Law Commons^™

Trapped In Tragedies: Childhood Trauma, Spatial Inequality, And Law, David Dante Troutt

Marquette Law Review

Each year, psychological trauma arising from community and domestic violence, abuse, and neglect brings profound psychological, physiological, and academic harm to millions of American children, disproportionately poor children of color. This Article represents the first comprehensive legal analysis of the causes of and remedies for a crisis that can have lifelong and epigenetic consequences. Using civil rights and local government law, this Article argues that children’s reactions to complex trauma represent the natural symptomatology of severe structural inequality—legally sanctioned environments of isolated, segregated poverty. The sources of psychological trauma may be largely environmental, but the traumatic environments themselves are caused …

International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth

Marquette Law Review

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Personhood Under The Fourteenth Amendment, Vincent J. Samar

Marquette Law Review

This Article examines recent claims that the fetus be afforded the status of a person under the Fourteenth Amendment. It shows that such claims do not carry the necessary objectivity to operate reasonably in a pluralistic society. It then goes on to afford what a better view of personhood that could so operate might actually look like. Along the way, this Article takes seriously the real deep concerns many have for the sanctity of human life. By the end, it attempts to find a balance for those concerns with the view of personhood offered that should engage current debates about …

Current Navigation Points In Drug Diversion Law: Hidden Rocks In Shallow, Murky, Drug-Infested Waters, John J. Mulrooney Ii, Katherine E. Legel

Marquette Law Review

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Codify This: Exculpatory Contracts In Wisconsin Recreational Businesses, Blake A. Nold

Marquette Law Review

It is common practice for recreational businesses, such as ski resorts or fitness centers, to require their customers to sign a release of liability form. The purpose of this release form is to relieve the business from any potential liability in the event a customer suffers an injury. However, since 1982, the Wisconsin Supreme Court has yet to uphold an exculpatory contract. Rather than attempting to lay out principles and guidelines for how to draft an exculpatory agreement—in hopes that it will be ruled enforceable—this Comment proposes that Wisconsin recreational businesses, like ski resorts or gyms, should not require customers …

Morality And Securities Fraud, Jayme Herschkopf

Marquette Law Review

Securities fraud features prominently in conversations about financial reform, and for good reason. In addition to the disproportionate number of securities fraud lawsuits and government actions filed every year, securities fraud case law is frequently consulted as an analytical aid for other types of corporate fraud. And yet, in discussing the interpretation and application of the securities laws, scholars, judges, and lawmakers alike have largely overlooked a feature of securities fraud that could offer significant assistance in many challenging areas: namely, that securities fraud, including civil securities fraud, has a pronounced moral dimension.

This Article explores the role that moral …

A Consumer Protection Rationale For Regulation Of Tax Return Preparers, Pippa Browde

Marquette Law Review

Of the 150 million tax returns filed each year, approximately fifty-six percent are prepared with the help of a paid preparer. Although state-licensed lawyers and certified public accountants may prepare tax returns for clients, the vast majority of paid tax return preparers are completely unregulated. For low-income taxpayers who are eligible for refundable tax credits, these unregulated tax return preparers do more than just fill out tax returns. Return preparers who serve low-income taxpayers often also market consumer credit products, such as refund anticipation loans or checks.

Government agencies and consumer advocates have documented widespread problems with the tax return …

Success, Merit, And Capital In America, Eli Wald

Marquette Law Review

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Pluralism Applied: A Concordant Approach To Selecting Contract Rules, Samuel F. Ernst

Marquette Law Review

Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests ofthe individual parties to the contract. Or, contract rules can be analyzed through the lenses of a host of other theories, including critical legal theory, bargain theory, and so on. Because no single, unitary theory can ever explain the complex body of laws and societal conventions surrounding contracts, the best rule …

Smoking Guns: The Supreme Court's Willingness To Lower Procedural Barriers To Merits Review In Cases Involving Egregious Racial Bias In The Criminal Justice System, Carrie Leonetti

Marquette Law Review

The systematic foreclosure of federal-court review of even the most meritorious federal constitutional challenges of state criminal convictions has made review on the merits of an inmate’s claim that a state court violated the U.S. Constitution in adjudicating a criminal case exceedingly rare. Nonetheless, over the past two terms, the Supreme Court appears to have started down a different road, overlooking potential procedural hurdles in several cases to uphold on the merits state inmates’ claims that their criminal trials were tainted by explicit race discrimination. While these cases taken together seem to suggest that the Court is willing to address …

Redistricting Reform In Wisconsin To Curtail Gerrymandering: The Wisconsin Impartial Citizens Redistricting Commission, Joseph W. Bukowski

Marquette Law Review

After an extremely partisan gerrymander in 2011, Wisconsin needs redistricting reform in order to eliminate partisan politics from the process. Now more than ever, momentum for change has reached its peak: the Wisconsin legislative maps as drawn in 2011 were ruled unconstitutional in Whitford v. Gill; the Supreme Court has recently ruled in favor of states implementing independent redistricting commissions; and nearly half of the states in the United States are beginning to use independent commissions for redistricting. This Comment proposes a unique approach for Wisconsin to adopt in order to curtail gerrymandering: the Wisconsin Impartial Citizens Redistricting Commission (WICRC). …

Law As Instrumentality, Jeremiah A. Ho

Marquette Law Review

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of“law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, continues to influence the inductive methodologies used today to impart knowledge in American legal education. This lasting influence of the Langdellian scientific conception of law has persisted even as the present crisis in legal education has engendered other reforms. However, subsequent movements of legal thought have revealed …

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Marquette Law Review

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

Volume 100, Spring 2017 Masthead

Marquette Law Review

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God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Marquette Law Review

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

Mutual Fund Capital Structure, A. Joseph Warburton

Marquette Law Review

The Investment Company Act of 1940 regulates the capital structure of mutual funds in order to restrain their leverage and speculative character. It is often (mistakenly) assumed that the law prohibits open-end mutual funds from borrowing money. This Article (I) analyzes the law governing mutual fund capital structure to reveal when (and to what extent) borrowing is allowed and (ii) examines a novel dataset on mutual fund capital structure that shows borrowing is an unexpectedly common practice.

