Law Commons^™

Binding Authority: Unamendability In The United States Constitution—A Textual And Historical Analysis, George Mader

Marquette Law Review

We think of constitutional provisions as having contingent permanence—they are effective today and, barring amendment, tomorrow and the day after and so on until superseded by amendment. Once superseded, a provision is void. But are there exceptions to this default state of contingent permanence? Are there any provisions in the current United States Constitution that cannot be superseded by amendment—that are unamendable? And could a future amendment make itself or some portion of the existing Constitution unamendable?

Commentators investigating limits on constitutional amendment frequently focus on limits imposed by natural law, the democratic underpinnings of our nation, or some other …

Resolving Conflicts Over Scarce Resources: Private Versus Shared Ownership, W.C. Bunting

Marquette Law Review

This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem, as narrowly defined in this Article, to be consistent, private ownership must yield the Pareto- optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing” disputing parties to share ownership of the contested resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Further, assuming transaction costs …

Conservation Easements As A Way To Preserve Wisconsin’S Farmland: Why Wisconsin Should Adopt A Transferable Tax Credit Program, Jennifer E. Krueger

Marquette Law Review

Conservation easements are a tool landowners can use to protect their land and preserve it for generations to come. Given the new emphasis society places on preserving the environment, many states have enacted some form of a conservation easement program where landowners who encumber their property with a conservation easement can receive a benefit for doing so. Wisconsin and Virginia are two states with this type of program. Wisconsin’s conservation easement program allows a landowner to donate his land and the state pays him the difference in the market value. Virginia’s program, on the other hand, allows a landowner to …

The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.

Marquette Law Review

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …

Socializing The Subject Of Criminal Law? Criminal Responsibility And The Purposes Of Criminalization, Nicola Lacey

Marquette Law Review

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Colder Than A Landlord's Heart? Reconciling A Debtor's Authority To Sell Property Free And Clear Of A Lease Under Bankruptcy Code Section 363(F) With The Tenant's Right To Remain In Possession On A Lease Rejection Under Bankruptcy Code Section 365(H), Bruce Grohsgal

Marquette Law Review

The question examined in this Article is a simple one—Can a tenant with a right to possession under section 365(h) of the Bankruptcy Code be ousted from possession by a free and clear sale of the real property by the debtor-landlord pursuant to section 363(f) of the Bankruptcy Code? The Seventh Circuit, the only court of appeals to have considered the issue, said “yes” in Precision Industries, Inc. v. Qualitech Steel SBQ, LLC and authorized a sale free and clear of the lease and the tenant’s right to remain in possession. Subsequent decisions from the district and bankruptcy courts are …

Diversions From The Great Lakes: Out Of The Watershed And In Contravention Of The Compact, Christina L. Wabiszewski

Marquette Law Review

Alarmingly, in the next fifty years the United States will face not just drought, but complete dissemination of readily accessible water resources in areas ranging from its breadbaskets to its commercial and financial epicenters. As these lakes, reservoirs, wells, and aquifers drain, the communities that depend upon them will seek alternative and further-reaching water sources into which they can dip their proverbial straws. The most alluring and perhaps the most vital of these sources are the Great Lakes. In recognition that such straws may descend and that “Future Diversions and Consumptive Uses of Basin Water resources have the potential to …

On Commercial—And Corporate—Speech, Jonathan Weinberg

Marquette Law Review

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Brandeis: The Legacy Of A Justice, Joel K. Goldstein, Charles A. Miller

Marquette Law Review

One hundred years after his appointment, Justice Louis D. Brandeis remains a distinctive and unusually influential figure in the history of the Supreme Court. Unlike many other great justices, Brandeis is not remembered for his majority opinions. Rather, what is distinctive about him is the extent to which so many of his dissents and concurring opinions continue to influence justices more than 75 years after he retired and a century after he joined the Court. Whereas justices cite majority opinions for their value as legal precedents, they invoke the dissents and concurrences of a retired justice due to the power …

A Study On Immigrant Activism, Secure Communities, And Rawlsian Civil Disobedience, Karen J. Pita Loor

Marquette Law Review

This Article explores the immigrant acts of protest during the Obama presidency in opposition to the Secure Communities (SCOMM) immigration enforcement program through the lens of philosopher John Rawls’ theory of civil disobedience and posits that this immigrant resistance contributed to that administration’s dismantling the federal program by progressively moving localities, and eventually whole states, to cease cooperation with SCOMM. The controversial SCOMM program is one of the most powerful tools of immigration enforcement in the new millennium because it transforms any contact with state and local law enforcement into a potential immigration investigation. SCOMM has now been revived through …

Issues Arising Upon The Death Of The Sole Member Of A Single-Member Llc, F. Philip Manns Jr., Timothy M. Todd

Marquette Law Review

Sole entrepreneurs overwhelmingly choose the single-member limited liability company (SMLLC) as the business entity for their operations. Consequently, simplicity of formation and operation of SMLLCs is highly desirable, both to facilitate entrepreneurship and to acknowledge that costs, lack of knowledge, bad advice, or a combination of them very often will cause sole entrepreneurs to forego professionally drafted documents and accept default SMLLC rules in the jurisdiction of formation.

