Law Commons^™

Volume 97, Fall 2013 Table Of Contents, Marquette Law Review

Marquette Law Review

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The Wisconsin Consumer Act: Consumer Credit Sales, Consumer Leases, Open-End Credit Plans, And Exclusions, Ralph C. Anzivino

Marquette Law Review

The Wisconsin Consumer Act (WCA) is a complex statute with very significant sanctions for creditors that fail to comply with its requirements. Debtors’ attorneys seek to claim that a transaction is subject to the WCA’s mandates, and of course, creditors’ attorneys seek to deny coverage. This Article addresses the coverage issue by focusing on the three consumer credit transactions that are expressly subject to WCA coverage, and on the two most common transactions excluded from WCA coverage. The three transactions expressly subject to WCA coverage are consumer sales, consumer leases, and open-ended credit plans. Each distinct transaction has its own …

The Psychology And Law Of Hazing Consent, Gregory S. Parks, Tiffany F. Southerland

Marquette Law Review

For years, the law has grappled with the extent to which an individual can consent to harmful physical contact. This has never been more evident than in the area of hazing. Courts have fallen on both sides of this divide, often enough speculating about the mental state of the alleged hazing victim. The question is often whether the individual had the psychological wherewithal to resist situational or contextual demands placed on him or her. In this Article, the authors provide clarity to how the law has thought about this issue and how it should think about it in light of …

Volume 97, Fall 2013 Masthead, Marquette Law Review

Marquette Law Review

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Interpreting The Wisconsin Constitution, Daniel R. Suhr

Marquette Law Review

The Wisconsin Constitution is the state’s fundamental law and is often the final authority over important issues of public moment. When interpreting a provision in the state constitution, the Wisconsin Supreme Court relies on three primary sources: the plain meaning of the text, the legislative and ratification history surrounding the clause, and construction by the legislature. The second and third sources that the Court uses to resolve constitutional cases are significantly flawed for both practical and jurisprudential reasons.

By contrast, the Wisconsin Supreme Court focuses first and foremost on the text when interpreting statutes. The Court only turns to history …

Stop Hammering Fourth Amendment Rights: Reshaping The Community Caretaking Exception With The Physical Intrusion Standard, Gregory T. Helding

Marquette Law Review

In 1973, the U.S. Supreme Court recognized the community caretaking exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures. As its name suggests, the exception acknowledges that police officers act not merely as law enforcers, but also as community caretakers, rendering aid to those in need, and acting to protect both people and property from harm. As originally conceived, the community caretaking exception was limited to situations involving automobiles where police were performing functions totally divorced from law enforcement. Over the years, courts have expanded the exception considerably. Police officers who suspect a crime has taken place may …

Flirting With The Law: An Analysis Of The Ellerth/Faragher Circuit Split And A Prediction Of The Seventh Circuit’S Stance, Natalie S. Neals

Marquette Law Review

This Comment critically analyzes the split in the circuits over the second prong of the Ellerth/Faragher defense. Further, this Comment predicts how the Seventh Circuit will rule on this split. The Ellerth/Faragher defense is an affirmative defense available to employers who would otherwise be held liable for their supervisors’ harassing acts in hostile work environment situations. There are two prongs to the defense: (1) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) “the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to …

Getting Out Of The Funk: How Wisconsin Courts Can Protect Against The Threat To Impartial Jury Trials, Kurt F. Ellison

Marquette Law Review

This Comment critically examines the development of Wisconsin’s juror bias case law and the challenges that this body of law has created for judges and practitioners across the State of Wisconsin. Further, this Comment analyzes whether attempts by the Wisconsin Supreme Court to clear up the body of juror bias law have been successful or, as this Comment suggests, have left juror bias law grappling with the same set of issues. Wisconsin has long recognized the crucial role of the jury to its legal system and to ensuring the just administration of its laws. To preserve the integrity of the …

Roadblock To Recovery: How Fema's Liability Insurance Mandate Denies Low-Income Disaster Survivors Essential Transportation Benefits, Anne Sikes Hornsby

Marquette Law Review

For better or worse, we live in a society dominated by the automobile; Americans are notoriously dependent on automobiles for access to goods and services, for social and economic development, and for sustenance. In disaster situations, transportation can be critical to individual and household recovery efforts, particularly for those in areas with no public transportation or where public transportation has been disrupted. FEMA’s statutory mandate charges the agency with “alleviat[ing] the suffering and damage,” and unsurprisingly, this mandate encompasses disruptions to local transportation systems; the agency’s statutes and regulations authorize FEMA to provide financial aid for transportation needs, including repair …

