

Making Preconception Tort Theory Crisper, Mark Strasser

Marquette Law Review

More and more individuals seeking to expand their families make use of

someone else’s gametes to help create a child. Unsurprisingly, those

considering the use of donated or purchased gametes often seek reassurance

that the use of those gametes will not create an increased risk that a child

thereby produced will have a severe disease. Sometimes, because of negligence

or recklessness, gametes are used that result in children having severe disease

where that outcome would have been avoided though the use of reasonable

care. Regrettably, courts addressing whether liability may be imposed in such

cases have sometimes misunderstood and misapplied …

The Burdens Of All: Progressive Origins Of Accident Cost Socialization In Tort Law, 1870-1920, Joseph A. Ranney

Marquette Law Review

Scholars who have studied the Progressive Movement’s contributions to

American law have paid little attention to its impact on tort law. This Article

helps fill the gap by examining the ways in which Progressivism shaped the rise

of employer liability law, workers compensation, and comparative negligence

during the late-nineteenth and early-twentieth centuries. The Article places

these reforms within the broader social history of American tort law—a

gradual, often tortuous transition from free-labor beliefs that the law should

encourage personal responsibility and economic growth above all else to a

realization that injuries are an unavoidable cost of economic modernization,

accompanied by …

Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald

Marquette Law Review

Faced with mounting pressure to permit national law practice and increase

access to legal services for those who cannot afford to pay for them and

critiques about growing inequality and its failure to lead the battles for greater

gender and racial justice, the legal profession’s response has been to resist

reform proposals by invoking its independence. Lawyers and lawyers alone,

asserts the profession, ought to determine the pace and details of nationalizing

law practice, set the conditions under which nonlawyers and artificial

intelligence can offer legal services, and respond to growing inequality among

lawyers and concerns about the role lawyers …

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.

Alleviating The Harms Of Substandard Housing To Wisconsin Tenants: Correlating Rent With Assessed Property Value, Ellen Matheson

Marquette Law Review

Like other cities across the nation, Milwaukee utilizes a mix of regulatory,

statutory, and common law tools to address the problem of substandard rental

housing. This Comment examines the efficacy of those legal tools, in the

process demonstrating that existing remedies offer insufficient protections to

tenants in need of habitable housing. This Comment then proposes a novel

legal strategy that is designed to ameliorate the problem of low-quality,

overpriced rental housing: amending Wis. Stat. § 66.1015 to permit

implementation of a “rent-value correlation rate”—giving municipalities the

option to cap monthly contract rent as a percentage of the assessed property

value. …