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2006

Marquette University Law School

Series

Articles 1 - 30 of 31

Full-Text Articles in Law

Rules For Radicals: A Politics Of Patent Law, Kali Murray Oct 2006

Rules For Radicals: A Politics Of Patent Law, Kali Murray

Faculty Publications

No abstract provided.


Frivolous Sanction Law In Wisconsin, Janine P. Geske, William C. Gleisner Iii Feb 2006

Frivolous Sanction Law In Wisconsin, Janine P. Geske, William C. Gleisner Iii

Faculty Publications

No abstract provided.


Inherent Attorney Conflicts Of Interest Under Erisa: Using The Model Rules Of Professional Conduct To Discourage Joint Representation Of Dual Role Fiduciaries, Paul M. Secunda Jan 2006

Inherent Attorney Conflicts Of Interest Under Erisa: Using The Model Rules Of Professional Conduct To Discourage Joint Representation Of Dual Role Fiduciaries, Paul M. Secunda

Faculty Publications

Although ERISA expressly permits employers to act as both an employer/plan sponsor and fiduciary of an ERISA employee benefit plan, the statute does not address itself to whether corporate counsel should represent an employer in both of these capacities. Conflicts of interest frequently arise in this context because corporate officers have a fiduciary duty to act in the best interests of their shareholders, while ERISA plan fiduciaries have a duty to act in the best interests of the plan participants and beneficiaries.

Although the Model Rules speak generically of how to identify the client in corporate situations, and also ...


Hate Crime Law And The Limits Of Inculpation, Janine Young Kim Jan 2006

Hate Crime Law And The Limits Of Inculpation, Janine Young Kim

Faculty Publications

Critics sometimes maintain that hate crime law punishes an offender for her motive and character and is therefore doctrinally and morally illegitimate. This manuscript explores the concept of culpability to examine this challenge, and argues that critics inaccurately assume that our criminal law conditions culpability on a robust understanding of choice. This inaccuracy significantly undermines the doctrinal critique against hate crime law, which in fact appears to be consistent with many other laws that consider motive and character as relevant factors in determining degree of guilt and proportionate punishment. Notwithstanding the apparent doctrinal validity of hate crime law, the author ...


Urban Runoff, Its Consequences, And The Problems Of Regulation, Matthew J. Parlow Jan 2006

Urban Runoff, Its Consequences, And The Problems Of Regulation, Matthew J. Parlow

Faculty Publications

No abstract provided.


May A Private Party Sue In Federal Court To Enforce An Fcc Regulation?, James B. Speta, Joseph D. Kearney Jan 2006

May A Private Party Sue In Federal Court To Enforce An Fcc Regulation?, James B. Speta, Joseph D. Kearney

Faculty Publications

No abstract provided.


Punishment, Democracy And Victims, Michael M. O'Hear Jan 2006

Punishment, Democracy And Victims, Michael M. O'Hear

Faculty Publications

No abstract provided.


When May A Judge, Instead Of A Jury, Find The Facts On Which A Criminal Sentence Is Based?, Michael M. O'Hear Jan 2006

When May A Judge, Instead Of A Jury, Find The Facts On Which A Criminal Sentence Is Based?, Michael M. O'Hear

Faculty Publications

No abstract provided.


Victims And Criminal Justice: What’S Next?, Michael M. O'Hear Jan 2006

Victims And Criminal Justice: What’S Next?, Michael M. O'Hear

Faculty Publications

No abstract provided.


Free Shoes For Primary And Secondary Schools: Playing By The Rules Of Title Ix, Patricia A. Cervenka Jan 2006

Free Shoes For Primary And Secondary Schools: Playing By The Rules Of Title Ix, Patricia A. Cervenka

Faculty Publications

Many credit Title IX with providing opportunities for girls to participate in athletics in greater numbers. The National Federation of State High School Associations show that the number of girls participating increased from 294,015 in 1971-1972 to 2,908,390 in 2004-2005, almost a tenfold increase. In the same time period the number of boys participating increased by 443,000. Girls participation has dramatically increased so the big picture is focused. Now attention is being drawn to some of the smaller aspects of Title IX compliance.

Shoe deals sidestep rules on equality in schools. Thus ran the headline in ...


The Major League Baseball Players Association And The Ownership Of Sports Statistics: The Untold Story Of Round One, J. Gordon Hylton Jan 2006

The Major League Baseball Players Association And The Ownership Of Sports Statistics: The Untold Story Of Round One, J. Gordon Hylton

Faculty Publications

No abstract provided.


