Law Commons^™

Lessons From The Public Sector: Suggestions And A Caution, Joseph E. Slater

Marquette Law Review

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Labor Law, The Left, And The Lure Of The Market, Richard Michael Fischl

Marquette Law Review

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Yes, Labor Markets Are Flawed--But So Is The Economic Case For Mandating Employee Voice In Corporate Governance, Scott A. Moss

Marquette Law Review

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Silent Warning: The Fda's Ban On Off-Label Speech: Is It Protecting Our Safety?, Briana R. Barron

Marquette Law Review

The FDA’s regulation of off-label uses for drugs has been a hotly contested issue. While the FDA seeks to ensure compliance with the regulatory process, drug manufacturers argue that off-label prescribing is a well-regarded practice by physicians and that the regulations and the regulations are impermissible under the First Amendment. Recent cases court cases have ended without a clear resolution as to the First Amendment implications, but message from the FDA remains clear—any kind of advertising of an off-label use may be prosecuted.

This paper proposes a compromise between the two extreme positions. Allowable speech and conduct related to off-label …

Burnin' Down The House--And Deducting It Too: Charitable Contributions Of Buildings To Fire Departments Under I.R.C. § 170, Thomas J. Burmeister Jr.

Marquette Law Review

Section 170 of the Internal Revenue Code allows “as a deduction any charitable contribution . . . payment of which is made within the taxable year.” Unfortunately, the laws of charitable giving stretch much further and deeper than the provision that gave life to the charitable deduction. This Comment analyzes an issue on the relatively unexplored outskirts of charitable giving law: may a taxpayer claim a deduction for the donation of a building to a fire department for training exercises? In 1968, Morris Scharf donated his home to a local fire department for training exercises and deemed the gift “charitable” …

Table Of Contents For Volume 94 Issue 3, Marquette University

Marquette Law Review

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Letting The Puppets Speak: Employee Voice In The Legislative History Of The Wagner Act, Laura J. Cooper

Marquette Law Review

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Volume 95, Winter 2011 Masthead, Marquette University Law School

Marquette Law Review

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Volume 95, Winter 2011 - Table Of Contents, Marquette University Law Review

Marquette Law Review

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Provocation At Face Value, Kyron Huigens

Marquette Law Review

To take provocation at face value is to plead and prove it as a manslaughter offense, as it is defined in most criminal codes. To do this seems to be both unnecessary and impossible. The defendant has the best access to evidence of provocation and will benefit from the proof of this partial defense, so why should he not be required to prove it? The prosecution has no incentive to prove provocation manslaughter because the definition of this offense includes a murder. Why would the prosecution, having proved a murder, set out to prove a lesser crime than the crime …

Redirecting Direct Democracy: Non-Essential Spending As Political Speech, Stephanie R. Hoffer

Marquette Law Review

Direct voting on taxes and spending have created an imbalance between direct democracy and representative democracy at local levels of government. Overreach by voters, unable to engage in debate and compromise, can force representatives into defensive and suboptimal decision-making, resulting in either underproduction or overproduction of certain public goods. As a consequence, some scholars have called for extreme limitation, or even abolition, of direct democracy in tax and spending decisions. This need not be the solution. Empirical studies of human behavior suggest that channeling direct democratic decision-making would produce results superior to those of limitation or abolition. Building a bridge …

Fueling Controversy, Randy Beck

Marquette Law Review

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Administering Election Law, Saul Zipkin

Marquette Law Review

In recent years, commentators have expressed heightened concern about the harms to democratic legitimacy caused by political actors making decisions about the electoral process on partisan or incumbent-protecting bases. This concern has been recognized in a number of judicial opinions, but has not taken form in election law doctrine. This Article argues that administrative law presents a well-developed doctrinal resource for addressing concerns about democratic legitimacy in the electoral process. Administrative law trades off some direct electoral control for some demonstrated expertise and shores up the democratic element through lines of accountability to the legislature, the executive, and the public. …

End The Experiment: The Attorney-Client Privilege Should Not Protect Communications In The Allied Lawyer Setting, Grace M. Giesel

Marquette Law Review

In recent years, courts have seen an explosion of claims that communications need not be disclosed because they enjoy the protection of something often referred to as the “common interest doctrine.” These claims—claims of attorney–client privilege—occur in two situations: the joint client setting and the allied lawyer setting. In a joint client situation, an attorney represents two or more clients on a matter with all parties working together on the joint endeavor. In an allied lawyer situation, several entities or individuals work together on a matter of common interest but the parties have separate lawyers.

