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Marquette University Law School

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Articles 1861 - 1890 of 6614

Full-Text Articles in Law

Death Penalty Appeals And Habeas Proceedings: The California Experience, Gerald F. Uelmen Jan 2009

Death Penalty Appeals And Habeas Proceedings: The California Experience, Gerald F. Uelmen

Marquette Law Review

The administration of the death penalty has become completely dysfunctional in California, to use the words of California Chief Justice Ronald M. George. The California Supreme Court is overwhelmed with a backlog of 80 fully briefed death appeals, and 100 fully briefed habeas petitions. California has the longest delays in the county, with 20-24 years elapsing between sentence and execution. With the longest death row in the county (680+), the chief cause of death on death row is death by natural causes, followed by suicide. California has had 13 executions since the death penalty was restored in 1978. The current …


Appellate Review Of Sentencing Policy Decisions After Kimbrough, Carissa Byrne Hessick Jan 2009

Appellate Review Of Sentencing Policy Decisions After Kimbrough, Carissa Byrne Hessick

Marquette Law Review

In Kimbrough v. United States the U.S. Supreme Court addressed a question left open in United States v. Booker: whether to permit district courts to make sentencing decisions based on a policy disagreement with the Federal Sentencing Guidelines. The Booker Court, in order to avoid a Sixth Amendment jury right problem inherent in mandatory sentencing regimes, had held that the Guidelines were purely "advisory" and that district courts had discretion to sentence outside the ranges prescribed by the Guidelines. Ultimately, the Kimbrough Court held that district courts could sentence outside the advisory Guideline range based solely on a policy disagreement …


Robust Appellate Review Of Sentences: Just How British Is Indiana?, The Honorable Randall T. Shepard Jan 2009

Robust Appellate Review Of Sentences: Just How British Is Indiana?, The Honorable Randall T. Shepard

Marquette Law Review

While the notion of appealability of sentences is widespread, such appeals in most jurisdictions occur under standards like ―abuse of discretion‖ or ―plain error‖ or simply ―excessive.‖ In the late 1960s, Indiana began the process of importing into its constitutional law a piece of British doctrine that contemplates a more robust role for appellate courts. For two decades, this appeared to produce little if any difference in outcomes. In the first decade of the new century, however, a series of rule changes has prompted movement toward the original design.


The Future Of Appellate Sentencing Review: Booker In The States, John F. Pfaff Jan 2009

The Future Of Appellate Sentencing Review: Booker In The States, John F. Pfaff

Marquette Law Review

None


Sorry, No Remedy: Intersectionality And The Grand Irony Of Erisa, Paul M. Secunda Jan 2009

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 …


Universal De Novo Review, Chad M. Oldfather Jan 2009

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 …


Family Law For The Underclass: Underscoring Law's Ideological Function, David Ray Papke Jan 2009

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 …


Did Congress Strip The Federal Circuit Courts Of The Power To Review Denials Of Motions To Reopen Immigration Proceedings?, Jessica E. Slavin Jan 2009

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 Jan 2009

Does The Mobile-Sierra Doctrine Apply When A Contract Is Challenged By A Noncontracting Third Party?, Jay E. Grenig

Faculty Publications

No abstract provided.


Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman Jan 2009

Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman

Marquette Intellectual Property Law Review

Clinical trials are currently used to test drugs; however, the risk and cost of clinical trials are increasing so drastically that the clinical trials may become unsustainable. This article evaluates the legal and economic trends of intellectual property protection for pharmaceutical clinical trial data. The protection of clinical trials has become an alternative to patents as market exclusivity encourages the development and testing of unpatentable pharmaceuticals. This author argues that clinical trials should be treated as a national and international public good instead of a private good and proposes that the government should oversee and fund the clinical trials to …


Dispelling Grammar Myths: 'To Split' Or 'Not To Split' The Infinitive, Rebecca K. Blemberg Dec 2008

Dispelling Grammar Myths: 'To Split' Or 'Not To Split' The Infinitive, Rebecca K. Blemberg

Faculty Publications

No abstract provided.


Giving Up The Ghost: A Proposal For Dealing With Attorney "Ghostwriting" Of Pro Se Litigants' Court Documents Through Explicit Rules Requiring Disclosure And Allowing Limited Appearances For Such Attorneys, Michael W. Loudenslager Oct 2008

Giving Up The Ghost: A Proposal For Dealing With Attorney "Ghostwriting" Of Pro Se Litigants' Court Documents Through Explicit Rules Requiring Disclosure And Allowing Limited Appearances For Such Attorneys, Michael W. Loudenslager

Marquette Law Review

None


It's Not Just What You Think, But Also How You Think About It: The Effect Of Situationally Primed Mindsets On Legal Judgments And Decision Making, Barbara O'Brien, Daphna Oyserman Oct 2008

It's Not Just What You Think, But Also How You Think About It: The Effect Of Situationally Primed Mindsets On Legal Judgments And Decision Making, Barbara O'Brien, Daphna Oyserman

Marquette Law Review

None


The Family Medical Leave Act: Calculating The "Hours Of Service" For The Reinstated Employee, Joan M. Shepard Oct 2008