The Wisconsin Consumer Act: Territorial Considerations, Ralph C. Anzivino

Marquette Law Review

This Article primarily analyzes the impact of the territorial specifications of the Wisconsin Consumer Act on a consumer transaction. The Wisconsin Consumer Act specifies six territorial circumstances, and this Article analyzes each separately. The six territorial circumstances are as follows: (1) Was the transaction “made in Wisconsin”?; (2) Is there collection activity in Wisconsin?; (3) Is there collection activity in a foreign jurisdiction?; (4) Did the transaction involve an open-end credit sale?; (5) Did the parties’ contract contain a Wisconsin or foreign choice- of-law clause?; and (6) How do the WCA venue rules apply? Depending on which of the territorial …

Book Review: (The History Of) Criminal Justice As A Morality Play, Michael M. O'Hear

Faculty Publications

Stephanos Bibas's new book, The Machinery of Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a "participatory morality play," in which ordinary members of the community played a crucial role. In Bibas's view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas's book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects …

Limitations (A Response To Judge Posner), Chad M. Oldfather

Faculty Publications

In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations ­- the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging.

This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that …

The Duty To Think Strategically, Nadelle Grossman

Faculty Publications

Under Delaware corporate law, directors and officers have a duty to oversee their firm’s management of risk to limit losses. Corporate law does not, however, require directors or officers to oversee their firm’s management of strategy to create gains. Yet, managing both risk and strategy is essential to a firm in creating value. In fact, as I argue in the Article, the current focus by courts and commentators only on risk management to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose a model for how Delaware corporate law can drive firms to …

Legislative Diplomacy, Ryan M. Scoville

Faculty Publications

A traditional view in legal scholarship holds that the Constitution assigns to the President an exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its membership routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign legislatures. And members of the House and Senate frequently travel overseas on congressional delegations, or “CODELs,” to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the President. Moreover, many of these activities have occurred ever …

Mass Incarceration In Three Midwestern States: Origins And Trends, Michael M. O'Hear

Faculty Publications

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and …

Not Just Kid Stuff? Extending Graham And Miller To Adults, Michael M. O'Hear

Faculty Publications

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Faculty Publications

One of the central goals of federal securities laws is to protect investors by ensuring that they receive a steady flow of timely, complete, and accurate information. However, that goal is partially undermined by the SEC’s failure to require public companies to disclose anything about their strategic management processes despite increasing requirements on the disclosure of associated risk management processes. Like risk management processes, strategic management processes are designed to create firm value. But instead of focusing on loss-creating risks, strategic management focuses on wealth-creating opportunities. As a result, investors are given a lopsided — rather than a complete or …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Faculty Publications

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Table Of Contents

Marquette Elder's Advisor

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Table Of Contents

Marquette Elder's Advisor

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Radioactive Veterans: A New Look At The Nuclear History Of America, Craig M. Kabatchnick, P. Michelle Fitzsimmons, Jonathan B. Kelly

Marquette Elder's Advisor

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Scientific, Social & Legal Perspectives On Obesity: What Grown-Ups Need To Know, Judith G. Mcmullen

Marquette Elder's Advisor

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Health Care Decision Making In The Veterans Health Administration: The Legal Significance For Informed Consent And Advance Directives, Liliana Kalogjera Barry

Marquette Elder's Advisor

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Confronting The Elder Care Crisis: The Private Long-Term Care Insurance Market And The Utility Of Hybrid Products

Marquette Elder's Advisor

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Table Of Contents

Marquette Elder's Advisor

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Clear Depictions Promote Clear Decisions: Drafting Abortion Speech-And-Display Statutes That Pass First And Fourteenth Amendment Muster

Marquette Elder's Advisor

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The Right To Posthumous Bodily Integrity And Implications Of Whose Right It Is, Hilary Young

Marquette Elder's Advisor

The law protects posthumous bodily integrity by allowing people to decide what will happen to their bodies after death. This article asks whose rights these laws intend to protect: the rights-holders could consist only of living individuals whose bodies will become the corpses at issue or could include the dead themselves. Whether rights to posthumous bodily integrity belong only to the living or survive death leads to three types of insight. First, the reasons for protecting posthumous bodily integrity are different depending on who the rights-bearers are. Second, to the extent that some laws are more consistent with an approach …

Implications Of The Supreme Court's Decision In Pliva, Inc. V. Mensing: Why Generic And Brand-Name Pharmaceuticals Must Be Treated Equally Under The Federal Food, Drug, And Cosmetic Act

Marquette Elder's Advisor

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Preventing Resident-To-Resident Abuse In Long-Term Care: Targeting Sex Offenders But Missing The Mark

Marquette Elder's Advisor

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Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen

Marquette Intellectual Property Law Review

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