A Place On The Team: The Triumph And Tragedy Of Title Ix, A Review Essay, Paul M. Anderson Jan 2006

A Place On The Team: The Triumph And Tragedy Of Title Ix, A Review Essay, Paul M. Anderson

Faculty Publications

No abstract provided.


The Day After Tomorrow: What Happens Once A Middle East Peace Treaty Is Signed?, Andrea Kupfer Schneider Jan 2006

The Day After Tomorrow: What Happens Once A Middle East Peace Treaty Is Signed?, Andrea Kupfer Schneider

Faculty Publications

Dealing with the Israeli-Palestinian conflict sometimes seems like wading into quicksand. Far more good ideas and good intentions have been focused on this conflict than would seem possible, judging by the progress over the last forty years (or eighty years). And yet, good people on many sides of this conflict hope and expect that within their lifetimes, they will see the recognition of two states that can live with each other in peace. So, one might ask, given how entrenched the conflict is and the extent of the work necessary to bring about peace, why focus on the day after ...


Tax Planning For Retirement, Vada Waters Lindsey Jan 2006

Tax Planning For Retirement, Vada Waters Lindsey

Faculty Publications

As increasing life expectancy and inflation diminish the purchasing power of retirement savings, careful tax planning to maximize funds available to seniors is necessary. Lindsey discusses the taxation of various types of retirement income including traditional and Roth IRAs and Social Security benefits, and explains how careful planning can reduce income and estate taxes. The disparate effects of state income and estate taxes are also explored.


One Judge's Journey, Janine P. Geske Jan 2006

One Judge's Journey, Janine P. Geske

Faculty Publications

No abstract provided.


The Duty To Avoid Disparity: Implementing 18 U.S.C. § 3553(A)(6) After Booker, Michael M. O'Hear Jan 2006

The Duty To Avoid Disparity: Implementing 18 U.S.C. § 3553(A)(6) After Booker, Michael M. O'Hear

Faculty Publications

Since passage of the Sentence Reform Act of 1984 ("SRA"), 18 U.S.C. Section 3553(a)(6) has required sentencing judges in federal court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." At the same time, the SRA also required judges to adhere in most cases to the Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, the Supreme Court ruled in United States v. Booker that the Guidelines could no longer be treated as mandatory. Since then, numerous sentencing ...


Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider Jan 2006

Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider

Faculty Publications

Many scholars have made the argument that the trial is disappearing from use in the American legal system. In response to Marc Galanter's piece, A World without Trials?, this Essay argues that, in fact, the rest of the world is moving toward trials for a host of international legal disputes. What can explain this divergence? The development of ADR in the U.S. met a number of needs including saving time and money, alleviating docket overload, and giving individuals more involvement in the legal process. In the international realm, however, these needs were quite different. The judicialization of international ...


Keeping Peace In The Family While You Are Resting In Peace: Making Sense Of And Presenting Will Contests, Judith G. Mcmullen Jan 2006

Keeping Peace In The Family While You Are Resting In Peace: Making Sense Of And Presenting Will Contests, Judith G. Mcmullen

Faculty Publications

This Article focuses on post-mortem challenges to wills. All such will challenges involve a clash between the testator's stated intentions and the disappointed heirs' expectations and desires. While the legal issues may differ somewhat in individual cases, the claims are almost invariably the result of a disappointed heir feeling that she has been treated unfairly or has not received what she expected to receive. Rather than focusing on the technical issues of will drafting or execution, this Article reflects on the emotional causes of fighting over an estate and suggests some ways to reduce the family fighting and hard ...


When Does The Emergency Aid Exception Permit An Officer's Warrantless Entry Of A Home?, Jay E. Grenig Jan 2006

When Does The Emergency Aid Exception Permit An Officer's Warrantless Entry Of A Home?, Jay E. Grenig

Faculty Publications

No abstract provided.


Are Courts Authorized By The Individuals With Disabilities Act To Award Expert Fees To Prevailing Parents?, Jay E. Grenig Jan 2006

Are Courts Authorized By The Individuals With Disabilities Act To Award Expert Fees To Prevailing Parents?, Jay E. Grenig

Faculty Publications

No abstract provided.


Of Gardens And Streets: A Differentiated Model Of Property In International And National Space Law, Kali Murray Jan 2006

Of Gardens And Streets: A Differentiated Model Of Property In International And National Space Law, Kali Murray

Faculty Publications

No abstract provided.