The death of the sole member is always an anticipated, indeed inevitable, occurrence, so one would expect that the default statutory rules and the widely available forms for SMLLCs would address this …

What's Fear Got To Do With It?: The "Armed And Dangerous" Requirement Of Terry, Gerald S. Reamey

Marquette Law Review

Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause “requirement” and the warrant “requirement” were surprised to learn, especially in the case of the former, that these “requirements” were not required at all. To continue to conceptualize the Fourth Amendment’s single sentence guarantees as consisting of a “warrant clause” and a “reasonableness” …

Serious Juvenile Offenders: The Need For A Third Sentencing Option In Wisconsin, Danielle S. Snyder

Marquette Law Review

In light of the “Slenderman” trial, it has become abundantly clear that a gap exists between the sentencing options available for “Class A” juvenile offenders and “Class B” juvenile offenders. This Comment proposes an expanded sentencing option for “Class B” serious juvenile offenders under the Juvenile Justice Code to allow those “Class B” serious juvenile offenders the benefit of extended supervision in the Serious Juvenile Offender Program as is available to “Class A” serious juvenile offenders currently. This expansion aims to alleviate the concern that certain “Class B” serious juvenile offenders must remain under original adult court jurisdiction in order …

A Critical Assessment Of The Model Standards Of Conduct For Mediators (2005): Call For Reform, Omer Shapira

Marquette Law Review

Over the years, commentators have raised concerns about some aspects of the Model Standards, for example, their failure to adequately guide mediators in situations of competing values, and the vagueness of their substantive provisions. No work to date has exposed the Model Standards to a systematic and comprehensive assessment, which is necessary for an evaluation of their adequacy as a coherent statement of the fundamental ethical guidelines for mediators, and for the development of a viable alternative to them. Ten years after the adoption of the revised Model Standards in 2005, this Article comes to fill the gap in the …

Liberalism’S Fine Print: Boilerplate’S Allusion To Human Nature, Kenneth K. Ching

Marquette Law Review

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Regulating The U.S. Treasury Market, Jerry W. Markham

Marquette Law Review

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The Extraterritoriality Doctrine Of The Dormant Commerce Clause Is Not Dead, Susan Lorde Martin

Marquette Law Review

In 1895, the New York Court of Appeals, in refusing to enforce a Kansas statute, referred to “a principle of universal application, recognized in all civilized states, that the statutes of one state have . . . no force or effect in another.” In 1897, the Court of Appeals of Kentucky noted that “[t]he statute of another state has, of course, no extraterritorial force.” That old notion describes the extraterritoriality doctrine of the dormant Commerce Clause. In recent years, the doctrine has become problematic for several reasons. One, the line between intrastate and interstate business has become blurred with many …

Applying The U.S. Constitution To Foreign Asylum Seekers: Exposing A Curious, Inconsistent Practice In The Federal Courts, Shalini Bhargava Ray

Marquette Law Review

Asylum law is based on an international treaty, but federal courts routinely invoke U.S. constitutional norms in adjudicating asylum claims. Specifically, they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to “persecution” and whether the harm was inflicted “on account of” a protected characteristic, such as political opinion or religion. In a close analysis of this unusual practice, this Article argues that federal courts have come to inconsistent, and often incompatible, conclusions regarding the use of constitutional norms in the analysis of asylum claims: principally, on whether constitutional norms establish sufficient, insufficient, necessary, or …

The Necessary Narrowing Of General Personal Jurisdiction, William Grayson Lambert

Marquette Law Review

General personal jurisdiction allows a court to issue a binding judgment against a defendant in any case, even if the facts giving rise to the case are unrelated to that forum. In the six decades after International Shoe v. Washington, courts held that general jurisdiction existed whenever a defendant had substantial continuous and systemic contacts with the forum. This rule was narrowed significantly in 2011, however, when the Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown held that general jurisdiction was properly exercised only when a defendant had sufficient contacts to be “at home” in the forum.

Who Wins In The Supreme Court? An Examination Of Attorney And Law Firm Influence, Adam Feldman

Marquette Law Review

Who are the most successful attorneys in the Supreme Court? A novel way to answer this question is by looking at attorneys’ relative influence on the course of the law. This article performs macro and micro-level analyses of the most successful Supreme Court litigators by examining the amount of language shared between nearly 9,500 Supreme Court merits briefs and their respective Supreme Court opinions from 1946 through 2013. The article also includes analyses of the most successful law firms according to the same metric.

Can We Forgive Those Who Batter? Proposing An End To The Collateral Consequences Of Civil Domestic Violence Cases, Joann Sahl

Marquette Law Review

Domestic violence is the most common tort committed in our country, involving nearly 1.3 million victims. When a domestic violence incident occurs, the press regularly reports it. Highlighted in these articles is the name of the perpetrator. Perpetrators identified as committing an act of domestic violence face public outrage, contempt, and stigma. This is particularly true if a court determines that the act of domestic violence necessitates a civil protection order (CPO) that bars the perpetrator from having any contact with the victim. Nearly 1.2 million people receive a CPO each year. More people use this civil remedy than those …

What If?: Human Experience And Supreme Court Decision Making On Criminal Justice, Christopher E. Smith

Marquette Law Review

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