The Family Medical Leave Act: Calculating The "Hours Of Service" For The Reinstated Employee, Joan M. Shepard

Marquette Law Review

None


What Plagarism Was Not: Some Preliminary Observations On Classical Chinese Attitudes Toward What The West Calls Intellectual Property, Charles R. Stone Oct 2008

What Plagarism Was Not: Some Preliminary Observations On Classical Chinese Attitudes Toward What The West Calls Intellectual Property, Charles R. Stone

Marquette Law Review

None


Table Of Contents For Volume 92 Issue 1, Marquette University Oct 2008

Table Of Contents For Volume 92 Issue 1, Marquette University

Marquette Law Review

None


Macniven V. Westmoreland And Tax Advice: Using "Purposive Textualism" To Deal With Tax Shelters And Promote Legitimate Tax Advice, Scott A. Schumacher Oct 2008

Macniven V. Westmoreland And Tax Advice: Using "Purposive Textualism" To Deal With Tax Shelters And Promote Legitimate Tax Advice, Scott A. Schumacher

Marquette Law Review

None


Neighborhoods Healed Through Restorative Justice, Janine P. Geske, India Mccanse Oct 2008

Neighborhoods Healed Through Restorative Justice, Janine P. Geske, India Mccanse

Faculty Publications

No abstract provided.


The Experimental Use Exception And Undergraduate Engineering Projects, Henry L. Welch Jul 2008

The Experimental Use Exception And Undergraduate Engineering Projects, Henry L. Welch

Marquette Intellectual Property Law Review

The experimental use exception was originally conceived as a defense applicable when the infringing activities were philosophical. Over time the exception has evolved into a test of the profit motives of the infringer. Despite their status as non-profits, universities now find themselves under the same narrow interpretation of the experimental use exception as previously applied only to profit-seeking businesses. This article explains that the experimental use exception is still a viable defense to patent infringement for a student-sponsored capstone senior design project. In a student-sponsored capstone senior design project, the impetus and general direction of the project are provided almost …


Intellectual Property Rights And Global Warming, Estaelle Derclaye Jul 2008

Intellectual Property Rights And Global Warming, Estaelle Derclaye

Marquette Intellectual Property Law Review

Global warming is an issue that is everywhere in today's society. This article examines whether intellectual property rights could be the solution to the global warming problem. The article limits its discussion to patent and copyright law and explores solutions to global warming that are applicable in Europe. The author suggests that these recommendations could influence other countries to make their intellectual property rights greener, as intellectual property rights are based on international instruments and universal agreements that could apply in any country. The article examines how current copyright and patent laws already tackle global warming and explains how these …


Phillips V. Awh, Corp., A Doctrine Of Equivalents Case?, Natalie Sturicz Jul 2008

Phillips V. Awh, Corp., A Doctrine Of Equivalents Case?, Natalie Sturicz

Marquette Intellectual Property Law Review

For a number of years, U.S. courts have noted that the doctrine of equivalents has been unworkable. This article explains that as American courts move toward a more holistic approach to claim interpretation, the doctrine of equivalents will become increasingly unnecessary as a means of expanding patent scope. The author asserts that adopting a "person having ordinary skill in the art" approach to claim interpretation and eliminating the doctrine of equivalents in patent infringement cases would benefit patent law in several ways: (1) when courts interpret patent claims from the perspective of a person reasonably skilled in the art, patentees …


Geographical Indications: A Discussion On The Trips Regulation After The Ministerial Conference Of Hong Kong, Stefania Fusco Jul 2008

Geographical Indications: A Discussion On The Trips Regulation After The Ministerial Conference Of Hong Kong, Stefania Fusco

Marquette Intellectual Property Law Review

Despite the strides the TRIPs Agreement made to protect Geographical Indications (GIs), considerable debate persists on how to further TRIPs' goals in that area. First, while some countries ally themselves with the European Union on maintaining a multilateral register for GIs, others follow the United States' preference for a voluntary database. Controversy also surrounds whether to extend the more expansive protections on wines and spirits to other products. Finally, the European Union has launched a staunchly opposed campaign to recover the exclusive use of a number of GIs, including many that have become generic names for their associated products. This …


Kewanee Revisited: Returning To First Principles Of Intellectual Property Law To Determine The Issue Of Federal Preemption, Sharon K. Sandeen Jul 2008

Kewanee Revisited: Returning To First Principles Of Intellectual Property Law To Determine The Issue Of Federal Preemption, Sharon K. Sandeen

Marquette Intellectual Property Law Review

In the early 1970s it was thought that states could regulate in the areas of trade secrets without interfering with federal patent policies. However, this concept was called into question in the Sixth Circuit's ruling in Kewanee Oil Co. v. Bicron. In 1974 the Supreme Court ruled that Ohio's trade secret law was not preempted by federal patent law. This article revisits the issues raised in Kewanee in light of the Supreme Court's current preemption jurisprudence, changes in patent law, copyright law, and trade secret law since that time. First, the article reviews the history and context of the Kewanee …


I Have A Secret? Applying The Uniform Trade Secrets Act To Confidential Information That Does Not Rise To The Level Of Trade Secret Status, Julie Piper Jul 2008

