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Full-Text Articles in Law
Brutal Choices In Curricular Design … Going Live: The Pros And Cons Of Live Critiques, Alison E. Julien
Brutal Choices In Curricular Design … Going Live: The Pros And Cons Of Live Critiques, Alison E. Julien
Faculty Publications
No abstract provided.
The Prospect Of Open Deliberations In The Wisconsin Supreme Court, Chad M. Oldfather
The Prospect Of Open Deliberations In The Wisconsin Supreme Court, Chad M. Oldfather
Faculty Publications
No abstract provided.
The Daubert Standard In Wisconsin: A Primer, Daniel D. Blinka
The Daubert Standard In Wisconsin: A Primer, Daniel D. Blinka
Faculty Publications
No abstract provided.
Is Actual Knowledge Of A Patent Necessary To Actively Induce Its Infringement?, Kali Murray
Is Actual Knowledge Of A Patent Necessary To Actively Induce Its Infringement?, Kali Murray
Faculty Publications
No abstract provided.
Games And Other Uncopyrightable Systems, Bruce E. Boyden
Games And Other Uncopyrightable Systems, Bruce E. Boyden
Faculty Publications
This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. …
Funding Stem Cell Research: The Convergence Of Science, Religion & Politics In The Formation Of Public Health Policy, Edward A. Fallone
Funding Stem Cell Research: The Convergence Of Science, Religion & Politics In The Formation Of Public Health Policy, Edward A. Fallone
Faculty Publications
The controversy over the funding of stem cell research by the federal government is used as a case study for examining how policy choices are made in the field of public bioethics. This article examines the manner in which the decision to fund stem cell research has been influenced by the convergence of evolving scientific knowledge, conflicting religious values, and the role of elected officials in a representative democracy. The article begins by reviewing the current state of scientific knowledge concerning adult stem cells, embryonic stem cells, induced pluripotent stem cells, and the process of direct cell re-programming. Because each …
Market Integration And (The Limits Of) The First Sale Rule In North American And European Trademark Law, Irene Calboli
Market Integration And (The Limits Of) The First Sale Rule In North American And European Trademark Law, Irene Calboli
Faculty Publications
This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the …
There’S No Place Like Home: Applying Dispute Systems Design Theory To Create A Foreclosure Mediation System, Andrea Kupfer Schneider, Natalie C. Fleury
There’S No Place Like Home: Applying Dispute Systems Design Theory To Create A Foreclosure Mediation System, Andrea Kupfer Schneider, Natalie C. Fleury
Faculty Publications
This article analyzes the theory of dispute system design when put into action to meet a current economic crisis. In partnership with the City of Milwaukee, Marquette University Law School designed and now operates a voluntary mediation program to deal with the foreclosure crisis. The creation of the Marquette Foreclosure Mediation Program (MFMP) is a case study in dispute system design. Because MFMP is unlike other foreclosure mediation programs - in that it is was designed in conjunction with and is now operated by a law school - the design structure and results analysis are unique and can provide important …
Dynamic Patent Governance In Europe And The United States: The Myriad Example, Kali Murray, Esther Van Zimmeren
Dynamic Patent Governance In Europe And The United States: The Myriad Example, Kali Murray, Esther Van Zimmeren
Faculty Publications
This Article examines the emerging elements of a new model for patent governance. It is divided into four parts. In Section One, we develop a model of dynamic patent governance. This model extends the theoretical framework of network governance, to explain the emergence of networks in the decisionmaking infrastructure for the public and private actors in the patent system. Dynamic patent governance widens this theoretical framework in two key ways. First, dynamic patent governance, within its formal dimensions, is based on the idea that heterogeneous administrative actors regulate the grant and enforcement of patents. This challenges a perspective that sees …
The Case For A Limited Protection Of Trademark Merchandising, Irene Calboli
The Case For A Limited Protection Of Trademark Merchandising, Irene Calboli
Faculty Publications
Since its judicial creation in the 1970s, strong controversy has surrounded the practice of trademark merchandising. Trademark scholars have generally opposed merchandising rights because of the departure from the traditional interpretation of trademark law—protecting consumers and market competition—in favor of a direct protection of trademark value. Despite this opposition, courts and Congress have favored the acceptance of this practice by broadening the scope of trademark protection and by introducing the concept of confusion as to the products’ “sponsorship” or “affiliation” as part of the standard for trademark infringement. Not surprisingly, trademark scholars have criticized these developments but have not offered, …
Constitutional Contracts Clause Challenges In Public Pension Litigation, Paul M. Secunda
Constitutional Contracts Clause Challenges In Public Pension Litigation, Paul M. Secunda
Faculty Publications
The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the …
A Review Of Post-Pga Tour, Inc. V. Martin Legal Developments Regarding The Participation Rights Of Disabled Athletes, Matthew J. Mitten
A Review Of Post-Pga Tour, Inc. V. Martin Legal Developments Regarding The Participation Rights Of Disabled Athletes, Matthew J. Mitten
Faculty Publications
No abstract provided.
