Law Commons^™

The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda

Faculty Publications

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. …

Inherent Attorney Conflicts Of Interest Under Erisa: Using The Model Rules Of Professional Conduct To Discourage Joint Representation Of Dual Role Fiduciaries, Paul M. Secunda

Faculty Publications

Although ERISA expressly permits employers to act as both an employer/plan sponsor and fiduciary of an ERISA employee benefit plan, the statute does not address itself to whether corporate counsel should represent an employer in both of these capacities. Conflicts of interest frequently arise in this context because corporate officers have a fiduciary duty to act in the best interests of their shareholders, while ERISA plan fiduciaries have a duty to act in the best interests of the plan participants and beneficiaries.

Although the Model Rules speak generically of how to identify the client in corporate situations, and also of …

Of Gardens And Streets: A Differentiated Model Of Property In International And National Space Law, Kali Murray

Faculty Publications

No abstract provided.

Hate Crime Law And The Limits Of Inculpation, Janine Young Kim

Faculty Publications

Critics sometimes maintain that hate crime law punishes an offender for her motive and character and is therefore doctrinally and morally illegitimate. This manuscript explores the concept of culpability to examine this challenge, and argues that critics inaccurately assume that our criminal law conditions culpability on a robust understanding of choice. This inaccuracy significantly undermines the doctrinal critique against hate crime law, which in fact appears to be consistent with many other laws that consider motive and character as relevant factors in determining degree of guilt and proportionate punishment. Notwithstanding the apparent doctrinal validity of hate crime law, the author …

Who Is An "Original Source" Under The False Claims Act?, Jay E. Grenig

Faculty Publications

No abstract provided.

When May A Judge, Instead Of A Jury, Find The Facts On Which A Criminal Sentence Is Based?, Michael M. O'Hear

Faculty Publications

No abstract provided.

One Judge's Journey, Janine P. Geske

Faculty Publications

No abstract provided.

The Duty To Avoid Disparity: Implementing 18 U.S.C. § 3553(A)(6) After Booker, Michael M. O'Hear

Faculty Publications

Since passage of the Sentence Reform Act of 1984 ("SRA"), 18 U.S.C. Section 3553(a)(6) has required sentencing judges in federal court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." At the same time, the SRA also required judges to adhere in most cases to the Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, the Supreme Court ruled in United States v. Booker that the Guidelines could no longer be treated as mandatory. Since then, numerous sentencing judges have invoked (a)(6) in …

Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider

Faculty Publications

Many scholars have made the argument that the trial is disappearing from use in the American legal system. In response to Marc Galanter's piece, A World without Trials?, this Essay argues that, in fact, the rest of the world is moving toward trials for a host of international legal disputes. What can explain this divergence? The development of ADR in the U.S. met a number of needs including saving time and money, alleviating docket overload, and giving individuals more involvement in the legal process. In the international realm, however, these needs were quite different. The judicialization of international disputes has …

Toward An Accountability-Based Definition Of Mercenary, Ryan M. Scoville

Faculty Publications

Mercenary violence is an increasingly serious threat to international security. From a legal perspective, the development of this threat is problematic because the international treaties that regulate "mercenaries" operate on a flawed definition of the concept. Even the most recent definition neither accounts for changes in global security over the past decade nor reflects the fundamental problem with mercenaries - the fact that they are not state-accountable actors. These deficiencies have contributed to the spread of mercenary activity by complicating treaty enforcement and undermining state support for the current law. This Note therefore proposes a new definition of "mercenary." The …

Ethics, Evidence, And The Modern Adversary Trial, Daniel D. Blinka

Faculty Publications

No abstract provided.

May A Private Party Sue In Federal Court To Enforce An Fcc Regulation?, James B. Speta, Joseph D. Kearney

Faculty Publications

No abstract provided.

Table Of Contents For Volume 89, Number 3, Marquette University

Marquette Law Review

No abstract provided.

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

Marquette Law Review

No abstract provided.

Location Incentives And The Negative Commerce Clause: A Farewell To Arms?, Booker T. Coleman Jr.

Marquette Law Review

No abstract provided.

Wisconsin's Caps On Noneconomic Damages In Medical Malpractice Cases: Where Wisconsin Stands (And Should Stand) On "Tort Reform", Michael S. Kenitz

Marquette Law Review

No abstract provided.

A Bad Case Of Indigestion: Internalizing Changes In The Right To Confrontation After Crawford V. Washington Both Nationally And In Wisconsin, Rorry Kinnally

Marquette Law Review

No abstract provided.

Son Of Sam: Has North Carolina Remedied The Past Problems Of Criminal Anti-Profit Legislation?, Melissa J. Malecki

Marquette Law Review

No abstract provided.

Statutory Rape In Wisconsin: History, Rationale, And The Need For Reform, Daryl J. Olszewski

Marquette Law Review

No abstract provided.

Corrigendum, Marquette University

Marquette Law Review

No abstract provided.

Reflections On The Wisconsin Supreme Court, Diane S. Sykes

Marquette Law Review

No abstract provided.

A Matter Of Fairness: The Need For A New Look At Selective Waiver In Sec Investigations, Michael H. Dore

Marquette Law Review

No abstract provided.

"The Great Divorce" Of Government And Marriage: Changing The Nature Of The Gay Marriage Debate, Cynthia M. Davis

Marquette Law Review

No abstract provided.

Some "Hardship": Defending A Disability Discrimination Suit Under The Wisconsin Fair Employment Act, Alexander W. Hansch

Marquette Law Review

No abstract provided.

Grutter V. Bollinger's Strict Scrutiny Dichotomy: Diversity Is A Compelling State Interest, But The University Of Michigan Law School's Admissions Plan Is Not Narrowly Tailored, Douglas M. Raines

Marquette Law Review

No abstract provided.

Qualitative Disclosure Under Amended Form 8-K: The Preface To An "Avalanche Of Trivial Information", Andrew J. Warmus

Marquette Law Review

No abstract provided.

Table Of Contents For Volume 90, Number 1, Marquette University

Marquette Law Review

No abstract provided.

Commencement Address: Remarks Of The Solicitor General Of The United States, Paul D. Clement

Marquette Law Review

No abstract provided.

Questioning The Fundamental Right To Marry, Joseph A. Pull

Marquette Law Review

No abstract provided.

Faith, Justice, And The Teaching Of Criminal Procedure, Michael M. O'Hear

Marquette Law Review

No abstract provided.