I Have A Secret? Applying The Uniform Trade Secrets Act To Confidential Information That Does Not Rise To The Level Of Trade Secret Status, Julie Piper

Marquette Intellectual Property Law Review

A trade secret is valuable information, such as a formula, a device, or a client list, that is essential to the survival of a business. State law governs trade secrets; however, the Uniform Trade Secrets Act was established to be a unified guide to assist states in protecting such secrets. Even though the UTSA's definition is broad, the Act does not provide protection for certain confidential information that does not qualify as a trade secret. Such information is still crucial to the survival and the carrying on of a business. This article explores the importance of creating a system that …


Wagging The Dog? Reconsidering Antitrust-Based Regulation Of Ip-Licensing, Gosta Schindler Jan 2008

Wagging The Dog? Reconsidering Antitrust-Based Regulation Of Ip-Licensing, Gosta Schindler

Marquette Intellectual Property Law Review

This Article criticizes the institutional setup in which the antitrust policies regarding IP exploitation are designed and enforced. The author compares how IP licensing is scrutinized by antitrust regimes in the European Union and the United States. The result of that comparison leads to the conclusion that any attempted resolution of the IP-Antitrust dilemma will remain inadequate as long as it is antitrust-based, that is, regulated by antitrust laws or guidelines designed by antitrust-agencies. The author argues that antitrust concerns can and should be accounted for through proper construction and application of the IP laws themselves. The article suggests a …


Meddimmune, Microsoft, And Ksr: The United States Supreme Court In 2007 Tips The Balance In Favor Of Innovation In Patent Cases, And Thrice Reverses The Federal Circuit, Sue Ann Mota Jan 2008

Meddimmune, Microsoft, And Ksr: The United States Supreme Court In 2007 Tips The Balance In Favor Of Innovation In Patent Cases, And Thrice Reverses The Federal Circuit, Sue Ann Mota

Marquette Intellectual Property Law Review

In 2007 the Supreme Court reversed three patent cases from the Court of Appeals for the Federal Circuit. The three cases were MedImmune, Inc. v. Genentech, Inc. (holding a patent licensee does not have to breach a license agreement before seeking declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed), Microsoft Corp. v. AT&T Corp. (holding Microsoft did not supply a component of an invention from the United States that had the possibility of infringing under the Patent Act), and KSR International Co. v. Teleflex Inc. (holding the requirement of non-obviousness under the Patent Act is analyzed …


Antitrust Liability For Refusal To License Intellectual Property: A Comparative Analysis And The International Setting, Rita Coco Jan 2008

Antitrust Liability For Refusal To License Intellectual Property: A Comparative Analysis And The International Setting, Rita Coco

Marquette Intellectual Property Law Review

Antitrust and IP law both share the goals of promoting innovation and benefiting consumers. A potential for conflict exists, however, when a dominant firm's refusal to license IP rights affects the dynamics of competition. Antitrust intervention in IP rights can reduce incentives to invest, whereas a failure to allow anticompetitive behavior can harm consumers and competitors while reducing the efficiency of the economic system. The author reviews the European and United States approaches to monopolization claims involving IP rights. The European approach is limited by the mismatch between national enforcement of IP rights and community enforcement of antitrust law. The …


What Do We Do With A Doctrine Like Merger? A Look At The Imminent Collision Of The Dmca And Idea/Expression Dichotomy, Matthew J. Faust Jan 2008

What Do We Do With A Doctrine Like Merger? A Look At The Imminent Collision Of The Dmca And Idea/Expression Dichotomy, Matthew J. Faust

Marquette Intellectual Property Law Review

With the introduction of the Digital Millennium Copyright Act (DMCA), courts are now faced with the unsettling issue that copyright holders can receive damages even though copyright infringement did not occur. This comment begins its analysis of this issue with a brief overview of basic copyright infringement fundamentals, the different approaches and numerous tests that circuit courts have applied, and the idea/expression dichotomy, including the merger doctrine and the scenes a faire doctrine. The author then explores the collision between the DMCA and the idea/expression dichotomy by showing how the DMCA has impacted copyright law and how it intersects with …


Table Of Contents Jan 2008

Table Of Contents

Marquette Intellectual Property Law Review

None.


Speaking Words Of Wisdom: Let It Be: The Reexamination Of The Human Embryonic Stem Cell Patents, Julia Vom Wege Dovi Jan 2008

Speaking Words Of Wisdom: Let It Be: The Reexamination Of The Human Embryonic Stem Cell Patents, Julia Vom Wege Dovi

Marquette Intellectual Property Law Review

Embryonic stem cell research represents an area of scientific inquiry that bears great promise, and patent law ensures that stem cell technology is both protected and utilized to its fullest potential. This article analyzes why the USPTO should not invalidate or narrow three challenged stem cell patents owned by the Wisconsin Alumni Research Foundation (WARF) through the Public Patent Foundation. The author outlines the science behind stem cells, explains the applicable law, and articulates the policy considerations relevant to patent law and stem cells. Ultimately, the author argues that that the challenged patents should remain valid because they have not …