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Marquette Law Review

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Full-Text Articles in Law

Atypical Actors And Tort Law's Expressive Function, Eli K. Best Jan 2012

Atypical Actors And Tort Law's Expressive Function, Eli K. Best

Marquette Law Review

The longstanding rule that tort law ignores a person’s cognitive disability in determining whether the person’s conduct was negligent has been consistently criticized as unfair and illogical. This Article challenges those common criticisms. Focusing on the law’s expressive function and the goals of the disability rights movement, the Article argues that the current rule is potentially more progressive than the alternative. However, the rule’s articulated justifications may inadvertently perpetuate stereotypes about cognitive disability. Thus, the Article suggests ways in which courts can retain the current rule without causing expressive harm.


Examining An Underdeveloped Constitutional Standard: Trial In Absentia And The Relinquishment Of A Criminal Defendant's Right To Be Present, Eugene L. Shapiro Jan 2012

Examining An Underdeveloped Constitutional Standard: Trial In Absentia And The Relinquishment Of A Criminal Defendant's Right To Be Present, Eugene L. Shapiro

Marquette Law Review

The right of a criminal defendant to be present at trial has been characterized by the Supreme Court as “one of the most basic rights” guaranteed by the Constitution, and yet the Court has only intermittently discussed the constitutional standard for assessing its relinquishment. Both federal and state courts now perceive that the constitutional standard only requires a voluntary, knowing and intelligent waiver, and they frequently focus upon the issue of the voluntariness of a defendant’s absence. A large number of the federal circuits have supplemented this constitutional standard with a non-constitutional, supervisory requirement that a trial court balance the …


Life After Act 10?: Is There A Future For Collective Representation Of Wisconsin Public Employees?, Martin H. Malin Jan 2012

Life After Act 10?: Is There A Future For Collective Representation Of Wisconsin Public Employees?, Martin H. Malin

Marquette Law Review

In 2011, Wisconsin largely gutted the collective bargaining rights of most public employees in the state. Wisconsin Act 10 largely replaced collective employee voice with unilateral employer control over employees’ wages, hours, and terms and conditions of employment. This article addresses the future of collective employee representation in Wisconsin in the wake of Act 10. It urges employers to continue to engage with their employees through the employees’ unions, demonstrating why such an approach better provides for the public interest than unilateral employer control. It looks to examples from other jurisdictions and presents a range of alternatives for Wisconsin public …


Democratic Values In A Digitized World: Regulating Internet Speech In Schools To Further The Educational Mission, Maureen Sullivan Jan 2012

Democratic Values In A Digitized World: Regulating Internet Speech In Schools To Further The Educational Mission, Maureen Sullivan

Marquette Law Review

The Internet is a remarkable tool—so remarkable that using the word “tool” to describe it is painfully inadequate. With a click of a mouse, a few strokes on a keyboard, or a swipe on a screen, the Internet allows instant communication and transaction at any time by anyone in the world. Young people, especially, have embraced the Internet as a means of communicating with peers and interacting with the world around them. In fact, the Internet may be thought of as a social context—similar to school, church, or home—where young people’s identities are influenced and shaped. As a result, what …


Expanding The Federal Common Law?: From Nomos & Physis And Beyond, Sam Kalen Jan 2012

Expanding The Federal Common Law?: From Nomos & Physis And Beyond, Sam Kalen

Marquette Law Review

The Supreme Court’s decision in AEP v. Connecticut, as well as litigation involving the threat posed by Asian Carp, reflect an emerging trend of testing the federal judiciary’s willingness to expand the federal common law to include claims for interstate environmental threats. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. This article challenges that assumption. The article illustrates that the widely shared view about the persistence of a federal common law for interstate pollution overlooks the Supreme Court’s …


Justification For Creating An Ombudsman Privilege In Today's Society, Ryan Spanheimer Jan 2012

Justification For Creating An Ombudsman Privilege In Today's Society, Ryan Spanheimer

Marquette Law Review

Due to ever-increasing court congestion and contemporary policy favoring the resolution of disputes outside the courtroom, now more than ever a privilege for communications with an ombudsman is needed. Although statistics demonstrate that an ombudsman can quickly and effectively resolve disputes, courts have been inconsistent in recognizing such a privilege. This failure to consistently recognize a privilege for communications with an ombudsman places practicing ombudsmen in a catch-22. Ombudsmen are left to decide between disregarding standards of practice they have sworn to follow, most notably that ombudsmen keep communications in confidence, on the one hand, or of violating a court …


Where Angels Tread: Gun-Free School Zone Laws And An Individual Right To Bear Arms, Amy Hetzner Oct 2011

Where Angels Tread: Gun-Free School Zone Laws And An Individual Right To Bear Arms, Amy Hetzner

Marquette Law Review

In separate opinions issued in 2008 and 2010, the United States Supreme Court held that the Second Amendment to the U.S. Constitution guarantees an individual right to bear arms. For as lengthy as those opinions were, however, the justices only briefly dealt with possible limits to that right. Both decisions provided that their holding would not invalidate “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” This Comment argues that the uncertainty about the scope of the Second Amendment right …


Sharing The Green: Reformatting Wisconsin's Forgotten Green Space Grant With A Public-Private Partnership Design, Scott W. Brunner Oct 2011

Sharing The Green: Reformatting Wisconsin's Forgotten Green Space Grant With A Public-Private Partnership Design, Scott W. Brunner

Marquette Law Review

Despite the vast amount of legal research available on brownfields redevelopment generally, little has been done on the value of brownfieldto- greenspace conversions. Brownfield-to-greenspace conversions that incorporate public–private partnership elements may trigger private investment in brownfields when the market alone fails to induce development of contaminated lands. Brownfield-to-greenspace partnerships are a flexible way to redevelop brownfields and maintain complete stakeholder involvement in the cleanup and ownership process. Currently, an unfunded Wisconsin program is set up to provide grants to municipalities for brownfield-to-greenspace conversions. Wisconsin municipalities have used this grant successfully in the past to improve local economic prospects simply by …


Lawns And The New Watershed Law, Asmara M. Tekle Oct 2011

Lawns And The New Watershed Law, Asmara M. Tekle

Marquette Law Review

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Wai Through Kānāwai: Water For Hawi‘I’S Streams And Justice For Hawaiian Communities, D. Kapua‘Ala Sproat Oct 2011

Wai Through Kānāwai: Water For Hawi‘I’S Streams And Justice For Hawaiian Communities, D. Kapua‘Ala Sproat

Marquette Law Review

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Water As A Public Commodity, Barton H. Thompson Jr. Oct 2011

Water As A Public Commodity, Barton H. Thompson Jr.

Marquette Law Review

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Dean John Edward Cribbet: The Illinois Prophet Of Property Law, David A. Myers Oct 2011

Dean John Edward Cribbet: The Illinois Prophet Of Property Law, David A. Myers

Marquette Law Review

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Changing Conceptions Of Water In The Law, Kali Murray Oct 2011

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 Oct 2011

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 Oct 2011

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 Oct 2011

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

Marquette Law Review

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Table Of Contents For Volume 94 Issue 4, Marquette University Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

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 Jul 2011

Gender And Judging, Diane S. Sykes

Marquette Law Review

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Promoting Employee Voice In The New American Economy, Paul M. Secunda Apr 2011

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 Apr 2011

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 Apr 2011

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 Apr 2011

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

Marquette Law Review

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