Law Commons^™

Changing Conceptions Of Water In The Law, Kali Murray

Marquette Law Review

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From "Lamentation And Liturgy To Litigation": The Holocaust-Era Restitution Movement As A Model For Bringing Armenian Genocide-Era Restitution Suits In American Courts, Michael J. Bazyler

Marquette Law Review

The numerous Holocaust restitution civil lawsuits that began to be filed in the late 1990s and still continue today have yielded over $8 billion in payouts to still-living Holocaust survivors and the heirs of Holocaust victims. The precedent created by the Holocaust restitution movement now makes it possible for suits stemming from the material losses during the Armenian Genocide likewise to be considered by American courts. The Armenian Genocide-era restitution cases filed to date have targeted entities that, while allegedly profiting from the Armenian Genocide, nevertheless were tangential actors to the genocide. The next step in the burgeoning Armenian Genocide-era …

Managing Water Rights Using Fishing Rights As A Model, Shelley Ross Saxer

Marquette Law Review

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The Evolution Of Riparianism In The United States, Joseph W. Dellapenna

Marquette Law Review

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The Prospect Of Open Deliberations In The Wisconsin Supreme Court, Chad M. Oldfather

Faculty Publications

No abstract provided.

Table Of Contents For Volume 94 Issue 4, Marquette University

Marquette Law Review

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Comment On Merrill On The Law Of Waste, Richard A. Posner

Marquette Law Review

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Contract And Procedure, Christopher R. Drahozal, Peter B. Rutledge

Marquette Law Review

This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs. litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties’ ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and …

Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill

Marquette Law Review

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Wisconsin's Antitrust Law: Outsourcing The Legal Standard, Michael P. Waxman

Marquette Law Review

Since its first commentary about the Wisconsin Antitrust Act (Pulp Wood Co. v. Green Bay Paper & Fiber Co., 157 Wis. 604, 147 N.W. 1058 ((1914)) the Supreme Court of Wisconsin has regularly reiterated its policy that interpretations of the Act must follow absolutely “federal [antitrust] decisions.” This policy is driven neither by federal preemption nor by state legislative enactment or pronouncement. The Supreme Court of Wisconsin’s commentaries on this policy for almost a century since the Pulp Wood decision have provided very little counsel to state courts much less businesspersons and their legal advisors. Indeed, one may still reasonably …

Broken Systems, Broken Duties: A New Theory For School Finance Litigation, Aaron Y. Tang

Marquette Law Review

In May 2010, a coalition of California students, parents, and school districts filed a ground-breaking lawsuit alleging that the state’s public school finance system violates the California constitution. The lawsuit, Robles-Wong v. California, is not ground-breaking because of its basic aim; at last count, school finance lawsuits with similar goals have occurred in forty-four states. Instead, the lawsuit is path-breaking because of the novel approach plaintiffs used to frame their constitutional challenge. Historically, plaintiffs have sued state governments using two legal theories: the equity theory and the adequacy theory. Under the equity theory, plaintiffs argue that the states distribute school …

How Should We Punish Murder?, Jonathan Simon

Marquette Law Review

One of the “law jobs” of the law of murder is to regulate the level of “penal heat” produced in society by violent crime and its state punishment. The history of the law of murder in both England and the United States can be read as a series of adjustments aimed at ventilating penal heat under particular historical conditions with the aim of protecting increasingly sensitive democratic political institutions from the damage caused by excessive penal heat. In distinguishing murder and manslaughter, and later recognizing degrees of murder and later still the potential for early parole release, the law of …

Sec V. Dorozhko's Affirmative Misrepresentation Theory Of Insider Trading: An Improper Means To A Proper End, Elizabeth A. Odian

Marquette Law Review

Historically, prosecution under Section 10(b) of the Securities and Exchange Act of 1934 has been limited to cases of nondisclosure fraud involving breach of a fiduciary duty to the corporation, its shareholders, or the source of the material nonpublic information. Some legal scholars criticize the limited scope of this law, arguing that it creates a loophole through which persons may trade on stolen material nonpublic information without fear of prosecution. Bringing this issue to the forefront was a 2009 case, SEC v. Dorozhko, involving a Ukrainian citizen who hacked into a company’s secure computer network where he accessed corporate financials …

The American Dream Deferred: Family Separation And Immigrant Visa Adjudications At U.S. Consulates Abroad, Cain W. Oulahan