The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda Jan 2006

The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda

Faculty Publications

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private ...


Who Is An "Original Source" Under The False Claims Act?, Jay E. Grenig Jan 2006

Who Is An "Original Source" Under The False Claims Act?, Jay E. Grenig

Faculty Publications

No abstract provided.


Remedying Judicial Inactivism: Opinions As Informational Regulation, Chad M. Oldfather Jan 2006

Remedying Judicial Inactivism: Opinions As Informational Regulation, Chad M. Oldfather

Faculty Publications

This article continues the exploration of what I have termed "judicial inactivism" - the possibility that judges might sometimes fail to perform the minimum requirements of their role. That task, of course, requires consideration of what those minimum requirements might be. To what extent, for example, are courts subject to a duty to adjudicate not merely the cases before them in a broad sense, but also to resolve the precise claims and arguments that the parties put before them on the terms that the parties have done so?

The article first draws on my prior work to outline some of the ...


Underage Drinking: Does Current Policy Make Sense?, Judith G. Mcmullen Jan 2006

Underage Drinking: Does Current Policy Make Sense?, Judith G. Mcmullen

Faculty Publications

This Article examines the history of laws and policies regulating consumption of alcoholic beverages by young people in the United States, and examines youth drinking patterns that have emerged over time. Currently, all 50 states have a minimum drinking age of 21. Various rationales are offered for the 21 drinking age, such as the claim that earlier drinking hinders cognitive functions, and the claim that earlier drinking increases the lifetime risk of becoming an alcoholic. While there is sufficient evidence to support the claim that it would be better for adolescents and young adults if they did not drink prior ...


Private Conscience, Public Duties: The Unavoidable Conflicts Facing A Catholic Justice, Scott C. Idleman Jan 2006

Private Conscience, Public Duties: The Unavoidable Conflicts Facing A Catholic Justice, Scott C. Idleman

Faculty Publications

When questioned about the relationship between their faith and their decision making, Catholic judges typically invoke a model of detachment, pursuant to which their governmental role and responsibilities are not directly governed by, and thus do not readily conflict with, their potential duties as a faithful Catholic. This position of detachment has been expressed both during confirmation hearings and in situations where judges are asked to remove themselves from a case due to their religious beliefs or affiliation. This article addresses the possibility that this position is potentially at odds with Catholic Church doctrine regarding the obligations of civil officials ...


The Original Intent Of Uniformity In Federal Sentencing, Michael M. O'Hear Jan 2006

The Original Intent Of Uniformity In Federal Sentencing, Michael M. O'Hear

Faculty Publications

This Article recounts the rise and evolution of the uniformity ideal in federal sentencing, that is, the notion that similarly situated offenders should be treated similarly, and differently situated offenders differently. The uniformity ideal was championed by many critics of rehabilitative approaches in the 1970s and strongly influenced the adoption of federal sentencing guidelines in the 1980s. However, uniformity has been an unstable concept, with proponents articulating quite different views as to why uniformity is desirable and how it should be implemented. Much of the difficulty stems from the tension between two distinct approaches to uniformity, which are described here ...


Criminal Violations Of Environmental Laws: Model Sentencing Guidelines §2e1, Michael M. O'Hear Jan 2006

Criminal Violations Of Environmental Laws: Model Sentencing Guidelines §2e1, Michael M. O'Hear

Faculty Publications

No abstract provided.


Cunningham: Why Federal Practitioners And Policy Makers Should Pay Attention, Michael M. O'Hear Jan 2006

Cunningham: Why Federal Practitioners And Policy Makers Should Pay Attention, Michael M. O'Hear

Faculty Publications

No abstract provided.


Toward An Accountability-Based Definition Of Mercenary, Ryan M. Scoville Jan 2006

Toward An Accountability-Based Definition Of Mercenary, Ryan M. Scoville

Faculty Publications

Mercenary violence is an increasingly serious threat to international security. From a legal perspective, the development of this threat is problematic because the international treaties that regulate "mercenaries" operate on a flawed definition of the concept. Even the most recent definition neither accounts for changes in global security over the past decade nor reflects the fundamental problem with mercenaries - the fact that they are not state-accountable actors. These deficiencies have contributed to the spread of mercenary activity by complicating treaty enforcement and undermining state support for the current law. This Note therefore proposes a new definition of "mercenary." The proposed ...