Using data on all registered investment companies in the U.S. from 1998 to 2013, I find that nearly 8% of open-end mutual funds, …

Interpreting Wisconsin Statutes, Daniel R. Suhr

Marquette Law Review

"The seminal case on statutory interpretation in recent years is State ex rel. Kalal v. Circuit Court for Dane County, 2014 WI 58. . . . In Kalal, the court emphasized the importance of statutory text when it embraced the principle that a court's role is to determine what a statute means rather than determine what the legislature intended." - Wisconsin Supreme Court Justice David Prosser, 2014.

Who Needs Contracts? Generalized Exchange Within Investment Accelerators, Brad Bernthal

Marquette Law Review

This Article investigates why an expert volunteers on behalf of startups that participate in a novel type of small venture capital ("VC") fund known as a mentor-driven investment accelerator ("MDIA"). A MDIA organizes a pool of seasoned individuals - called "mentors" - to help new companies. An obvious organizational strategy would be to contract with mentors. Mentors instead voluntarily assist. Legal studies of norm-based exchanges do not explain what this Article calls the "mentorship conundrum" - i.e., the puzzling motivation of a mentor to volunteer within otherwise for-profit environments. This Article is the first to bridge the insights of generalized …

To Fund Or Not To Fund: Deficiencies In The Wisconsin Crowdfunding Act That Hamper The Viaiblity Of Intrastate Crowdfunding, Andrew S. Hovestol

Marquette Law Review

"Crowdfunding," which is described as "the practice of . . . soliciting [financial] contributions from a large number of people especially from the online community," has recently taken the financial world by storm through the advent of websites like "Kickstarter," "Fundable," "IndieGogo," "Razoo," and "Appbackr." Such websites provide a marketplace whereby companies, small businesses, and entrepreneurs looking for startup capital can solicit funding from individual investors. The concept is relatively straightforward: project creators initiate a profile that includes informative bits like short videos, a brief synopsis of the project, and images to further showcase the project. Each project has a …

Volume 100, Summer 2017 Masthead

Marquette Law Review

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Marquette Law Review

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Collision Course: State Community Property Laws And Termination Rights Under The Federal Copyright Act--Who Should Have The Right Of Way?, Loren E. Mulraine

Marquette Law Review

The purpose of this paper is to provide an overview of recapture rights under copyright law, as well as a primer on the difference between common law and community property law as it relates to property rights in a divorce proceeding. The paper will utilize as a case study the dispute between William "Smokey" Robinson and his former spouse, Claudette Robinson, and provide a statutory solution for future disputes where federal copyright law and state community property laws collide at the intersection of copyright terminations. Specifically, should these newly recaptured rights be treated as a new estate and thus not …

Indigency, Secrecy, And Questions Of Quality: Minimizing The Risk Of "Bad" Mediation For Low-Income Litigants, Robert Rubinson

Marquette Law Review

Mediation can be magical. In the face of seemingly insurmountable differences, it can lead to productive resolutions far beyond what litigation could ever produce. In the hands of sophisticated practitioners and in appropriate cases, it offers a means for participants to engage in self-determination and more flexible conflict resolution. In light of how well mediation can work, it has experienced explosive growth in all areas of conflict, and in both private and court-connected contexts. There is, nevertheless, a risk that mediators can be unskilled or, worse, affirmatively damaging. The risk is endemic to all mediation but play out in particularly …

What's Wrong With Partial Intestacy?, Richard F. Storrow

Marquette Law Review

This article questions whether wills law's disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law's disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates.

Humility In Criminal Justice: What It Might Invite Us To Reconsider, Dean A. Strang

Marquette Law Review

Imagine how our system of criminal justice might look different if one value ascended in the system's hierarchy of values: humility. Day to day, in my work, I do not see much humility among police officers, defense lawyers, prosecutors, probation agents, and judges. This is noteworthy, given how unavoidability uncertain--or at least contestable or close--many of the outcomes in our trial and appellate courts are to an objective eye. Even when the basic facts on guilt are fairly certain, the right sentence often is not. I propose that humility is an essential value that, properly understood, is tied to liberty; …

Fiduciary Duties In The Wisconsin Close Corporation: Time To Set The Law Straight, Sara C. Mcnamara

Marquette Law Review

With the evolution of new and modified business entities in today's society, it is becoming increasingly difficult to determine when and what fiduciary duties arise. It has been well accepted for many years that partners owe each other fiduciary duties, and it has also been well accepted that shareholders in large, public corporations do not owe any fiduciary duties. However, an issues arises when determining what fiduciary duties are owed by shareholders of a closely held corporation. Although the closely held corporation is incorporated just like the public corporation, the stockholders in the closely held corporation often end up behaving …

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

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Marquette Law Review

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12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards

Marquette Law Review

The Supreme Court has found in favor of preemption in tort liability cases involving matters of heavy federal regulation in which Congress has delegated implementation of a statute involving technical subject matter to the agency. It has not been the case, however, in matters concerning the labeling of prescription drugs, despite the fact that the FDA has exclusively regulated drug labeling for more than a century. In fact, the current state of affairs now allows a jury to substitute the judgment of the FDA in approving a label on a name-brand drug for their own in state law failure to …