Marquette Law Review

In the mid 1990’s, Congress passed a series of punitive immigration laws designed to ramp up enforcement and deter illegal immigration. Among these measures are provisions know as unlawful presence bars, which prohibit immigrant visa applicants who have been unlawfully present in the United States for certain periods of time from obtaining an immigrant visa for up to ten years or more. These bars frequently result in the protracted separation of undocumented applicants from their U.S. citizen or lawful permanent resident family members. After more than ten years since the passage of the unlawful presence bars, it is now appropriate …

Gender And Judging, Diane S. Sykes

Marquette Law Review

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Promoting Employee Voice In The New American Economy, Paul M. Secunda

Marquette Law Review

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Promoting Employee Voice In The American Economy: A Call For Comprehensive Reform, Kenneth G. Dau-Schmidt

Marquette Law Review

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Who Should Talk? What Counts As Employee Voice And Who Stands To Gain, Aditi Bagchi

Marquette Law Review

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Avoiding Legal Seduction: Reinvigorating The Labor Movement To Balance Corporate Power, Ann C. Hodges

Marquette Law Review

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Lessons From The Public Sector: Suggestions And A Caution, Joseph E. Slater

Marquette Law Review

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Labor Law, The Left, And The Lure Of The Market, Richard Michael Fischl

Marquette Law Review

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Yes, Labor Markets Are Flawed--But So Is The Economic Case For Mandating Employee Voice In Corporate Governance, Scott A. Moss

Marquette Law Review

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Silent Warning: The Fda's Ban On Off-Label Speech: Is It Protecting Our Safety?, Briana R. Barron

Marquette Law Review

The FDA’s regulation of off-label uses for drugs has been a hotly contested issue. While the FDA seeks to ensure compliance with the regulatory process, drug manufacturers argue that off-label prescribing is a well-regarded practice by physicians and that the regulations and the regulations are impermissible under the First Amendment. Recent cases court cases have ended without a clear resolution as to the First Amendment implications, but message from the FDA remains clear—any kind of advertising of an off-label use may be prosecuted.

This paper proposes a compromise between the two extreme positions. Allowable speech and conduct related to off-label …

Burnin' Down The House--And Deducting It Too: Charitable Contributions Of Buildings To Fire Departments Under I.R.C. § 170, Thomas J. Burmeister Jr.

Marquette Law Review

Section 170 of the Internal Revenue Code allows “as a deduction any charitable contribution . . . payment of which is made within the taxable year.” Unfortunately, the laws of charitable giving stretch much further and deeper than the provision that gave life to the charitable deduction. This Comment analyzes an issue on the relatively unexplored outskirts of charitable giving law: may a taxpayer claim a deduction for the donation of a building to a fire department for training exercises? In 1968, Morris Scharf donated his home to a local fire department for training exercises and deemed the gift “charitable” …

Table Of Contents For Volume 94 Issue 3, Marquette University

Marquette Law Review

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Letting The Puppets Speak: Employee Voice In The Legislative History Of The Wagner Act, Laura J. Cooper

Marquette Law Review

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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

Faculty Publications

No abstract provided.

The Continuing Vitality Of The Presumption Of Irreparable Harm In Copyright Cases, Andrew F. Spillane

Marquette Intellectual Property Law Review

Property has long enjoyed civil enforcement through a potent remedy: the permanent injunction. For decades, federal courts across the country roundly granted permanent relief upon finding infringement and a threat of future infringement of one type of property: copyrights. Beyond these showings, a prevailing plaintiff in a copyright infringement case would not have to prove the cornerstone of equitable relief—irreparable harm—to obtain an injunction. But after the U.S. Supreme Court¹s decision in eBay v. MercExchange, some courts have abandoned this truncated equitable inquiry. In its place, the lower federal courts now apply eBay's four-factor test to determine whether a copyright …

Using Intellectual Property To Secure Financing After The Worst Financial Crisis Since The Great Depression, Brian W. Jacobs

Marquette Intellectual Property Law Review

Ever since Thomas Edison first used his patent on the incandescent electric light bulb as collateral to secure financing to start his company, the General Electric Company, intellectual property has been able to be used as collateral. Although not immediately thought of when securing financing, using intellectual property as collateral has occurred ever since the late 1800’s with Thomas Edison. In recent years, using intellectual property as collateral to secure financing has become quite popular. However, as with most financing in general, the use of intellectual property as collateral has slowed due to the first recession in the twenty-first century. …