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Full-Text Articles in Law
Be Wise: Revise, Lisa A. Mazzie
Conciseness In Legal Writing, Lisa Mazzie Hatlen
Conciseness In Legal Writing, Lisa Mazzie Hatlen
Faculty Publications
No abstract provided.
Age Discrimination In The Delivery Of Health Care Services To Our Elders, Phoebe Weaver Williams
Age Discrimination In The Delivery Of Health Care Services To Our Elders, Phoebe Weaver Williams
Faculty Publications
The problem of health care providers making age biased decisions when treating elderly patients has received considerable attention and condemnation from both medical and social science researchers. When health care providers offer inappropriate or less care to patients because of their advanced chronological age, they potentially violate the Age Act of 1975. However, a review of the cases litigated under the Age Act suggests that advocates, regulators, and elders have not used the Age Act to address even the most blatant ageist practices in health care. Using methods developed to identify unlawful discrimination under employment and civil rights laws, this …
Explaining Sentences, Michael M. O'Hear
Explaining Sentences, Michael M. O'Hear
Faculty Publications
Despite the Supreme Court's 2005 decision in United States v. Booker, which enhanced the power of district court judges to sentence defendants below the range prescribed by the federal sentencing guidelines, the great majority of federal sentences continue to follow the guidelines' recommendations. As defendants have challenged these practices, one commonly litigated issue has been the question of whether district court judges are obligated to explain themselves when they reject a defendant's argument for a below-guidelines sentence. In the immediate aftermath of Booker, a handful of federal circuits adopted such an explanation requirement. Since 2005, however, the tide has turned, …
Off-Court Misbehavior: Sports Leagues And Private Punishment, Janine Young Kim, Matthew J. Parlow
Off-Court Misbehavior: Sports Leagues And Private Punishment, Janine Young Kim, Matthew J. Parlow
Faculty Publications
This Essay examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy - from players’ unions and commentators alike - especially when a commissioner invokes the “in the best interest of the sport” clause of the professional sports league’s constitution and bylaws. The Essay then contextualizes such league discipline in criminal punishment theory - juxtaposing punishment norms in public law with incentives and rationales …
Universal De Novo Review, Chad M. Oldfather
Universal De Novo Review, Chad M. Oldfather
Faculty Publications
This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or even the option) to defer to their trial-level counterparts. Despite - or perhaps because of …
Bargaining In The Shadow Of (International) Law: What The Normalization Of Adjudication In International Governance Regimes Means For Dispute Resolution, Andrea K. Schneider
Bargaining In The Shadow Of (International) Law: What The Normalization Of Adjudication In International Governance Regimes Means For Dispute Resolution, Andrea K. Schneider
Faculty Publications
After examining the similar goals and values that drive the simultaneous increase in international trials and the decrease in U.S. trials, the article then examines the challenges international adjudication poses to dealing with human rights violations and transitional justice situations. Simplistically, these tensions can be viewed as the need to strike a balance between peace and justice, top-down implementation and bottom-up impact, and process efficiency and conflict customization. The good news is that these challenges have been slowly working themselves out as the next generation of international adjudication models continues to improve. This continued improvement and normalization leads to an …
Judicial Review Of Olympic And International Sports Arbitration Awards: Trends And Observations, Matthew J. Mitten
Judicial Review Of Olympic And International Sports Arbitration Awards: Trends And Observations, Matthew J. Mitten
Faculty Publications
This article provides an overview of the nature and scope of judicial review of Olympic and international sports arbitration awards, primarily those rendered by the Court of Arbitration for Sport (based in Lausanne, Switzerland) and their review by the Swiss Federal Tribunal pursuant to the Swiss Federal Code on Private International Law. It also describes and compares U.S. courts' review of international sports arbitration awards pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards as well as domestic sports arbitration awards. Both Swiss and U.S. courts are permitting CAS arbitration awards to establish a …
The Perils Of Popularity: David Josiah Brewer And The Politics Of Judicial Reputation, J. Gordon Hylton
The Perils Of Popularity: David Josiah Brewer And The Politics Of Judicial Reputation, J. Gordon Hylton
Faculty Publications
No abstract provided.
He Speaks Not, Yet He Says Everything; What Of That?: Text, Context, And Pretext In State V. Jeffrey Dahmer, Gregory J. O'Meara S.J.