The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans On The Brink, Paul M. Secunda
The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans On The Brink, Paul M. Secunda
Faculty Publications
This article provides a first time look at the numerous challenges facing multiemployer or Taft-Hartley benefit plans in the post-global recession and health care reform world. These plans have provided pension, health, and welfare benefits to union members of smaller employers in itinerant industries for over sixty years and even today, these plans collectively have over ten million participants in over 1500 plans.
Multiemployer plans are increasingly mired in financial trouble and are finding it more difficult to continue to provide adequate retirement and health benefits to their members. Although they once represented one of the great triumphs in American …
Wisconsin Supreme Court And Legislative History, Patricia A. Cervenka
Wisconsin Supreme Court And Legislative History, Patricia A. Cervenka
Faculty Publications
Legislative history has been directly mentioned more than 1,800 times in the body of Wisconsin Supreme Court opinions. In 1927, the Wisconsin Legislature established the Legislative Reference Bureau (LRB) to maintain files of drafting records for each proposed bill. Since the late 1990s, the files have been available electronically to make the information more accessible to lawyers appearing in Wisconsin courts.
Library Without Walls - A Year Later, Patricia A. Cervenka
Library Without Walls - A Year Later, Patricia A. Cervenka
Faculty Publications
No abstract provided.
Foreward: Lessons From Other Countries: Comparative Pension Law, Paul M. Secunda
Foreward: Lessons From Other Countries: Comparative Pension Law, Paul M. Secunda
Faculty Publications
No abstract provided.
Alimony: What Social Science And Popular Culture Tell Us About Women, Guilt, And Spousal Support After Divorce, Judith G. Mcmullen
Alimony: What Social Science And Popular Culture Tell Us About Women, Guilt, And Spousal Support After Divorce, Judith G. Mcmullen
Faculty Publications
Over the past few decades, fewer divorcing women have received alimony, and when alimony awards are made, they are in declining amounts and for shorter periods of time. Conventional explanations of this trend focus on legal changes that have made divorces easier to obtain, as well as social changes that have led to larger numbers of married women in the paid workforce, and to greater social tolerance of divorce. Certainly these changes partly explain the downward trend in alimony, but they do not fully explain why alimony awards continue to decline, even among women who do not have viable job …
Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill
Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill
Faculty Publications
No abstract provided.
The Over-Protection Of Intellectual Property Rights In Sport In The United States And Elsewhere, J. Gordon Hylton
The Over-Protection Of Intellectual Property Rights In Sport In The United States And Elsewhere, J. Gordon Hylton
Faculty Publications
No abstract provided.
Sonic Bust: Trying To Retain Major League Franchises In Challenging Financial Times, Paul M. Anderson, W. S. Miller
Sonic Bust: Trying To Retain Major League Franchises In Challenging Financial Times, Paul M. Anderson, W. S. Miller
Faculty Publications
This article analyzes the relationship between a city and team. It uses the litigation surrounding the Seattle Sonics move to Oklahoma City to show how the relationship can break down. The authors then argue that judicial remedies will often be inadequate unless substantiated with strong lease language.
Beyond Rehabilitation: A New Theory Of Indeterminate Sentencing, Michael M. O'Hear
Beyond Rehabilitation: A New Theory Of Indeterminate Sentencing, Michael M. O'Hear
Faculty Publications
Indeterminate sentencing - that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board - fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release. Yet, sentencing remained indeterminate most places to varying degrees, and now …
Sheep In Wolves' Clothing: Removing Parens Patriae Suits Under The Class Action Fairness Act, Alexander Lemann
Sheep In Wolves' Clothing: Removing Parens Patriae Suits Under The Class Action Fairness Act, Alexander Lemann
Faculty Publications
This Note examines the applicability of the Class Action Fairness Act’s (CAFA) removal provisions to parens patriae suits. CAFA expanded federal diversity jurisdiction to include class actions with minimal diversity, doing away with a rule that had kept most class actions in state court. Although CAFA does not mention parens patriae suits, their inherent similarity to class actions raised the question of whether they too could now be removed to federal court. The Fifth Circuit, in Louisiana ex rel. Caldwell v. Allstate Insurance Co., has held that the real parties in interest — those whose injuries form the basis of …
Neoformalism And The Reemergence Of The Right-Privilege Distinction In Public Employment Law, Paul M. Secunda
Neoformalism And The Reemergence Of The Right-Privilege Distinction In Public Employment Law, Paul M. Secunda
Faculty Publications
The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.
Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although …