Law Commons^™

A Delicate Balance Of Life Tenure And Independence: Conditional Resignations From The Federal Bench, Allison A. Luczak

Marquette Law Review

Judicial selection, including judicial resignations, nominations, and confirmations, is comprised of a patchwork of traditions, rules, and constitutional provisions. The Constitution does not explicitly detail a formalized process at any stage of the appointments process, but checks and balances have organically developed and changed over time as the process has become more politicized. The question becomes, then, whether conditional resignations comport with this system or the Framers’ intent. At the Supreme Court level, conditional resignations are rare. Only a handful of conditional resignations have ever been submitted. At the court of appeals and district court levels, it is unclear how …

Drafting Restrictive Covenants In Employment Contracts, Ralph Anzivino

Marquette Law Review

Restrictive covenants or non-compete clauses are commonly used in employment contracts to prevent unfair competition. Unfair competition normally takes the form of a former employee soliciting the employer’s customers or using confidential information after becoming employed with a competitor of his former employer. Courts and Legislatures have detailed a number of specific requirements that a restrictive covenant in an employment contract must satisfy to be enforceable. For example, an employer must have a ‘protectable interest.’ An employer can protect confidential information, but how do the courts distinguish the employer’s confidential information from that information which an employee can call his …

Equality Among Equals: Is The Senate Cloture Rule Unconstitutional?, Michael J. Teter

Marquette Law Review

The United States Senate now operates as a sixty-vote chamber. Nearly every action, from passing significant legislation to consenting to routine executive nominations, requires support from a supermajority of senators. The basis for the sixty-vote Senate rests with Rule XXII, defining the standard for invoking cloture to end debate. A largely ignored provision of the Constitution renders Rule XXII suspect. Article I, Section 3 states, in part, “Each Senator shall have one Vote.” Conventional wisdom misidentifies this clause as serving only the basic purpose of denoting a change from the state-based voting practiced under the Articles of Confederation. The history …

Getting Back To The Purpose: Analyzing Jones V. Harris Associates L.P. In Light Of Section 1(B) Of The Investment Company Act, Oladotun O. Obadina

Marquette Law Review

In Section 1(b) of the Investment Company Act, Congress expressly provides courts with a guide as to how its provisions should be interpreted. Congress lists a series of ways that investors participating in investment companies are adversely affected. It then expressly declares that interpreters of the Investment Company Act should construe its provisions to mitigate—and where possible, eliminate—these adverse effects. This Comment contends that Congress’ explicit statement in Section 1(b) of the Investment Company Act, detailing how the Act should be construed, ought to be a guide in interpreting its provisions, even under a textualist statutory interpretation.

Section 36(b) of …

Table Of Contents For Volume 94 Issue 2, Marquette University

Marquette Law Review

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Conflicts Of Law And Policy Relating To Same-Sex Marriage Recognition In Wisconsin, Zachary Willenbrink

Marquette Law Review

This article examines how Wisconsin courts will treat the marriages of same-sex couples who were validly married in other states; specifically focusing on recognition of the incidents—such as divorce, property ownership, and inheritance—stemming from those marriages. After examining Wisconsin conflict-of-laws jurisprudence, the article describes the public policy problems that may result if Wisconsin courts do not recognize out-of-state same-sex marriages. The article concludes that, despite those policy problems, Wisconsin courts are unlikely to recognize such extraterritorial same-sex marriages, even for the limited purposes of incident-recognition.

Observations From An American Conflict Resolution Professional In Serbia On The Effects Of The Accessibility Of International Media, Lynn M. Malley

Marquette Law Review

In this Essay, I will address media coverage of four incidents that occurred while I was living and teaching in Belgrade, the capital of Serbia and Montenegro, during 2003 to 2005: the March 2004 violence in Kosovo; a visit to Sarajevo, the capital of Bosnia and Herzegovina, in January 2005; the International Competition for Online Dispute Resolution (ICODR) during the winter of 2005; and a remembrance of the tenth anniversary of the Srebrenica Massacre in May 2005.

It is the business of conflict resolution professionals to look beyond the contours of the conflict situations in which they work. Filling in …

Eliminationist Discourse In A Conflicted Society: Lessons For America From Africa?, Phyllis E. Bernard

Marquette Law Review

For generations, Western society has taken pride in welcoming all types of discourse in the press, radio, or television; the livelier, the better. Outrage often awaits individuals or institutions suggesting that some passionate rhetoric in the public square invites danger that outweighs the theoretical value of free expression. This Article proceeds from the assumption that—from a less lofty, more grassroots perspective—modern, organized, formal, one-time venues for extremist political speech do not present the most potent threat to physical safety and a stable democracy. The greater danger emanates from pervasive right-wing extremist themes on radio, television, and some online news sources …

Racial Hate Speech: A Comparative Analysis Of The Impact Of International Human Rights Law Upon The Law Of The United Kingdom And The United States, Stanley Halpin