He Speaks Not, Yet He Says Everything; What Of That?: Text, Context, And Pretext In State V. Jeffrey Dahmer, Gregory J. O'Meara S.J.
Faculty Publications
In State v. Dahmer, the defense attempted to lead the jury through a series of inferences to conclude that the defendant was insane at the time he committed each of the fifteen murders charged; it portrayed a client who was fully cooperative and honest once the authorities arrested him. To make this approach work, the defense needed narrative distance between the defendant and the jury so he could not be cross examined about his meticulous planning of each murder or his prior inconsistent statements. This paper briefly lays out the development of the defense of insanity, focusing on the different …
Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg
Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg
Faculty Publications
Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court’s commitment to the idea or an artifact of the positions of the “swing” Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It …
Outlawing Amnesty: The Return Of Criminal Justice In Transitional Justice Schemes, Lisa J. Laplante
Outlawing Amnesty: The Return Of Criminal Justice In Transitional Justice Schemes, Lisa J. Laplante
Faculty Publications
Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights. Politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities. Latin America exemplified this trend in the 1980s, while also popularizing truth commissions. The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in …
Rethinking Drug Courts: Restorative Justice As A Response To Racial Injustice, Michael M. O'Hear
Rethinking Drug Courts: Restorative Justice As A Response To Racial Injustice, Michael M. O'Hear
Faculty Publications
Specialized drug treatment courts have become a popular alternative to more punitive approaches to the "war on drugs," with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation's prison population - disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a "do-no-harm" innovation. Drug courts can produce both winners and losers when compared to conventional court processing, and there are …
Family Law For The Underclass: Underscoring Law's Ideological Function, David Ray Papke
Family Law For The Underclass: Underscoring Law's Ideological Function, David Ray Papke
Faculty Publications
This article underscores the manner in which family law for the contemporary underclass assumes a distinctly ideological function. Marriage promotion programs not only urge members of the underclass to marry but also deplore their declining commitment to marriage as an institution. "Deadbeat dad" legislation suggests the failure of underclass fathers to pay child support regularly and on time is a major cause of poverty in American life. Adoption law facilitates the placement of underclass children in middle and upper-class families, insisting in the process that this must surely be best for the children. Overall, family law for the underclass suggests …
Regulating Wisconsin-Based Businesses: The Wisconsin Uniform Securities Act, Edward A. Fallone
Regulating Wisconsin-Based Businesses: The Wisconsin Uniform Securities Act, Edward A. Fallone
Faculty Publications
No abstract provided.
The Intersection Of Dispute Systems Design And Transitional Justice, Andrea Kupfer Schneider
The Intersection Of Dispute Systems Design And Transitional Justice, Andrea Kupfer Schneider
Faculty Publications
Dispute Systems Design (DSD), the process of creating structures to deal with repeated or systemic disputes, can be applied to both the most mundane and the most horrific of conflicts. We know that human rights violations can be perpetrated by governments or non-state actors, can be regional or national, and can be targeted against a particular group or have random victims. We know that these violations can occur as a spurt of extreme violence over a short time or can last for generations. We also know, historically, of many different methods by which to deal with human rights violations.
The …
Blogging While (Publicly) Employed: Some First Amendment Implications, Paul M. Secunda
Blogging While (Publicly) Employed: Some First Amendment Implications, Paul M. Secunda
Faculty Publications
While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is …
Rules Limiting Athletic Performance Or Prohibiting Athletic Participation For Health Reasons: Legal And Ethical Considerations, Matthew J. Mitten
Rules Limiting Athletic Performance Or Prohibiting Athletic Participation For Health Reasons: Legal And Ethical Considerations, Matthew J. Mitten
Faculty Publications
This article analyzes the paradox between: 1) intercollegiate sport's objectives of maximizing athletic performance and providing athletic participation opportunities to those possessing the requisite physical ability and skills to compete successfully; and 2) National Collegiate Athletic Association rules that limit athletic performance by all student-athletes, or university requirements that prohibit individual student-athletes from participating in intercollegiate sports, for health reasons. Some student-athletes seek to maximize athletic performance by taking performance-enhancing substances, even if doing so creates potential future adverse health effects. Others may want to participate in intercollegiate sports with a physical abnormality and are willing to assume an increased …
Did Congress Limit The Appellate Court's Discretion To Stay An Alien's Removal From The United States Pending Appeal?, Jessica E. Slavin
Did Congress Limit The Appellate Court's Discretion To Stay An Alien's Removal From The United States Pending Appeal?, Jessica E. Slavin
Faculty Publications
No abstract provided.