This Article argues, uncontroversially, that …

Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather

Marquette Law Review

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Car-Ving Out Notions Of Privacy: The Impact Of Gps Tracking And Why Maynard Is A Move In The Right Direction, Justin P. Webb

Marquette Law Review

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that the aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and …

Table Of Contents For Volume 94 Issue 1, Marquette University

Marquette Law Review

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The Artifice Of Local Growth Politics: At-Large Elections, Ballot-Box Zoning, And Judicial Review, Kenneth A. Stahl

Marquette Law Review

Municipalities throughout the nation are plagued by a seemingly unresolvable conflict between pro-growth development interests and skeptical homeowners’ groups who oppose growth near their neighborhoods. This paper uses southern California as a case study to examine the ways in which local political structural arrangements have contributed to this conflict, and the reasons why judicial challenges to these structural arrangements have had so little success. As I argue, local politics in southern California are structured in a way that fosters an artificial dichotomy between pro-growth and anti-growth positions, subverting the possibility of compromise and suppressing a wide range of views about …

Scaling The Lexicon Fortress: The United States Supreme Court’S Use Of Dictionaries In The Twenty-First Century, Jeffrey L. Kirchmeier, Samuel A. Thumma

Marquette Law Review

This Article examines the Court’s use of dictionaries in the first decade of the twenty-first century, building on previous research by Professor Kirchmeier and Judge Thumma regarding the Supreme Court’s history of using dictionaries. See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227 (1999); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 Green Bag 51 (2001).

During Supreme Court Terms 2000–2001 through 2009–2010, the Justices have referenced dictionary definitions to define nearly 300 words or …

Marquette University: The Dedication Of Eckstein Hall

Marquette Law Review

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The “Original” Thirteenth Amendment: The Misunderstood Titles Of Nobility Amendment, Gideon M. Hart

Marquette Law Review

This Article provides one of the first truly comprehensive accounts of the “Titles of Nobility Amendment.” The Titles of Nobility Amendment is one of only a handful of proposed amendments to the Constitution that were passed by Congress, but then not ratified by a sufficient number of states. The Amendment would have revoked the citizenship of any individual who accepted a “title of nobility or honor” or who accepted any “present, pension, office, or emolument” from any foreign state without congressional permission.

Despite its failure during the ratification process, the Amendment was printed in the 1815 version of the Statutes …

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Marquette Law Review

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side, and influencing the types of legal reform those coalitions are able to pursue.

A series of state …

That The Waters Shall Be Forever Free: Navigating Wisconsin’S Obligations Under The Public Trust Doctrine And The Great Lakes Compact, Gabe Johnson-Karp

Marquette Law Review

The implementation of the Great Lakes Compact stands to be a true “watershed” event in the protection of water resources in and around the Great Lakes. Nowhere is the administration of the Compact and its narrow exceptions more relevant now than in Wisconsin, where the city of Waukesha is preparing to submit the first request for an out-of-basin diversion under the Compact. The contentiousness of Waukesha’s diversion request is amplified by Wisconsin’s long tradition of strong natural resource protections, particularly by the operation of the public trust doctrine. That doctrine has been liberally construed, and extends protections to the public’s …

Patent Term Adjustment And Terminal Disclaimers: Are The Terms Of Patents Being Decided Ad Hoc?, Emily M. Hinkens

Marquette Law Review

The intersection of statutory law, common law, and administrative rulemaking prevents any certain predictions regarding the term of a patent that has been adjusted, extended, and/or terminally disclaimed in various combinations. This Comment poses a hypothetical situation in which the term of a terminally disclaimed patent is linked to another patent with term adjustment, and discusses the implications of such a linkage were the term of the former patent to be litigated. This Comment explores whether case law on terminal disclaimers, term extension, term adjustment, and judicial deference can help predict the outcome of such litigation, and ultimately concludes that …

Colonel Utley's Empancipation--Or, How Lincoln Offered To Buy A Slave, Jerrica A. Giles, Allen C. Guelzo

Marquette Law Review

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Abraham Lincoln And The Rule Of Law Books, Mark E. Steiner

Marquette Law Review

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Lincoln And Constitutional Politics, Michael Les Benedict

Marquette Law Review

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Abraham Lincoln, German-Born Republicans, And American Citizenship, Alison Clark Efford

Marquette Law Review

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Abraham Lincoln And The Politics Of Principle, Heather Cox Richardson

Marquette Law Review

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Civil, Political, And Social Equality After Lincoln: A Paradigm And A Problematic, Kate Masur

Marquette Law Review

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