Marquette Law Review

Hate speech poses a unique problem in the realm of rights protection. Principles of freedom of expression promote its protection, whereas principles of equality favor its restriction. International human rights law, the constitutional law of the United States, and the domestic and constitutional law of Great Britain present different and frequently contradictory doctrines on the resolution of this issue, in spite of their shared common law history and theory of rights protection. The United States Supreme Court’s opposition to absorption of international standards has been strong and exceptionally so when confronted with international rules proscribing hate speech. This experience contrasts …

(Unfair) Advantage: Damocles’ Sword And The Coercive Use Of Immigration Status In A Civil Society, David P. Weber

Marquette Law Review

This article argues that the coercive use of immigration status or “status coercion” in civil proceedings and negotiations is fundamentally unethical and potentially illegal. For attorneys attempting to take advantage of unauthorized immigration status, such conduct very likely violates an attorney's ethical obligations under the Rules of Professional Responsibility and wrongfully takes advantage of an overly vulnerable population. For the judiciary, the article argues for a more proactive approach in maintaining the perception of fairness and justice in civil proceedings for all parties, regardless of immigration status. Additionally, for both legal and lay persons, status coercion may constitute the crime …

Law Review Annual Banquet: The Joy Of Law, The Honorable William C. Griesbach

Marquette Law Review

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Jamie S. V. Milwaukee Public Schools: Urban Challenges Cause Systemic Violations Of The Idea, Amy L. Macardy

Marquette Law Review

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"Slicing A Shadow": The Debate Over Combined Reporting And Its Effect On Wisconsin's Business Climate, Staci Flinchbaugh

Marquette Law Review

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Informational Blackmail: Survived By Technicality?, Chen Yehudai

Marquette Law Review

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The Disappointed Expectations Test And The Economic Loss Doctrine, Ralph C. Anzivino

Marquette Law Review

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Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland

Marquette Law Review

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Beyond Decisional Templates: The Role Of Imaginative Justice In The Trial Court, The Honorable Sarah Evans Barker

Marquette Law Review

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The Legitimacy Of Police Among Young African-American Men, Tracey Meares

Marquette Law Review

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Table Of Contents For Volume 92 Issue 4, Marquette University

Marquette Law Review

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Accomodating Respectful Religious Expression In The Workplace, Nantiya Ruan

Marquette Law Review

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Volume 92, Issue 3 Table Of Contents, Marquette University

Marquette Law Review

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"Ideology In" Or "Cultural Cognition Of" Judging: What Difference Does It Make?, Dan M. Kahan

Marquette Law Review

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A Matter Of Trust: Should No-Reliance Causes Bar Claims For Fraudulent Inducement Of Contract?, Allen Blair

Marquette Law Review

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The Dilemma Of The Vengeful Client: A Prescriptive Framework For Cooling The Flames Of Anger, Robin Wellford Slocum

Marquette Law Review

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Making Sense Of Schaumberg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Marquette Law Review

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Worksite Raids And Immigration Norms: A "Sticky" Problem, Benjamin Crouse

Marquette Law Review

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Same-Sex Divorce And Wisconsin Courts: Imperfect Harmony?, Louis Thorson

Marquette Law Review

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Criminal Appeals: Past, Present, And Future, Chad M. Oldfather, Michael M. O'Hear

Marquette Law Review

This brief essay serves two purposes. The first is to make some general observations about criminal appeals. It thus outlines the substantial institutional and doctrinal differences between the appellate process in civil and criminal cases, notes the relative lack of scholarship devoted to the criminal appellate process, and suggests that the role of the judge in criminal cases is undertheorized. The second is to introduce the pieces in a symposium issue of the Marquette Law Review, most of which was presented at a conference held at Marquette University Law School and entitled “Criminal Appeals: Past, Present, and Future.”

Stories Of Crimes, Trials, And Appeals In Civil War Era Missouri, Frank O. Bowman Iii

Marquette Law Review

This paper explores criminal appellate practice in Missouri from the time of statehood in 1821 until the 1870s, with particular focus on the decades before and after the Civil War. The article uses the stories of three trials in and around Columbia, Missouri - an attempted rape case against a slave that resulted in a lynching, a murder case against a white farmer that ended in his execution, and another murder case successfully appealed - to explore the legal culture of the period. All three trials involved two prominent central Missouri lawyers, James S. Rollins and Odon Guitar, who were …

Scottsboro, Michael J. Klarman

Marquette Law Review

This essay tells the story of Scottsboro, one of the most important legal events of the twentieth century, in which nine black teenagers were falsely accused of rape, sentenced to death, and twice successfully appealed their convictions to the United States Supreme Court. In addition to describing the Scottsboro episode in some detail, the essay seeks to draw some lessons from this story: Why did the Supreme Court’s first modern criminal procedure cases tend to involve southern blacks as defendants? Why did southern states seem to regress in their treatment of black criminal defendants in cases such as Scottsboro? What …