What Appeals Are Permitted By Section 16(A)(1)(A) Of The Federal Arbitration Act?, Jay E. Grenig
What Appeals Are Permitted By Section 16(A)(1)(A) Of The Federal Arbitration Act?, Jay E. Grenig
Faculty Publications
No abstract provided.
Was A Lawful Permanent Resident Deprived Of Effective Assistance Of Counsel?, Jessica E. Slavin
Was A Lawful Permanent Resident Deprived Of Effective Assistance Of Counsel?, Jessica E. Slavin
Faculty Publications
No abstract provided.
Did Congress Strip The Federal Circuit Courts Of The Power To Review Denials Of Motions To Reopen Immigration Proceedings?, Jessica E. Slavin
Did Congress Strip The Federal Circuit Courts Of The Power To Review Denials Of Motions To Reopen Immigration Proceedings?, Jessica E. Slavin
Faculty Publications
No abstract provided.
Does The Mobile-Sierra Doctrine Apply When A Contract Is Challenged By A Noncontracting Third Party?, Jay E. Grenig
Does The Mobile-Sierra Doctrine Apply When A Contract Is Challenged By A Noncontracting Third Party?, Jay E. Grenig
Faculty Publications
No abstract provided.
When May A Court Set Aside A National Railroad Adjustment Board Decision On Due Process Grounds?, Jay E. Grenig
When May A Court Set Aside A National Railroad Adjustment Board Decision On Due Process Grounds?, Jay E. Grenig
Faculty Publications
No abstract provided.
Can Arbitrators Order Class Arbitration If The Arbitration Clause In A Maritime Agreement Is Silent On The Issue?, Jay E. Grenig
Can Arbitrators Order Class Arbitration If The Arbitration Clause In A Maritime Agreement Is Silent On The Issue?, Jay E. Grenig
Faculty Publications
No abstract provided.
What Must An Inventor Show In Order To Demonstrate That His Method Is Patentable?, Kali Murray
What Must An Inventor Show In Order To Demonstrate That His Method Is Patentable?, Kali Murray
Faculty Publications
No abstract provided.
Keeping The Underclass In Its Place: Zoning, The Poor, And Residential Segregation, David Ray Papke
Keeping The Underclass In Its Place: Zoning, The Poor, And Residential Segregation, David Ray Papke
Faculty Publications
No abstract provided.
Sorry, No Remedy: Intersectionality And The Grand Irony Of Erisa, Paul M. Secunda
Sorry, No Remedy: Intersectionality And The Grand Irony Of Erisa, Paul M. Secunda
Faculty Publications
Congress enacted the Employee Retiree Income Security Act of 1974 (ERISA) to protect employees' retirement and welfare benefits. Nevertheless, the Act has been interpreted by the U.S Supreme Court over the years to be in essence an Employers' Security Act, with employers using ERISA to shield themselves against employee benefit-related claims. The flaw in the current ERISA scheme lies at the intersection of ERISA's preemption and remedial provisions. Courts broadly interpret the preemption provisions of ERISA to invalidate employee benefits-related state laws and then force employees to depend on an inadequate, "comprehensive and reticulated" remedial scheme. This “intersectionality” problem leads …
A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda
A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda
Faculty Publications
In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decisionmaking and examine the policies and practices operating in a challenged workplace to identify those that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission …
Commercialized Intercollegiate Athletics: A Proposal For Targeted Reform Consistent With American Cultural Forces And Marketplace Realities, Matthew J. Mitten, James L. Musselman, Bruce W. Burton
Commercialized Intercollegiate Athletics: A Proposal For Targeted Reform Consistent With American Cultural Forces And Marketplace Realities, Matthew J. Mitten, James L. Musselman, Bruce W. Burton
Faculty Publications
This article observes that American society’s passion for intercollegiate sports competition is an extremely powerful, naturally evolved cultural force. The marketplace responds to cultural forces, and the commercialization of college sports directly reflects the marketplace realities of our society. For example, colleges and universities rationally use their intercollegiate athletic programs, particularly NCAA Division 1 FBS football and basketball, as a means to achieve a wide range of legitimate objectives of higher education. Thus, the authors advocate that university athletic department revenues should continue to be exempt from federal taxation, specifically the unrelated business income tax (UBIT), despite the increasingly commercialized …